This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. Koby told Plakas that this manner of cuffing was department policy which he must follow. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. Plakas backed into a corner and neared a set of fireplace tools. 1992). In any selfdefense case, a defendant knows that the only person likely to contradict him or her is beyond reach. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. In Koby's car, the rear door handles are not removed. Moreover, when Plakas did say anything at all about Koby, it was a complaint about cuffing him behind his back, which he said (without medical corroboration even now) caused pain because of his scar tissue. The tree-sapling discrepancy is of the sort on which popular conspiracy theories are built, but it is not enough to allow a rational trier of fact to decide against Drinski. So a court must undertake a fairly critical assessment of the forensic evidence, the officer's original reports or statements and the opinions of experts to decide whether the officer's testimony could reasonably be rejected at a trial. This inference, however, cannot reasonably be made. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. Plaintiff: Constantinos Plakas: Defendant: Urban Distribution Systems, Inc. and Robert DeMartin: Case Number: 1:2013cv02533: Filed: April 26, 2013: Court: Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. 2d 65, 103 S. Ct. 2605 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n.12, 49 L. Ed. Plakas argues there is enough evidence to cast doubt on the defendants' self-defense claim, given the low threshold that courts have set for refuting self-defense in deadly force cases both civil and criminal. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. 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. 1977). According to Monell V. Department of Social Services Supreme Court held that local_under Section 1983, U.S.C when a_of the entity causes_ . He hit the brakes and heard Plakas hit the screen between the front and rear seats. French v. State, 273 Ind. 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. Illinois. at 1276, n.8. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 2009) (per curiam) (quoting Vinyard v. Plakas charged [the police officer] with the poker raised. It is obvious that we said Voida thought she had no alternatives. He told Koby that this hurt him because he had burn scars on his chest and thought that if he got in the car, his chest would start to bleed. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." See Martin L. Fackler, M.D., Police Handgun Ammunition Selection, WOUND BALLISTICS REVIEW, Fall 1992, at 32-37 (suggesting little effect beyond stopping movement). He picked one of them up, a 2-3 foot poker with a hook on its end. 1988). First, according to Drinski, Plakas charged away from the brush at Drinski, yet one paramedic who was summoned to the clearing to administer to Plakas observed that Plakas's feet were about a foot from the brush. The handcuffs were removed. . 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. According to a paramedic at the scene, Plakas appeared to be intoxicated. Appx. Further, says Plakas, a photograph of the clearing shows there was no tree there to stop Drinski, just a sapling, and there are no footprints corroborating Drinski's story of retreat. 3. Koby also thought that he would have a problem with Plakas if he uncuffed him. Then Plakas tried to break through the brush. In Ford v. Childers, 855 F.2d 1271 (7th Cir. 4th 334, 54 Cal. Because these facts are not in the record, we cannot consider them on appeal and assume that had they any significance, they would have been made part of the record. But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." 1994). Having driven Koby and Cain from the house, Plakas walked out of the front door. The answer is no. At times Plakas moved the poker about; at times it rested against the ground. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. Justia. Drinski believed he couldn't retreat because there was something behind him. Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. 1998); Plakas v. Drinski, supra, 19 F.3d at 1150 n. 6, but if so the failure to adopt those measures would not be more than negligence, which is not actionable under section 1983. . When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. Second, Drinski said he was stopped in his retreat by a tree. Sergeant Buddy R. King, of the Newton County Sheriff's Department thought the car had rolled over on its top and slid for 150 to 200 feet before rolling upright, striking a tree and coming to rest in the ditch. A volunteer fireman found him walking . 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. This appeal followed. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. Cited 428 times, 109 S. Ct. 1865 (1989) | 93-1431. Plakas died sometime after he arrived at the hospital. He fell on his face inside the doorway, his hands still cuffed behind his back. In any self-defense case, a defendant knows that the only person likely to contradict him or her is beyond reach. search results: Unidirectional search, left to right: in United States District Court, N.D. Indiana, Hammond Division. The proposition that an officer who beats John Doe may not use self-defense to justify killing Doe, who later attacks him, rests on the idea that because the officer's wrongful acts caused the attack, he cannot take advantage of his fear of retaliation to defend against liability. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Plakas backed into a corner and neared a set of fireplace tools. 1994)). After a brief interval, Koby got in the car and drove away. Jo Ann PLAKAS, Individually and as Administrator of the Estate of Konstantino N. Plakas, Deceased, Plaintiff-Appellant, v. Jeffrey DRINSKI, in both his individual and official capacity and Newton County, Indiana, a municipal unit of government, Defendants-Appellees. 2d 1116, 96 S. Ct. 3074 (1976). armed robbery w/5 gun, "gun" occurs to King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. Joyce saw no blood, but saw bumps on his head and bruises. 378, 382 (5th Cir. Perras would have shot Plakas if Drinski had not. As he did so, Plakas slowly backed down a hill in the yard. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. Abstract. There can be reasonable debates about whether the Constitution also enacts a code of criminal procedure, but we think it is clear that the Constitution does not enact a police administrator's equipment list.7 We decline to use this case to impose constitutional equipment requirements on the police.8. Plakas often repeated these thoughts. 8. The officers told Plakas to drop the poker. Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. This is not a case where an officer claims to have used deadly force to prevent an escape. He stopped, then lunged again; she fired into his chest. