Tales from the Brown Desk

Tales from the Brown Desk - Episode 3 & 4 - Indiana's Stay-at-Home Order, Gun Laws, Covid 19

April 05, 2020 Rigney Law LLC Season 1 Episode 3
Tales from the Brown Desk
Tales from the Brown Desk - Episode 3 & 4 - Indiana's Stay-at-Home Order, Gun Laws, Covid 19
Chapters
1:28
Indiana's stay-at-home order
9:08
Charge stacking
11:10
Hoosiers stocking up on guns and ammo during the coronavirus pandemic
11:47
Indiana gun laws
18:34
No weapon sign enforcement
19:45
Indiana Court of Appeals - Bell v. State of Indiana
31:36
Indiana Court of Appeals - Rhodes v. State of Indiana
37:00
Florida man arrested for a weapon of mass destruction hoax
43:16
Indiana Court of Appeals - A.C. v. State of Indiana
51:54
Florida man spits on officers & claims he has Covid 19
58:31
Florida man shot after breaking into a home - thinking he was being chased by dinosaurs
1:05:15
Protecting personal property with deadly force
Tales from the Brown Desk
Tales from the Brown Desk - Episode 3 & 4 - Indiana's Stay-at-Home Order, Gun Laws, Covid 19
Apr 05, 2020 Season 1 Episode 3
Rigney Law LLC

Weekly Criminal Law Podcast, Tales from the Brown Desk, brought to you by Rigney Law LLC. Tales from the Brown Desk is a free flowing conversation involving two foul-mouthed attorneys. It may include graphic descriptions of sexual activity, violence, and traffic law. It may not be suitable for children. Listener discretion advised.

Episode 3 & 4 - Discussion about Indiana's stay-at-home order due to Covid 19 and the penalties for not abiding by it, Hoosiers stocking up on guns and ammo, Indiana localities may not restrict firearms sales during the coronavirus pandemic, Court of Appeals opinion in Bell v. State of Indiana, Enhancement of charges, Court of Appeals opinion in Rhodes v. State of Indiana, AR-15's, Florida man arrested on hoax of weapon of mass destruction charges, Court of Appeals opinion in A.C. v. State of Indiana - Court sending juveniles to the Department of Corrections, Florida man claims he has Covid 19 spits in officer's face, Florida man shot after breaking into a home because he thought dinosaurs were chasing him, Protecting your property with a gun.  

Show Notes Transcript Chapter Markers

Weekly Criminal Law Podcast, Tales from the Brown Desk, brought to you by Rigney Law LLC. Tales from the Brown Desk is a free flowing conversation involving two foul-mouthed attorneys. It may include graphic descriptions of sexual activity, violence, and traffic law. It may not be suitable for children. Listener discretion advised.

Episode 3 & 4 - Discussion about Indiana's stay-at-home order due to Covid 19 and the penalties for not abiding by it, Hoosiers stocking up on guns and ammo, Indiana localities may not restrict firearms sales during the coronavirus pandemic, Court of Appeals opinion in Bell v. State of Indiana, Enhancement of charges, Court of Appeals opinion in Rhodes v. State of Indiana, AR-15's, Florida man arrested on hoax of weapon of mass destruction charges, Court of Appeals opinion in A.C. v. State of Indiana - Court sending juveniles to the Department of Corrections, Florida man claims he has Covid 19 spits in officer's face, Florida man shot after breaking into a home because he thought dinosaurs were chasing him, Protecting your property with a gun.  

Jake Rigney:   0:06
It's Friday afternoon. We've turned off the phone, locked the door, and thereby guaranteed that this hour will be just like the rest of them because we are not getting any phone calls anymore. And it is time for another edition of our weekly podcast Tales from the Brown Desk. I'm Jake Rigney of Rigney Law LLC. With me, as usual, is my law partner, wife, and home detention cell mate Kassi Rigney. Our host is Teri Ulm. Friendly reminder Tales from the Brown Desk is a free flowing conversation involving two foul mouthed attorneys. It may include graphic descriptions of sexual activity, violence, and the rule against perpetuities. Although we're not guaranteeing those things, we're getting complaints about not talking enough about sex. I'm sorry. It is almost certainly unsuitable for children. Listener discretion is advised. Here is Teri.

Teri Ulm:   1:04
Hello, everyone. Hi, Jake. Hi, Kassi.  

Jake Rigney:   1:07
Hello.

Kassi Rigney:   1:07
Hi Teri.

Teri Ulm:   1:07
How are you guys?  

Kassi Rigney:   1:09
Good.

Jake Rigney:   1:10
Bearded.

Teri Ulm:   1:11
Bearded.  

Jake Rigney:   1:13
Yeah.    

Teri Ulm:   1:14
So last week we talked a little bit about Indiana's stay-at-home order and the penalties for not abiding by it. And it has been reported that the state police are enforcing the stay-at-home order. In fact, according to state police, they can ignore the language of Governor Holcomb's order and arrest anyone who's activity doesn't meet their definition of essential. What do as criminal defense lawyers make of this?

Jake Rigney:   1:42
I posted about this earlier this week on our Facebook page. Um, and it's really frustrating to me, and a little bit scary. Like I'm not. I'm not hunkered down in my basement with a gun scared, but it is really concerning to me when the governor writes... The governor issued an order. Our Legislature, our elected officials, didn't pass this. The governor just decided this was the case now, which is okay. He can do that, and for some reason, most of time there's a good reason for it. But he says one thing, right. The governor says, stay-at-home unless you have an essential job. And then he defines what the essential jobs are. And if you have an essential job or you work in an essential place, then stay open, go to and from work. But the police don't interpret it like that. They think they get to decide what is and isn't essential. And even, the officer says this in the quote, even if you work at an essential business, they will decide whether what you're doing that particular day is essential or not. And that is very different from what the order actually says. So this is what's very frustrating about it, right? You get an officer who feels like he has more power than he does. And we've made it really easy for him to do that by writing 1000 word executive order and using words that mean one thing when he apparently thinks it means something different. But I mean, that is, like maybe two steps away from, uh, putting the United States or places in the United States in two very different kinds of countries where the police can just stop you, demand to know what you're doing. And if you won't explain it to them, if you can't prove yourself innocent than they just take you to jail. Because violating the governor's order is apparently a B misdemeanor. So, um, I hope that the officer's quote was some sort of off the cuff thing and not an actual policy that police officers are adopting across the state, because we are in for some really troubling times if that's what they're going to be allowed to do based on this order,

