One of big gun control pushes by the BidenHarris administration is the effort to get more states to enact their own “red flag” laws. Laws under which family members, friends, coworkers or police (depending on each state’s law) can ask a judge to issue a gun confiscation order…at a hearing in which the gun owner isn’t required to be present.
The ostensible idea behind these laws is to get firearms out of the hands of those who are suspected of being a risk to themselves or others. The sticky part of that, of course, is determining who represents an actual threat.
Oh, and then there’s the whole due process deprivation problem, whereby a person’s property is confiscated without their having their day in court. It’s only after the fact that they’re given the opportunity to petition a judge for the return of their firearms.
That brings us to the case of Brandon Scott Hole. He’s the severely broken individual who murdered eight people at an Indianapolis FedEx facility last week and injured even more before killing himself. Hole was enough of a concern to his family that they contacted local law enforcement last year out of concern that he might commit “suicide by cop.”
Not only did local police confiscate Hole’s shotgun last March, but the FBI investigated him to try to determine if he was a threat for terrorist or “hate crime” activity. They found no evidence of that, but the shotgun was never returned to him.
So when Hole went on his shooting spree, the question naturally arose…how did he get the gun he used? Wouldn’t he have been prohibited under Indiana’s red flag law?
Well, no. That’s not due to a “loophole” in the law, but because the local prosecutor chose not to petition the court within the required 14 days after the shotgun was confiscated. Why? Because, as Marion County Prosecutor Ryan Mears told reporters, he didn’t want to give the shotgun back.
From the Associated Press . . .
The “red flag” legislation, passed in Indiana in 2005 and also in effect in other states, allows police or courts to seize guns from people who show warning signs of violence. Police seized a pump-action shotgun from Hole, then 18, in March 2020 after they received the call from his mother.
But prosecutors were limited in their ability to prepare a “red flag” case due to a 2019 change in the law that requires courts to make a “good-faith effort” to hold a hearing within 14 days. An additional amendment required them to file an affidavit with the court within 48 hours.
“This individual was taken and treated by medical professionals and he was cut loose,” and was not even prescribed any medication, Mears said. “The risk is, if we move forward with that (red flag) process and lose, we have to give that firearm back to that person. That’s not something we were willing to do.”
What he wasn’t willing to do was return the shotgun.
Psychiatrists had examined Hole had let him go. Mears said that, because of that, he was worried he couldn’t make the case that Hole should continue to be deprived of his guns under the Indiana red flag law. So rather than argue that point in court, he just let the matter slide…and held onto the gun.
That succeeded in keeping the shotgun out of Hole’s hands, who apparently made no attempt to get it back. But the pass by the psychiatrists and the lack of a determination by the court also ensured that Hole would be able to legally buy more firearms, something he did twice in the following months. Those were the guns he used to murder those eight people last week.
The prosecutor’s actions — or inaction — have one benefit. They clearly highlight the problems inherent with red flag laws.
First there are the obvious due process considerations. A gun owner’s property is taken without their having an opportunity to argue the matter in court. Never mind the potential for abuse of that process by ex spouses, feuding neighbors, angry coworkers…whomever.
Then the gun owner has to secure legal representation — an expensive proposition — to petition the court for the return of their property. That may be why Hole didn’t try to get his shotgun back.
As for the 14-day window to make a case in front of a judge, Mears’ argument that the time period is too short to make a “good-faith” argument is weak. Arguing that the the gun should be held is a pretty low bar for the state to make. How many judges are going to rule against a six-month confiscation extension request while authorities try to find out if the gun owner is really mentally ill?
Then there’s the fact that Mears obviously felt just fine about abusing the system. He decided he’d rather not go through the red flag petition process in order to hold onto Hole’s gun indefinitely. It was the easiest way to disarm him and (Mears thought incorrectly) keep him that way.
Apparently Mears didn’t think through the process. Or was ignorant of the fact that Hole could still legally purchase firearms if he wanted.
None of the above should be construed as an argument in favor of due process-free gun confiscations under red flag laws. As we’ve pointed out before, there is no such thing as a “good” red flag law. There are plenty of provisions and procedures already in place in every state for examining and, if necessary, holding an individual who is suspected of being harmful to himself or others.
But if these laws are going to be in place, as they are in 20 states, the process shouldn’t be abused as the Marion County Prosecutor did. Mears should have had to make his case in front of a judge for keeping Hole’s gun in the two weeks after it was confiscated. By ignoring that process, he left Hole free to legally buy more guns.
In the end, of course, it probably didn’t make a difference. As we’ve seen time and time again, criminals and crazies can always get a gun if they want one. If they can’t legally buy one, they’ll steal one, buy one of the black market, or have a straw purchaser buy one for them. The only people who are truly inconvenienced and disarmed by red flag and other gun control laws are responsible law-abiding gun owners.
The questions Indianans should be asking themselves after the FedEx shooting is, why didn’t the psychiatrists who examined Hole correctly diagnose him? Why did Prosector Mears feel free to abuse the system in order to confiscate a firearm (allowing Hole to legally buy more)? And why have a “red flag” law on the books that only violates lawful gun owners’ rights, but doesn’t stop killers from killing?