COLUMBUS — In the wake of two more mass shootings over the weekend, including one in Dayton that killed nine people, Ohio Gov. Mike DeWine has urged state lawmakers to pass legislation designed to require background checks for nearly all gun sales and allow courts to restrict firearms access to people deemed to be threats to themselves or public safety. The latter proposal, which would resemble a so-called red flag law, may model similar legislation that has been on the books in Indiana for more than a decade. In recent case from Southern Indiana, police confiscated nearly a dozen firearms from a 67-year-old man who allegedly planned on ambushing police.
In 2005, the Hoosier State became the second state to implement a red flag law, which allows law enforcement to temporarily confiscate weapons from someone who is deemed to pose an imminent threat to themselves or the public. Indiana’s statute also provides due process rights for those whose weapons are confiscated. Indiana’s red flag law requires a court hearing take place within 14 days of confiscation. At the hearing, the person whose weapons were confiscated is allowed to present arguments and evidence refuting the state’s claim.
Indiana’s statute permits law enforcement to confiscate firearms if they have a warrant signed by a judge or if exigent circumstances exist where the threat is imminent. The Hoosier State’s red flag law is called the Jacob Laird Law, named after an Indianapolis police officer who was shot and killed by a man who, just months earlier, lost access to his firearms because he was receiving mental health treatment. With no law on the books at the time, police were forced to return the man his firearms when he requested them.
A February 2019 case in Evansville, Ind., which is just north of the Indiana-Kentucky border along the Ohio River, highlights how the state’s red flag law was used to potentially prevent a deadly ambush on police.
“[The red flag law] came about, unfortunately, from a tragedy,” said Evansville Police Sgt. Jason Cullum in reference to Officer Laird’s death in 2004. “It’s designed to prevent that tragedy from repeating itself. In this specific case, we believe that it did.”
In mid-February, law enforcement received a call from a family member of Kenneth Haynie Jr. saying the 67-year-old man had made numerous comments about getting into a confrontation with law enforcement at his home. Haynie reportedly told his family members that the purpose of the confrontation would be to provide a means for him to speak to the media about his political views. Family members told authorities Haynie was in possession of multiple firearms and he was mentally unstable.
There were no direct and specific threats made toward law enforcement. However, an officer safety alert was put into EPD’s database, Sgt. Cullum said.
The following day, Haynie reportedly called 911 and said he had tied his wife up and was holding her at gunpoint. He gave the dispatcher specific instructions for law enforcement and if those instructions were not followed, ‘it would result in a bloodbath.’ However, again, Mr. Haynie never made threats against the public or any specific officer.
Police later verified that Haynie’s wife was, in fact, nowhere near the home and not in any danger. Police believe Haynie’s 911 call was made in an effort to lure law enforcement into an ambush. Haynie’s mail slot had been altered, giving him a vantage point on potentially unsuspecting officers, Sgt. Cullum said.
“He would have had the ability to fire at the officers through the mail slot where the officers wouldn’t have been able to see him,” Sgt. Cullum said. “He had taken steps inside the home to carry out some of the comments that he had made to family members.”
Based on the information that Mr. Haynie was in possession of numerous firearms and suffering from mental health issues, officers decided to serve the warrant by watching the house and waiting for him to come out on his own. The following day, police saw him taking out the trash and were able to take him into custody without incident.
When Haynie’s family members were notified of his arrest, they asked police to remove the firearms from his home under Indiana’s red flag law. Believing Haynie presented an immediate threat to the public, police temporarily confiscated a total of 10 firearms, including multiple shotguns and rifles, as well as more than 200 rounds of ammunition. Sgt. Cullum said detectives found the weapons spread out across multiple rooms. Police believe Haynie placed the weapons in a way he could move room-to-room and engage in a prolonged firefight.
Each weapon was loaded and ready to fire, police said.
“Even when you are dealing with an individual and you are seizing something that they own – in this case, guns – we still want to make sure we are not violating their Fourth Amendment rights to search and seizure,” Sgt. Cullum said. “The wording in the Indiana law allows us to address those issues. Whatever time it takes to ensure our officers are safe and that the community is safe, we’re willing to put those resources in to do that.”
Indiana’s red flag law affords each person the rights of due process by requiring a court hearing within 14 days of confiscation. Concerns over due process proved to be a concern among officials in Ohio, who, prior to the Dayton mass shooting, nearly passed a red flag law.
Lt. Governor Jon Husted said he believed they will be successful in getting this through the legislature because they have addressed the due process concerns of many pro-gun groups who they've worked with on the measure.
"It's not seizing somebody's property without due process," said Husted. "That was the stick that that was the issue that couldn't get resolved in the past. We've worked with those voices and we believe we have those settled now."
Under Indiana’s statute, authorities are required to prepare and submit a sworn affidavit that states why the law enforcement officer believes the individual is dangerous and in possession of a firearm.
““There are times where a warrant will be utilized in the red flag law situation but there are times like the case we had in Evansville where there’s the sense of urgency. It allows us to confiscate the weapons without the warrant. Because there are automatic time frames in place for the appeal of that seizure, most people feel that due process is still protected,” Sgt. Cullum said. “In specific cases where we have taken action, it’s hard to say what would have happened had we not [had a red flag law]. But we have seen what has happened in our state when the law was not in place.”
If the firearms are seized, the court must determine that clear and convincing evidence exists that the person is dangerous and should be temporarily barred from having access to the weapons.
The individual would be allowed to petition the court to have access to the weapons again once every six months. Additionally, if a judge forbids an individual from possessing firearms as a result of the red flag law, that information may be forwarded to the FBI to be put into NICS. By doing so, the information would be included as part a gun sale background check.
“There have been a lot of conversations about the success and the potential negative aspects of it,” Sgt. Cullum said. “If we’re saving lives and still protecting the rights of our citizens that we’re seizing the guns from, to us, that is a law that is beneficial to the community.”
According to a published study, in the 10 years since Indiana passed its red flag law, the state's firearm suicide rate decreased by nearly 8%. A majority of the state's red flag law cases centered around suicidal individuals.