Kassi Rigney:   4:16
Well, and I would say allowed, just in any situation, I mean, I don't pick a fight with a cop. If he's going to arrest you, I mean, don't get beaten up. You're not gonna win that kind of legal argument with a police officer. But it will be a lot of great work for defense attorneys. Um, and you know, I would expect hopefully, I agree, that that was an off-the-cuff. But I can't imagine the attorneys that represent the Indiana State Police want to go to litigation over this, because of this. And that's the thing that a lot of law enforcement, boots on the ground law enforcement, don't like to hear is that they don't have the final say. And the person who will ultimately decide whether that action is legal is the court. Now, have you been arrested? Did you get Covid 19 when you were in jail on this? All of those things will have already happened by the time the court gets their hands on it. So that's I mean, it's very scary. Um, but you know this is what the Second Amendment is for. So we've got a loud base saying you're not coming for me. Um, and I think we need to think real long and hard. Um, about is this one of those situations. I mean, it's getting out of control. The state police comment here in Indiana is not the only one. A parish in Louisiana has instituted a curfew. Somewhere in New York has done that as well. Um, and it's just how much power we're going to give all over to them? Um, this is one of the important rules of attorneys that when I was a prosecutor that I felt that the role was it check and balance to their law enforcement partners on the ground. They have different standards, but like I said, there should be some lawyer representing the Indiana State Police, that should be hold your role. This is not what this order says, because sometime a lawyer is gonna have to come and defend that. If someone, if an officer does that, hopefully the people will be fighting it and challenging it. Ah, but you know, you just don't know, and you're ultimately powerless against a man in a uniform with a gun.  

Jake Rigney:   6:27
Right. As a former prosecutor, you'd be surprised, some of the things I've heard the police say about criminal defense attorneys. I did that job for 10 years. You spend a lot of time with the police. The police say things that they wouldn't, they certainly wouldn't put in an email, and that they wouldn't say, uh, you know, in public where someone could hear them. But I've heard them say some pretty terrible things about criminal defense attorneys before. Imagine what happens when we give them the power to say, sorry criminal defense attorney, but you're not essential. If you leave your house, we're going to arrest you. That has the potential to essentially wipe the right to counsel away from the Constitution. If we allow the police to enforce that in whatever way they feel like enforcing it that day. Um, one of the reasons I don't mind being here today even though, um, you know, everyone should be social distancing, and we've been taking it seriously, too. But one of the reasons we're here today is again because our jobs are essential, and we want to keep doing them. And, um, we don't want to allow them to simply wipe those rights away from our clients without us doing anything about it. So one of the reasons we're here today is to talk about it, exercise a different one of our rights, our First Amendment right to talk about these sorts of things. Um, you know, this whole thing, this whole Covid thing, it started out as very sensible, like okay, we need to do these things. Everyone, please do these things. And really quickly, some people with some guns got involved and started telling us how they were going to enforce orders, which is a lot different than sort of the way things started. Um, and no one should take that is like a complaint against social distancing. Our office has been work at home since way before any stay-at-home order. You know, we sent Teri, we sent you home like what? Three or four weeks ago.  

Teri Ulm:   8:48
Yeah.

Jake Rigney:   8:48
And, uh, and we're here today because you wanted to come do this. We didn't make you come do another podcast. I want to make that clear to in case somebody wants to pin us as the crappy employer that makes their person come into the office. This was all Teri's idea today.

Teri Ulm:   9:08
I think it's important to get this information out to people so they know, um, from an attorney's perspective, what to think. And moving back to these stay-at-home orders, they've been issued all across the country, and it has reignited a longstanding concern of charge-stacking. The practice of piling multiple charges for the same criminal act. Is that something in Indiana? I have seen a couple news articles where people have been arrested for operating motor vehicle while intoxicated (OWI), and then they've also got charged for violating the stay-at-home order.

Jake Rigney:   9:45
Yeah, so charge-stacking or the the practice of filing several different charges based on the same event is very common. It is the kind of thing that I think most prosecutors offices, probably across the country, do and I don't think that there's any prohibition against it in the Constitution in terms of charging decisions. Now, when we talk about whether or not you can be punished repeatedly for the same action, that's different. That is protected by the double jeopardy clause in the U. S. Constitution. But in terms of adding another charge or adding multiple charges, we see that all the time. It's pretty normal. What usually happens is either the defendant accepts a plea agreement and the state agrees to dismiss a lot of those stacked-charges. Or the defendant goes to trial, and if the defendant loses a trial, the judge ends up not entering judgment of conviction on those other charges that come from the same evidence. So there's a protection for it, although it may be not as much protection as some people would like.

Teri Ulm:   11:08
Now during the coronavirus pandemic Hoosiers have been stocking up on hand sanitizer, toilet paper, bottled water, and guns and ammo. And since the pandemic has began, there has been a spike in sales in guns and ammo across the state. And Indiana's Attorney General, Curtis Hill, issued an order in response to some senators regarding what what businesses are essential or not. And he said that, Ah, the sale of firearms is allowed during this pandemic. Now many Hoosiers are buying guns for the first time. What laws should they know about?

Kassi Rigney:   11:54
I guess how to carry it. If they're not licensed before the purchase, they need to know how to lawfully, you know, transport it from the selling to home, uh, or to the shooting range. Because you can own a gun for home protection without a license. You're also allowed to travel with that if it is unloaded, inaccessible to you, and in a locked case. And if you're on someone else's property when they're found, find you in those circumstances, if you also have that property owner's permission, then you would be protected. Ah, but it's, you know, getting a license is a matter of filing an application outside of, ah, felony convictions, and domestic battery, misdemeanor convictions. Ah, you should answer the questions, you know truthfully, and you would expect to get a license to carry.

Teri Ulm:   12:52
Now it's my understanding that Indiana has this open carry law. What is open carry? Does that mean I can see someone's weapon as they're carrying it, or do they have to conceal it?

Kassi Rigney:   13:04
Well, I mean, Indiana just has... you either have a license or not. And you, whether it's displayed or not, when I was reviewing the law here, it doesn't say there's different categories of licensing in Indiana. Which what you're talking about other, it appears other states do. And, I did not research other states, but it sounds like there are some licenses that says under certain circumstances, only certain group of people can walk around with it displayed openly. Uh, my review of the Indiana law is that it is not separated like that. If you have a license to carry then you can carry it and display it, if you so choose.

Jake Rigney:   13:43
Yeah, in Indiana, um, they don't make a distinction between open or concealed carry. So people think that, and even people in Indiana sometimes don't understand that. They think they've got one thing or the other. But the truth is, in Indiana, there's just a permit to carry. And if you have that permit, you can carry a handgun in anyway you see fit. You can carry it, ah, outside in a holster. You put it in your pocket like a moron. Um, you could tuck it in the back of your pants like, uh, like, you're cool.

Teri Ulm:   14:19
Could you hold it in your hand and walk down the street?  

Jake Rigney:   14:21
Absolutely. Um, you can, if you have a permit you can. You can put it in nature's purse if you want to.

Kassi Rigney:   14:28
The question is are these good decisions? Can you and should you are not the same thing. Um, so, yeah, you could I don't recommend it. It might be a good way to get hurt.

