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. Warren v. Chicago Police Dept. He stopped, then lunged again; she fired into his chest. King, listening from outside the clearing, thought Drinski might persuade Plakas to drop the weapon, but he did not. Plakas was calm until he saw Cain and Koby. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. Cain told Corporal Koby to check Plakas for intoxication and he told Koby why. 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. 2d 1116 (1976). Cited 201 times, 855 F.2d 1256 (1988) | Plakas was calm until he saw Cain and Koby. Drinski was in fear of his life, and Plakas's action was sudden and unexpected. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. 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 v. Drinski (7th, 1994) in 1991 Plakas was walking. He hit the brakes and heard Plakas hit the screen between the front and rear seats. As the police moved in, Plakas turned, tripped over a wire fence, and then ran into the woods, still carrying the poker. 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. Plakas, however, merely mentions this testimony to show that Drinski was badly trained. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. Plakas V Drinski. While Cain and the others tried to explain that Cain was from the fire department and wanted only to give medical aid, Plakas was loud and combative; (Joyce Ailes said he was "hysterical"). Koby sought to reassure Plakas that he was not there to hurt him. Koby gestured for Cain to back up. Roy tried to talk Plakas into surrendering. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. She decided she would have to pull her weapon so that he would not get it. Paul F. Michel (argued), Thomas McClure, Rosa A. Eliades, Elliott & McClure, Bourbonnais, IL, for Jo Ann PLAKAS. 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. And, in fact, the Fifth Circuit has held that the Constitution "does not mandate that law enforcement agencies maintain equipment useful in all foreseeable situations." 51, 360 N.E.2d 181, 188-89 (Ind. 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 . This guiding principle does not fit well here. armed robbery w/5 gun, "gun" occurs to Koby opened the rear door of his squad car, and Plakas entered the car voluntarily. We always Judge a decision made, as Drinski's was, in an instant or two. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. See also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. 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. 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. The only test is whether what the police . Cain thought Plakas was out to kill him.&gENDFN>. He swore Koby would not touch him. Plakas brings up a few bits of evidence to do so. 1988) (en banc) . Through an opening in the brush was a clearing. 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. 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." Plakas remained semiconscious until medical assistance arrived. Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. The details matter here, so we recite them. 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. Perras would have shot Plakas if Drinski had not. 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. Circuit Rule 28(d); Branion v. Gramly, 855 F.2d 1256, 1260-61 (7th Cir. As he drove he heard a noise that suggested the rear door was opened. Joyce Ailes heard Dino banging against the house; she saw him and opened the door. 1994), and Russo v. City of Cincinnati, 953 F.2d 1036 Taken literally the argument fails because Drinski did use alternative methods. He fled but she caught him. 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. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. 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. United States Court of Appeals . A volunteer fireman found him walking . Drinski did not believe that Plakas was ever ready to surrender, although he was calmer for a time. 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. There may be state law rules which require retreat, but these do not impose constitutional duties. The only witnesses to the shooting were three police officers, Drinski and two others. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. 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. Id. 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? During the entire time in the clearing, Perras had a canister of CS repellant on his belt.2 It could have been used to disable Plakas. Dockets & Filings. His theme was that there were people, including his girlfriend at the house, who cared about Plakas and that nobody needs to get hurt. Koby sought to reassure Plakas that he was not there to hurt him. It became clear she could not physically subdue him. Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. plakas v. drinski, 19 f.3d 1143 (7th cir. Koby also thought that he would have a problem with Plakas if he uncuffed him. 5. Then gripping it with both hands, he continued screaming, louder and louder at Cain and Koby. This is what we mean when we say we refuse to second-guess the officer. Leaving aside the absence of evidence of facial injuries from medical records or post-mortem observation, we accept that Mrs. Ailes saw these injuries. 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. Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." She had no idea if other officers would arrive. 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. The police could have tried to put barriers between themselves and Plakas and maintain distance from him. 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. letters, 963 F.2d 952 (1992) | Plakas was turned on his back. In this sense, the police officer always causes the trouble. He raised or cocked the poker but did not swing it. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. defendant cites Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. Cain examined Plakas's head and found nothing that required medical treatment. . Opinion for Pena, Marilyn v. Leombruni, Greg Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. She did not have her night stick. App. Cain thought Plakas was out to kill him, Perras said that he did not use the CS repellant because he was too far from Plakas and because it might have landed on his fellow officers. 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." 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. He knew the Aileses, Roy and Joyce; he was engaged to marry their daughter, Rachel. As he did so, Plakas slowly backed down a hill in the yard. It is obvious that we said Voida thought she had no alternatives. Nor does he show how such a rule of liability could be applied with reasonable limits. Cited 2719 times, 856 F.2d 802 (1988) | Roy told him that he should not run from the police. 1988) (en banc). When paramedic Whitt arrived at the clearing, he found Plakas laying about a foot from the brush at one corner of the clearing. His car had run off the road and wound up in a deep water-filled ditch. Here it is beyond dispute that, under the Constitution, the police could reasonably (1) arrest Plakas for drunk driving after he exhibited familiar signs of intoxication; (2) track down an escaping arrestee; (3) draw and point weapons after Plakas armed himself and attacked an officer; (4) pursue Plakas into the clearing after he committed a violent offense and was a danger to himself; and (5) try to talk Plakas into disarming himself and surrendering. Plakas yelled a lot at Koby. 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. My life isn't worth anything." Koby told Plakas that this manner of cuffing was department policy which he must follow. 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. 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. 1. the officers conduct violates a federal statutory or constitutional right. 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. 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). Cain saw Plakas push his legs through the circle of his arms, bringing his cuffed hands to the front of his body. This inference, however, cannot reasonably be made. 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. He fell on his face inside the doorway, his hands still cuffed behind his back. He can claim self-defense to shooting Plakas. Pratt, 999 F.2d 774 (4th 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." 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. 2. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. Plakas refused medical treatment and signed a written waiver of treatment. Warren v. Chicago Police Dept. He turned back to Drinski who was 12 to 15 feet away and, with the poker raised, charged at Drinski who backed away. Even if Koby did beat Plakas, Koby was not at the scene of Plakas's demise. Id. See Reed v. Hoy, 909 F.2d 324, 330-31 (9th Cir. 1994), in which he states: . Id. Roy tried to talk Plakas into surrendering. 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. Plakas backed into a corner and neared a set of fireplace tools. Taken literally the argument fails because Drinski did use alternative methods. Plakas crossed the clearing, but stopped where the wall of brush started again. Cain and Koby were the first to enter. 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. 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. 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. Twice the police called out, "Halt, police," but the plaintiff may not have heard. Dockets & Filings. 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. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. 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