Editorial: State should tweak red flag law to make sure it works as intended

Keywords Editorials / Opinion

In hindsight, it’s easy to say Indiana’s red flag law should have been invoked to prevent Brandon Scott Hole from purchasing the two rifles he used to open fire at a FedEx Ground facility and kill eight people.

But the circumstances that led Marion County Prosecutor Ryan Mears to decide against asking a court to invoke the law aren’t that simple and need to be addressed to do more to keep guns out of the hands of violent or mentally unstable people.

The law passed in 2005 after a man who had been previously placed on emergency hospital detention shot and killed Indianapolis officer Jake Laird. After the man’s initial detention, police removed a number of weapons from his house but had to return them because no law was in place to keep the weapons out of the man’s possession.

The 2005 law allowed authorities to confiscate guns and prohibit future gun purchases for a period of time if the person was a risk to himself or others.

It sounds like the perfect law to prevent Hole from possessing the guns. After all, in March 2020, police had visited his home to seize a pump-action shotgun after his mother reported that she feared he would attempt to commit “suicide by cop.” But, the law was amended in 2019 in a way that makes the process more complicated.

Some changes toughened the law by making it a misdemeanor for a person deemed dangerous to buy or possess a gun and a felony for anyone to give or sell a gun to a dangerous person.

But other changes require courts to make a “good-faith effort” to hold a hearing within 14 days to determine whether a person should have access to guns, the AP reported. An additional amendment requires an affidavit to be filed within 48 hours.

Mears said two weeks wasn’t enough time to subpoena medical records and prove Hole’s propensity for suicidal thoughts, something he said they would need to persuade a judge Hole should not be allowed to possess a gun.

After the seizure of Hole’s rifle in March 2020, Hole was immediately released from the hospital, not civilly committed for psychological treatment and not prescribed any additional medication, Mears noted.

Ultimately, Mears said, authorities were able to remove the most immediate threat, one rifle, from Hole. If Mears had pursued a red flag ruling against Hole and lost, that one rifle would have had to be returned.

Still, the bigger threat—Hole’s purchase of more high-powered rifles—wasn’t stopped. Authorities said Hole would go on to purchase an HM Defense HM15F in July and a Ruger AR-556 in September, weapons he used in last week’s deadly shootings.

Mears had an opportunity to ask a judge to stop Hole’s future gun purchases, no matter how slim his chances might have been of proving his case. If he had, the judge might have ruled in the prosecutor’s favor—or become the focus of the increasing scrutiny over Indiana’s imperfect red flag law.

Now is the time to fix those imperfections to reduce the hesitancy of any prosecutor considering the law’s use.

Indiana, and particularly the FedEx victims and their families, deserve a law that makes sure authorities have the time and tools they need to keep firearms out of the hands of unstable people with a propensity for violence.•

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7 thoughts on “Editorial: State should tweak red flag law to make sure it works as intended

  1. I supported Indiana’s original dangerous person statute, which I believe passed in 2005, making Indiana the second state in the country to have one. I was directly involved in the update of that law in legislation carried by Rep. Donna Schaibley in the 2019 legislative session. I believe that with the updates we made in 2019, we have one of the best dangerous person statutes in the country, and our law has been used as a model in other state legislatures.

    The Marion County Prosecutor is spinning the story and claiming that our statute is flawed. The truth is that he simply didn’t follow the law. The statute says that after a law enforcement officer seizes a firearm from someone they deem to be a danger to himself or others, an affidavit SHALL be filed with the appropriate court within 48 hours. It doesn’t say the prosecutor may, if he thinks there’s a strong case. Once the firearm has been seized, it says he SHALL file with the court. He did not follow the law.