Teri Ulm:   14:43
Now, are there places that are off limits to carry your weapon in Indiana?

Jake Rigney:   14:48
Yes. Uh, there are several places that by some rule or another you're not allowed to bring a firearm into. I don't know all of them off the top of my head. I do know, for example, in the city county building, um, in downtown Indianapolis. You cannot take your firearm with you in there. If you try, they'll take it. Um, if you don't have a license, they'll arrest you. If you do have a license, they'll say you can take that back to your car or we'll keep it and never give it back to you. Up to you. And, uh, I don't think too many people bother with trying to get them through the metal detectors or argue about it. I do know that the deputies occasionally take there dogs around the outside of the building and usually find stuff that people have thrown down out there, because they get to the building and then realize, oh, crap. I'm not gonna be able to get in with this gun/weed/cocaine/pocket knife. Um, so I know that happens.

Kassi Rigney:   15:56
Well, and this is, you know, this is where your right to possess a firearm is not unlimited. You know, property owners can decide they don't want it on their property. And you have to respect that. I mean, it's kind of what you see all the time. It's like, well I have my right. I have my First Amendment right. Yeah, you do. But you know you can't Second Amendment, right? No. I was using another right as an example, and now I lost it. Um, you have the right, but it's not infinite. You know, you can't enforce that on someone else, because they have rights as property owners as well. And then as, like the city-county building. I don't know off the top of my head if the law says you're not allowed to have guns in, you know, public schools, but I feel like that's the thing.

Jake Rigney:   16:42
It's definitely a thing if you don't have a license. Um, and I believe the penalties are actually enhanced if you don't have a license. So carrying a handgun without a license, just randomly on the street, is an A misdemeanor. Um, your second offense is a level 5 felony. But even for a first offense, if it's on a school property, I believe it's either a level 5 or a level 6 felony. I think it's probably a level 6 felony. Um, so, they make the penalty worse if you get caught carrying it on school property. Um, and I'm not... I also don't know. This sort of brings me to an interesting point about lawyers, right? When you meet with a lawyer, you tend to assume that they know everything about everything, and all you have to do is ask them a question, and they know the answer. You want to ask them about the regulation for cabbage imports from China, and bang. You got that right there at the top of my head. You want to know about, um, how the BMV's administrative hearings work? Well, let me tell you here... The truth is, most of the time, we don't know. Most of the time, we have no idea what the answer is. Uh, most of the time, especially if it's something we've never dealt with before, uh, we have to look it up.

Jake Rigney:   18:02
And we've got a whole program on the internet that we used to look those things up. It's a subscription service, and we have to pay for it. Which means our clients, actually, are paying for it. It's built into the fee. And, uh, so I don't know off the top of my head, whether we can't go into the city-county building with a gun because it's a new ordinance, or if because it's baked into the Indiana State gun laws. I don't know. I know there's a big sign that says you can't take a gun in there.

Teri Ulm:   18:35
So in regards to no weapons signs, can any like private entity put a no weapon sign up? And if so, can they be enforced by law enforcement?

Jake Rigney:   18:47
Yes and no. Um, if for example our building put up a sign that said you may not carry handguns on our premises, Um then, if a person brought a handgun onto the premises, they probably wouldn't be breaking the law. They probably wouldn't be carrying a handgun without a license. Right? And there's no other law they could break. But upon being told they have to leave somebody else's property. Uh, they have to leave. And they could get arrested for trespassing if they don't. And I don't want your gun on my property is a perfectly reasonable reason to ask someone to leave your property. So that's how you could get the police involved. You tell the person with the gun, hey I don't want that here. Leave. And if they don't, you call the cops. And hope he doesn't shoot you before they get there.

Teri Ulm:   19:47
Now, this brings me to an Indiana Court of Appeals opinion, Bell v. State of Indiana, where Bell was charged with a Class A misdemeanor for carrying a handgun without a license. And he was attending, um, an event at the Indianapolis 500. And he was on one of their lots that the rules said that he, that nobody, could have a handgun there. Do you know anything about this case and why he was arrested?

Jake Rigney:   20:19
Yeah, I read that one. Um, he was arrested for carrying a handgun without license. Um, and for resisting law enforcement I suspect. Um, and this is one of those weird situations where... when you mess, (I wanted to say fuck)... When you mess with the police, you just make things worse for yourself. Right? I'm all about going to court and fighting the police. It's kind of what I do. It's basically my job at this point. Um, but when the police encounter you, in the community, you are not going to get anywhere by screaming at them, fighting with them, or otherwise trying to flee from them. Perfectly ok to ask if you're free to leave, and if you are to turn and walk away. If they say you're free to leave, but Bell's example... The situation is exactly what happens when you don't handle your encounter with the police correctly.

Jake Rigney:   21:25
If Bell handles this the right way, he goes home. He goes home that day. Does whatever else he wants to do. I don't know. Maybe he just goes back to his car, and then gets to go back to the party. But he didn't. So, I'll talk about the facts so that we kind of understand sort of what happened. Okay? Um, Bell was at the Coke lot. Which is one of the places where people can park and camp for the race, right. It's this enormous, huge, empty space where everyone just parks and parties before, you know, the races happen over at the speedway. Um, almost inevitably, there are people getting arrested at these lots every year during the race. Five or seven years ago, when I was a prosecutor, I tried to shooting out of the Pepsi lot where these two guys had a disagreement, and one of them decided he was gonna, uh, pull out his gun and start shooting people, and shot a guy in the chest. Um, the kid survived a point blank gunshot wound to the chest, which is amazing. Um, but, uh, these sorts of things happen out there. Unfortunately. Um, and I'm not gonna... I'm not gonna say too much about race fans generally. I'm not gonna try to stereotype them, but there's always one person who feels like they gotta mess with everyone's fun. Um, so Bell's out there, right? He's out at the Coke lot. I don't know what he's doing, who knows? But he's got a gun, and there's signs posted in the Coke lot that say you can't have a gun. No guns are allowed. So he's got a gun. He's got a little handgun he's got in his back pocket. Terrible way to store a firearm by the way. Great opportunity there to just accidentally shoot a hole in yourself. Anyway, he's got it sticking out of his back pocket. Somebody goes and tells the police. The police go and they find him. They see him exactly where the people say he's gonna be, which at least gives them reasonable suspicion to think something's going on. And plus, he's in a public place. They can walk up and talk to him if they want. So rather than being cool with the police and saying, oh. hi. Oh, really? Yes, I did know I wasn't allowed to have a gun. Sorry. Or I don't know, just walking away. He starts getting really combative with him, right? He's looking for escape routes. He's cussing at them. He's screaming about getting warrants and stuff. Um, and that type of behavior then gives the police the right to search you. Because at that point, they have a reasonable fear for their safety based on the anger you're expressing toward them, right? It's what's known as a Terry Stop based on the Terry v. Ohio case. So at that point, the police are like, well, now we're going to search you, crazy person. And, uh, so he starts fighting. And, bad news from there.

