Jo Ann PLAKAS, individually and as Administrator of the Estate of Konstantino N. Plakas, deceased, Plaintiffs, v. Jeffrey DRINSKI, in both his individual and official capacity and Newton County, Indiana, a municipal unit of government, Defendants. The district court's grant of summary judgment is AFFIRMED. Alfredia Edwards as Independent Administrator of the Estate of Nathaniel Edwards v. Officer John Doe et al, Thomas Leiter v. Joseph Bumbaugh and Town of Winona Lake, Favela v. Las Cruces Police Department et al. Drinski and Perras had entered the house from the garage and saw Plakas leave. 1992). 8. Joyce and Rachel helped him. Cain smelled alcohol on Plakas's breath and Plakas dozed off as they rode to the place where the car had gone off the road. Subscribe Now Justia Legal Resources . Roy told him that he should not run from the police. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. 1992), a case of tragic dimension where an officer stopped to help a fallen man and eventually, as two courts held, had to kill that man in defense of her own life. Perras and Drinski entered the clearing. . What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. He stopped, then lunged again; she fired into his chest. Rptr. There may be state law rules which require retreat, but these do not impose constitutional duties. The moon was bright, light was reflecting off the snow and it was easy to track Plakas who slowed as he entered a row of thick brush hedges. Our answer is, and has been no, because there is too little time for the officer to do so and too much opportunity to second-guess that officer. And, of course, Judges are far more competent to say what equipment is needed to prepare a lawsuit than they are to say what equipment is best to defend one's self against an attack by a man with a poker. 1988). Cain and some officers went to the house. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. Even if Plakas attacked Drinski and Drinski acted in self-defense, Plakas was still wronged because Drinski had a duty to use alternative methods short of deadly force to resolve the situation before him. 1989). Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. He appeared to be blacking out. Having driven Koby and Cain from the house, Plakas walked out of the front door. There is, however, not a single precedent which holds that a governmental unit has a constitutional duty to supply particular forms of equipment to police officers. Plumhoff v. Rickard (2014) -Similar decision to Scott v. Harris - firing 15 shots into a vehicle/the presence of a passenger did not amount to excessive force. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. Again, he struck her. At times Plakas moved the poker about; at times it rested against the ground. You're all set! Drinski was in fear of his life, and Plakas's action was sudden and unexpected. So we carve up the incident into segments and judge each on its own terms to see if the officer was reasonable at each stage. It is from this point on that we judge the reasonableness of the use of deadly force . Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. You already receive all suggested Justia Opinion Summary Newsletters. Subscribe Now Justia Legal Resources. See Gilmere, 774 F.2d at 1501 ("any fear on the officer's part was the fear of retaliation against his own unjustified physical abuse").4 Drinski did not cause Plakas to attack him. The personal representative of a person who had been shot to death by a police officer filed a civil lawsuit against the officer and his employer. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. The details matter here, so we recite them. We do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of deadly force is reasonable under Garner v. Tennessee and Graham v. Connor, supra. U.S. Court of Appeals, Fifth Circuit. 1994) case opinion from the US Court of Appeals for the Seventh Circuit He hit the brakes and heard Plakas hit the screen between the front and rear seats. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. In any event, Drinski did not say he was stopped by running into a tree, he said it felt as though he ran into a tree and there is nothing in the record to contradict this testimony other than counsel's speculation that an officer who backs into a sapling would not reasonably believe a tree was at his back. Cain left. Cited 651 times, 105 S. Ct. 1694 (1985) | 1989), There are a wide variety of devices available for non-lethal control of those who refuse to surrender, including tasers, capture nets, sticky foam, rubber bullets, and beanbag projectiles. Get free summaries of new Seventh Circuit US Court of Appeals opinions delivered to your inbox! See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. The clearing was small, but Plakas and the officers were ten feet apart. Here we agree that the undisputed facts can lead to but one Conclusion, that Drinski's use of deadly force was reasonable given Plakas's act of aggression and Drinski's knowledge of what had gone on before. right or left of "armed robbery. Elizabeth A. Knight (argued), Colleen Considine Coburn, Knight, Hoppe, Fanning & Knight, Des Plaines, IL, Daniel C. Blaney, Blaney, Casey & Walton, Morocco, IN, Janella L. Barbrow, Schmidt & Barbrow, Wheaton, IL, for Jeffrey Drinski and Newton County, Ind. Plakas told them that he had wrecked his car and that his head hurt. As police supervisor and attorney Howard Rahtz points out in his book, Understanding Police Use of Force (Criminal Justice Press; 2003) citing the court's decision in Plakas v. Drinski (7 th . Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. All of this means Drinski was properly standing in the clearing, gun in hand, several feet away from Plakas, who charged him with the poker raised. 3. Joyce saw no blood, but saw bumps on his head and bruises. * The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. The only test is whether what the police . Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Koby also thought that he would have a problem with Plakas if he uncuffed him. It is from that point on that we Judge the reasonableness of the use of deadly force in light of all that the officer knew. See Gilmere, 774 F.2d at 1501 ("any fear on the officer's part was the fear of retaliation against his own unjustified physical abuse").4 Drinski did not cause Plakas to attack him. 1994) 37 reese v. She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. French v. State, 273 Ind. at 1276, n. 8. United States Court of Appeals, Seventh Circuit. Cited 12622 times, 103 S. Ct. 2605 (1983) | Since medical assistance previously had been requested for Koby, it was not long in coming. Id. We do not think it is wise policy to permit every jury in these cases to hear expert testimony that an arrestee would have been uninjured if only the police had been able to use disabling gas or a capture net or a taser (or even a larger number of police officers) and then decide that a municipality is liable because it failed to buy this equipment (or increase its police force). Roy stayed outside to direct other police to his house. In this sense, the police officer always causes the trouble. Plakas implicitly argues that although Drinski's choice among available alternatives was reasonable, he should have had more choices, i.e., a trained canine, a canister of gas.6 Plakas implicitly seeks to hold Newton County liable for not providing those choices. Perhaps in recognition of this weakness in the case, Plakas offers two other theories, one of which is a minor theme of his brief, that shooting in self-defense is unjustified where the aggressor acted out of reasonable fear of police brutality. 7. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. 93-1431. And, of course, judges are far more competent to say what equipment is needed to prepare a lawsuit than they are to say what equipment is best to defend one's self against an attack by a man with a poker, Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. 1988) (en banc). Cain thought Plakas was out to kill him.&gENDFN>. He moaned and said, "I'm dying." The plaintiff there was the administrator of the estate of There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.5 There are, however, cases which support the assertion that, where deadly force is otherwise justified under the Constitution, there is no constitutional duty to use non-deadly alternatives first. Koby sought to reassure Plakas that he was not there to hurt him. Plakas refused medical treatment and signed a written waiver of treatment. ", Bidirectional search: in armed robbery Twice the police called out, "Halt, police," but the plaintiff may not have heard. Argued Nov. 1, 1993. Read this book using Google Play Books app on your PC, android, iOS devices. 1992), it was claimed that the police had so poorly planned an arrest that the chance of a deadly gunfight was increased rather than minimized. 1992). Cain approached Plakas and saw that Plakas's clothing was wet from the waist down. 6. Plakas charged [the police officer] with the poker raised. See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. Plakas told them that he had wrecked his car and that his head hurt. Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge.*. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. Plakas told Cain he had been the driver of the car in the ditch, and Plakas agreed to get into Cain's car in order to be driven back to the accident scene, now about a mile from where Plakas was found. Plakas backed into a corner and neared a set of fireplace tools. Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. In brief, after the officer stopped to help the man, his actions and his flight showed he was unhurt and may well have stolen the bike from which he fell. He picked one of them up, a 2-3 foot poker with a hook on its end. As Plakas moved toward Drinski, was he supposed to think of an attack dog, of Perras's CS gas, of how fast he could run backwards? 1977). Plakas complained about being cuffed behind his back. Perras and Drinski entered the clearing. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. The police gave chase, shouting, "Stop, Police." Actually, the photograph is not included in the record here. 1. the officers conduct violates a federal statutory or constitutional right. Cited 77 times, 980 F.2d 299 (1992) | This does not help Plakas's case because, by the time the paramedic arrived, Plakas's body had been moved, rolled over by Drinski and Perras.3 Plakas himself may have also moved; the dying man kicked over the paramedic's medical case. The police could have tried to put barriers between themselves and Plakas and maintain distance from him. 2. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. Through an opening in the brush was a clearing. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. Indeed, Plakas merely states this theory, he does not argue it. Plakas died sometime after he arrived at the hospital. We know the caliber of the bullet, but not its type or weight or the power of the charge in the cartridge, nor do we know where it struck Plakas and what effect it might have on the position of the body. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue.