He hit the brakes and heard Plakas hit the screen between the front and rear seats. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. Joyce saw no blood, but saw bumps on his head and bruises. We adopt the version most favorable to plaintiff. right of "armed robbery. He fell on his face inside the doorway, his hands still cuffed behind his back. But Plakas does have at least one opinion on which he may build his argument, that is, Tom v. Voida, 963 F.2d 952 (7th Cir. She decided she would have to pull her weapon so that he would not get it. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. 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 raised or cocked the poker but did not swing it. Anderson v. Creighton In Anderson v. Creighton, 483 U .S. 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.". 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. Drinski did most of the talking. Id. This is not a case where an officer claims to have used deadly force to prevent an escape. Cited 428 times, 109 S. Ct. 1865 (1989) | We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Plakas also correctly refrains from arguing that the police should have simply walked away and arrested Plakas on another day. This is what we mean when we say we refuse to second-guess the officer. Voida was justified in concluding that Tom could not have been subdued except through gunfire. He stopped, then lunged again; she fired into his chest. She alleges that her son was armed with only a fireplace poker and posed no serious threat to the safety of Drinski or others. 1994). Dickerson, 101 F.3d at 1161 (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (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). An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. 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. 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. Cain left. You can explore additional available newsletters here. Koby told Plakas that this manner of cuffing was department policy which he must follow. In Ford v. Childers, 855 F.2d 1271 (7th Cir. He tried to avoid violence. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. 1985) (en banc). Cited 45 times, 96 S. Ct. 3074 (1976) | Deputy Drinski passed by the injured Koby and asked him with what he was hit; Koby told him that Plakas had a poker. 3. 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. He fled but she caught him. Circumstances can alter cases. accident), Expand root word by any number of But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. at 1276, n.8. Our historical emphasis on the shortness of the legally relevant time period is not accidental. He fell on his face inside the doorway, his hands still cuffed behind his back. 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. It is true we consider the whole of the event as it appears to the officer involved, but we recognize that the decision to shoot can only be made after the briefest reflection, so brief that "reflection" is the wrong word. 1992). We always Judge a decision made, as Drinski's was, in an instant or two. But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. Plakas yelled a lot at Koby. She had no idea if other officers would arrive. * The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. Tom v. Voida is a classic example of this analysis. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. After a brief interval, Koby got in the car and drove away. Voida fired one shot at Tom which did not hit him, but he insisted on lunging at her again. 378, 382 (5th Cir. 1994)).Fifth Circuit: See Thomas v. Baldwin, 595 Fed. Konstantino Plakas was shot once and killed by Jeffrey Drinski, a deputy sheriff. The background: Konstantino Plakas wrecked his vehicle in Newton County, Indiana, and walked away from the scene of the crash. In her response to Drinski's Motion for Summary Judgment, Plaintiff argues that the Indiana Dead Man's Statute, Ind. An alternative plan could have reduced or eliminated the possibility of the arrestee's use of a gun. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. On the way to the scene of the accident, Cain noticed Plakas walking along State Road 10. 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. 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. 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. Illinois v. Lafayette, 462 U.S. 640, 647, 77 L. Ed. Tom v. Voida did not, and did not mean to, announce a new doctrine. This conclusion accords comfortably with the opinion of Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, 1148-50 (7th Cir. 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. Again, he struck 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. They could have used disabling chemical spray, or they could have used a dog to disarm Plakas. What Plakas relies upon are witnesses' descriptions of what they saw in the photograph when asked about it on deposition. 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. Cited 2719 times, 856 F.2d 802 (1988) | 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. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. 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, however, merely mentions this testimony to show that Drinski was badly trained. He hit the brakes and heard Plakas hit the screen between the front and rear seats. 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. Koby frisked Plakas and then handcuffed him, with his hands behind his back. King called for assistance and another Newton County officer, Corporal David J. Koby, and two paramedics, Glen Cain and Steven Whitt, responded. 93-1431. Koby gestured for Cain to back up. The time-frame is a crucial aspect of excessive force cases. Koby told Plakas that this manner of cuffing was department policy which he must follow. The answer is no. Toggle navigation . Plakas ran to the Ailes home located on a private road north of State Road 10. In Tom v. Voida we were not addressing Officer Voida's decision to shoot; we were addressing her decision to draw her firearm and, even there, we spoke of a decision process that was quick and simple. At one point, Plakas lowered the poker but did not lay it down. Inside the house, Plakas took the poker, slammed it into the wall [1] and then beat his head against the wall. The only witnesses to the shooting were three police officers, Drinski and two others. 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. defendant cites Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. 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. 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? Koby moved away and tried to come in the room from another door, but Plakas chased him away, swinging the poker. United States Court of Appeals, Seventh Circuit. Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding. 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. 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." Plakas V. Drinski Ecology of Fear Emerging Infectious Diseases NCUA Examiner's Guide Local Budgeting Routledge Handbook on Capital Punishment Principles of Federal Appropriations Law Administration of Insured Home Mortgages Urban Economics and Fiscal Policy Handbook of School Mental Health Policy and Procedures Manual for Guidance of Federal . 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. His car had run off the road and wound up in a deep water-filled ditch. Roy stayed outside to direct other police to his house. We do not know whether there was any forensic investigation made at the scene. 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. george v. morris, in which a ninth circuit panel concluded a police officer violated a clearly estab-lished constitutional right 17 7. a 13-year-old child is not an adult and the child's age is relevant to . 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. Dockets & Filings. Plakas remained semiconscious until medical assistance arrived. Indeed, Plakas merely states this theory, he does not argue it. 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 . The details matter here, so we recite them. He also said, in substance, "Go ahead and shoot. See also Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 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. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. Drinski blocked the opening in the brush where all had entered 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. 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. Cain stopped and spoke to Plakas who said he was fine except that he was cold. Seventh Circuit. Plakas died sometime after he arrived at the hospital. 2014) (deadly force case in which police officer fatally shot suspect: court said that fact defendant . 1988) (en banc), police officers shot and wounded a masked bank robber fleeing from the scene of his crime. Having driven Koby and Cain from the house, Plakas walked out of the front door. 2d 1116, 96 S. Ct. 3074 (1976). 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. Indeed, Plakas merely states this theory, he does not argue it and did not him... 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