Marion County prosecutor finds loophole in Indiana's Red Flag Law

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INDIANAPOLIS, Ind. -- Marion County Prosecutor Ryan Mears is calling for change after noticing a loophole in Indiana's Red Flag Law.

Right now, even if officers temporarily take away someone's gun, that person can still go to a gun store and purchase one while the case is open.

"We ultimately don’t benefit if those individuals have access to firearms if they are not of sound mind," said Mears.

Mears believes family members are courageous when they ask police to take a gun away from a loved one. He thinks lawmakers need to show some courage too.

Indiana's Red Flag Law -- also known as the Jake Laird Law -- allows officers to seize a person's gun if law enforcement thinks he or she is dangerous or mentally unstable. A hearing is then set within 14 days.

However, Mears said often times the person whose firearm was taken wants to present evidence and testimony. So the case goes to trial. Mears explains that the process sometimes can take months, and in that time period, the person can legally purchase another gun.

"I think we need to have the courage to say it doesn’t make sense for this person to have the ability to purchase a firearm literally an hour later after they go through this stressful situation," he said.

Mears is urging lawmakers to close this loophole.

He used a case last year as an example. Mears said a petition was filed in December of 2018 to take away a gun from a woman named Melissia Mitchell.

About two months later, in February of 2019, police said she shot her neighbor, Seth Johnson. He was taken to surgery for a bullet wound to his right lung, several broken ribs and a portion of his lung had to be removed, according to court documents. Mitchell was charged with aggravated battery and carrying a handgun without a license.

The Marion County Prosecutor's Office said she purchased that firearm from a licensed gun dealer.

"There is nothing from preventing a person from purchasing, using or borrowing a firearm from someone else while their case is pending," Mears said. "The law only applies to the dangerous firearm the person had access to when the officer interacted with them."

Mears believes this change would keep people safe.

The Red Flag Law was created after Jake Laird was shot and killed in the line of duty. Since it passed in 2005, it has been used more than 700 times in Indianapolis.

Laird's father, Mike, is torn on whether he supports closing this loophole.

"With anything, with any law, there is always going to be a way to skirt the issue," said Laird. "I would much rather him not be able to get a gun, but I don’t know if it is against his constitutional rights."

When a judge signs a Jake Laird order, the order may be forwarded to the FBI as a NICS disqualifier to prevent the person from making future purchases from a licensed firearm dealer. The order must specifically prohibit the person from purchasing, possessing or acquiring firearms.

Mears said this only happens after the trial is over.

Mears said this only happens after the trial is over.

Guy Relford, CEO of the 2A Project and an attorney who has represented several clients in Red Flag Law cases, said he was consulted by State Representative Donna Schaibley on this topic.

Last session, lawmakers reworked some of the language in the Red Flag Law. Changes also included prohibiting a person from buying a gun after a court found him or her to be dangerous.

Relford said what Mears calls a loophole is a constitutional requirement of due process.

“You have not had an opportunity to defend yourself, to be represented by counsel, to confront witnesses against you. All of those things are the requirements of due process,” said Relford.

Relford believes what Mears is suggesting would never survive constitutional scrutiny.

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