By Hon. Kristen McVey | Tippecanoe Superior Court 5
Firearm seizure actions, commonly referred to as “red flag” or “extreme risk” laws, are intended to identify dangerous persons, remove firearms from their possession, and prohibit them from obtaining firearms until such time they no longer present a danger to themselves or others. This can include individuals such as a suicidal person, a disgruntled employee that threatens co-workers, or an individual suffering hallucinations and disorganized thoughts—all of whom are in precarious situations.
Indiana is one of 21 states and the District of Columbia that has a firearm seizure law. While similar in intent, these laws vary widely in form and implementation. Indiana permits law enforcement officers to petition the courts to intercede. Several other states also allow health care providers, educators, and private individuals to petition a court to seize and retain a person’s firearms when circumstances establish the person is a danger to self or others. Firearm retention proceedings are civil in nature and are independent of any criminal liability the person may incur related to the same events.
Indiana’s “Jake Laird Law”
Indiana’s red flag law is called the “Jake Laird Law,” named for law enforcement officer Jake Laird. He was killed in the line of duty in 2004 by a man who had previously been committed for his mental illness and from whom firearms had been removed, but later returned, for lack of a mechanism to retain them.
Enacted in 2006, the Jake Laird Law provides that firearms may be removed from a “dangerous individual.”
Indiana Code 35-47-14-1 defines a “dangerous individual” as:
(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 (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
(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.
Firearms may be seized with a warrant or—if exigent circumstances exist—without a warrant. While any person may contact police about a person’s dangerousness or their concerning behavior, only law enforcement officers can pursue seizure actions in Indiana.
What Happens After Seizure
If firearms are seized without a warrant, law enforcement must file an affidavit with a court within 48 hours. A court should make an immediate finding whether probable cause exists to believe the individual is dangerous and order the firearms held pending hearing. If probable cause exists, the court should order the firearms held pending a hearing. If the court determines that there is no probable cause, the court must order the firearms returned.
Following the seizure, Indiana statute directs that courts “make a good faith effort” to conduct a hearing within 14 days. The Respondent is required to be given notice and an opportunity to appear and be heard. The State, by a prosecuting attorney, has the burden of proving the material facts of the petition by clear and convincing evidence.
Upon a finding by the court that the individual is “dangerous,” the firearms are to be ordered retained by the seizing agency for a period of at least 180 days. Further, the person’s firearm carry permit is ordered suspended, if applicable, and the person is prohibited from purchasing, borrowing, retaining, or receiving firearms during the pendency of the order.
Upon expiration of the 180-day period, the Respondent may petition for return:
- If this petition is filed within one year of the date the court found the Respondent to be dangerous, the Respondent must prove by a preponderance of the evidence that they are no longer dangerous.
- If the petition for return is filed more than one year after the date the court found the Respondent to be dangerous, the State must prove by clear and convincing evidence that the Respondent is still dangerous.
- If the court finds the Respondent is dangerous, the Respondent may file subsequent petitions for return after waiting 180 days from the date the court found the Respondent still dangerous.
Sharing the Data
Indiana’s Odyssey case management system automatically sends the relevant information to the National Instant Criminal Background Check System (NICS) as long as the appropriate event code is added to the case.
In addition to sending the information to NICS, the Office of Court Technology shares the information with the Indiana State Police. This allows the state police to revoke any previously issued permit. An ideal firearm retention order will contain a Respondent’s complete name, gender marker, race, date of birth, social security number, and state identification/operator’s license number so the correct individual can be promptly identified in the NICS system.
In addition to reporting red flag determinations to NICS through the NICS Reporting application in INcite, the courts are required by statute to report domestic violence determinations in criminal cases and certain mental health determinations in civil and criminal cases. The NICS Reporting application is critical to prevent dangerous individuals from obtaining or legally carrying firearms.
In addition to courts reporting the previously mentioned findings to NICS, courts and clerks are also responsible for sending all dispositions in criminal cases to the criminal history repository maintained by the Indiana State Police. The totality of these records is made available to NICS and other state and federal partners during the background check process. This process was covered in a previous Indiana Court Times article, “Connecting justice partners to improve criminal history records” (January 28, 2022).
What Else Can You Do
Indiana’s red flag statute could be reinforced by courts if they would work to reduce the seizure-to-hearing time period. Between the time of seizure and a finding of dangerousness, nothing prohibits the Respondent from buying or obtaining additional firearms. It is ideal to schedule the hearing as soon as possible, and to rule expeditiously. Increased public awareness about this valuable tool may encourage people to reach out to law enforcement when they detect a friend or family member is in crisis.
Using the right event codes
It’s important to track red flag cases using the correct event codes in Odyssey and from Odyssey into the NICS Reporting System in INcite.
Mental Health Adjudication event codes:
- NICSMI – NICS: Civil Commitment more than 90 days
- NICSCC – NICS: Civil Commitment up to 90 days
- NICSGMI – NICS: Guilty but Mentally Ill
- NICSIST – NICS: Incompetent to Stand Trial
- NICSNRRI – NICS: Not Responsible by Reason of Insanity
Domestic Violence Determination event code:
- DVD – Domestic Violence Determination
Firearms Seizure or Red Flag event code:
- FSR – Firearms Seized and Retained under Firearm Seizure Law 35-47-14
Delinquency Felony Prohibition event code:
- DFPSN – Delinquency Felony Prohibition Submitted to NICS 31-37-13-5
Editor’s Note: On April 3, 2025, Governor Mike Braun signed House Bill 1137, Expungement of red flag law records. The new law, effective July 1, 2025, requires a court to expunge certain records related to the red flag law if the court finds that an individual is not dangerous, and it permits a court to expunge certain records related to the red flag law if the court finds that an individual previously found dangerous is no longer dangerous.