Tales from the Brown Desk

Tales from the Brown Desk - Episode 6 - Domestic Violence, No Contact Orders, Nonviolent Civil Disobedience

April 20, 2020 Rigney Law LLC Season 1 Episode 6
Tales from the Brown Desk
Tales from the Brown Desk - Episode 6 - Domestic Violence, No Contact Orders, Nonviolent Civil Disobedience
Chapters
00:01:40
Nonviolent Civil Disobedience and Resisting Law Enforcement
00:08:53
Domestic Violence Increasing in Indianapolis
00:09:27
What is Domestic Violence
00:10:41
Difference Between Domestic Violence and Domestic Battery
00:11:43
What are the Penalties for Domestic Violence in Indiana?
00:14:35
What Happens to Gun Rights after a Domestic Violence Charge?
00:15:56
What is a Protective Order? Restraining Order? No Contact Order?
00:18:06
Defenses for Violating a No Contact Order in Indiana
00:20:47
No Contact Orders Initiated by Victims
00:23:29
Penalties for Violating a Protective Order or No Contact Order
00:27:48
Domestic Violence Call Leads to Police Officer's Death in Indianapolis
00:31:02
Defenses for Domestic Violence Charge in Indiana
00:37:12
Vigo County Deputy Sheriff Arrested on Domestic Violence Charge
00:39:19
Florida Man Arrested on Charge of Domestic Violence by Strangulation
Tales from the Brown Desk
Tales from the Brown Desk - Episode 6 - Domestic Violence, No Contact Orders, Nonviolent Civil Disobedience
Apr 20, 2020 Season 1 Episode 6
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 6 - Discussion about nonviolent civil disobedience and resisting law enforcement, Covid 19 is prompting a surge in domestic violence throughout Indiana and Indianapolis, Domestic Violence, Defenses for Domestic Violence, Protective orders, Restraining Orders, No Contact Orders, Penalties for violating No Contact Order, Vigo County Deputy Sheriff arrested on Domestic Violence charges, Florida Man arrested on a charge of Domestic Violence by strangulation, and Strangulation charges in Indiana.

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 6 - Discussion about nonviolent civil disobedience and resisting law enforcement, Covid 19 is prompting a surge in domestic violence throughout Indiana and Indianapolis, Domestic Violence, Defenses for Domestic Violence, Protective orders, Restraining Orders, No Contact Orders, Penalties for violating No Contact Order, Vigo County Deputy Sheriff arrested on Domestic Violence charges, Florida Man arrested on a charge of Domestic Violence by strangulation, and Strangulation charges in Indiana.

Jake Rigney:   0:06
It's Friday afternoon. We've locked the door to keep the roving cords away from our secret stash of extreme strength hand sanitizer. And also because it's 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 real life Fruit Ninja, Kassi Rigney. See all you guys, you're good at it on your phone. She do it real  life. 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 nature's purse. It may not be suitable for children, toddlers, baby lumps, expectant mothers, sensitive houseplants, Christian conservatives, snowflakes, or the cancel culture. Listener discretion is advised. Here's Teri.

Teri Ulm:   1:05
Hello, everyone. Hi Jake.  

Jake Rigney:   1:08
Hello.  

Teri Ulm:   1:09
Hi, Kassi.

Kassi Rigney:   1:09
Hi, Teri.  

Teri Ulm:   1:10
How are you two today?  

Kassi Rigney:   1:12
Fine.

Jake Rigney:   1:13
My fingers are sticky. I had a couple of chicken wings for lunch, and I apparently didn't wash my hands.  Uh, coronavirus... Everywhere... On everything.

Teri Ulm:   1:27
Yeah, I'm not sure that's how it works, but...

Jake Rigney:   1:30
Well you get it from chickens, right?  

Teri Ulm:   1:32
You can get it from tigers.  

Jake Rigney:   1:34
Don't tell Tiger King.

Teri Ulm:   1:39
So, we're going to do a follow-up question from last week's episode. And it was in regards to the nonviolent civil disobedience.

Jake Rigney:   1:50
Oh good.

