The Daily - How a ‘Red Flag’ Law Failed in Indiana

Episode Date: April 22, 2021

Last spring, Brandon Hole’s mother alerted the police in Indiana about her son’s worrying behavior. Invoking the state’s “red flag” law, officers seized his firearm.But Mr. Hole was able to legally purchase other weapons, and last week, he opened fire on a FedEx facility, killing eight people and then himself.Why did the law fail?Guest: Campbell Robertson, a national correspondent for The New York Times. Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: Red flag laws are supposed to keep guns away from people who should not have them. That did not happen with Mr. Hole.Citing shortcomings of the state’s red flag law, the senior county prosecutor in Indianapolis explained why he did not seek a ruling last year that would have barred Mr. Hole from possessing guns.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From New York Times, I'm Michael Barbaro. This is a Daily. Long before a gunman in Indianapolis killed eight people at a FedEx facility last week, the state where he lives had passed a red flag law intended to prevent people just like him from acquiring weapons. tended to prevent people just like him from acquiring weapons. Today, my colleague Campbell Robertson on what went wrong. It's Thursday, April 22nd. Campbell, where does the story behind this shooting start?

So a little afternoon on Tuesday, March 3rd of 2020, two women show up at a police precinct in Indianapolis. One of them introduces herself as the mother of an 18 year old named Brandon Hull. She tells the police that she had driven him the day before to a gun store called the gun bunker, just to look at guns. And she was not aware that he had money with him, but he bought a shotgun and took it home. And when they got home, she asked him, what are you going to do with a gun? She told police that he got angry. He hit her in the arm and he told her to shut up, but she kept asking. And he finally replied, she told police, this is not the life I want to live.

I'll end it my way. I'm going to point this unloaded gun at the police and they will shoot me. Wow. She told police that her son gets very angry and that she was worried for her safety and decided not to go to work on that day, but to come to the police to seek some help.

Hmm. So here is a mother self-reporting to the police that her son is threatening suicide by cop. Yes, and she's asking for their help. And so what do the police in this precinct do or say in response? So a group of officers come to the home with the mother. They come inside and she calls her son, Brandon, downstairs. He's not aware that they're police there. He comes downstairs and the officers handcuff him. Apparently, he didn't put up a fight. He immediately tells them not to look at his computer. And they ask him about what his mother said. And the report says he downplayed any suicidal thoughts or plans.

But he said he was sad and depressed and that he would benefit from counseling. So, the police take him to a local hospital for assessment. It's called an immediate detention. He goes just for several hours where he's looked at and he's sent home apparently without any medication. And Kimball, what happens to this shotgun that his mother is so concerned about? So back at the house,

the officers go up to his bedroom to get the shotgun. While they're in the bedroom, they see the computer he was talking about, and they see some sites on it that suggest that he was looking at white supremacist sites, which they will later inform the FBI about. But they take the shotgun and the family agrees simply to forfeit it, that they can take it. And they take it to police headquarters and put it in the police property room. And according to the report, they write that it was seized from a, quote, dangerous person on the property room inventory sheet. And Campbell, on what grounds are the police taking this gun? How does that work? That is part of Indiana's so-called red flag law, which is called the Laird law in Indiana.

And just to be clear, Campbell, when you say red flag law, you're referring to an increasingly common kind of statute passed in states across the country over the past decade in response to gun violence that is literally, as its name suggests, supposed to raise a red flag in the legal system about a person who might seem to be a risk if they have a gun in their hands. Yeah, they're technically called extreme risk protection laws. And they've been passed in 17, 18, 19 states at this point. Indiana's is one of the oldest in the country. It was passed in 2005, almost unanimously by the state legislature, following the killing of a police officer who was shot by a man whose guns were taken away by police. And then he got a new one

and was just firing an assault rifle in the streets and killed this police officer, Jay Clare, in 2004. Right. So how exactly does this Indiana red flag law work? Well, it basically has multiple steps. The first step allows police to seize a weapon without a warrant from someone who's deemed dangerous immediately. But the second part is that prosecutors can go before a judge to not only justify that seizure, but try to get an order that would keep the weapon away from them and keep that person from purchasing or owning or possessing any gun for six months to a year. Okay. And what does that process look like?

