Indiana's Red Flag Law Was Designed To Prevent Mass Shootings Like The FedEx Facility Rampage. Prosecutors Never Tried To Use It.
“It shouldn’t be a political issue. It’s life or death.”
The day he bought a .410-gauge shotgun, Brandon Scott Hole told his mother he planned to point it straight at police so officers would shoot and kill him.
The next day, on March 3, 2020, Hole’s mother was so shaken she skipped work to ask the Indianapolis Metropolitan Police for help. She told officers her then-18-year-old son talked about suicide, he had punched her when she asked about the shotgun, and she feared for her own safety, according to a police report.
In Indiana, like more than a dozen states across the US, police could take action under a so-called red flag law. Officers seized the shotgun and took Hole into custody for a mental health assessment — noting that he had white supremacist websites pulled up on his computer when they arrived. But county officials opted not to go to court to try to formally ban the teen from owning firearms in the future, a decision the top prosecutor defended on Monday based on what he described as limitations in the law. To gun control advocates, it was a grim missed opportunity: Hole legally purchased two assault rifles just months later, then on Thursday, opened fire at a FedEx facility, killing eight people and himself.
“It’s a law designed to prevent tragedies like the one that happened Thursday,” Shannon Watts, founder of Moms Demand Action for Gun Sense in America, told BuzzFeed News.
According to Everytown for Gun Safety, which Moms Demand Action is part of, 19 states and the District of Columbia have adopted some kind of red flag law, many of them in response to the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
During a time of bitter partisanship and political division over how to curb the disturbing and growing number of mass shootings in the US, the laws have at times drawn bipartisan support. Also called extreme risk protection orders, the laws give police the authority to seize weapons from people believed to be a danger to themselves or others. Advocates say keeping guns out of the hands of people who are potentially violent or have mental illness could make a huge difference: 54% of perpetrators of mass shootings between 2009 and 2018 exhibited some kind of warning they were a risk, according to Everytown.
But in the case of Hole and the shotgun, Marion County’s top prosecutor said authorities feared they did not have enough evidence to back their case. Losing it could mean they would have to return the shotgun, Marion County prosecutor Ryan Mears said.
Four months later, officials said, Hole legally bought an HM Defense HM15F. Then in September, he legally bought a Ruger AR-556.
“This case does illustrate some of the shortcomings that exist with this red flag law,” Mears said at a press conference Monday.
In particular, Indiana’s red flag law does not give police or prosecutors enough tools to use someone’s mental health history to make their case in court, Mears said.
“It is clear to anyone who has read this statute or the text of this statute, the priority of this statute is the return of firearms as opposed to having a very thoughtful and careful review of someone’s mental health history to determine whether or not they should possess a firearm,” Mears said.
And there’s nothing in the law stopping a person undergoing proceedings from stocking up on guns in the time period before a judge makes a ruling.
“If we initiate these proceedings, there’s nothing prohibiting that individual to go out and purchase an additional firearm, or 20 firearms,” Mears said. “They’re free to do that until there’s an actual document finding where a judge says, ‘I can find by clear and convincing evidence that this person has a propensity for violence or mental instability.’”
After seizing someone’s firearm, like in Hole’s case, prosecutors would have 14 days to make their case before a judge to ban someone from owning a gun, Mears said. But getting back mental health and other medical records under subpoena could take up to 30 days, he added.
Despite the police report noting that Hole had considered a way to die by suicide the day he bought the weapon, that he punched his mother for asking about the shotgun, and that she told police she feared for her safety, Mears expressed doubt that prosecutors would have been able to make their case successfully before a judge.
Mears pointed out Holes wasn’t committed to a treatment facility as a result of the evaluation in March 2020, he wasn’t prescribed any medication, and he was released within “hours.”
“For [prosecutors], the risk is if we move forward with that proceeding and we lose, guess what happens — that firearm goes right back to that person,” Mears said. “We weren’t willing to take that. So that’s the route we decided to go.”
That was a missed opportunity, Watts said. There may have been risk in taking Hole’s case to court, she added, but the judge could have supported prosecutors’ desire to keep guns out of his hands.
“Our point of view is, let the courts decide that,” she said. “Had the court granted the requested order, then the suspect would have been prevented from buying the guns.”
The Indiana law, one of the first of its kind in the country, may not be perfect, but it can’t be effective if it is not used by authorities, Watts argued.
“Ultimately the fact that the gunman was able to buy a gun is an urgent reminder of the need to use red flag laws where they are in place,” she said.
In Indiana, legislators passed a red flag law in May 2005, one year after a man went on a shooting rampage after he had been hospitalized and his guns were seized. With no legal authority to hold on to the firearms after he was released from the hospital, police returned them. Five months later, Kenneth Anderson killed his mother and shot five officers. One of them, Officer Jake Laird, became the namesake of the law, which passed overwhelmingly with a unanimous vote in the Statehouse and only one dissenting vote in the state Senate.
Under the Indiana law, police can take the guns of someone who appears to be an “imminent risk” to themselves or another person. Police can also seize firearms from a person who is likely to pose a future risk to themselves or another person in the future and has had a pattern of not voluntarily taking required medication for a mental illness, or there is documented evidence of a propensity to violence or suicide. In 2020, Hole’s shotgun was one of 191 firearms seized by Indianapolis police under the law.
It has drawn praise from former vice president Mike Pence, who previously served as Indiana’s governor.
In April 2019, less than a month after a gunman killed 23 people in a Walmart in El Paso, targeting Latinos, Pence was in Indiana praising the Jake Laird Law. Sitting next to Laird’s parents, Pence said the Trump administration would look into pushing other states to enact similar laws.
But, according to local reports, Pence seemed to skirt suggestions of a federal red flag law, instead suggesting states should lead the way.
Republican Sen. Lindsey Graham had earlier that year suggested a similar strategy, using grants to states as a means to incentivize them to pass similar laws. So far, that hasn’t happened, though a federal red flag law is now part of President Joe Biden’s plan to address gun violence. He’s also asked the Department of Justice to draft a model for state red flag legislation.
In spite of public demand for legislative action after repeated, high-profile mass shootings, red flag laws still haven’t gained support from pro-gun groups.
In August 2017, the NRA opposed orders to take away a person’s firearms without a criminal conviction, arguing they “diminish the due process” and were an “obvious potential for abuse.” The group called red flag laws in California, Oregon, Vermont, and other states “confiscation schemes.”
Today, according to its website, the NRA says it does not oppose the laws, but the absence of “due process.” The organization has also argued against judges being able to make the determination with “reasonable cause,” the standard in issuing warrants. It also opposes giving family members the ability to petition a court, which the Gun Owners of America, another pro-gun group, has blasted as allowing “an angry relative or former boyfriend/girlfriend, or pretty much anyone else” to have someone’s guns confiscated. Neither group responded to questions from BuzzFeed News.
If Indiana’s red flag law had that provision, Hole’s mother would have had the option to take her fears to a judge personally, instead of putting the matter in prosecutors’ hands.
To advocates like Watts, that’s common sense. She’s hoping stronger red flag laws make their way to more state legislatures, and that they gain bipartisan support.
“It shouldn’t be a political issue,” she said. “It’s life or death.”