Despite the fact that Indiana has a reputation for being a relatively free state, Indiana enacted its “red flag law” in 2005. Our law is codified at I.C. 34-47-14 and is entitled “Proceedings for the Seizure and Retention of a Firearm.” The law is commonly referred to as the “Jake Laird Law” as a result of the tragic death of Indianapolis police officer Jake Laird. Officer Laird was murdered by a man who had previously been detained and hospitalized pursuant to an emergency detention, and had a number of firearms removed from his home. However, after the man was released from the hospital, his firearms were returned to him as the police reportedly lacked any legal authority to keep the firearms. The man subsequently murdered Officer Laird, which lead the Indiana Legislature to pass its version of a “red flag law.” It provides that firearms can be seized from a “dangerous” individual. A person is a “dangerous” individual if the person poses an imminent risk of personal injury to himself or to another individual. Although troubling, the law also indicates that under some circumstances a “dangerous” individual is someone who may present a risk of personal injury in the future. The use of the word “may” and “in the future” seems vague and contemplates deprivation of rights and property based upon some possible future event.
The statute provides that firearms can be seized with a warrant, or in some circumstances, without a warrant. The warrant provision requires the warrant to be issued by a circuit or superior court with jurisdiction and based upon a sworn affidavit from a law enforcement officer that describes why the law enforcement officer believes the subject individual is dangerous and in possession of firearms. Many would argue that sufficient due process is lacking with respect to Indiana’s “red flag law,” and we would concur. However, there is a requirement that the court hold a hearing within 14 days from the seizure of firearms. The statute requires notification of the hearing to the individual from whom the firearms were seized and that the court must determine by clear and convincing evidence that it is appropriate to continue to violate the individual’s rights and deprive him of his property.
Should you be presented with a warrant at your home that directs law enforcement to seize your firearms, you would have very few legal options, at that juncture, to address the situation. The time to argue the legal merits of a warrant is not at your front door when law enforcement is presenting the warrant. We would suggest that you respectfully request to review the warrant and read it thoroughly to ensure there are no errors in the warrant and to calmly point out obvious discrepancies. For instance, the police have been known to serve warrants at the wrong address. However, under no circumstances would we suggest endangering your safety or the safety of law enforcement as there will be ample time to address your grievances regarding the validity of the warrant and law enforcement conduct in the future. If your firearms are securely locked in a gun safe, it would be our suggestion to comply with the terms of the warrant, assuming the terms of the warrant require opening the safe, which will likely be the case. However, please make it very clear that your cooperation should not be construed as consent, but merely compliance with the orders of the court and law enforcement personnel. Police may threaten violence and a further loss of freedom should you not comply with the alleged lawful warrant. Furthermore, although it is unlikely, there could be consequences associated with refusing to open the safe in terms of potential criminal charges such as resisting. As an aside, we are aware of one case in Indiana in which law enforcement took the entire safe to a service station to gain entry. We suspect an acetylene torch was used to obtain brute force access to the contents of the safe.
The statute also provides for the warrantless seizure of a firearm by law enforcement. Arguably, the firearms could be legally seized during the normal course of law enforcement duties if the law enforcement officer could otherwise take the firearms. For instance, probable cause of a crime, voluntary relinquishing the firearm, seeing a firearm in plain view, or the ever present wild card of “exigent circumstances.” Additionally, the police officer would also have to believe the individual to be “dangerous.” In such circumstances, the police officer must file, under oath, a written statement with a court indicating the grounds for the belief that the person is dangerous, and then the court will make a determination whether the firearms should continue to be retained. The provision for warrantless confiscation is not intended to provide additional authority to search for weapons or otherwise enter any person’s property. In other words, the law does not authorize a law enforcement officer to perform a warrantless search or seizure if a warrant would otherwise be required.
Once again, our statute has been in place since 2005, but with the murders at Parkland High School in February 2018, Indiana Governor Eric Holcomb sent out a letter to the leaders in the Indiana legislature discussing school safety issues in our state. Part of this letter directed the Indiana State Police Superintendent to provide a “red flag” educational curriculum to all law enforcement agencies in Indiana. Thus, the statute has become more prominent in terms of awareness in the law enforcement community. Although Indiana’s law does provide for some due process, keep in mind the statute provides for the deprivation of a fundamental right based upon a subjective evaluation of law enforcement. Citizens can be initially stripped of their rights based upon the allegation that you may commit a crime in the future. You do have a right to a hearing within 14 days, although you and your attorney may want to delay that hearing depending on whether your attorney has sufficient time for preparation to contest the state’s actions. Fortunately, at the hearing, you have the right to an attorney, the right to present evidence and witnesses, the right to cross-examine law enforcement, as well as, any witnesses that may have provided information that led to the confiscation – like an ex-spouse or disgruntled employee. Also, at the hearing the judge has to be convinced by “clear and convincing evidence” that the continued deprivation of rights should continue. Unfortunately, even if you are successful at a hearing, there is no provision for you to recoup your attorney fees in fighting the state. Furthermore, there are no penalties for false or unsubstantiated allegations that may have led to the seizure of your firearms.
