Loophole in Indiana red flag law comes under fire
by: Richard Essex
Posted: Apr 15, 2022 / 09:59 PM EST / Updated: Apr 15, 2022 / 10:02 PM EST
INDIANAPOLIS (WISH) — The FedEx shooting in April 2021 exposed some of the failings of Indiana's red flag laws.
For one, it is not applied equally in every county across the state, and, second, there is a loophole that allows, even after their guns have been confiscated, to go out and buy more guns.
Four days after the FedEx shooting on April 15, 2021, Marion County Prosecutor Ryan Mears said his office didn't file a red flag petition on the shooter. His mother had voluntarily surrendered a shotgun to police over concerns her son would commit "suicide by cop."
Under Indiana's red flag law, once a person is deemed dangerous to themselves or others, they cannot possess, own, rent, buy or sell a firearm.
The shooter was able to legally purchase two AR-15 rifles that he used to murder eight people at the FedEx facility and kill himself.
According to Jody Maderia, a professor at the Maurer School of Law at Indiana University in Bloomington, Indiana's red flag isn't instantaneous. There is a 14-day window to hear a red flag petition. During that time, she says, a person is free to buy any gun they can afford.
Asked if Indiana's red flag warning is working, Maderia said, "It depends on what you mean by 'working,' and I say that because I believe there is a giant loophole that is difficult to get around. You can confiscate a firearm underneath the red flag law, but this person can go out and buy another firearm."
She says the lack of a red flag filing by the Marion County prosecutor opened the eyes of prosecutors across the state. "Events like the FedEx shooting remind prosecutors that this is a tool that is out there. I think some prosecutors have made good use of the tool," Maderia said.
Immediately following the FedEx shooting, I-Team 8 discovered that Marion County judge Amy Jones had ordered all red flag cases straight to the courts, bypassing the prosecutor's office. One of two Marion County judges now decide whether to hold a red flag hearing or not.
To address some of the issues with the red flag law, Boone County Prosecutor Kent Eastwood is using a grant for a new special prosecutor that does nothing but red flag cases. His office also trains every cop in Boone County on how the red flag law works.
"If the person is dangerous, we file it, and if it's one of those border lines and we are not sure, we will still file and let a judge make the determination," Eastwood said.
Under Indiana's red flag law, the police can only confiscate the firearms that are handed over to them. They cannot conduct a search without a warrant for additional firearms. If a judge finds the person is dangerous, that person is still allowed to have ammunition.
In the closing days of the General Assembly in 2022, Republican Sen. Liz Brown attempted to make changes to Indiana Red Flag law. The lawmaker from Fort Wayne wanted additional mental health evaluations, among other changes, to make the law easier to use for prosecutors to use, but the changes did not pass in committee.
Maderia from IU said, "The process has to be easy to follow. The process has to be cut and dry. People need to be able to navigate on their own."
"In other states, you do not have to involve the police to make a red flag filing. In other states, doctors can do it. In other states, teachers can do it. Family members can do it," Maderia said.
The IU professor also believes red flag rulings should available to the public, with limitations.
Maderia said, "I believe that they should be public because that is an important factor. That being said, I believe you cannot list why a red flag filing was made because that could get into HIPPA," the federal Health Insurance Portability and Accountability Act that protects the privacy of information involving a person's health.
Eastwood disagreed. "I can understand why people would want that, but we are also talking about mental health issues, and then we are really getting into an area where a person's mental health and medical information really should not be public."
On July 1, Hoosiers will be permitted to carry a firearm without a permit. Paul Helmke, the former president of the Brady Center to Prevent Gun Violence and a professor at Indiana University, believes the red flag is now more important than ever. "And because of that I think we need to be even more concerned and use the red law the red flag law more often. I think quite clearly the Fed Ex shooting and the challenges that prosecutor Mears faced before that shooting and the flak he caught after that shooting shows that prosecutors need to be looking at the big picture and the big picture is there are people out there who are clearly dangerous."
Once a person has been on the red flag list for six months, they can petition a judge to get their firearms returned to them. That person must prove to the court that they are no longer a danger to themselves or others.