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INDIANAPOLIS — Thirteen months before Brandon Hole walked into the FedEx Ground facility near the Indianapolis International Airport and opened fire, killing eight former co-workers and injuring five more before turning the gun on himself, IMPD officers were called to his mother’s east side house to seize his firearm under the state’s red flag law.

“The information that our officers received was that he was threatening suicide by cop,” said IMPD Assistant Chief Chris Bailey. “They seized the shotgun, and they took Mr. Hole to the hospital to try to hopefully get treatment.”

Even though Hole checked himself out of treatment within a few hours, Bailey said an IMPD detective processed the case and sent it to the Marion County Prosecutor’s Office for consideration of presentation to a judge.

“Our detective who does these things on a daily basis treated this like she does every other case involving this type of incident,” said Bailey, “submitted all the proper paperwork, conducted additional interviews with both Mr. Hole and family members and then submitted that paperwork to the prosecutor’s office.”

From there, Marion County Prosecutor Ryan Mears said his staff evaluated the case and determined that despite Hole’s claim that he wanted to involve police in his death, that he was not a danger to society, so no case was ever filed in civil court, which could have eventually precluded him from legally acquiring any future firearms.

“We have one incident, he was treated by a mental health professional, they didn’t civilly commit him, they didn’t prescribe him any additional medication, and he was cut loose,” said Mears. “For us the risk is, if we move forward with that proceeding and we lose, guess what happens, that firearm goes right back to that person.”

As it turned out, even though the seized shotgun remains in the Marion County Sheriff’s Property Room, Hole was able to legally purchase two AR-15 semi-automatic rifles — one in July and the other in October — that match the description of the weapons witnesses said they saw him use to open fire at FedEx last Thursday night.

Two guns were found near Hole’s body just inside the front door of the FedEx building.

“As far as I know, and according to the ATF, the guns were purchased legally,” said Bailey. “As far as I know, they were purchased by him.”

Bailey said he didn’t know if the IMPD detective simply reported the facts of the investigation to prosecutors or recommended that further action be taken in court that would have prohibited Hole from buying or possessing future guns.

“In this particular case, the petition was not filed because the family in this particular case had agreed to forfeit the firearm that was in question, and they were not going to pursue the return of that firearm,” said Mears. “We had a case where it was just a single incident, there were not any other incidents that were reported to us, the firearm was taken from the home, and there was an agreement that that firearm would not be returned. The individual was voluntarily committed for a brief period of time.

“We did not file a followup petition because we already achieved our objective, which was to prevent that firearm from going back to this particular individual,” Mears continued. “This case does illustrate some of the shortcomings that do exist with this red flag law. As you can tell from the tight timeline that we are under and that we operate under to try to make a determination, we have 14 days under the statute, and because we have 14 days, our ability to have access to meaningful medical history, meaningful mental health records, is severely limited.”

Mears cited restrictions of the federal Health Insurance Portability and Accountability Act (HIPAA) privacy rule that he said precludes his prosecutors from obtaining essential medical records within the two weeks his office has to make a case under the red flag law.

“We are in the position to not have access to information that would very honestly be very helpful to us in terms of making that determination,” he said. “The priority on this statute is the return of firearms as opposed to having a very thoughtful and careful review of someone’s mental health history to determine whether or not they should possess a firearm.”

According to the Department of Health & Human Services website, the HIPAA privacy rule indicates that medical care facilities can reveal patient information “to a law enforcement official reasonably able to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public; when responding to an off-site medical emergency, as necessary to alert law enforcement to criminal activity; (or) to comply with a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer, or an administrative request from a law enforcement official.”

An administrative request would not necessarily require a court order.

“We did not have access to anything to indicate that he had had a history or documented diagnosis of mental illness,” said Mears, who argued that even if his deputy prosecutors would have filed a petition with the court to determine Hole’s status under the red flag law, “there’s nothing to stop him from getting a gun anyways. The sad reality is that during the pendency of these matters, there’s nothing prohibiting someone from purchasing a firearm.”

In the Hole case, such a consideration would be a moot point since the prosecutor never filed a petition with the court to eventually find Hole adjudicated under the red flag law. However, in response to an inquiry from FOX59, MCPO reported “the outcomes and length of these petitions vary on each case. For an example, if a respondent does not cooperate or no longer appears to the proceedings, the case remains pending for five years until the firearm can be destroyed pursuant to the statute.”

“If we initiate these proceedings, there’s nothing prohibiting that individual to go out and then purchase an additional firearm or 20 firearms. They are free to do that until there is an actual documented finding where a judge finds by clear and convincing evidence that this person has a propensity for violence or mental instability.”

Mears said that the red flag law should be amended to pre-emptively prohibit future gun purchases while the case is pending.

“If a judge makes that probable cause determination, meaning, we think there’s probable cause to take that weapon from somebody, then that person should not be permitted to purchase a firearm, and so I think if you file that initial petition and say, based on these circumstances, we think there’s probable cause to take that weapon, that person should be prohibited from purchasing firearms, that person should be prohibited from engaging in any conduct or they have access to a firearm and that would solve a significant part of the history.”

MCPO has filed eight such red flag cases this year with approximately 100 pending, though it has no information on how many cases have been referred to it by IMPD or other Marion County law enforcement agencies or the results of those filings in civil court.