We learned over the weekend that the young man responsible for the shooting at the FedEx facility in Indianapolis legally purchased the rifles used in the attack, despite the fact that police had confiscated a shotgun from him last March after his mother warned that she was afraid her son was going to commit “suicide by cop.” That raised questions about how the suspect was able to legally acquire any firearms, given the state’s red flag law that’s been on the books for decades. Paul Helmke, the former head of the Brady Campaign and an Indiana resident, was quick to say that the state’s red flag law is rife with “loopholes” that don’t prevent those subject to a red flag order from purchasing other guns. It would appear that Helmke is wrong about that, at least according to the Indiana State Police, which says that when a red flag order is authorized, the warrant to seize the firearms in question should also include the suspension of any carry license and a prohibition on the subject “renting, receiving transfer of, owning, or possessing firearms.”

As it turns out, it wasn’t a loophole in Indiana’s red flag law that allowed the suspect to legally purchase his guns, because Marion County Prosecutor Ryan Mears acknowledged today that the red flag law was never invoked; either before or after his shotgun was seized last year.

Marion County Prosecutor Ryan Mears said authorities did not seek such a hearing because they did not have enough time under the law’s restrictions to definitively demonstrate [the suspect’s] propensity for suicidal thoughts, something they would need to have done to convince a judge that [he] should not be allowed to possess a gun.

The “red flag” legislation, passed in Indiana in 2005 and also in effect in other states, allows police or courts to seize guns from people who show warning signs of violence. It is intended to prevent people from purchasing or possessing a firearm if they are found by a judge to present “an imminent risk” to themselves or others. Police seized a pump-action shotgun from [the suspect], then 18, in March 2020 after they received the call from his mother. But the law only gave them two weeks to make their case.

“This individual was taken and treated by medical professionals and he was cut loose,” and was not even prescribed any medication, Mears said. “The risk is, if we move forward with that (red flag) process and lose, we have to give that firearm back to that person. That’s not something we were willing to do.”

Indianapolis police have previously said that they never did return the shotgun to Hole. Authorities say he used two “assault-style” rifles to gun down eight people at the FedEx facility last Thursday before he killed himself.

Mears’ statement is problematic for a couple of reasons. First, I don’t buy the argument that his office never pursued a red flag court order because they didn’t have enough time to prepare their case. In fact, his office wouldn’t have had to “definitively demonstrate” the suspect’s propensity for suicidal thoughts, merely that there was probable cause that the suspect posed a danger to themselves or others.

It sounds like the real issue was the fact that the mental health professionals who observed the suspect during his 72-hour hold didn’t want to commit him for treatment. If he had been committed, then the state’s red flag law wouldn’t have mattered, because he’d be legally ineligible to purchase a firearm regardless. Because those mental health officials let him go, however, the red flag process was the only legal way for the state to disarm the suspect, and prosecutors were going to be hard-pressed to explain why they believed the suspect posed a threat when psychiatrists did not.

However, Mears’ statement also demonstrates another problem with the state’s red flag law from a civil rights perspective. The prosecutor says that if he had gone forward with a red flag hearing and had lost, they would have had to return the shotgun that they seized from the suspect. Since they didn’t invoke the red flag law, they didn’t return the gun.

One of the flaws with red flags in general is their lack of due process protections, but if Mears is right, then prosecutors like him are actually avoiding using the red flag law because there’s even less due process without it. That’s a serious problem from a civil rights perspective, as unfortunate as it may be that this is the case highlighting the issue.

I hate to say it, but from a legal standpoint, if the psychiatrists examined the suspect and pronounced him no danger to himself or others, and prosecutors didn’t seek an Extreme Risk Protection Order, then the police should have returned the shotgun to him. The problem, of course, is that this man clearly was a danger to himself and others. The mental health professionals got it wrong, and we should be asking why. Is it because he truly presented himself as someone who wasn’t a threat, or was the threat of pandemic a factor in trying to keep the number of individuals receiving inpatient mental health to a minimum?

Paul Helmke may believe that the state’s red flag laws have too many loopholes, and the prosecutor may think that his office should have months and not weeks to prepare for a red-flag hearing, but the real problem with the state’s red flag law is two-fold; police and prosecutors apparently find it easier to seize and keep firearms without applying for an Extreme Risk Protection Order, while the state’s mental health system is putting people back out on the street when they need to be receiving treatment. Indiana lawmakers should repeal its red flag law in its entirety and actually address the fundamental issue: a shortage of inpatient beds and treatment options that’s been exacerbated by the COVID pandemic over the past year.