Teri Ulm:   1:52
Now one of the things we didn't cover, which was a question that was brought up, was the possibility of being charged with resisting law enforcement. When can those charges be brought against somebody? Let's say, for example, that this activist or an activist is not listening to the cops and not going along with being arrested and are just sitting on the ground and has to be dragged away. Could they be charged with resisting law enforcement?

Jake Rigney:   2:24
It depends on what they do. I assume you've talked to them since last week... since our last episode?

Teri Ulm:   2:31
Yes.

Jake Rigney:   2:31
And so it also sounds like they have no intention of taking my advice and not getting arrested. Is that accurate?

Teri Ulm:   2:38
That is accurate. There are people that plan on being arrested.

Jake Rigney:   2:42
Okay... Just like the rest of my clients. So that's great. Um, not really. None of my clients wanted to get arrested. Nothing like actually any of my other clients. Um, so you can get arrested for resisting law enforcement in sort of two different general ways. The first is by running. So if you flee from the police, you are committing a crime. So if any of them, when when they're doing this, the police say, "Okay, you're under arrest", they decide to get up and run. Wait. And if they do, I really hope that they use an old timey voice when they do it and say "You'll never take me alive. coppers". But if they don't do that, but they run from the police, they'll get charged with resisting law enforcement. That's an A misdemeanor, resist by flight. If they did it in a car, be a Level 6 felony. And it gets worse if you do it and it results in someone's death or serious bodily injury. I think. Especially to a law enforcement officer. But there's a second way you could get arrested for resisting law enforcement. That's resisting by force. There have been several Indiana Appeals Court opinions about what exactly that means. And it could be very tricky. If you... First of all, there are the obvious easy ones, right. If you punch the cop, that's resisting law enforcement. In fact, that's probably gonna be worse than resisting law enforcement. But if you push the cop away, if you try to yank your hand away from him while he's trying to put you in handcuffs, he or she, that's resisting law enforcement. You're using some type of force to prevent your apprehension, to prevent them from doing what they're lawfully allowed to do, which is arrest you for committing a misdemeanor. But it gets trickier, the less force you use, right? And, so the Appeals Court has said that simply tensing up and refusing to let the officer sort of put your hands behind your back is still enough. Right. So even if you're not pushing, you're not fighting, you're not spinning away, but you're flexing your muscles in a way that makes it harder for the officer to cuff you. That's force. But they have not gone so far as to suggest that if you just lay there limp. You just sit there limply... That that is, resisting law enforcement. Now you don't really wanna have to make your case go all the way to the Court of Appeals to find out the answer to whether that's resisting law enforcement or not. So again, like I've said repeatedly before, I don't encourage you to do anything that would cause you to get arrested. But, you could get arrested for resisting law enforcement in those situations. Especially if you use any kind of force whatsoever to try to prevent or hinder your apprehension.

Teri Ulm:   6:02
If they had no intention at helping the officer out, arresting them when going to the car, let's say that the officer had to carry them to the car, and they just were limp. Could that be resisting law enforcement? Say they're just not compliant with being arrested, but they're not tensing up, they're not preventing the officer from putting the cuffs on them, but they're also not assisting with making it easy?

Kassi Rigney:   6:32
I mean I think that's the same answer is before. I mean, if you're dead fishing and you're dead fishing, basically. I mean, if they want to move you, then they have to move you. Um, but...

Jake Rigney:   6:41
Yeah, a lot of times, what's illegal and what's a good idea, aren't mutually exclusive, right. Going completely limp when a police officer is trying to arrest you, is not a very good idea. And there's a couple reasons for that. One is that your body is not meant to be drug around. And the older I get, the more I realize how hard everything in the world is that occasionally bumps into me. So doing things like that make it significantly more likely that the protesters gonna get hurt, that the police officer who has to try to carry somewhere between 100 & 200 pounds of dead weight by themselves is gonna get hurt. I know there's some police officers who listen to this, and there are some police officers who are in great shape and can certainly pick up 200 pounds of dead weight without much trouble. There are some who can't. But if it's their job, they'll try. And they'll try to do things that better not physically capable of doing. And if they hurt themselves, the cops, not the one who's going to get the blame for it. It's the person who was making him carry 200 pounds of dead weight around. Here's the other thing, if you're going to engage in civil disobedience, everything I've read about it, from the different people I've discussed who have practiced it, suggests that you really should be welcoming the arrest. Right. The point of the entire situation, is to get arrested, to bring more attention to whatever cause it is that you're getting arrested for. Right? So whether you go limp or you stand up and put your hands behind your back, you're getting arrested either way. Why make it worse for everyone when it was your goal to begin with? You know what I mean? So can you... Can you play dead fish and see what happens? Sure. Do I think it's illegal. Probably not. Do I think it's a good idea? Definitely not.