Teri Ulm:   24:47
So in this order, by the Court of Appeals, it says that at first it was a consensual encounter. How could have Bell handled that situation, um, to not be frisked?

Kassi Rigney:   25:04
I mean, part of his demeanor, I think. You know, had he... he wouldn't have been able to walk away because he had his gun and was viewable just on his backside. Um, you know, I mean, I guess if it was concealed in a way that he, you know, he could have said, am I free to leave? I don't have a gun. Sorry. Am I free to leave? Turn around and walk away. Or you put them in the position of, you know, actually saying you are not free to leave, and I think in this case, if they had done that prematurely, there would have been a successful suppression. Um, you know, it doesn't do you any good to fight with the police. It doesn't. You're never gonna change their mind, you know, being compliant. Um, you know, the fight to have with the police is with a lawyer, in court, later. Um, so I don't know. I don't have any additional advice on how he could have avoided being frisked. Oftentimes in those situations, I think if the police have you in their cross-hairs, that they were, I mean, it was probably gonna happen anyway.

Jake Rigney:   26:15
Yeah, you know that, one thing I do to make sure the police never have a good reason to frisk me, is I don't take guns to the Coke lot. Um, you know, it's easy for us to sit here and criticize the police, and we're gonna do that sometimes on this podcast. But Bell is the one getting most of the criticism here. The easiest way to do it, would have been, not take a gun where you're not supposed to have a gun. And he's not supposed to have a gun anywhere outside of his house, because he doesn't have a license for it. So that's the easiest way to sort this problem out. Um, that said, people make mistakes. We understand that. Uh, don't compound that error by taking this super combative attitude with the police, because they're not gonna go oh, you're really angry. All right, well, uh, goodbye then, sir.

Kassi Rigney:   27:08
And they're often times... The police are oftentimes in a no win situation. This was a public place. There are thousands upon thousands of people here. They have an allegation of a gun. You know, this day and age with the shootings at public events. Um, you know, even if it gets suppressed later, ah, you know, should... You know, should a police officer have heartburn if they know, saved a shooting, you know. No. But, um, we have to do these things and live with the consequences. Um, so... Don't make yourself a target. I mean, this day and age... you know, you're like, yeah, you could walk down the street with a gun in your hand. What do you think? They're gonna take you as a threat. And I think you would be kind of ridiculous to be walking down the street with a gun in your hand and be like I'm not a threat to anybody. Like even your average Joe is probably gonna be like, what's that crazy person doing that I feel threatened.

Teri Ulm:   28:02
Yeah. Not only did Bell not have a license to carry a handgun, he was a felon. Um, I think he had a conviction within the last 15 years. And that's why his class A misdemeanor was elevated to a Level 5 felony. Which brings me to the question of elevating charges. How does this happen? Does couldn't just a innocent, will not an innocent person, but when can charges be elevated against an accused?

Kassi Rigney:   28:35
It's all kinds of ways. I mean, in this particular situation, it was with a prior conviction. And this is a way that they make... if you continue to do the same error, they're going to make the consequences more ah... tougher as time goes on. And you know, I happen to agree with that, if you're gonna continue to make the same error. Um, now, sometimes, like OWI you could be a first time offender. But if you OWI... If you commit, you know, an operating while intoxicated, and you kill someone that is going to be a felony offense versus where if you just get a traffic stop, it's a misdemeanor. So you could do... You could get advanced charges based on the facts of your case just because the law recognizes OWI is not OWI. Because there's a difference between somebody who gets pulled over with OWI for out tail light versus somebody who gets in an accident kill someone. Um, but then again, with, you know, the prior convictions and it has to... If you have a prior conviction, theft is one. Hand guns are another one. Ah, domestic battery. If you have the same victim, all batteries, all batteries. That's right. So. It's just a way for the law to further attempt to discourage people from continuing to commit crimes.

Jake Rigney:   30:02
Yeah, or to engage in more serious dangerously conduct. Right? So regular battery where nothing bad happens is a B misdemeanor. But battery with a deadly weapon, which means the most common way that happens is shooting somebody with a gun. Um is a level 5felony and that makes sense, right? You know, bumping into somebody is not nearly as serious as shooting somebody in the foot with a gun. So, uh, the law just tends to address that and enhance it for all sorts of different reasons. Almost in fact, it's weird because they don't think about it that much. But there are lots of enhancements. There may actually be... crimes may actually more often be enhanced than not. Um, burglary runs a range. Robbery has a range depending on the enhancement. Um, battery certainly does. DUI certainly does. Invasion of privacy does. The only one I can think of off the top of my head that doesn't is public intoxication. And, heck, to be honest, that would probably should, because some people just they do it every day, and it can really be annoying after a while. Um, but there are enhancements on almost every type of crime that exists in Indiana. Um, depending on the facts and circumstances and you're history.

Teri Ulm:   31:37
That takes me to another Court of Appeals opinion Rhodes v. The State of Indiana, where he was convicted of a Level 5 felony, intimidation, for threatening his wife. And the charge was enhanced to a Class A misdemeanor based on the allegation that he drew a deadly weapon. What is the definition of drawing a weapon?

Kassi Rigney:   32:01
Well, this case talks about that, and it is, ah, it's kind of possessing and readying it for use. You don't have to, like, draw to point and shoot. Um, and in this case, there how the facts went was there were text message or Facebook message threats. And 10 minutes later he shows up in the in the driveway and removes AK-47  

Teri Ulm:   32:30
15

Kassi Rigney:   32:32
15 

Jake Rigney:   32:32
An AR-15.

Kassi Rigney:   32:33
An AR-15 from the vehicle. I think he just walks around. He doesn't make contact. And the challenge there was, did he draw the weapon when he was committing the threats. And they the court brought it all into one act essentially.

Teri Ulm:   32:52
Speaking  AR-15s... that is a semi automatic weapon. And in fact, that's a weapon that has been used in many mass shootings across the United States. Is that weapon legal to have here, for Hoosiers, in the state of Indiana? They can have an AR-15 semi-automatic weapon... walking around?

Jake Rigney:   33:12
Yes. Yeah, that's perfectly legal. In fact, you don't need a license for an AR-15. At least not, um, not statewide. You might need one federally. So I don't think so, though. So, yeah, perfectly legal, um, to have one. Unless you're a convicted felon or for some of the reason you're not allowed to possess a firearm. Um, it is essentially a rifle. Um, it's not really classified any differently then many other types of hunting rifles that person has. And they are dangerous. There's no doubt about that. They are a tool, but lots of guns are dangerous. And lots of guns can be used to commit mass shootings, unfortunately. It's terrible thing when it happens. But focusing on the tool and the, um, the type of weapon that the person used doesn't really, I think get at the heart of the problem. Which is weird, right? Because most people who know me probably think I'm pretty liberal. Ah, and for the most part, I am. But I don't really see a lot of point in restricting sales, especially of a particular type of gun. There are all sorts of dangerous guns. And, um, you can get Remington rifles that aren't called AR-15's, but do basically the same thing, and they just don't look as scary. Um, so those guns are are perfectly legal. They are dangerous, but in the hands of a sane person who knows what they're doing, they are as safe as any other gun.

