Then, when he thought his retreat would not be successful, he was justified in concluding that Plakas could not be subdued at that moment except through gunfire. 1980); Montague v. State, 266 Ind. Sergeant King stood just outside it. Pasco, et al v. Knoblauch. 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 picked one of them up, a 2-3 foot poker with a hook on its end. Seventh Circuit. They talked about the handcuffs and the chest scars. Roy tried to talk Plakas into surrendering. 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. Cited 2719 times, 856 F.2d 802 (1988) | Subscribe Now Justia Legal Resources . In Plakas v. Drinski, 19 F.3d 1143 (7th Cir.1994), Plakas's administrator argued that the defendant officer, instead of shooting Plakas, should have used a non-lethal cannister of CS Gas he carried on his belt, or used a canine unit on the scene to take Plakas down, or tried to isolate him while keeping a safe distance. Roy told him that he should not run from the police. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. It is significant he never yelled about a beating. Joyce saw no blood, but saw bumps on his head and bruises. 1994) case opinion from the US Court of Appeals for the Seventh Circuit 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. 8. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. See, e.g., John Barry & Tom Morganthau, Soon, 'Phasers on Stun', NEWSWEEK, Feb. 7, 1994, at 24-26. Perras would have shot Plakas if Drinski had not. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 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? We always Judge a decision made, as Drinski's was, in an instant or two. He saw Plakas cock the poker over his head for a swing and, when Plakas was two arms lengths away, he fired once at Plakas' chest. 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. Dockets & Filings. Plakas died sometime after he arrived at the hospital. Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. Plakas refused medical treatment and signed a written waiver of treatment. In this sense, the police officer always causes the trouble. Argued Nov. 1, 1993. Cited 12622 times, 103 S. Ct. 2605 (1983) | Cain examined Plakas's head and found nothing that required medical treatment. Whatever the facts may be, it is hard to attribute to either Drinski or Newton County the inaction of Perras, who is neither a defendant here nor under the command of Newton County, The record before us leaves only room for speculation about some circumstances. Let's analyze another landmark decision, this one of Plakas v. Drinski (1993), decided by the US 7th District Court of Appeals, Northern District of Indiana, Hammond Division. Cited 428 times, 109 S. Ct. 1865 (1989) | She did not have her night stick. He swore Koby would not touch him. 2d 1 (1985). 5. 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. Koby gestured for Cain to back up. Plakas remained semiconscious until medical assistance arrived. Drinski was faced with a man who had, minutes before, attacked a police officer with a dangerous weapon, had refused several entreaties to disarm, had told the officer that one of the two would die that night, and then had moved toward the officer while raising his weapon to strike. Voida could not have subdued Tom through lesser means, as she did not have her nightstick with her and she feared that reaching for her chemical repellant would expose her weapon to Tom's grasp. Subscribe Now Justia Legal Resources. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. 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. Voida was justified in concluding that Tom could not have been subdued except through gunfire. 1994)). Indeed, had Drinski been a private citizen, he would have been entitled to claim self-defense under Indiana law (which does not have a rule of retreat). This guiding principle does not fit well here. This inference, however, cannot reasonably be made. 1988) (en banc) . 7. 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_ . Finally he rushed at Koby and swung quite hard at Koby, striking Koby's wrist with the poker. 1. 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. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. It is a self-defense case where the officer has "probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer" and, therefore, the officer may use deadly force. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. He can claim self-defense to shooting Plakas. Justia. Roy stayed outside to direct other police to his house. In this sense, the police officer always causes the trouble. Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. At one point Plakas pointed the poker at Drinski and said, "Either you're going to die here or I'm going to die here." See Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. Justia. Plakas's administrator claimed that the self-defense story was full of holes and that, even if it were not, Drinski and the county which employed him had a constitutional obligation to do more to preserve his life than they did. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. It is obvious that we said Voida thought she had no alternatives. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. Since medical assistance previously had been requested for Koby, it was not long in coming. Whatever the facts may be, it is hard to attribute to either Drinski or Newton County the inaction of Perras, who is neither a defendant here nor under the command of Newton County. All of the witnesses testified to an act of self-defense; that Plakas was moving toward Drinski and menacing him with a fireplace poker and that, moments before, Plakas had said to Drinski, "Either you're going to die here or I'm going to die here." This is not the kind of weighing of least deadly alternatives that Plakas would have us require of Drinski. None of these devices is unfailingly effective and safe, and courts and juries are unlikely to be capable of judging when they ought to be used. Appx. Nor does he show how such a rule of liability could be applied with reasonable limits. 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 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 Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. 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. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. You can explore additional available newsletters here. When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. 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. 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." Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.1994)). He moved toward her. 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. Nearly every court has commented on that fact that all decisions about deadly force (or any force) "must embody allowance for the fact that police officers are often forced to make split second judgments--in circumstances that are tense, uncertain and rapidly evolving." 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. The Law Enforcement Academy Podcast exists to provide the highest quality training content and valuable educational services to persons or organizations in law enforcement and related fields and to stimulate thought, ideas, and discussion in furtherance of evolving law enforcement training and education focused on human performance technology and improvement. 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. Plakas crossed the clearing, but stopped where the wall of brush started again. 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. She fired and missed. We believe the defendant misunderstands the holding in Plakas. 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. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." Drinski believed he couldn't retreat because there was something behind him. United States District Court, N.D. Indiana, Hammond Division. Find a Lawyer. 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. The fourth amendmentt does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. We do not know whether there was any forensic investigation made at the scene. A training program would be created under the bill that would cover racial bias and duty to intervene, and the measure would require that police officers use deadly force only as a last resort and use de-escalation techniques. We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Perras took the poker. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. Id. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. Finally, there is the argument most strongly urged by Plakas. 2d 772 (1996). Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. letters, 963 F.2d 952 (1992) | 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. 1994); Martinez v. County of Los Angeles, 47 Cal. Plakas ran to the Ailes home located on a private road north of State Road 10. Tom v. Voida did not, and did not mean to, announce a new doctrine. As he did so, Plakas slowly backed down a hill in the yard. 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. 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. You already receive all suggested Justia Opinion Summary Newsletters. He raised or cocked the poker but did not swing it. . Again, he struck her. Actually, the photograph is not included in the record here. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. Drinski did most of the talking. Perras took the poker. Tom, 963 F.2d at 962. From this, Plakas argues a jury could infer that Officer Koby had beaten Plakas. Since medical assistance previously had been requested for Koby, it was not long in coming. 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. 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. Cain examined Plakas's head and found nothing that required medical treatment. 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. 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