Teri Ulm:   8:52
So with the stay-at-home orders in effect in Indianapolis for weeks now, a new picture has emerged around certain crimes in the city, specifically domestic violence. And an IUPUI study found that domestic violence calls have increased significantly after school and restaurant closures. And that they see that the increase is likely because people are at home together for longer periods of time. Could you define domestic violence for the listeners?

Kassi Rigney:   9:27
Well, domestic violence, it's referring to a household family or household member. Basically it's a battery between those two people. It's elevated or separated because of the relationship to the party's versus a regular, you know, a battery that could be somebody passed on the street or encounter it a bar. It's a way to denote the special relationship between the complaining witness and that the accused.

Teri Ulm:   9:54
Are the penalties different or the different types of relationships? If it was a family member opposed to a stranger?

Kassi Rigney:   10:03
Well, yes and no. I mean, you know, if it's an A misdemeanor domestic battery, it has the same potential penalties as any other A misdemeanor. One thing, you know, at that speaking length of sentence, fine, that kind of thing. Now, the thing with the domestic battery, if you have a conviction that will affect your ability to possess a firearm in the future. They're gonna take stronger stance on, you know, protective orders, no contact orders, and things like that. So... So, yes and no. I guess is the answer. A great lawyer answer. 

Teri Ulm:   10:41
Is domestic violence the same as domestic battery?

Jake Rigney:   10:44
Domestic violence is what you call a catch all term to describe several different kinds of crimes. One is domestic battery. Another is strangulation. And then also typically, invasion of privacy falls under, into that category as well. Now you can commit those crimes against people that aren't domestic partners, but the vast majority of times when that crime is committed, it is against a domestic partner. And so because of that, they just all kind of fall into the same category. In Marion County, there are two specific domestic violence courts who handle nothing but domestic violence, misdemeanors and level 6 felonies. And so they have all these different crimes that go into that courtroom. And so it's kind of a catch all term for domestic battery plus the other stuff.

Teri Ulm:   11:43
And what are the penalties for domestic violence from the smallest to largest?

Kassi Rigney:   11:51
Well, I mean, it's the same thing mean the lowest level is, I think, an A misdemeanor. And I would say the highest level could potentially go up to, what, an aggravated battery. So the standard... I mean that's. They are what they are. You know what I mean? If it's an A misdemeanor, it's an A misdemeanor. If it's a B or a level two or level three, I mean that's so.  

Teri Ulm:   12:13
And when you say A misdemeanor, does that mean time in jail? A fine?

Kassi Rigney:   12:17
Any criminal offense can potentially put you in jail. The maximum sentence on an A misdemeanor is 365 days.

Jake Rigney:   12:26
So yeah. The least serious crime that usually gets sort of grouped into domestic battery ends up being B misdemeanor battery. Which carries penalty between zero and 180 days in the county jail. You could also end up on probation for it. But, any battery on a domestic partner, household member, is an A misdemeanor. So even if it was only gonna be a B misdemeanor, it gets enhanced to an A because of the relationship. Um, if you do that against the same person again, or if you do it again after you have a prior conviction for doing it, the second conviction is a level 6 felony. And then there are more serious offenses that happened between domestic partners like C felony battery, aggravated battery, like Kassi mentioned. And even when you get up into the high, higher level felonies, they stop considering the domestic nature of it, but you just get charged with that real serious felony. Unfortunately, murder happens between domestic partners, sometimes. So, I mean, realistically, that's the most serious offense that happens or that gets charged. But there's a point as you get higher up into the ranges, in Indiana law, where they stop considering it's just murder or aggravated battery. But those things still can serve as aggravating factors at the sentencing hearing for those crimes too. The reason for that is there's a factor that causes judges to give out harsher sentences for people who were in positions of trust with each other. Right? So my wife and I love each other. We trust each other. We don't expect either one of us to punch the other one in the face or do something even worse to each other. And so, if I were to do it, I deserve a harsher sentence because I've violated her trust in that way. If that makes sense.

Teri Ulm:   14:35
And go back to something Kassi mentioned... You brought up guns and domestic violence. Does domestic violence charges mean that someone would lose their gun rights?

Kassi Rigney:   14:48
Prosecutors usually pursue a protective order when charges are filed. And that protective order will order the accused not to process a firearm while the charges are pending. If there is ultimately a conviction, yes, even a misdemeanor domestic battery conviction will result in termination of your gun rights.

Teri Ulm:   15:14
So if someone already is in possession of guns and a protective order was filed against them, do they have to surrender their weapons? Or how does that work?

Kassi Rigney:   15:25
They don't necessarily have to surrender them to the police, but they're supposed to have them removed from their home. They're not supposed to be around and available to them.

Jake Rigney:   15:36
Yeah, they can't possess them. But there are situations where the court will order a person to turn their firearms over to the Indiana State Police. And if you show up there and you tell them that's whats happened, they'll take guns from you.

Teri Ulm:   15:58
So the domestic violence goes hand and hand with protective orders, and those are still being filed online even though most of the court's operations are shut down during this pandemic. What is a protective order? Is that the same thing as a restraining order, a no contact order? What is a protective order and what kind of protections does I give someone

Kassi Rigney:   16:22
Well, it orders the person to stay away, and it kind of encompasses have been no contact order as well. You can't physically be around a place, you can't contact, you can't have people do it on behalf. I think, as many victims have complained, you know I mean, it's worth whatever shield the paper is. If someone really has ill intent... But I think that that comes down to if someone really as ill intent. What what does the paper... What does the written law confined that person. Its teeth in enhancing future offenses. It can get someone taken into custody when they were, you know, and held during the rest of the pendency of the case. So, yeah, they're issuing them. And that's just a way to keep the two parties apart during the pendency of the case, and in hopes of keeping the complaining witness safe.

Jake Rigney:   17:19
Yeah, people often used these different phrases for it, right? Protective order, or no contact order, or a restraining order. And in Indiana, they're all same thing. It's all in order from the judge, typically telling you to have no contact with a person, and to stay away from places you know they'll be, like their work and their home.

Teri Ulm:   17:44
So let's say you have a married couple who lives together, and there was this domestic violence between the two. And one of them files a protective order against another. How does that work when they're living in the same home? Does one have to leave?

Kassi Rigney:   18:01
Certainly.  

Jake Rigney:   18:02
Yeah, yeah. Somebody's gotta find a new place to stay.

Teri Ulm:   18:06
Now, are there any defense is that one could use if someone was accused of violating a protective order?

Kassi Rigney:   18:14
What do you mean, like an affirmative defense? They have to prove it. You know, it could be mistaken identity. Um, you know, something like that. But, you know, it's not a defense that the alleged victim reached out to you. Um, I've heard judges explain it as far as, you know, if you're shopping in the grocery store, and you see him walk in, it is on you to walk away. So that... When that... When the judge issues that order, the judge considers that an order between the accused and the judge. And the victim can't come in and interfere with that, and give them... And be like, well, the victim doesn't want this. If the judge says it, the judge says it. I mean, the victim can pursue the judge to have lifted, but that's not a defense.

Jake Rigney:   19:07
And that is... I know we've talked about this before, that is probably the third largest misconception that that I see in all the work I do. Is, people think that the no contact order works both ways. So, uh, just use an example to clarify it a little bit more, and I wont impute my wife's character, so we'll pretend I'm the bad guy. So if I, in fact, had punched my wife in the face and got charged with domestic battery, because of that. And the court issued a no contact order, the order only applies to me. So I cannot contact her. And I can't have anybody else contact her on my behalf. Except my lawyer, I think. But she my wife can still do whatever she wants. She can text me three times a day. She can call me. She can ring me up and call me names or tell me she loves me whatever she wants. Um, and there's nothing I can do about it. And I can't respond. If I respond, I'm breaking the law. She's not. Unless I can prove she's harassing me or something like that. But even then, I can't respond. I'm under an order of the judge not to have any contact. That includes responding when she initiates the contact. A lot of people I've talked to, they think when a no contact order is entered, that means neither one of them can contact the other, and they both have to stay away from each other, and that is not the case. Not at all

Teri Ulm:   20:47
Are no contact orders always initiated by the victim or does sometimes the state issue those on their own?

