In mid-2004, Indianapolis resident Kenneth Anderson had his guns taken by the police because of his behavior. He was committing no criminal act at the time, but the police thought he was a risk to himself and others. However, the firearms were later ordered to be returned to him. On August 18, 2004, Anderson went on a massive shooting spree and killed citizens and a police officer. Indiana then passed a “Dangerous Person” statutory scheme, which became the model for other states’ red flag laws. This blog explores the way Indiana’s Dangerous Person1 statute works and what you can do if your firearms are seized in this way.
The place to start in understanding this statute is that it does not just allow police officers to seize firearms from just any random person they encounter; and, in fact, the “Dangerous Person” statutory scheme has extensive measures of protection to provide protection to every individual’s constitutional right to keep and bear arms.2 A person is a “dangerous person” if he or she presents an imminent risk of person injury to the individual or to another individual. Alternatively, a person is “dangerous” if it is probable that the individual will present a risk of personal injury to the individual or another person in the future and the individual has a mental illness that may be controlled by medication, but does not have a pattern of voluntarily and consistently taking the individual’s medication while not under supervision or the individual 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. However, the fact that an individual has been released from a mental heath facility or has a mental illness that is currently controlled by medication does not establish the individual is a “dangerous person”. Thus, the statute is quite limited in its definition of a “dangerous person” who may have his or her guns seized and skilled defense counsel can make strong arguments for return if you find yourself in this situation and do not meet these criteria and fight the matter in court.
That said, if the court authorizes a search warrant to allow your guns to be seized, the court must make a good faith effort to conduct a hearing within fourteen (14) days of seizure. At this time, with the use of skilled defense counsel and perhaps an expert mental health professional you retain as an expert, the State has a high burden of proof and must prove by clear and convincing evidence that you are a “dangerous person”.3 Because it may take you a few days to secure counsel and witnesses, perhaps, again an expert witness, you may seek a continuance to properly prepare your case.4 A continuance is a decision you should make with your counsel so you can present the strongest case possible because the State has a high burden of proof, and if they do not meet it, the firearms must be returned to you.
If you do not prevail at this hearing, you may go back and challenge the “dangerous person” finding after six (6) months. However, the burden of proof shifts to you to prove by a preponderance of the evidence that you are no longer a “dangerous person”. There are many ways to successfully prepare for this hearing with skilled defense counsel to make your best case, even though you have the burden of proof. If you prevail, then your firearms may be returned to you. Alternatively, you, with counsel, may decide to wait a year after the “dangerous person” finding, because after that time, the burden shifts back to the State to present clear and convincing evidence that you are still dangerous.5 In any event, a “dangerous person” finding is one that you may want to challenge even if you do not want the return of your firearms because the sale, disposal, or transfer of a firearm under the “Dangerous Person” statutory scheme does not alter or terminate an individual’s designation as a “dangerous person”. Being a “dangerous person” has many professional implications, and additionally, you may not possess firearms or ammunition as long as you are designated a “dangerous person”.
The “dangerous person” statute is thus a balance between protecting mentally ill people from themselves and protecting society. However, when the determination is wrong or you later wish to challenge this designation due to a return to mental stability, you have a right to challenge this determination and have a “dangerous person” designation removed. This is best litigated by skilled counsel familiar with “dangerous person” cases and the statutes that govern the same. This blog is written by attorneys at Dixon & Moseley, P.C. who routinely handle the defense of “dangerous person” cases. It is designed to provide general educational information. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.