So under the law, the seizure of the gun would set off a 14-day clock in which prosecutors have to decide whether to take the next step that we talked about and petition for something called a layered order. The whole process can take months. It often does take months, even over a year sometimes. But the initial petition, there's a 14-day window in which they're supposed to file it. this, I guess, second element of the law, not just the seizure of the gun, but legal action that would try to ensure that this man cannot obtain a new gun. Right. The burden on law enforcement is proving in court

that he is, quote, dangerous. And what happens if law enforcement decides not to try to prove that a person is dangerous? Well, in a typical case, they would have to return the gun or guns that they seized, and there would never be any ban on them buying any more guns or possessing guns. Got it. So back to the story of Brandon Hull. This is a very crucial moment in the interplay between this red flag law and this seemingly mentally unwell man. And so what do prosecutors decide to do? Well, they ultimately decide not to pursue a red flag order.

And why would that be? I'm just remembering that the police report itself described this man as dangerous. So why aren't prosecutors pursuing the red flag order? Well, first of all, they have the gun, which sort of set all this off in the first place. They have the gun that he was making his threats with, and the family has agreed to turn it over. Right. So the immediate crisis has been averted, and these laws are most often used in these crisis situations.

most often used in these crisis situations. And I should say here that in the vast, vast majority of cases, when a person is undergoing some sort of mental health crisis, they're not a threat to other people. But this law is aimed specifically at a small subset of people who could become dangerous to themselves or others. And beyond all that, we understand that prosecutors saw this as a particularly tricky case. Despite what the mother had told the police when she showed up at the precinct, the police themselves didn't have any evidence that would form the basis for a case like this. Often these cases arise when police respond to an active scene. There is a domestic violence situation. Someone might be locked in a room threatening to hurt himself. The person might tell the police that he wants to hurt himself. That wasn't the case here.

There were no other incidents. Brandon Holt told the police he downplayed suicidal thoughts. other incidents. Brandon Holt told the police he downplayed suicidal thoughts. So as we understand it, there wasn't a whole lot to go on to build a case very quickly. Got it. So just to be sure, I understand the thinking of the prosecutors in this moment. It's that the threat now feels lowered because he's given up his weapon. And it's just going to be difficult to make a legal case that they think they can actually win to seek a red flag order. So the prosecutors say to themselves, what we have done so far feels like enough. That seems to be what's happening here. Yes. like enough. That seems to be what's happening here. Yes. But just to be clear, these prosecutors are consciously deciding not to pursue Indiana's red flag law to its fullest extent. And they are essentially wagering that this crisis has passed. Yes. But it doesn't end up like that.

But it doesn't end up like that. Over the summer, he buys two rifles, both semi-automatic rifles, one in July, the other in September. At some point, he gets a job at a FedEx facility at a huge warehouse out by the airport where packages come in, people sort. He works there for a few months and then one day in October just doesn't show up for work. And then he's off the radar. And on a Thursday night, a little before midnight, about six months later, he shows up in the parking lot of that FedEx facility with those rifles

and begins firing indiscriminately. And over the course of less than four minutes, he kills eight people, and then he turns the gun on himself and kills himself. We'll be right back. Campbell, we learn everything that you just laid out after this awful shooting. And I think, quite naturally, a lot of people's first reaction is, wait a minute, how did this all go wrong? You have a state where lawmakers did something proactively.

They passed a red flag law. And you have a parent who did something proactively. She called the police on her own son. And then you have prosecutors who decide not to exercise the law to its fullest extent. And so at first blush, the blame here would seem to reside with the prosecutors. That's what it seemed like in the immediate days afterwards. And the police themselves said, look, we did what we were supposed to do. The prosecutor makes that decision, very explicitly saying this was not our obligation. But on Monday...

Thank you. I appreciate everybody being here today. My name is Ryan Mears. I'm the Marion County Prosecutor here in Indianapolis, Indiana. The prosecutor had a press conference where he explained what happened. I think it's important to note that this case does illustrate some of the shortcomings that exist with this red flag law.

He basically said that the shortcomings of the law itself are what's to blame here. And how does he explain that? What does he say? As you can tell from the tight timeline that we are under and operate under when we try to make a determination,

we have 14 days under the statute. So there are several points that he points to. One, that they only have 14 days to make this initial petition, which he argued is simply too short. And because we have 14 days, our ability is severely limited. To build a case that you are eventually going to have to prove by a clear and convincing margin that a person presents a dangerous risk.

Secondly, the tools to build that case, it's civil, so you can't use search warrants. And subpoenas in Indiana, you have 30 days to comply, so you don't have time to subpoena medical records. And so we are in the position of not having access to information that would honestly be very helpful to us in terms of making that determination. You just don't have time to build the case, especially in one like this, where you don't have time to prove that a layered order is necessary. So he's saying these timelines, they just do not line up.