Kassi Rigney:   20:57
So, the state or pretty much start it... And, you know, they'll carry it. The state can, you know, fight the victim and keeping that in place. And the judge can order it over the objection of the complaining witness. One thing, not only is it for protection of the physical person or the parties, but it's also the state's protection of the case. The state also has an interest in their witnesses not being tampered with. So that's another consideration that they are, but I mean, that's a big misconception. The ability of the victim to drive that decision. They play a role and their input is considered. But that decision is with the prosecutor, at least initially.

Jake Rigney:   21:46
It's interesting that Kassi brings that up, because I see that argument made a lot, actually. The protecting the integrity of their case. The state likes to make that argument for why no contact order should be lifted. Although, if you read the no contact order statute, it lists the factors that the court is allowed to consider when deciding whether to issue you one... issue a no contact order or not. And integrity of the state's case isn't anywhere in there. So they like to come make that argument. But it is not actually anywhere in the statute that the court should consider that. The state's case either has integrity or it doesn't. It's not fair to ask the impartial referee in the case to come down on one side or the other by tilting the scales to make it easier for the state to prove their case. And the statue reflects that. But, you know, a smart prosecutor somewhere came up with that argument, and it's really taken hold. I hear it a lot.

Kassi Rigney:   22:51
Well, and I think that the court does give some credence to it. Especially in the courts where they see it all the time, because a lot of there's... there's a higher frequency within this type of case for the state's case to fall apart.

Jake Rigney:   23:07
That's true. Yeah, it's significantly higher. Domestic violence cases, in the domestic violence courts, and even in the other courts, when they go to major felony,  are significantly more likely to fail, and get dismissed because of non-cooperation of the witnesses.

Teri Ulm:   23:29
So what penalties or consequences does one face if they were accused of violating a protective or no contact order.

Jake Rigney:   23:38
Yeah, that's a misdemeanor. It's an A misdemeanor. It's called Invasion of Privacy. That's a misconception, I hear sometimes too. People think that if they told somebody to leave him alone and they don't that they've committed invasion of privacy. And that's not true. You actually have to have the no contact order. But it's an A misdemeanor. And each instance is an A misdemeanor. And because they're misdemeanors, they are eligible to be stacked without any limitation. I don't think. Which means, if I send my wife eight texts, you know, at two in the morning, after a no contact order has been issue, I'd get charged with eight counts of invasion of privacy. And in that situation, potentially, could be looking at eight years in the county jail. Now, realistically, there are not a lot of judges who will sentence a person to eight years in their county jail, because their county jail doesn't have that kind of room. But that is what could potentially happen. And a second offense for it is a level 6 felony. So it's one of those we're talking about a few episodes ago that gets stacked if you have a prior conviction.

Teri Ulm:   24:58
So if there are certain penalties that are set in stone for breaking the law, for like violating a protective order or no contact. What benefit would an accused have at hiring an attorney?

Kassi Rigney:   25:13
Well, I guess I would back up, and I'm confused as to what makes you think anything was set in stone. These are maximum and minimum ranges. They're the same as any other offense. There's a maximum and minimum range. If they say it's an A misdemeanor that's 365 days. That's the maximum. It's like any other misdemeanor. It could be zero days and zero fine.

Teri Ulm:   25:37
Okay, so... Since it's not set in stone...  There's a minimum and maximum... Maybe hiring an attorney would help you get the minimum?

Kassi Rigney:   25:46
Well, certainly. I mean, yeah, we're talking about a set of, you know, types of offenses. It's not any, like I said in the beginning, it's a misdemeanor. It's got a range. Each case is going to be evaluated individually. Yes, of course. Your attorney can advocate to minimize the damage, assuming there is a conviction. And of course, an attorney would help you build a defense and present that offense to fight the case if their grounds to do that, and the client wishes you to do that.

