Through the first nine months of this 2023, Indiana courts have had 482 cases before them under the state’s “red flag” law that permits judges to order firearms taken from people deemed dangerous. That number includes a handful of cases locally.

For the first time, Indiana trial courts are tracking and reporting the number of red flag cases. Under an order issued by the Indiana Supreme Court last December, all trial courts in Indiana were required to categorize and report the number of red flag cases beginning Jan. 1 of this year.

Through the end of September, there had been three red flag cases filed in Bartholomew County and one in Jennings County, according to provisional data reported to the Indiana Supreme Court. However, Bartholomew County Prosecutor Lindsey Holden-Kay said three additional red flag cases were filed in October, bringing the total to six in the county so far this year.

In all cases, judges granted the red flag petitions, finding people dangerous and ordering their firearms be seized.

The three Bartholomew County cases filed in the first nine months of the year were filed in conjunction with criminal charges. None of the defendants formally contested the red flag actions, court records show, essentially agreeing to give up their weapons.According to court records, in these red flag cases:

  • Jessica Williams of Edinburgh was ordered to relinquish weapons after she was charged in July with battery against a public safety official and domestic battery.
  • Richard A. Lucas, 2252 McKinley Ave., Columbus, was charged in September with Level 5 felony intimidation of a judicial officer or bailiff. A red flag case was filed at the same time, and a special judge granted the seizure of firearms shortly after Lucas was charged.
  • Justin Burdick, who now lives in Greenwood but formerly lived in Columbus, was charged in August with felony counts of intimidation involving drawing a deadly weapon; pointing a firearm at another; and domestic battery in the presence of a minor. A judge subsequently ordered law enforcement to seize firearms from Burdick’s possession.

Judges in these cases also notified Indiana State Police, as required by law, so that those with red flag judgments are entered into instant background check databases. By law, a person found to be dangerous under the law is barred from possessing or purchasing a firearm and can be criminally charged for doing so.

Danger factors vary

Holden-Kay said in the three local cases filed in October, two involved people who were not criminally charged, but authorities believed the people were dangerous due to mental health issues.

She said the red flag law can be an opportunity for law enforcement to intervene and de-escalate dangerous situations and get people the help they need, even if no criminal case is filed.

“It’s not news to anyone that mental health is impacting what we do in the criminal justice world every day,” Holden-Kay said. “The red flag law is a huge step in the right direction.”

Authorities under the law may immediately seize firearms from a person deemed dangerous, with or without a warrant. If that is done without a warrant, law enforcement is required by statute to justify the confiscation of weapons to the court within 48 hours, Holden-Kay said.

When a red flag case is filed, a court must hold a hearing within 14 days to determine if the person is dangerous. The law defines a dangerous person as someone who “presents an imminent risk of personal injury to the individual or to another individual;” someone who has a mental illness but is not properly taking medication; or someone who “is the subject of documented evidence that would give rise to a reasonable belief that the individual has a propensity for violent or emotionally unstable conduct.”

Holden-Kay acknowledged that these can be subjective calls. She said there have been instances in which someone in law enforcement has asked her office if a person could be subject to a red flag petition, but prosecutors didn’t believe the dangerous element could be shown under the law.

Prosecutors also must balance concern for public safety with individual liberty. When the state moves to seize weapons, “We are stripping someone of their rights,” Holden-Kay said, and doing so requires due process protections.

Stats show differences

Data from courts statewide show prosecutors in counties across Indiana appear to take decidedly different views of whether to file red flag actions. The law gives prosecutors broad discretion regarding when and whether to file a red flag case.

Marion County, home to Indianapolis and the state’s most populous with more than 971,000 residents, has far and away the most red flag cases — 62. But among the 10 largest Indiana counties, red flag filings vary wildly.

In Lake County, Indiana’s second-largest (Gary, Hammond), with just under 500,000 residents, just 13 red flag cases have been filed in the first nine months of 2023. Meanwhile, in Madison County (Anderson), with a population of about 130,000, 32 red flag cases were before courts in the same period — tied with Allen County (Fort Wayne) for second-most cases.

In some of Indiana’s most populous counties, red flag cases are hardly being filed at all, according to the data. In St. Joseph (South Bend) and Elkhart counites — Indiana’s fifth and sixth largest by population and home to nearly 480,000 people in adjoining counties — just four red flag cases combined have been filed so far this year, according to the data.

Yet in several much smaller counties, prosecutors have filed far more red-flag cases. For example:

  • LaPorte County (LaPorte/Michigan City, population 112,000), 17 cases.
  • Vigo County, (Terre Haute, population 106,000), 16 cases.
  • Wayne County (Richmond, population 66,000), 11 cases.
  • Steuben County (Angola, population 34,000), eight cases.
  • Wabash County (Wabash, population 30,000), eight cases.
  • Parke County (Rockville, population 16,000), five cases.

Through a spokesperson, the Indiana Prosecuting Attorneys Council declined to comment on the data.

For her part, Holden-Kay believes the red flag law has been beneficial for public safety and for law enforcement. She noted that in most cases, people agree to surrender their weapons rather than contest a red flag petition.

“I think it’s actually a super-effective tool” for law enforcement, she said.

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