See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. He moved toward her. Joyce and Rachel helped him. 93-1431. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. It is significant he never yelled about a beating. Drinski believed he couldn't retreat because there was something behind him. Cited 45 times, 96 S. Ct. 3074 (1976) | There is no showing that any footprints could be clearly discerned in the photograph. We believe the defendant misunderstands the holding in Plakas. 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. He also told Plakas to drop the weapon and get down on the ground. King, Koby, Cain and Trooper Lucien Mark Perras of the Indiana State Police responded, as did Deputy Sheriff Jeffrey Drinski. Graham, 490 U.S. at 396-97; see also Sherrod v. Berry, 856 F.2d 802, 806-07 (7th Cir. Joyce and Rachel helped him. When the police first saw Plakas, at about 9:30 p.m. on February 2, 1991, he was walking along State Road 10 in Newton County, Indiana, not far from the Illinois state line. In Carter, such an alternative was not merely speculative; the arrestee was employed inside a prison where he would not have had a gun on his person. See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. 1994). 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. Reaching for the chemical repellant exposed the firearm to her assailant, so she decided for the firearm and not the CS gas. 4. She fired and missed. Finally, there is the argument most strongly urged by Plakas. The right was clearly established at the time of the conduct. Koby reported the escape and called for help. Finally, there is the argument most strongly urged by Plakas. In Carter, such an alternative was not merely speculative; the arrestee was employed inside a prison where he would not have had a gun on his person. Id. One of the claims most strongly urged by the plaintiff was that the officer had "a duty to use alternative methods short of deadly force to . 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. Plakas V Drinski. Indeed, Plakas merely states this theory, he does not argue it. 378, 382 (5th Cir. ", (bike or scooter) w/3 (injury or Drinski believed he couldn't retreat because there was something behind him. Mailed notice(cdh, ) Download PDF . Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. Cain said that Plakas was not slamming the poker into the wall, rather, he was starting toward Cain and perhaps swinging it at Cain and missing. 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. 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. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. The handcuffs were removed. Likewise, we decline to impose a constitutional requirement to train the police to use all available equipment beyond the acceptable training program already mandated. Moreover, about ten minutes before the shooting, the services of a canine unit (from Lake County) were offered. As he did so, Plakas slowly backed down a hill in the yard. Perras and Drinski entered the clearing. 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. We refuse to impose as an additional constitutional requirement the firing of a warning shot before deadly force may be used." Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct." 7) Drewitt v. . It is significant he never yelled about a beating. There is a witness who corroborates the defendant officer's version. We always Judge a decision made, as Drinski's was, in an instant or two. 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. right or left of "armed robbery. The only test is whether what the police . Subscribe Now Justia Legal Resources . Tom v. Voida is a classic example of this analysis. The answer is no. The closest thing we have to such a list is the rule which requires prison administrators to provide a law library to inmates, but even here we only require this as an alternative to providing other forms of legal assistance. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. Plakas died sometime after he arrived at the hospital. He stopped, then lunged again; she fired into his chest. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. Drinski's retreat was involuntarily stopped, either by his backing into a tree or by a near stumble of some sort. 2009) (per curiam) (quoting Vinyard v. The details matter here, so we recite them. Tom v. Voida did not, and did not mean to, announce a new doctrine. The district court's grant of summary judgment is AFFIRMED. In the case of Plakas v. Drinski, the Federal district court in Indiana decided the use of a less lethal alternative was not required when the use of deadly force by police was justified. Then Plakas tried to break through the brush. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. 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. He also told Plakas to drop the weapon and get down on the ground. Koby spoke to Plakas who had some difficulty communicating the fact that he did not have his driver's license (which he had surrendered as bond for a traffic ticket he received in Illinois). The clearing was small, but Plakas and the officers were ten feet apart. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. Since Drinski did not violate Plakas's rights, there usually is no basis for holding his employer, Newton County, liable. 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. There they noticed Plakas was intoxicated. Circumstances can alter cases. This is not a case where an officer claims to have used deadly force to prevent an escape. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. 1993 . et al. Tennessee v. Garner, 471 U.S. 1, 3, 85 L. Ed. In this sense, the police officer always causes the trouble. This is what we mean when we say we refuse to second-guess the officer. 1992). It is unusual to hear a lawyer argue that the police ought to have caused a dog to attack his client, but he is right that such an attack might have led to a better result for his client (and would, in our view, have led to a different sort of lawsuit). They talked about the handcuffs and the chest scars. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 1980); Montague v. State, 266 Ind. The officers told Plakas to drop the poker. 1994) - ". United States Court of Appeals . He raised or cocked the poker but did not swing it. 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. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. It is unusual to hear a lawyer argue that the police ought to have caused a dog to attack his client, but he is right that such an attack might have led to a better result for his client (and would, in our view, have led to a different sort of lawsuit). She decided she would have to pull her weapon so that he would not get it. 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. 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. at 1276, n.8. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. 1994), in which he states: . From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. 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 . 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. Cited 1106 times, Perkovic v. Marine City Police Officer Heaslip, LUNA-DIAZ et al v. HACKENSACK POLICE DEPARTMENT et al, Romero v. Board of County Commissioners of, ESTATE OF RONALD SINGLETARY et al v. CITY OF PHILADELPHIA et al, Estate of Andre Alexander Gree v. City of Indianapolis, Estate of Jason Ike Pero, by Personal Representative Holly Gauthier v. County of Ashland et al, Matthew King v. Hendricks County Commissioner, Jensen, Tristan v. Budreau, Anthony et al, United States of America v. City of Albuquerque, Nelson v. Board of County Commissioners of the Bernalillo County et al, Bradley v. Rochester Police Department et al, KING v. HENDRICKS COUNTY COMMISSIONERS et al, Jonas v. Board of Commissioners of Luna County. 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. Yet there exists a possibility that although Drinski's acts were justified given his circumstances, Newton County may be held liable for creating those circumstances. His car had run off the road and wound up in a deep water-filled ditch. The clearing was small, but Plakas and the officers were ten feet apart. Plakas' mother, the Administratrix of his estate, has filed suit under 42 U.S.C. 1988), Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding, There may be state law rules which require retreat, but these do not impose constitutional duties. It became clear she could not physically subdue him. He moaned and said, "I'm dying." 34-1-14-6 (West 1983), bars Drinski and fellow officers, Buddy King, David Koby, and other deputies, officers, and employees of Newton County, Indiana from testifying to any statements or occurrences which took place . Lucien Mark Perras of the Indiana State police responded, as did Sheriff. 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