Teri Ulm:   35:04
I find it interesting that a semi automatic isn't considered like a weapon of mass destruction. There's got to be, like some type of, um, like a line where, because I mean, you can't have a tank, right?

Jake Rigney:   35:20
I don't think so. I don't...

Teri Ulm:   35:22
What is the line of like ammo power?

Kassi Rigney:   35:24
I don't see why. I mean, if you wanted one.

Jake Rigney:   35:30
I think the line, as it's been drawn federally, is automatic weapons. Okay. The difference, for people who don't know the difference, is an automatic weapon fires repeatedly, uh, with one pull of the trigger. Right. So, um, and these weapons, especially like the versions very similar to the AR-15 have been used since Vietnam. Um, and in the old days, when they made them, and when they made them for the war, they had three settings. One was semi automatic. You pulled the trigger and it shoots one bullet. The other is three round bursts. So you pull the trigger and it shoots three bullets. And the other is fully automatic where you hold the trigger... If you hold the trigger down, it will empty the clip into whatever you're pointing at. Um, the line, generally in America these days, is you can't have an automatic weapon. So they hold it down, and it just sprays everywhere, that's illegal. The three round burst, also illegal. But the single fire from a single depression is, uh, legal. And that's where the line is. We can argue about the line. There are intelligent people who argue about that on both sides. I don't know who's right and who's wrong, but that's that's sort of where the line is. It's not a it's not a weapon of mass destruction like a nuclear bomb would be, or a biological agent.

Teri Ulm:   37:01
Florida man was arrested with a weapon of mass destruction. He was arrested earlier this week, in Florida of course, for allegedly spraying a bottle of what he claimed was coronavirus on doors.

Kassi Rigney:   37:18
Who called it a weapon of mass destruction?

Teri Ulm:   37:20
That's what the police charged him with... Arrested on a hoax of weapon of mass destruction charge.

Kassi Rigney:   37:29
Well, all this comes down to what's the definition under Florida law for weapon of mass destruction. Um,

Jake Rigney:   37:39
I believe that law goes something like y'all got stop doing all these dumb shit.

Kassi Rigney:   37:45
Good luck.

Jake Rigney:   37:48
Yeah, it's not working. That law is not working.

Kassi Rigney:   37:50
Um, so what's your question?

Teri Ulm:   37:54
Is there? I guess... I don't really have a question. But, um, just the fact that people are being arrested for the use of weapons of mass destruction, And I don't know if someone in the state of Indiana did that, is there a charge? Like, what would the charge be spraying?

Jake Rigney:   38:12
So yeah. Um, but this is the type of thing that happens so infrequently that I honestly would need to look it up. I couldn't tell you. I could imagine a person and getting charged with criminal recklessness for that. Um, and I think there's... They would probably also make it similar to, um, serve calling in a fake bomb threat. I think there's... I think there's a low in Indiana about making a terroristic threat. Um, and that's probably where that would fall in; for when he says, this is coronavirus and I'm spraying it everywhere. Y'all gonna die.

Kassi Rigney:   38:49
Is that you know, I don't know what the law says. Is that close enough? I mean, because the intent, I mean, obviously someone is going, you know, if he was in a parking lot, the owner of that car is going to come and put their hand there.

Jake Rigney:   39:21
Yeah, and it's... these types of strange situations can put prosecutors in really weird spots. And, you never know what you're going to get out of a prosecutor who's got some weird situation they've never seen before. Uh, some of them will be very conservative and only charged the thing that they definitely can prove. Some of them will get rattled by what the guy did and charged him with everything I could think of, right? So, and, that's their discretion. They get to do kind of what they want with that. Um, at the same time, Florida man is like a huge dick. That's like such a just... Like I'm going to take... And this is why I say that... He's taking everything that everyone is afraid of right now, right? We've all got this, this fear and people have different levels. Some people are saying it's not that big a deal. Some people are saying it's a really big deal, but we're all at least a little afraid of it, right? I'm at work today and I still don't want to catch the coronavirus. I got asthma. Shit. I got asthma and a four year old daughter. But that guy is preying on everyone's fear, rational or not, and trying to scare people and why. What do you get out of that?

Kassi Rigney:   40:52
This person is clearly just a horrible piece of shit. I mean, there's just no way around it, Um, you know, I mean, it's like, you know, the kind of person that you know cuts off the tail of a stray dog. Like why? What what would motivate somebody? Why? I mean, if you are a happy, healthy person, you're off doing, you know, I don't know not. I mean, who sits around and thinks up to do some awful scary thing like this? Only a bad person. I'm sorry. That Florida man is a piece of shit. He's not a good person. And if he's not, you know of a child mind. He is old enough to know better. And he made the decision, and I have no sympathy for him. Good. I hope they put him... I hope that I will gets to see jail time.

Jake Rigney:   41:40
Yeah, it's ah have talked about this sort of distinction before between the people that mad at and the people that I'm afraid of. And, I don't know yet... on Florida man, this week.

Jake Rigney:   41:49
Whether I'm just mad at him, or whether I'm afraid of him. If he actually thought he was doing that, if he was actually trying to spread coronavirus by spraying his saliva on door knobs and not just not just saying it. Like that scares me. I'm afraid of that guy. That guy should go to prison. Um, if it's some other mental problem that can be addressed some other way, then maybe I'm not afraid of him, but you know, that that's the kind of guy that, reasonable people can say, yeah, I'm afraid of that guy.

Jake Rigney:   42:25
Um, cause that's just really, really not cool.

Kassi Rigney:   42:31
Indicates some seriously flawed thinking.  

Teri Ulm:   42:35
Definitely.

Jake Rigney:   42:39
And it's not just the thinking, it's the action on the thinking, right? It's one thing to to think of a terrible thing you could do, right. That's ah... If any of us try very hard, we can think of a terrible thing to do. But we choose, actively, not to do it because we're not monsters. Um, and there is some kind of disconnect with a dude who says he's gonna spread corona, uh, over stuff. That's so far away from rational thought, rational decision making that it's, like I said, that's a guy you could be scared of.

Teri Ulm:   43:17
So we're gonna talk about one more Court of Appeals decision. It's A.C. v. The State of Indiana. Now A.C. appealed, arguing that a juvenile court had no authority to order him to be committed to the Department of Corrections. This caught my eye because now we have a juvenile going to the Department of Corrections. And, I thought the whole idea behind the juvenile justice system was... the goal was to rehabilitate the offending youth. And I think putting him in the Department of Corrections with other criminals won't rehabilitate him, but more likely make him a criminal in the future. What do you guys think about this?

