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Posted in On June 7, 2016

A Look at Indiana’s Jake Laird Law – Returning of Firearms in a Criminal Case

Despite an individual’s constitutionally protected right to keep and bear arms, if certain circumstances exist, the police are authorized to take one’s firearm to hold and even potentially destroy.  The law that allows the retention of firearms is Indiana Code 35-47-14, or otherwise known as the “Jake Laird” law.
This law was enacted in 2005, subsequent to the murder of Indianapolis Police Officer Jake Laird.  Officer Laird was shot and killed in August 2004 by Kenneth Anderson.  Prior to shooting Officer Laird, Anderson shot and killed his mother and then opened fire in the streets in a near-southside neighborhood of Indianapolis.  Officers were dispatched to the shooting and in addition to Officer Laird, 4 other IPD officers were shot before Anderson was finally taken down.  After this incident, information surfaced that earlier in 2004, Anderson had been admitted to St. Francis Hospital for an emergency detention and during that process, police confiscated guns from Anderson’s home.  Anderson was evaluated and released by the hospital and then wanted his guns back.  Due to the lack of legal authority to retain Anderson’s weapons, they were returned to him in March 2004.  This tragedy prompted lawmakers to pass HEA 1776 which allowed IC 35-47-14 and the proceedings for the seizure and retention of a firearm.

Pursuant to this law, police may seize firearms from a person who is determined to be a “dangerous individual.”  According to IC 35-47-14-1, an individual is dangerous if:
(1)  that individual presents an imminent risk of personal injury to themselves or to somebody else; or
(2)  that individual may present a risk of personal injury to themselves or to somebody else in the future and the individual:
(A)  has a mental illness (as defined in IC 12-7-2-130) that may be controlled by medication, and has not demonstrated a pattern of voluntarily and consistently taking the individual’s medication while not under supervision; or
(B)  is the subject of documented evidence that would give rise to a reasonable belief that the individual has a propensity for violent or emotionally unstable conduct.
However, the mere fact that an individual was previously released from mental health facility or has a mental illness that is currently controlled by medication does not automatically qualify them as dangerous.
Seizing a firearm from a dangerous individual may be done with or without a warrant.  A court may issue a warrant to search for and seize a firearm if they find probable cause to believe that an individual is both dangerous and in possession of a firearm.  In order to obtain a warrant, a law enforcement officer must present the court with a sworn statement which states why the officer believes the individual is dangerous and in possession of a firearm.  The officer’s belief may be based on their own interactions with the individual or their interactions with somebody else the officer deems to be credible and reliable that led the officer to believe the individual is dangerous and in possession of a firearm.
If a law enforcement officer seizes a firearm for a person they believe to be dangerous without a warrant, the officer must then submit a sworn statement, to the court, describing the basis for why the officer believes the person to be dangerous.  If the court finds probable cause to believe the person is dangerous then they must order the agency that took possession of the firearm to retain the firearm.  However, if probable cause is not found, then the firearm must be returned to the individual.  It important to note that this law does not allow a warrantless search and seizure if a warrant would otherwise be required to get to the firearms in the first place.
Once a firearm is seized, a hearing must be held in order to determine if the firearm is to be kept in police custody or returned.  This hearing must held no later than 14 days after the return from the warrant was filed if the seizure was based on a warrant, or from the date the officer submitted the sworn statement if the seizure was warrantless.  At this hearing, if the court determines the firearm to be retained in police custody, the individual from whom the firearm was seized must wait 180 days before filing a petition with the court for a return of the firearm.  Once a petition is received, the petitioner must prove by a preponderance of the evidence that they are not a dangerous individual.  If the court finds them not to be dangerous then they must order the firearm to be returned.  However, if they deny the petition, then the individual must wait at least another 180 days in order to be eligible to petition again to return the firearm.  Once 5 years have passed from the first hearing regarding the retention of the firearm and the firearm has still not been returned to the individual, the Court may order the law enforcement agency in possession of the firearm to dispose of, or destroy the weapon in accordance with IC 35-47-3.

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Rather than try to get a gun back after it has been seized, an individual may also request that the court order the law enforcement agency holding the firearm to sell the weapon and give the proceeds to the individual.  The individual may make this request anytime before or during the hearing the court must have if the firearm has been retained for at least 5 years.  As long as the serial number has not been obliterated and the individual makes a timely request, the court must order the law enforcement agency to sell the firearm at auction within 1 year after the agency receives the order with the proceeds being returned to the owner.  The agency is allowed to keep up to 8% of the proceeds to offset to costs of the sale.
If you or somebody you know has had a gun taken away for whatever reason, Indianapolis criminal defense lawyers at Banks & Brower, LLC can help answer any questions you may have about the process and potential of getting the firearm back to the owner.  Call us today at (317) 870-0019.  We are available 24/7/365 by phone or by email