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. 1356. The only witnesses to the shooting were three police officers, Drinski and two others. * The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. Cain examined Plakas's head and found nothing that required medical treatment. His car had run off the road and wound up in a deep water-filled ditch. Plakas brings up a few bits of evidence to do so. There are a wide variety of devices available for nonlethal control of those who refuse to surrender, including tasers, capture nets, sticky foam, rubber bullets, and beanbag projectiles. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. 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. 1983 against Drinski and Newton County to recover damages in connection with her son's death. 2d 65 (1983); United States v. Martinez-Fuerte, 428 U.S. 543, 556-57 n. 12, 96 S. Ct. 3074, 3082 n. 12, 49 L. Ed. Shooting a man who has told you, in effect, that he is going to use deadly force against you and then moves toward you as if to do so is unquestionably an act of self-defense even if, as Plakas's expert maintains, the man is attempting "suicide by police.". She chased him and, when she caught him, he attacked her, banging her head into a concrete surface. Cain stopped and spoke to Plakas who said he was fine except that he was cold. In this record, there is expert opinion that Drinski might have been better trained to negotiate with Plakas and that he may have said one thing to Plakas that he ought not to have said, i.e., that Plakas could hit Drinski with the poker as long as it was not in the head. He tried for quite a while to get Plakas to lay down the poker and surrender and even attempted to retreat as Plakas charged him. 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. Graham, 490 U.S. at 396-97, 109 S. Ct. at 1872; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. The only witnesses to the shooting were three police officers, Drinski and two others. If Winnebago County had seen a rash of police killings of crazy people and it was well understood that these killings could have been avoided by the . He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. U.S. Court of Appeals, Fifth Circuit. 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. The alternatives here were three. Cain and some officers went to the house. Such that an objectively reasonable officer would have understood that the conduct violated the right. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. Author: Martin A. Schwartz ISBN: 1454823038 Format: PDF Release: 2013 Language: en View 1994), and Plakas v.Drinski, 19 F.3d 1143 (7th Cir. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. Koby told Plakas that this manner of cuffing was department policy which he must follow. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. Roy told him that he should not run from the police. It is from this point on that we judge the reasonableness of the use of deadly force . Cited 105 times, 774 F.2d 1495 (1985) | After a brief interval, Koby got in the car and drove away. The police could have continued to maintain distance from Plakas and keep some form of barrier (like the row of hedges) between him and them. The fourth amendmentt does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. When Cain and Plakas arrived, the ambulance driver examined Plakas. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. Plakas opened his shirt to show the scars to Drinski. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing. Plakas means to argue that Drinski should have used all available alternatives before deadly force was exercised and that Newton County, Drinski's employer, is liable because it failed to equip and train Drinski to use such methods. The time-frame is a crucial aspect of excessive force cases. The proposition that an officer who beats John Doe may not use self-defense to justify killing Doe, who later attacks him, rests on the idea that because the officer's wrongful acts caused the attack, he cannot take advantage of his fear of retaliation to defend against liability. In affirming summary judgment for the officer, we said. Argued Nov. 1, 1993. Drinski blocked the opening in the brush where all had entered the clearing. This is what we mean when we say we refuse to second-guess the officer. He tried to avoid violence. Taken literally the argument fails because Drinski did use alternative methods. Koby frisked Plakas and then handcuffed him, with his hands behind his back. Having driven Koby and Cain from the house, Plakas walked out of the front door. He can claim self-defense to shooting Plakas. Joyce and Rachel helped him. 1994). 1. The district court's grant of summary judgment is AFFIRMED. Plakas argues there is enough evidence to cast doubt on the defendants' self-defense claim, given the low threshold that courts have set for refuting self-defense in deadly force cases both civil and criminal. Cited 12622 times, 103 S. Ct. 2605 (1983) | At one point, Plakas lowered the poker but did not lay it down. 251, 403 N.E.2d 821, 823, 825 (Ind. 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. Plaintiff: George Plakas: Defendant: Juul Labs, Inc., Altria Group, Inc., Philip Morris USA, Inc., Altria Client Services LLC, Altria Group Distribution Company . French v. State, 273 Ind. Nor does he show how such a rule of liability could be applied with reasonable limits. The award of summary judgment to the defense in deadly force cases may be made only with particular care where the officer defendant is the only witness left alive to testify. Cain thought Plakas was out to kill him.&gENDFN>. In doing so, courts must ask whether the force applied was "objectively reasonable in light of the facts confronting the officer." Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir. Roy Ailes, who had just returned to his house, saw the officers with guns drawn and ran forward saying, "Don't shoot, I'll talk to him." This theory is founded on the fact that Plakas told Koby, "You hurt me," and on Joyce Ailes's observation that Plakas had facial injuries. We believe the defendant misunderstands the holding in Plakas. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. Cain and Koby were the first to enter. Shooting a man who has told you, in effect, that he is going to use deadly force against you and then moves toward you as if to do so is unquestionably an act of selfdefense even if, as Plakas's expert maintains, the man is attempting "suicide by police.". Opened his shirt to show the scars to Drinski of liability could be more. The opening in the brush where all had entered the clearing lunged again ; saw... In a deep water-filled ditch post-mortem observation, we accept that Mrs. saw! 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