    Mears claims that he couldn’t build a case within the 14 days that he says he had available to do so, when subpoenas allow up to 30 days for a response. First of all, the actual statute says that the court shall make a “good faith effort” to hold the hearing within 14 days, but the statute goes on to say that if the hearing can’t be held within 14 days the court must hold the hearing as soon as possible. There’s even a reference to a continuance of up to 60 days. And while I’m not a lawyer, I’m told that in exigent circumstances the court can grant a subpoena that requires a response in 5 days. The purpose for these provisions in the statute is to ensure that these cases don’t drag out for months. And if the court had found him to be a dangerous person, the statute requires that the court notify NICS (the national instant background check system) so that the person cannot purchase any new firearms until the dangerous person finding is lifted.

    I am told that continuances are granted routinely in these cases in Hamilton County, and when someone in the media actually does some good investigative reporting I’ll bet we’ll learn that even the Marion County Prosecutor’s Office has had continuances granted in these cases.

    No one can know whether a court would have ruled Brandon Hole a dangerous person, but you can’t hit the ball if you don’t even swing the bat. Mears claims that he didn’t think they could prove a history of mental illness. I don’t believe that is required. My guess is that, especially in this day and age, a court would have found Hole to be a danger at least to himself, if not to others, based on his own mother testifying that he planned to use his new shotgun in March of 2020 to commit “suicide by cop.” One Second Amendment attorney that I know told me he’s seen people deemed dangerous by the court on less evidence than that. Mears apparently decided that he’d rather not risk losing the case and have to return a .410 shotgun to Hole, rather than taking a chance that the court would rule him dangerous and preventing him from buying any new firearms in the future.

    The main reason we amended our dangerous person statute in 2019 was to ensure that these cases would move more quickly rather than dragging out for months – sometimes over a year. If a person is adjudicated as a danger to himself or others, we want that person to be a prohibited possessor that can’t pass a background check as soon as possible. It may be inconvenient, but the fact is that the US and Indiana Constitutions require due process before taking away a citizen’s 2nd Amendment rights. With the update to the law in 2019, the legislature was attempting to ensure that the process would take no longer than 60-75 days. It appears that prosecutors and courts are dropping the ball. The Marion County Prosecutor certainly did in the Brandon Hole case.

    1. @Jerry T– Yes, YES, YES!! to this:

      Mears apparently decided that he’d rather not risk losing the case and have to return a .410 shotgun to Hole, rather than taking a chance that the court would rule him dangerous and preventing him from buying any new firearms in the future.

      He doesn’t file on anything. A police officer was hit in the head with a fire extinguisher during the riots. It was videoed and they knew who did it. No charges filed. No charges filed on the looters who destroyed businesses. No charges filed on other crimes where the suspects later went on to commit way more serious crimes. He is dangerous! I keep screaming it from the roof tops, but no one has taken a hard look at his practices.

  2. Jerry T– Yes, YES, YES!! to this:

    Mears apparently decided that he’d rather not risk losing the case and have to return a .410 shotgun to Hole, rather than taking a chance that the court would rule him dangerous and preventing him from buying any new firearms in the future.

    He doesn’t file on anything. A police officer was hit in the head with a fire extinguisher during the riots. It was videoed and they knew who did it. No charges filed. No charges filed on the looters who destroyed businesses. No charges filed on other crimes where the suspects later went on to commit way more serious crimes. He is dangerous! I keep screaming it from the roof tops, but no one has taken a hard look at his practices.

  3. Is it too much to ask someone in the news media to tell us how many red flags are issued every year? If someone at IBJ knows, cld you post the answer here?

  4. Mark, in a story we published April 25, we reported that Indianapolis Fraternal Order of Police President Rick Snyder said the Indianapolis Metropolitan Police Department had made at least 45 red flag referrals to the prosecutor’s office so far this year. Marion County Prosecutor Ryan Mears said his office had filed eight red flag petitions since January. All were still awaiting rulings. https://www.ibj.com/articles/marion-county-prosecutor-facing-criticism-after-fedex-shooting

  5. WTHR ran an interview with a person who helped get the red flag law passed in CT. He said that prosecutors in CT haven’t had have a problem with the 14 day time limit to bring a red flag case. He questioned whether the Marion Co. prosecutor really knew how to prepare such a case.

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