Kassi Rigney:   44:02
Well, if you read, we went round the case. I read the case. And this was appeared to be an action of last resort. This individual was originally sentenced to some kind of in-patient housing and probation, and he had repeatedly, ah, been violated. Ah was considered a danger and was not going to be accepted. And, I mean, at some point, you know, I mean, it's kind of goes back to the enhancements. You know, at some point, what do you going to do? Um, you know, they've tried rehabilitation. It's kind of you try what you can. You try, try and you see an adult system too. But I mean, at some point, there's just nowhere else to go. I mean, I think that one of the things they said he was a danger to himself and, you know, other members, like he kicked one of the other people in the head. And, you know, it's just the progression of punishment in the steps. So, I really didn't have any heartburn over it. Ah, to be honest, it appeared based on the record that they had tried to work with this individual on multiple times. And sometimes there's just nowhere else to go.

Jake Rigney:   45:16
Yeah, we don't know the kid's name. I think he just goes by A.C. in the opinion. But kids in the juvenile delinquency system can be sent to the Department of Correction. And they can be sent to, um, boy school. Children who are sent to the Department of Correction are typically housed with other children who have been sent to the Department of Correction. I think they just have one small wing at one of the prisons that's all juveniles. So, it's not like they put him in there with, you know, a 42 year old who had been convicted a triple murder as a cell mate. Um, but still, it is a very difficult situation for a teenager and for a kid to be in. Um, and so certainly we can ask questions about whether the Department of Corrections is really going to rehabilitate him or not. I don't know. We probably won't find out until he gets out, Um, whether it worked or didn't. But there's also this sort of underlying current that I kind of see. A lot of time, especially among defense attorneys, but also among defendants and other people, sometimes about sending people to prison generally. And like what... How is that going to rehabilitate him? How was prison rehabilitate anyone? But the truth is that prison can rehabilitate people. It can. Understanding what's waiting for you at the end of a bad decision can teach you to stop making bad decisions. It's possible. We all saw that when we were kids when, you know, our parents threatened to spank us, or spanked us, right. Or grounded us, or gave us some other... Like typically, our behavior improved after that, right. So it can rehabilitate people. And they have programs there that also can rehabilitate people. But as Kassi pointed out, and as usual, I'm not going to disagree with my wife. Ah, it is best used as a last resort. Unless we're talking about just very serious crimes or scary people. Right? Um, unfortunately, A.C. was given opportunities to avoid having to go there, and he just couldn't take advantage of them. Um, as a defense attorney, those were the most frustrating kinds of cases. The ones where you've got a client that you just you can't get to, you know, to see value in his own freedom or work to protect it. Um, and so those are really tough? Um, but there is a point, and even teenagers, even people under 18, are... will be held responsible for their actions. Unfortunately, I shouldn't say unfortunately, because it's actually fortunate. I wouldn't want to live in a country where that wasn't the case. Um, I don't know that we should use prison as much as we do, but I don't want to live in a country without one. Um, you without prison at all. I don't... There are people that I don't want living in my society. Um, so. It's a difficult position. Unfortunately, he put himself in that position, and the only other thing we can say is, obviously, we hope he learns from it. We hope he figures out a way to control himself and pick up from there. He's he's gonna have life left. He's gonna have an opportunity to sort the rest of his life out. And there are lots of people have gotten in trouble when there were young and gone on to lead productive good lives. He's capable of it, too, I suspect. But, he's gotta take the lesson. You don't take the lesson, you don't get anywhere.

Teri Ulm:   49:30
Not going back to A.C.'s initial charge. He was charged with a Class B misdemeanor. Um, after spitting in his father's face during an altercation. Is spitting in somebody's face considered battery? Is that punishable by a Class B misdemeanor, and a fine, and jail?

Kassi Rigney:   49:53
It's battery by bodily waste. That's what it is.

Teri Ulm:   49:57
I would think battery would result in injury, and I don't think spitting is going to injure somebody. So what's

Kassi Rigney:   50:04
If they were HIV positive or some other kind of disease. That's why. It could also be urine or feces. Um,

Jake Rigney:   50:15
But yeah. So first, let's sort of take the second thing first. Battery does not have to cause injury. Um, simply touching another person in a rude, insolent, or angry manner is battery. Um, so it doesn't matter if it hurts or not. It doesn't even matter if the person is uncomfortable or not. Um, knowing, touching, while angry, we'll get it done. And that includes causing another person to feel touched without actually touching them by, for example, spitting on them or throwing things at them or hitting them with something. Like, I can't hit you with a bat and say, well, I didn't actually touch you, the bat did. So that's not battery. Um, so throwing things at people and hitting them is battery. And, spitting on them is absolutely battery. And it's one of those crimes that escalates depending on what you did and how you did it. Um, if you have a communicable disease, and you batter someone with your own bodily waste, that's like a Level 5 felony I think. It gets up there. Unfortunately, we've seen that in... A lot of times it happens, unfortunately, in the jail. Where a person gathers some of their own bodily waste and then throws it on a guard or something like that. It's even got a name. It's such a common occurrence, although I forget off the top of my head what it's called, Um, but it's a thing that happens. And, ah, people get in trouble for it too.

Teri Ulm:   51:55
It is definitely a thing that happens because Florida May did this this week too. He spit in an officer's face, and then claimed that he's tested positive for Covid 19. Now he was arrested on charges for threatening a law enforcement officer, criminal mischief, violation of quarantine, resisting the officer with violence. He also, after he spent her face, told her that he was gonna kill her. Um, what kind of charges can be brought against a Hoosier, if a Hoosier spit in a police officer's face, and then claimed they were gonna kill him?

Jake Rigney:   52:34
First of all, I like how you're like, well this week Florida man... Every week Florida man spits on somebody. It's just a different Florida man.

Teri Ulm:   52:42
Now he has Covid 19 though.

Jake Rigney:   52:44
Yeah, this week he has Covid 19. Next time it'll be... Who knows what. Ah, there are a bunch of charges that that person can eventually get charged with. Um, you've got battery by bodily waste. There's resisting law enforcement. Threatening to kill a police officer is a level 6 felony. I think it might even be a level 5 felony. That gets enhanced based on whether or not you're armed when you do it to. So that that could go anywhere from a misdemeanor, to a level 6 felony, to level 5 felony. So the most serious offense he get is probably... If he was actually Covid 19 positive, he would probably get F5, a level 5 battery by bodily waste, and a level 5, um, intimidation for threatening to kill the police officer. Although that would probably be a 6. Unless he had a gun.

Teri Ulm:   53:50
Are there any defenses for someone that does this?

Jake Rigney:   53:55
It wasn't me.

Teri Ulm:   53:56
How do you defend them?

