Delaware County, Indiana

Indiana's Red Flag Law - The "Jake Laird Law"

IMPD Officer Jake Laird

On January 20, 2004, officers from the Indianapolis Metropolitan Police Department (IMPD) was sent to the home of an individual who was combative with paramedics.  This individual suffered from schizophrenia and had not been taking his medication.  During that incident, police placed the individual on an immediate mental detention and confiscated a large quantity of weapons and ammunition. Upon release from his detention, the individual sought return of the confiscated weapons. In the absence of legal authority to prevent the return of the weapons, the police department released the weapons back to the individual in early March 2004.    

On August 18, 2004, IMPD officers responded to numerous 911 calls from neighbors reporting gunfire in the 2700 block of Dietz Street on the near south side of Indianapolis.  The first officer responding to the scene, Officer Tim Conley, radioed to dispatch that he was under fire. Having been struck in the abdomen and leg while still in his car, Officer Conley put the car in reverse and backed-up until he hit a fence post where he was rescued by Officers Mark Fagan and Ty VanWagner and Lt. Richard Proffitt.  Amid the gunfire, and uncertain that an ambulance could safely enter the area, IFD Lt. Robert Moore, Engineer Kenneth Calvin, and Firefighters Kevin Jones and John Vaughns, of Engine Company 15, Station 15, stepped into the dangerous scene so they could transport Officer Conley to the hospital on board their fire engine.

Driving into the 2800 block of Dietz Street at 2:01 am, Officers Timothy "Jake" Laird and Kim Cissell also came under fire.  As thirty-one year old Officer Laird exited his police car, he was fatally wounded when a round hit him high in the chest, above his protective vest. Officer Cissell drove Officer Laird to Troy Avenue. From there, Officer Laird was transported to Wishard Hospital where he was pronounced dead moments after arriving.

The shooter continued to walk down an alley and through the parking lot of a local church onto Tindall Street, brandishing a rifle with a high capacity ammunition magazine. Near the corner of Tindall and Gimber streets, he came upon Officers Leon Essig, Andrew Troxell, and Peter Koe.  The shooter took cover behind a Jeep Cherokee and fired several rounds at the three officers. Essig was hit in the arm; Troxell in the hand; and Koe in the knee. The wounded Officer Koe, a SWAT Team member, returned fire, striking the shooter with fatal shots to the head and chest.  Homes and vehicles in the neighborhood were peppered with bullets fired by the shooter who was armed with an SKS rifle, similar to a military AK-47, a .357-caliber pistol, and a .22-caliber derringer. Koe was the only officer known to have fired his weapon. Chief of Police Jerry Barker said, "It wasn't until that final confrontation, basically face to face with the perpetrator, that firearms were fired by police."

The person who shot and killed Officer Laird was the same mentally ill person from whom the police had confiscated his weapons in January of 2004.  It was the same person that the police were required to return the weapons in March of 2004 because there was no legal authority to retain weapons from dangerous mentally unstable individuals.  

Officer Laird was survived by his wife, daughter, five brothers, two sisters, parents and grandparents.

 

Officer Timothy “Jake” Laird

September 17, 1972 -  August 18, 2004

Indiana’s legislative response

The Indiana General Assembly immediately realized that there was legal loophole that allowed Officer Laird’s killer to keep his firearms after they had been confiscated by law enforcement.  Consequently, in 2005, the Indiana General Assembly passed a “red flag law.”  Essentially the law allows the seizure and retention of firearms from dangerous and mentally ill persons.  The statute defines the process by which law enforcement can seize and retain a firearm (or firearms) from a person who is determined to be dangerous as defined by section one of the code.  Indiana’s red flag law permits the Prosecuting Attorney to petition a state court for an order authorizing the temporary seizure and retention of firearms from a person who may present a danger to others or themselves.  A judge makes the determination to issue the order based on statements and actions made by the gun owner in question and other evidence.  After a time period set by law, the firearms can be returned to the person from whom they were seized unless after another court hearing, the judge extends the period of confiscation.  Indiana was the second state in the U.S. to pass a red flag law permitting law enforcement to seize and retain firearms from individuals who are deemed “dangerous” under the law.

As of April 2021, nineteen states and the District of Columbia have enacted some form of red flag law.  Each state’s law is different and how often it is used varies from state to state.  The Delaware County Prosecuting Attorney recognizes the seriousness of this public safety issue and has taken an aggressive stance to keep firearms out of the hands of dangerous individuals. 

Studies have shown that Indiana’s red flag law reduced suicide by gun by 7.9% between 2005 and 2015, without an increase in suicide by other means.  The very same study showed a 13.7% decrease in suicides in a seven year period in Connecticut.  The bottom line is that red flag laws, when properly implemented and enforced work and save the lives of civilians and police officers.

In 2013, the constitutionality of the law was challenged in court.  The Indiana Court of Appeals rejected the challenge finding that the statute did not violate the Indiana Constitution (Article 1, Section 32; Article 1, Section 21) or the 5^th amendment to the United States Constitution.  See Remington v. State, 992 N.E.2d 823 (Ind. App. 2013).