Jake Rigney:   26:13
Yeah, more so in domestic violence cases than regular cases, it's kind of important that you get someone who understands the system for the court you are in. Because judges have very different policies for how they deal with non cooperating witnesses in these types of cases. In Marion County, if you set it for deposition and they don't show up two or three times, usually the state, the judge will end up excluding the witnesses. And then the state doesn't have a case they can try, so they have to dismiss it. But in other counties, they don't have to do that. There's no law that says they have to. It's just a discovery sanction. And so in other counties, the judges don't necessarily do that. Instead, they'll issue a warrant for the person's arrest for not showing up, not obeying the court subpoena. Because you're typically served a subpoena to appear those depositions. So in those cases, you really want an attorney that understands the system that your case is in. Because it is important to understand how the judge is going to deal with your case and with that kind of issue in particular, it varies a lot. And so you want somebody who's been through that and has that experience in the court that you're in.

Teri Ulm:   27:49
In Indianapolis last week, there was a police officer who died after responding to a domestic violence call. I assume you know the officer that I'm talking, well not personally know, but you know of the officer that I'm talking about. She's been on the news a lot lately. Um, with domestic violence, do... are they typically, like, linked to other types of violence and charges?

Jake Rigney:   28:18
Uh, well, so let's start with saying, you know, obviously are our condolences go out to Breann Leath's family and everyone else, including all the police officers who have been affected by her death. Um, I have not read a lot about it, but from what I have read, she seemed like a wonderful person. Um, I know she had a young child, and I'm sure she's got some family. I think they're in law enforcement too. So, um, please don't take anything we're saying today is some type of slight or insult. We're talking about it, but, um, but we you know, obviously it's a terrible situation, and no one here wishes that any of this had ever happened. We certainly wish that none of this sort of thing that happened. I don't think there is necessarily, however, a lot of, um, link between domestic violence crimes and other types of crimes. It's the kind of thing that, unfortunately, a wide range of people can commit. That being domestic violence. Because it typically happens in moments of anger, and we are all susceptible to being angry and to doing things when we're angry that we regret. So you see people that you would not typically expect to get arrested, pick up those types of cases too. But also the other way around. And it's difficult to draw really any conclusions about a person based solely on being arrested for that. If it makes any sense.

Teri Ulm:   30:06
Now, being angry and reacting in the heat of the moment, is that of potential defense for domestic violence charge?

Kassi Rigney:   30:17
Only if it... I mean, I haven't seen it as a domestic violence charge. I mean, you're kind of going down the vein of what would be like heat of passion defense to murder.

Jake Rigney:   30:31
Yeah. Only if what you were charged with was murdered. And then it would just be reducing it to voluntary manslaughter. But, uh, there is no defense for domestic battery because you were mad. Whether you're mad or not, the law expects you to did not punch other people in the face or choke them. So.. No, I guess, is the short answer to your question.

Teri Ulm:   31:02
I know this is a pretty vague question, but what are some potential defenses for being charged with domestic violence?

Kassi Rigney:   31:11
I mean, you can challenge the relationship. You can challenge whether it occurred. Uh, you know, mistaken identity, the seriousness of the injury. It's not much. You get the of the extra element of the nature of the relationship, so that gives you extra defense is there, but the same defenses that would apply to any battery could potentially apply here. Then you know they have to also prove that relationship. So if you could disprove that relationship.

Jake Rigney:   31:46
Yeah. More so than the normal cases, domestic violence cases come down to the credibility of a witness. And that's because typically they're not committed in public in front of a lot of people who will see them. Typically they are committed in confined spaces, inside houses where it's just a husband and a wife or a boyfriend and a girlfriend. There's usually not a whole lot of other people there that will witness it and then come to court later and talk about it. So the credibility of that one witness, who is usually also the victim, the alleged victim, um, end up being very important when those cases go to trial. And they go to trial about the same amount as every other kind of case. Maybe even a little less, actually, because more of them get dismissed than a normal case.

Teri Ulm:   32:47
So let's say cops were called to a home because neighbors heard some commotion going on, and the cops get there and someone has some injuries on them. Does that victim have to press charges or do the cops have the authority to take the person that caused those injuries away?

