Citing shortcomings of the state’s “red flag” law, the local prosecutor explained why he did not seek a ruling last year that would have barred Brandon Hole from possessing guns.
INDIANAPOLIS — The senior county prosecutor in Indianapolis said on Monday that his office never sought to invoke a law that could have prevented Brandon Hole from buying two firearms before he shot and killed eight people last week at a FedEx packaging warehouse.
In a news conference, Ryan Mears, the prosecutor for Marion County, said his office had decided not to use Indiana’s so-called red flag law last year, even though Mr. Hole’s mother’s warnings about her son’s mental instability had prompted the police to seize a shotgun from him.
The tight deadlines and constraints on evidence gathering built into the state’s 16-year-old statute gave prosecutors too little time to make a convincing case to a judge, Mr. Mears said, adding that losing in court could have backfired.
“If we move forward with that proceeding, and we lose, guess what happens: that firearm goes right back to that person,” he said. “We weren’t willing to take that.”
The tragedy of last week’s mass shooting, and the questions about missed opportunities in the months that led up to it, has highlighted some shortcomings in the red flag laws, adopted in more than a dozen states, that have been one of the few gun control measures both political parties have been able to agree to.
Under such laws, the authorities can take guns from people who are deemed by a judge to present a danger to themselves or others, and bar those people from buying guns for a period of time. If Mr. Hole had been subject to such a determination after his mother contacted the authorities in March 2020, he would not have been able to legally buy two rifles a few months later — the semiautomatic weapons he would use to open fire on the workers in a packaging warehouse on Thursday night before fatally shooting himself.
But as effective as red flag laws may be in certain respects, such as preventing gun suicides, the new revelations about the handling of Mr. Hole’s case last year show that the laws may fall well short in preventing the most horrific acts of gun violence.
“I think people hear ‘red flag’ and they think it’s the panacea to all these issues,” Mr. Mears said in the news conference. “It’s not. What it is, is a good start,” he said, adding that because of “a number of loopholes in the practical application of this law,” the authorities do not always have “the tools they need to make the most well-informed decisions.”
In Mr. Hole’s case, prosecutors considered his immediate mental health crisis — his mother told them he had talked of killing himself — to be the priority, and after his gun was taken away, they considered the crisis averted. Research has shown that red flag laws do prevent gun suicides, and some of those who have studied gun violence say that suicide prevention should be seen as the primary purpose of such laws.
Kendra Parris, a lawyer in Florida who has fought against risk protection orders, as red flag laws are legally described, said law enforcement officials have not had much success predicting who was capable of mass violence.
“The idea that we are going to fix this with R.P.O.s at the state level,” Ms. Parris said, “it strikes me as folly.”
Even when authorities or individuals have gone to court around the country to keep someone from keeping or acquiring guns, the efforts have not always been successful. In some cases, the courts have denied their petitions. In other cases where authorities initially won restrictions, the targets have later regained their ability to own weapons in follow-up hearings. One man in the Seattle area who wrote violent messages online — one of them was “Kill all women” — got his guns back after arguing before a judge that the messages were jokes.
Jeffrey Swanson, a professor in psychiatry at Duke University School of Medicine who has researched risk protection laws in various states, said Indiana’s version was not “the star example,” marred by what he considered deficiencies in both due process and effectiveness. But he emphasized that any law should be part of a larger legal framework needed to prevent gun violence.
“People say, ‘Well, what’s the one thing you should do to stop gun violence?’” he said. “Well, it’s not a one-thing problem and not a one-thing solution. In our country, this is a whole puzzle with lots of different legal tools that can work together.”
Indiana’s red flag law, named after Timothy Laird, an officer known as Jake who was killed in the line of duty in 2004, is one of the oldest such laws in the country. Under the statute, a person is considered dangerous if he or she “presents an imminent risk” to oneself or others, or presents a more general risk but fits certain other criteria, including unmedicated mental illness or a documented propensity for violence.
Mr. Mears said his office had filed eight petitions this year involving Laird law cases; all are still pending.
Law enforcement learned of Mr. Hole on March 3, 2020, when his mother showed up at a police roll call. She told the officers that her son was having suicidal thoughts, potentially wanting to attempt “suicide by cop,” said the chief of the Indianapolis Metropolitan Police Department, Randal Taylor. Several officers came to her house and took Mr. Hole to a hospital for a temporary mental health hold.
According to Mr. Mears, Mr. Hole’s hospital stay “was measured by hours and not days” and “no follow-up medication was prescribed.”
Had he been involuntarily committed under a judge’s orders after a hearing, he would have been barred from possessing a firearm under federal law.
Still, Dr. Swanson said nearly two dozen states have laws that automatically impose some temporary gun restrictions even after shorter mental health commitments. This kind of statute — rather than the more well-known red flag laws, which generally require a full court hearing and a judge’s order — could potentially have been a more useful tool in preventing Mr. Hole from buying more guns, he said. It is not entirely clear if this kind of law would have applied in Mr. Hole’s case, but Indiana has no such law anyway.
Along with taking Mr. Hole to the hospital, the Indianapolis police took possession of a shotgun that he had recently bought. The gun was never returned; Mr. Mears said the family agreed to forfeit it.
As Mr. Mears explained it, with the seizure of the gun, “we’d already achieved our objective.”
Mr. Mears noted several challenges that a filing under the state’s red flag law would have presented, had prosecutors chosen to pursue a hearing. Chief among them were the brief, 14-day window prosecutors have to present a petition and the limited investigative tools available to them. While it can take months for a judge to make a final ruling on a red flag petition, the statute directs the court to hold a hearing within 14 days of a gun seizure.
“We would have liked the opportunity to be able to subpoena his medical records,” he said, as part of what would be needed to make a “clear and convincing” case. Search warrants are not allowed in this kind of procedure under Indiana’s law. And there is a 30-day window to comply with a subpoena. “We’re dealing with a 14-day time window,” he said. “And we just didn’t have the time to be able to do that.”
Losing the case, he said, could have required the police to return the shotgun they had seized, even though the family had voluntarily forfeited it.
Bradley Keffer, a lawyer in Indianapolis who has handled red flag cases — called Laird hearings in Indiana — said the prosecutors’ decision in this case was understandable.
“Most Laird hearings tend to come from law enforcement’s natural interaction with an armed member of the public,” he said. The police may encounter people who were involved in domestic violence or who had been threatening themselves or others. In that case, the authorities already have the key evidence — the risk of danger — for a Laird hearing.
But Mr. Hole’s case appears to have been prompted by his mother’s concerns alone. Chief Taylor said that it was she, not Mr. Hole, who told the police of his suicidal thoughts, and that the officers who responded “felt that she was believable enough” to take immediate action. Proving to a judge that he presented a serious risk going forward would have been difficult, Mr. Keffer said. “That’s a lot to overcome,” he said.
There were other parts of the law that Mr. Mears described as loopholes, though they did not apply in Mr. Hole’s case. In 2018, prosecutors filed a Laird petition after the police seized a gun from a woman. While her case was pending before the judge, she legally bought another gun and shot her neighbor.
In the end, Mr. Mears said, the law needs “improvement” before it can be a truly effective tool against gun violence. “I think it’s a good start,” he said, “but it’s far from perfect.”
Mike Baker contributed reporting.
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