Jake Rigney:   54:04
So here, Jake. Uh, this guy is very guilty. How do you get him off? I don't fucking know.

Teri Ulm:   54:18
I think a lot of people think that defense attorneys can get you off... that you won't have to face the consequences of your actions if you get a really good defense attorney. So what would a really good defense attorney do to defend someone, um, after they spit in somebody's face?

Jake Rigney:   54:40
Well, so you have to start with the statue. And this is true whether the state has a good case or a bad case, right? This is sort of how you deal with these cases every time. Um, first, you start with statute. You figure out what the elements are. Then you figure out whether or not the state can prove that it was your client.. that your client committed all those elements, right, did all those things. If they can prove all those things beyond a reasonable doubt... Well, you look and see if there are any any statutory affirmative defenses you might use. In Florida man's case those most likely would either be police misconduct or, um, insanity. Right. So, maybe he's insane, and so he can't be held responsible for his actions. Or maybe what the police did before that was so bad that he won't be held responsible for it. Because that can happen. The police can do a thing so bad to you, that whatever you do back to them is just self defense. Um, it's rare. It doesn't happen very often, but it does happen from time to time. I think the last time it happened here that I can remember was maybe five or 10 years ago in Indianapolis. There was a a kid who, I think you got need in the face, repeatedly. His mug shot ended up on the, um, in the paper. I don't remember all the facts anymore, but it was definitely more than one officer holding him down while another one need him in the face. Um and, yeah, they didn't even charge him. Or they might have charged him, but they dismissed it immediately. There's a provision in Indiana law that says if the police have exceeded their authority, you can resist them. And you can't get charged with resisting for doing that. Um, so that you'd look at that and see if there were facts you could present that would tend to prove that one of those affirmative defenses. And if none of those exist, ah, then you just try to do your best negotiation. And if if your client won't accept a plea agreement... he won't take whatever the plea is, you can negotiate for him, then you go to trial, and you make sure the prosecutors don't do anything dirty at the trial. And you see what happens.

Kassi Rigney:   57:18
The true role of a defense attorney is to make sure, when there is a conviction, that is done lawfully. Um, if when the state or police break the law, that oftentimes degrades their evidence, or their ability to present certain pieces of evidence. And that's how you beat a case. Um, but, you know, if they've got, you know, DNA and a video and three police officers pointing the finger at you, I don't care who you hire. It's, you know, it's gonna be a long shot. You know, anything can happen in a jury trial, but, um, you know, then that's up to the client. How risk averse are they? Um, you know, you can't win every case. You know, sometimes you know, they've got the evidence, and they can admit it against you. And there's nothing that a defense attorney can say to keep that out against you. Um, now, picking a jury, uh, you know, making arguments at trial, you know, you just never know what happens... what can happen. So I mean, there's always that hail Mary. But, you know, if it were me, and the difference between going home or going to jail... Um, you know, whether you take that risk, you know, it wouldn't be my recommendation, but absolutely that's the client's decision.

Teri Ulm:   58:31
Now, not only was Florida man trying to kill people this week with the coronavirus, he was also shot after breaking into a home, early in the morning on Thursday, because he thought he was being chased by dinosaurs. Yeah. A mother of three ended up shooting him after he refused to leave. Um, the cops came. He ended up being taken to a hospital with injuries that weren't believed to be life threatening. But he did say that... Well he told police that dinosaurs were chasing him, and that he thought he got a hold of some bad weed?  

Jake Rigney:   59:16
Yeah.  

Teri Ulm:   59:17
I don't think that's weed.

Jake Rigney:   59:19
This brings me to a really important point, that I like to stress to lots of people, which is, don't do meth. It's ah really bad drug. Really bad.

Kassi Rigney:   0:00
I could have been wet. Which, for those who don't know, is marijuana dipped in formaldehyde.

Teri Ulm:   59:38
What?

Jake Rigney:   59:39
Yeah, yeah. And that's sort of one of the things I thought of when you said that didn't sound like weed. I was like, well, it sounds like weed. But it sounds like weed mixed with something. Um, so there is a phenomenon whereby people combine marijuana with other things to change the high. Make it different. Make it better. Um, apparently the weed is just not getting it done on its own anymore. And they need some better drug to combine with it. And one of the things that they do, it's known on the street is wet, is uh, dip it in embalming fluid. Dip a joint and embalming fluid, then smoke it. And it completely changes the person who does it. They turn into just lunatic. And that's what that sounds like. It sounds like somebody sold him some wet, that he thought was regular marijuana maybe.

Kassi Rigney:   1:0:36
And this is a very interesting situation, because before the drug comment, because voluntary intoxication, if it causes psychosis of some kind, you're not going to get the same treatment under the law as you would at first. If he was suffering from a legitimate, like schizophrenic delusion, there may be a defense there for his entry into the home. But then she may have also been, ah, well within her rights to shoot him. But I don't know the law in Florida, So I mean, when you first started talking, it seemed like both of them could probably walk away without charges. And be just and reasonable, know if he was voluntarily intoxicated. Then he's probably gonna be on the hook for for the breaking of the burglary here, residential entry, sounds what it would probably have been in Indiana.

Teri Ulm:   1:1:27
So if I'm understanding this right, if he, um, bought weed, thinking it was just regular weed, and it was actually wet weed, would that be a defense for him?

Kassi Rigney:   1:1:39
No. He voluntarily took drugs. I mean to be like, well, I thought it was just doing weed, but it was really cocaine. No, it's not a defense, because you're not supposed to be doing weed either. I mean, you say, look of you buy contraband on the black market, you're on the hook for what you get, um, and...

Jake Rigney:   1:1:57
Yeah, and that rule makes even more sense in Florida, because you can get legal weed in Florida, right. It's not that hard. You go to your doctor and you tell him you have fucking toothache or something. And ah, you can find somebody to write you a script for marijuana. And then you go down to one of the licensed and regulated marijuana sellers in Florida, and you buy the legal marijuana that they sell. Which is guaranteed to not be dipped in formaldehyde, because that's illegal. Um, so, yeah, his... I don't know what Florida law is... Indiana law is a little weird with voluntary intoxication. Because generally their rule is, you did the drugs, you're on the hook for whatever you did while you were on the drugs. But they do allow you to argue that you were voluntarily intoxicated in such a way that you couldn't have formed the requisite intent. So, if you are so intoxicated that you cannot knowingly or intentionally break and enter, then you could be found not guilty, even though you were voluntarily intoxicated. But you don't you can't accidentally open a door. You can accidentally break into someone's house, so he still had the requisite knowledge or intent. He just has a really crazy explanation for why he did it. But that doesn't justify.