Kassi Rigney:   33:09
The victim can choose to report or not choose to report. There's no... that's, I don't know if there's a jurisdiction that actually puts that much control in the state or if that's a complete fallacy generated by entertainment television, Certainly, if the police believed that they had enough evidence to arrest someone without that witness, they could. But, I mean, just as a general, it's a case by case basis and just I mean, you're not provided me with enough information to say whether I thought that that rose to the level of probable cause for the suspected offense at the time. Potentially, if the state can make their case without the complaining witness, they will try to do that. Because of the circumstances that Jake just described, these cases are less likely to have that other evidence. But if it exists, they certainly can pursue prosecution of a case without that person cooperating.

Jake Rigney:   34:08
Yeah. They can do that. And it's difficult to say... for us to say that they will, or they won't arrest a person. Because we don't see the cases where the people don't get arrested. They may exist. It may happen all the time, and it may not. We don't know, because when people don't get arrested, they don't call us. So for us to say the police do always do this, or don't always do this, or even tell you how often, is kind of impossible, because we'd be using confirmation bias to sort of to tell you about it in our experience. But we only see the ones they file. So we don't know. But they certainly can arrest a person just because their significant other as bruises and they got called there on a commotion. Now, it will depend on other factors. And you know whether or not they have some reason to believe it had just happened. But if it did, they probably have probable cause. And usually, when the police have probable cause to arrest you, they arrest you. And they do that for a couple of reasons. One is they don't want husband further beating on wife. The second is they don't want to get sued by wife's family after husband beats her to death. So I think usually when the police have probable cause to arrest a person in a domestic situation, they do it... just to make sure that there's not gonna be any more violence that day.

Kassi Rigney:   35:54
And that's where, you know, the police's primary role is safety. Is safety. And it's not, um, you know that, we as defense attorneys like to, beat the drum of violating people's rights. But safety is their first concern. Um, and I think, you know, as an average citizen, you know, we can agree with that. As a defense attorney that maybe something else. But like he said, you don't want someone to get hurt. This is the second of the last three officers killed in the line of duty that were killed during domestic incidences. Is one of those things that a lot of people, you know, oh it's just a misdemeanor. This that and the other. But why the state and law enforcement take it so seriously is because it can jump from a low level misdemeanor to murder in the flip of a light switch. And those are very, very dangerous situations for officers to be going into. At that point, they don't know, it was the person who was calling crying for their help... Is that person going to turn and attack them while they're trying to protect that person from the attack? Or the alleged attacker. So it's a very, very volatile situation, and very dangerous for everybody.

Teri Ulm:   37:12
So there is Vigo County Deputy Sheriff that was arrested this past week on domestic violence charges. He was an altercation with his son. The wife got involved... trying to pull the deputy off the son. And in turn she got kicked, and she tried to call the police, and the deputy sheriff tried to take the phone out of her hand. The cops did end up coming and arresting him, and he was put in jail on preliminary misdemeanor charges of domestic battery and interfering with reporting of a crime. I just find it interesting that domestic violence can extend beyond just the normal public and police officers can be a victim of it themselves.

Jake Rigney:   38:04
Yeah, there was a more serious case in Marion County, I think, a couple of years ago, Where... Actually, there's been a couple of really serious ones over the last 10 years. There was one where a police officer killed his police officer wife. I think that was... It was six years ago. I think it was around the time. It was a little bit before I left the prosecutor's office. And there was another one where a police officer had been accused of domestic violence and the detective was investigating it. And the police officer shot the detective that was investigating the case. So there have been a couple of real kind of wild ones over the last few years. Obviously, every time it happens, it's a tragedy. But domestic violence is a thing that like I said stretches beyond sort of the normal what you would normally imagine. Because it happens quickly, and because it's usually done in a moment of anger. And people make decisions when they're angry that they tend to regret.

Teri Ulm:   39:19
So also this past week, Florida Man... he was arrested on a charge of domestic violence by strangulation. Him and his girlfriend were found naked in a car, wrestling outside of a Florida mall over a pee napkin.

Jake Rigney:   39:37
Wait. Over what?

Teri Ulm:   39:39
A pee napkin. Apparently, after they had sex, the woman had a pee. So she stepped out of the car, peed, wiped herself with a napkin, threw it in the car, and it hit the guy. And he apparently didn't like it to the point of strangulation.

Jake Rigney:   39:56
And this happened in Florida probably like every day, week last week. But yeah...