Who subject to the law?

Indiana Code § 35-47-14-1 defines a “Dangerous Individual” :

(a) For the purposes of this chapter, an individual is “dangerous” if:

         (1) the individual presents an imminent risk of personal injury to the individual or to another individual; or

         (2) It is probable that the individual will present a risk of personal injury to the individual or to another individual in the future and the individual:

               (A) has a mental illness 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 suicidal conduct.

(b) The fact that an individual has been released from a mental health facility or has a mental illness that is currently controlled by medication does not establish that the individual is dangerous for the purposes of this chapter.

How do the cases arise?

Weapons can be seized from a “dangerous person” either by a warrantless seizure or with a search warrant. 

Seizure by Search Warrant

A circuit court may issue a warrant to search for and seize a firearm in possession of a dangerous individual if law enforcement provides a sworn affidavit.  The affidavit must state why the officer believes the individual is dangerous and possesses a firearm.  The officer can base the belief on his/her own interactions with the person.  The officer can also base his/her belief on information obtained from another person whom the officer finds credible.

The standard is “probable cause”:  the court may issue the warrant if the judicial officer finds probable cause to believe the individual is dangerous and possesses a weapon.  The officer must file a return within 48 hours showing the type and number of firearms seized. 

Warrantless seizure

A law enforcement officer may seize a firearm from a person he/she believes is dangerous without a warrant.  The officer must submit an affidavit to the Circuit Court within 48 hours after seizing the firearm, stating the type and number seized.  The court must review the affidavit “as soon as possible.”  If the court finds probable cause exists to believe the individual is dangerous, the court shall order the law enforcement agency to retain the firearm.  If the court finds probable cause doesn’t exist, the court shall order the firearm returned within five (5) days after the order’s date.  A warrantless search is not authorized if a warrant would otherwise be required.

What happens after the seizure?

The Prosecuting Attorney opens a “miscellaneous criminal case” or “MC” with a Petition and along with the affidavit supporting the warrantless search or the affidavit and previously issued search warrant.  The court shall conduct a hearing.  The court must make a good faith effort to conduct the hearing within 14 days, or as soon as possible after that.

The court must give notice to the Prosecutor and the individual as to the hearing date, time, and location.  The individual may ask the court to continue the hearing, and a request for a continuance up to 60 days “shall be liberally granted.”  The court can hold the hearing someplace other than the courtroom, e.g., in the hospital, in a location “not  likely to have a harmful effect on the individual’s health or well-being.”

At the hearing, the State presents evidence to show the individual is dangerous within the statute’s definition.  The Prosecutor has the burden of proving all material facts by clear and convincing evidence.  If the State carries its burden of proof, the Court enters an order. 

The Court Order shall:

• Find the individual dangerous;
• Order law enforcement to retain the firearm;
• Decide whether to refer the individual for a commitment proceeding; and
• Enjoin the individual from renting, receiving the transfer of, owning, or possessing a firearm.

If the individual possessing the firearm is dangerous but does not own the firearm, the court may order the law enforcement agency to return the firearm to the owner.

Petition for return of the firearm(s)

If the court grants the State’s petition to retain the firearm, the individual must wait at least 180 days before filing a petition for a finding that he/she is no longer dangerous.  If the individual files a petition, the court must set it for hearing and give notice to the prosecutor.  In a hearing on a petition under this section filed:

(1) not later than one (1) year after the date of the order, the individual must prove by a preponderance of evidence that the individual is no longer dangerous; and

(2) later than one (1) year after the date of the order, the state must prove by clear and convincing evidence that the individual is still dangerous.

At this hearing, the Prosecutor cannot rely solely on the evidence at the first hearing to show the individual is still dangerous.  The individual’s burden is “preponderance of the evidence.”  If the individual comes forward with evidence to show he/she is no longer dangerous, the State must show by clear and convincing evidence that the individual is still dangerous.  The Court of Appeals held the I.C. 34-47-14-8 hearing requires a new determination of whether the individual is dangerous.

If the Court finds that the individual is no longer dangerous, it shall issue an order finding the individual is no longer dangerous, order the law enforcement agency to return the firearm as quickly as practicable, at least within five (5) days, terminate any injunction issued barring the individual from possessing a firearm; and terminate the suspension of the individual’s license to carry a firearm so he/she can reapply for a license.  

If the court denies the petition, the individual may not file a subsequent petition for at least 180 days after the court denied the petition.

Criminal Penalties

Unlawful possession of a firearm by a dangerous person, a Class A Misdemeanor

A person whom a court has found “dangerous” after a hearing under I.C. 35-47-14-6 and who knowingly or intentionally rents, purchases, receives transfer of, owns, or possesses a firearm commits unlawful possession of a firearm by a dangerous person, a Class A misdemeanor.  See I.C. § 35-47-4-6.5.

Unlawful transfer of a firearm to a dangerous person, a Level 5 Felony

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 following the I.C. 35-47-14-6 hearing commits unlawful transfer of a firearm to a dangerous person, a Level 5 felony.  See I.C. § 35-47-4-6.7.