Cain stopped and spoke to Plakas who said he was fine except that he was cold. 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. He tried to avoid violence. When Cain and Plakas arrived, the ambulance driver examined Plakas. After a brief interval, Koby got in the car and drove away. 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. Subscribe to Justia's Free Summaries of Eleventh Circuit opinions. Tom v. Voida is a classic example of this analysis. Koby reported the escape and called for help. 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. Id. Drinski believed he couldn't retreat because there was something behind him. For the next quarter-hour or half-hour, Drinski and Perras tried to talk Plakas into surrendering. A volunteer fireman found him walking . They called Plakas "Dino." Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. He moaned and said, "I'm dying." He hit the brakes and heard Plakas hit the screen between the front and rear seats. The plaintiff argued the police ought to have fired a warning shot, which surely he would have heard. The Honorable James B. Zagel, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation, We adopt the version most favorable to plaintiff. Plakas complained about being cuffed behind his back. It is significant he never yelled about a beating. Cited 428 times, 109 S. Ct. 1865 (1989) | 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. 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. Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 2d 443 (1989). 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.". Perras only saw that Drinski stumbled in his retreat either because he backed into something or simply tripped. 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. The only argument in this case is that Plakas did not charge at all. McGarry v. Board of County Commissioners for the County of Lincoln, et al. ", (bike or scooter) w/3 (injury or But did we hold that this imposes a constitutional duty to use (or at least consider) the use of all alternatives? He hit the brakes and heard Plakas hit the screen between the front and rear seats. 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). Plakas charged [the police officer] with the poker raised. . The only test is whether what the police . This is what we mean when we say we refuse to second-guess the officer. Subscribe Now Justia Legal Resources . 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). Plakas brings up a few bits of evidence to do so. Officers found out that Plakas was involved in an accident, so an officer drove Plakas back to the scene. Tom v. Voida did not, and did not mean to, announce a new doctrine. Perhaps we ought not to consider this theory since it was not pled, but it is of no use to Plakas in any event. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. Cain and some officers went to the house. 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. Plakas V Drinski. ", Bidirectional search: in armed robbery H91-365. Get free summaries of new Seventh Circuit US Court of Appeals opinions delivered to your inbox! Plakas was calm until he saw Cain and Koby. Id. Through an opening in the brush was a clearing. Illinois. Plakas accused Koby of hurting him, and yelled about the handcuffing behind his back and about his scar tissue. Plakas did agree to go to the Sheriff's Department to be tested for intoxication. There is no contention that this "invitation" immediately preceded the shooting or caused Plakas to charge Drinski. The handcuffs were removed. 1988) (en banc). 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. 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_ . 251, 403 N.E.2d 821, 823, 825 (1980); Montague v. State, 266 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. Bankruptcy Lawyers; Business Lawyers . Roy Ailes spoke to Plakas, smelled alcohol on his breath, and found him to be upset and insistent that he did nothing wrong. The officers who confronted Plakas were not the officers who injured him and should be able to claim self-defense. 2d 443, 109 S. Ct. 1865 (1989). 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. 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. Inside the house, Plakas took the poker, slammed it into the wall1 and then beat his head against the wall. United States Court of Appeals . Filing 82. 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). Plakas was turned on his back. et al Filing 89 MEMORANDUM Opinion Signed by the Honorable John F. Grady on 12/29/2011. Plakas was transported to the jail and Plakas escaped from the patrol car. She had no idea if other officers would arrive. 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. This conclusion accords comfortably with the opinion of Judge Zagel in Plakas v. Drinski, 19 F.3d 1143, 1148-50 (7th Cir. (Notes) Sherrod v. 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. 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 . In Koby's car, the rear door handles are not removed. Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 1697, 85 L. Ed. Our historical emphasis on the shortness of the legally relevant time period is not accidental. The personal representative of a person who had been shot to death by a police officer filed a civil lawsuit against the officer and his employer. In this sense, the police officer always causes the trouble. 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. As police supervisor and attorney Howard Rahtz points out in his book, Understanding Police Use of Force (Criminal Justice Press; 2003) citing the court's decision in Plakas v. Drinski (7 th . Yet we rejected the proposition "that the Fourth Amendment prohibits creating unreasonably dangerous circumstances in which to effect a legal arrest of a suspect." This appeal followed. He can claim self-defense to shooting Plakas. 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." And there is no reason to discount the testimony of Trooper Perras; he is neither a defendant himself nor employed by the defendant Newton County. 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. 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. The alternatives here were three. 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"). Cain knew there was an ambulance at that site and that Plakas could be examined more carefully there. 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. 2d 772 (1996). Plakas often repeated these thoughts. 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. 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