Teri Ulm:   40:04
So this brings up a strangulation charge...  Is... Can someone be charged with strangulation in Indiana? And what's the line between that and attempted murder?

Kassi Rigney:   40:17
Well, yes, there is a strangulation charge, and it's a inhibiting the airway. I think it has to cause loss of consciousness. Well an attempted murder is something that just doesn't get charged very much. You would think is an average person, well if you're strangling them, obviously your intent is to murder them. But that is in... That element has to be proven. They very rarely charged it. Same as, I guess an average person be like, "Well, you fired a gun multiple times at that person. How is that not attempted murder?" And they just don't charge that. I never was a screening at that level of the prosecutor side. So I don't know what goes into that. I just know it's a much harder charge because you have to prove that intent on it.

Jake Rigney:   41:09
Yeah. So there is a difference between strangulation and attempted murder. Strangulation is a level 6 felony. Attempted murder is level 1 felony. And I think there is a recognition in the law. The law recognizes that there's a difference between choking someone and trying to kill them. Sometimes, and I'm not speaking from experience, but I can imagine a situation where you choke someone because you have not been trained appropriately on how to express your anger and disappointment. But that you're not trying to kill them. You are just trying to... You've just chosen a very, very poor way to express your dissatisfaction. A very, very, poor way. Whereas to joke someone and it really be an attempted murder, you probably have to choke them into unconsciousness. And maybe even further People don't realize this, and TV makes it worse, but it's actually really, really hard to choke someone to death. It is... it requires you placing enough pressure on their arteries to prevent blood flow to their brain... until they lose consciousness. And then for roughly 4 to 8 minutes after they lose consciousness, to keep the blood out of their brain, until their brain dies. Because that's what keeps your brain lives the blood flowing into. So you have to do it for a long time to actually kill a person. So, yeah, choking somebody for 30 seconds or 15 seconds, probably not going to get it done, right? But I mean, yeah, if you sat there and choke someone for five minutes... Well, that sounds more like you specifically were trying to kill, right? So it just depends on the I think the length of time a lot of times. It also helps... Sometimes the prosecution will latch onto the things the person says while they're doing it. You know what I mean? And, "I can't believe you did this to me", is a lot different than "bitch, I'm gonna kill you", right? In terms of... And when a person expresses an intent like that, a lot of times they latch onto that, and they'll charge, attempt murder, in that situation. But when they don't have something like that, when it's just, you know, he choked me for 10 seconds, and I couldn't breathe. That's not usually gonna get charged as an attempted murder.

Teri Ulm:   44:09
Well, thank you, Jake and Kassi. That wraps up this episode.

Jake Rigney:   44:13
All right. Thanks, Teri. And thank you for listening to Tales from the Brown Desk. Remember, while we may discuss legal issues and provide information regarding the law to our listeners, we do not intend to create attorney client relationship with any listener. Our advice may not be applicable to some legal issues. Please consult with an attorney you have hired to review your legal situation before you attempt to apply the things we have said to your case. If you'd like to call us and schedule a consultation, feel free to give us a call at Rigney Law at 317-430-7370. If you'd like to send us a question for our next podcast, please email Teri at [email protected] Please title your email podcast question and mentioned your name, at least your first name, and your home town. The attorneys at Rigney Law do not comment on their current pending cases. Nothing we have said in this podcast is a comment on a case we're currently working on. Even if you're from Florida. Bye, everyone.

Nonviolent Civil Disobedience and Resisting Law Enforcement
Domestic Violence Increasing in Indianapolis
What is Domestic Violence
Difference Between Domestic Violence and Domestic Battery
What are the Penalties for Domestic Violence in Indiana?
What Happens to Gun Rights after a Domestic Violence Charge?
What is a Protective Order? Restraining Order? No Contact Order?
Defenses for Violating a No Contact Order in Indiana
No Contact Orders Initiated by Victims
Penalties for Violating a Protective Order or No Contact Order
Domestic Violence Call Leads to Police Officer's Death in Indianapolis
Defenses for Domestic Violence Charge in Indiana
Vigo County Deputy Sheriff Arrested on Domestic Violence Charge
Florida Man Arrested on Charge of Domestic Violence by Strangulation