Indiana Judge Mandates Changes To Red Flag Process

AP Photo/Michael Conroy

Indiana’s “red flag” firearms seizure law came under scrutiny after a shooting at a FedEx facility in Indianapolis last month, after it was revealed that police in the city had actually taken a shotgun from the shooter in 2020, but prosecutors never followed through with filing an official red flag petition.

Marion County prosecutor Ryan Mears claimed that the two-week window between filing the petition and a court hearing on the matter wouldn’t have given his office enough time to prepare, and he pointed out that if if the red flag order had been denied, police would h

ave had to return the seized shotgun to its owner. Frankly, the fact that police were allowed to keep the seized shotgun despite the absence of a “red flag” order is cause for concern as well, but that’s probably a matter for the state legislature.

In the meantime, a judge in Indianapolis says from now on, all red flag cases initiated by the Indianapolis police need to directly to her,

Jones’ new guidance comes after Marion County Prosecutor Ryan Mears decided not to bring [suspect’s name redacted]* before a judge for a red flag hearing, even after his mother called police last year to say her son might try to die from “suicide by cop.”

Police seized a pump-action shotgun from [the suspect], then 18, in March 2020. Mears said his office did not seek a red flag hearing because the law didn’t give prosecutors enough time to definitively demonstrate [the suspect] propensity for suicidal thoughts. Mears specifically pointed to a 2019 change in the law that requires courts to make a “good-faith effort” to hold a hearing within 14 days.

Indianapolis police have said that they never returned that shotgun to [the suspect]. Authorities have said he used two “assault-style” rifles in the April 15 shooting before he killed himself.

Michael Leffler, a spokesperson for the Marion County prosecutor, said Thursday that conversations about changes to the red flag filing process began before the shooting. He said the prosecutor’s office hopes the new guidance “will improve the process.” One change involves having a second deputy prosecutor review red flag cases, which Leffler said “will provide a diversity of opinion for these important decisions.”

Leffler said Mears will continue to pursue legislative changes to the law. The prosecutor has said the law has too many “loopholes,” including one that allows a person under investigation to buy a gun until a judge makes a final ruling.

Frankly, the biggest legislative change that’s needed is the outright repeal of Indiana’s red flag law, as well as changes to current state law allowing seized guns to be kept by police even if no criminal charges are filed. The law is clearly being abused if prosecutors are finding it easier to keep seized firearms without going through the red flag process, and the law itself is ripe for abuse if judges are just going to rubber-stamp their approval of petitions rather than risk another case like this one.

The purpose of the state’s red flag law isn’t to actually deal with dangerous individuals. It’s to seize all guns owned by someone that a court says “may” be dangerous to themselves or others. Once the guns are taken, however, the supposedly dangerous person is still left to their own devices. Their guns might be gone, but their knives, gasoline, matches, pills, ropes, belts, and any other object that they could use to hurt themselves or another remain in their possession.

Instead of trying to patch up a law that’s beyond repair, lawmakers should be looking at ways to bolster mental health services in Indiana. If someone is truly a danger to themselves or the public, we need to be dealing with that individual instead of taking their guns and thinking the problem is solved. From a constitutional and due process perspective, red flag laws have serious issues. From a practical perspective, however, the flaws in the laws are just as bad.