Kassi Rigney:   1:3:34
And this is where people I, uh, oftentimes put the cart front of the horse. The first question is, are you guilty or not? Or can they prove it or not? Are you going to admit whatever is getting there. And then all this other stuff? Well, I'm a good person. I'm going to lose my job. Ah, my family relies on me. I'm the only breadwinner. Those are post conviction considerations. That's when you look at well, what is appropriate to do here? You don't get found. You're not not guilty because you've always held a job, and you're the main breadwinner in your family. You're guilty. The question is, you know, maybe you're appropriate for probation instead of jail time because of those things. And that's a big confusion with a lot of people of... that taking every. You know, you need to take these things one step at a time. And most lay people don't separate it like that.

Jake Rigney:   1:4:25
I did want to say about this... It's fun, because people have such varying opinions on how to deal with these sorts of situations. Right? Uh, I have this type of conversation with my mom fairly regularly. Like, what are you gonna do if somebody breaks in your house? And she's just, like, I'm just gonna let him do whatever they want to do. Steal the stuff, I guess. Hope they don't kill me. But if they kill me, well, they kill me. I'm not gonna kill them. If they kill me, they kill me? I'm like, Jesus. Florida Mom, on the other hand, she is like, I got my loaded gun. I don't care what drugs you're on. Pop. Pop. Pop. Call the cops. She's got the gun. She's ready. People getting shot. They're both I guess they're both okay.

Teri Ulm:   1:5:16
So this just brings me to, ah, personal question. Um, there was somebody creeping around my home, and they were looking at my brother's car in the middle of the night. My brother grab his gun, which he's licensed for, and went out there to greet the person. Luckily, when he got out there, the person was gone. But how... Would he be able to defend his property with his gun? How does that work?

Jake Rigney:   1:5:45
Uh, there is... The self defense statute is probably 2000 words long, and it includes defense of others. Because you can defend others in the same fashion that you can defend yourself. If you see someone next to you getting robbed, you can, you can react in the same way that if you were getting robbed. And there's also a portion in it that authorizes certain force for protection of property. Um, I do not believe deadly force is on the list of things you can use to protect your property. So, while he can take his gun, and he could take his gun with him for the idea that he needs to make sure he can protect his self. You know, in case the person decides to engage him in physical combat. Um, but he cannot... I do not believe he can shoot a person for trying to steal his car. Um, he can... He can take the gun. He may even be able to point it. I think the statute says he can point it at the person. Um, but I do not believe he can shoot a person over property. On one side of the line, you can use deadly force. Which means you can shoot somebody in the face and kill them. And then on the other side of the line is you can just use reasonable force to repel the attack. And where the line is drawn is, if you are in reasonable fear of a forcible felony, or they're trying to break into your dwelling. So once you are in reasonable fear of a forcible felony. Which includes carjacking, robbery, battery with a deadly weapon, battery resulting in serious bodily injury. If you are in fear of those things, then you can use deadly force, up to and including killing the person.

Teri Ulm:   1:7:53
So I guess that's confusing, because what if my brother, which I think rightfully so, was in fear that he was going to be robbed, that his car was going to be taken. But he can't use deadly force?

Jake Rigney:   1:8:04
No, because you're misunderstanding what robbery is.  

Teri Ulm:   1:8:08
Okay

Jake Rigney:   1:8:09
Uh, robbery is when a person uses force, or the threat of force, to take property from you. Right. From your person or in your presence. So, the description... What you're describing is a guy trying to steal a car. But he's not using force or threat of force.

Teri Ulm:   1:8:32
Well, I should add this within the last year. My brother's car Waas Ah, the window was smashed, so there was forced used to get in the car to steal things. So how does that work into this?

Jake Rigney:   1:8:45
The force has to be used on the person.  

Teri Ulm:   1:8:47
Okay.

Jake Rigney:   1:8:48
Not on the property. Um, so, he wasn't being robbed. He was having his car stolen. The crime that was being committed against him was auto theft. Not robbery. Um, robberies when somebody points a gun at you, or beats you up and takes your stuff. Or threatens to beat you up and take your stuff. Now, if your brother goes out there, with his gun and says, hey, stop stealing my car. And the guy pulls a gun on him... the guy says, get the fuck out of here, or I'll beat you to death. Or even says turn around and walk away or I'll beat you up right now cuz I'm taking this car. Well, that is a lot more like a robbery. Because now you've got the threat against him in his presence, right? In that case, it's still kind of close. But probably gonna be okay opening fire in that situation.

Kassi Rigney:   1:9:47
Well and, you know, you gotta think from your brother's perspective, from a lay person, this is where, you know, let's say he shoots him. Well I know he was going to steal from me. But that's not the definition of robbery. And also, to use self defense. You can't be the instigator. Ah, low level property crime was potentially being committed. And he interjects himself in there. And he's the one that escalates the aggression there. Um, you could get himself in trouble.

Teri Ulm:   1:10:17
What is the definition of a low level property crime? What if his car was worth over $100,000? Is that low level property?

Kassi Rigney:   1:10:25
Well, I mean, that would be a higher level felony, but it's still a theft of property, you know? He's not... His person is not in threat. He is not, um, I mean, because then it would be like, okay well, um, poor people, your property rights are less than a rich person's, um...

Jake Rigney:   1:10:44
And you know, the other thing about it is, I think the legislature recognizes, and self defense tends to recognize, that it doesn't really matter how much the car is worth. You know what I mean. If he has $100,000 car and he doesn't have insurance that will replace it, then he's an idiot to begin with, right? So most likely, what's he... He's gonna be out that nice car for a little while, and then he's gonna get some money from his insurance company. That is just not worth shooting somebody in the face over. You know what I mean? But if the guy turns and starts threatening, you know, then that's a different story. Right. When your physical person is in danger, your insurance company can't replace that. And that's different. So we get that. But ah, a low level property crime, I think as Kassi describes it, means things that are like level 6 felonies and lower. And stealing a car worth that much would probably be a level 5 felony, but it's still not a forcible felony. So it doesn't... It just doesn't rise to the level of using deadly force. I do believe he could go up to the guy and, you know, push him away or punch him or do something like that. That's, um, that's just using reasonable force, not deadly force.

Teri Ulm:   1:12:12
That wraps up this episode of Tales from the Brown Desk.

Jake Rigney:   1:12:15
Alright. Thanks, Teri. And, thanks for listening to Tales from the Brown Desk. If you need help with a criminal law issue, please contact Rigney Law at 317-430-7370. If you have a question for the attorneys you'd like to be addressed in our next podcast, please email us at [email protected] And title your email, podcast question. It also helps if you tell us your name and where you're from.  

Jake Rigney:   1:12:42
Please note, while we may discuss legal issues and provide information regarding the law to our listeners, we do not intend to create an attorney client relationship with any listener. Our advice may not be applicant or appropriate to some legal issues. Please consult with an attorney you have hired to review your legal situation so the two of you can discuss your legal issue before you attempt to apply our thoughts to your case. Also, the attorneys in this podcast do not comment on their current pending cases. None of this discussion is a comment on a current case or strategy, even if you are from Florida. Thanks. Take care.

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