What is a “Red Flag” Law?
Many states, including Indiana, have passed legislation commonly known as a Red Flag law. Generally, these laws allow a court to seize firearms from a person deemed dangerous to themselves or others.
The Indiana Legislature passed the Jake Laird Law in 2005 and amended it in 2019. The law allows law enforcement to seize firearms from a person deemed dangerous or suffering from mental illness.
Who is considered dangerous?
Under Indiana Code § 35-47-14-1, there are two ways a Court may deem a person dangerous.
- “the individual presents an imminent risk of personal injury to [themselves] or to another individual.”
- “It is probable that the individual will present a risk of personal injury to [themselves] or to another individual in the future and the individual” AND 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 “is the subject of documented evidence that would give rise to a reasonable belief that the individual has a propensity for violent or suicidal conduct” Ind. Code § 35-47-14-1
However, Ind. Code § 35-47-14-1 states that just because a person has a mental illness controlled by medication or has been released from a mental health facility does not automatically qualify that person as dangerous.
When are the police allowed to seize firearms?
There are two methods that allow police to seize your firearms under the Jake Laird Law.
Method #1 – Through a valid warrant under 35-47-14-2 that a State Court has:
- Probable cause to believe that the individual is dangerous AND is in possession of a firearm;
- An affidavit from a law enforcement officer showing why the officer believes the person is dangerous and in possession of a firearm AND describes the law enforcement officers OR third person’s interactions with the person that lead them to the belief the person is dangerous and in possession of a firearm; AND
- The affidavit describes the location of the firearm.
Method #2 – Without a warrant, if the officer believes the person is dangerous, and one of several exceptions apply, including plain view or exigent circumstances.
- If the firearms are seized without a warrant, law enforcement will file a probable cause affidavit, and the Court will review it as soon as possible to determine if there is probable cause to believe the person is dangerous.
What happens once law enforcement seize the firearms?
The Court will hold a hearing within 14 days to determine if the State will hold the firearms. The State has the burden of proof on all elements and must prove them by clear and convincing evidence.
What happens if the Court finds the person to be a “dangerous” individual?
If the Court determines that a person is dangerous, the Court shall:
- Suspend the person’s license to carry a handgun
- Enjoin the individual from renting, receiving transfer of, owning, or possessing a firearm.
- Determine whether there is a need for further proceedings to consider the need for involuntary detainment or commitment.
If the Court determines the person is not dangerous, they have five days from the date of the order to return the firearms.
What happens to the firearms if the person is deemed dangerous?
There are several possible outcomes for the disposition of the firearms if the person is deemed dangerous:
- The person may petition the Court to transfer the firearms to a responsible third party by written agreement from the Court.
- The person may petition the Court to transfer the firearms to an FFL for storage or sale.
- The person may petition the Court to order the law enforcement agency to sell the firearms act auction. The person is entitled to the proceeds of that sale.
- If the law enforcement agency has kept the firearms for at least five years, the Court may order them destroyed or permanently disabled.
How can the person get their guns back after being deemed dangerous?
An individual can file a petition after 180 days to obtain a ruling that they are no longer dangerous. If it has been less than 1 year since the judgment, the person has to prove by a preponderance of the evidence that they are no longer dangerous. If longer than one year, the State has the burden to prove by clear and convincing evidence the person is still dangerous. If the person is found no longer dangerous, law enforcement has up to five days to return the firearms, and the suspension on the person’s license to carry will be lifted.
What happens if a “dangerous” person is found in possession of a firearm?
A person who has been deemed to be dangerous by a Court following a hearing and who knowingly or intentionally (1) rents; (2) purchases; (3) receives transfer of; (4) owns; or (5) possesses a firearm commits unlawful possession of a firearm by a dangerous person. This is a Class A Misdemeanor IN Code § 35-47-4-6.5 (2019)
A person who knowingly or intentionally rents, transfers, sells, or offers for sale a firearm to another person who the person knows to be found dangerous by a Court following a hearing under IC 35-47-14-6 commits unlawful transfer of a firearm to a dangerous person, a Level 5 felony. Ind. Code § 35-47-4-6.7
It is imperative to have an experienced trial attorney on your side if you or somebody you know has recently been served a Red Flag order or has had their Gun Permit suspended or revoked.
Contact the criminal defense attorneys at Banks & Brower, LLC. We are available at all times by calling us at (317) 526-4630, or by emailing info@banksbrower.com.