A 14-day window to try to make the case for a layered order, and a 30-day deadline for a subpoena that would produce the documents required to get that order. Right. And further, the prosecutor said that if they did pursue a petition and it was rejected by the judge, they might then have to return the shotgun that they had seized. And so 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. We weren't willing to take that. Guess what happens? That firearm goes right back to that person. We weren't willing to take that. And so that's the route we decided to go. And that would put them in a worse position than they had started.

And finally, in Indiana, while this layered order is pending, which can take on average nine months, sometimes over a year, a person can go out and buy as many guns as they want. And this isn't just a theoretical thing. This has actually happened. There was a case in 2018 where weapons were seized from a woman and the prosecutors filed a Laird petition. And while it was working its way through the court, she bought another weapon and shot her neighbor. So, Sonny Campbell, the question would seem to be, is this Indiana red flag law profoundly and even fatally flawed? What would defenders of the law say to that? Well, it depends on what you think it's designed for. Well, it depends on what you think it's designed for. If you look at the actual use of the law, since it's been in effect, more than two-thirds of the Laird petitions have involved cases where people have expressed suicidal intentions. Hmm.

And more than a quarter have been about domestic violence situations. And in a study of the law in Indiana, for every 10 layered petitions, a suicide has been averted. And so given that suicide is the largest category of gun deaths, it is working for that reason. And of course, this began with Brandon Hull's mother expressing concerns that he might kill himself. And they got the gun, which is part of the law. And that crisis seemed to have passed. So the law is not without its successes, you're saying, especially when it relates to suicide. not without its successes, you're saying, especially when it relates to suicide.

But this law doesn't seem quite up to the task of preventing a mass shooting, of which there are now so many in the United States. And that is, I think, understandably what many people want and expect a red flag law to do, to play a big role in preventing mass shootings. Right. And so the argument from people I've spoken to this week said that you can't just look at one law as the answer to gun violence. You have to have a whole framework of laws, background checks. Two dozen states or about two dozen states have a law that put temporary restrictions on gun ownership if you've been committed to a hospital for a very short amount of time, like Brandon Hull was. So rather than say a red flag law worked or didn't work,

the argument from people who advocate for more gun regulation is that you need a number of laws that there's no cure-all. That being said, the reason why people are so focused on red flag laws in places like Indiana is that they are the only gun measure that enjoys support from both Democrats and Republicans. And in that sense, they're kind of all we have in the United States at this moment. So much is riding on their effectiveness. Right. This law was passed almost unanimously

in a very Republican state. So it is a model for what can be done and what's politically feasible on this issue. But it's obviously not the only thing. It won't work by itself. I wonder, Campbell, since the case is being made by prosecutors, that the flaws here are not in the enforcement, but really they are in the law itself. If lawmakers in Indiana, the ones who wrote the red flag law, are thinking about where it appears this law may have fell short, and are they talking about trying to

fix it or pass a new law? Well, some Democrats have made that argument, but the legislature is just about to adjourn. So it's pretty clear nothing will happen immediately. And to be honest, when you talk to people who are making this case, they're not very optimistic that anything will be done. And why is that? Guns are a very popular issue among conservatives. It's a rural state. It's a conservative state. Guns are a very popular issue among conservatives.

It's a rural state. It's a conservative state. Mm-hmm. And striking the balance between due process and public safety is very, very hard. Right. And it would seem, for example, like a natural fix would be extending that 14-day deadline to 30 days, 60 days, 90 days, I'm betting the counter argument would be that that might theoretically infringe on the rights of gun owners by taking guns out of their hands for such a long period while the state tries to make its case that that person should not

possess a gun. Right. And I think about what the prosecutor said at the news conference on Monday that to anyone who's read the law, it's clear that the priority of the law is to return the firearms rather than provide a thoughtful and careful review of a person's mental health history to determine whether they should even have a firearm. Right. He's saying this red flag law is not really enough about establishing red flags. It's more about making sure people's right to bear arms are not being violated. Yes, he explicitly says that. I wonder, Campbell, if anyone has heard from

the mother who took that pretty courageous step of going to the police precinct and saying, there is a problem here, and starting to try to engage this red flag law. She's not spoken up publicly since the shooting, but the family did put out a statement. a statement. It reads, we are devastated at the loss of life caused as a result of Brandon's actions. Through the love of his family, we tried to get him the help he needed. Our sincerest and most heartfelt apologies go out to the victims of this senseless tragedy. We are so sorry for the pain and hurt being felt by their families and the entire Indianapolis community. Campbell, thank you.

Thanks, Michael. We'll be right back. Here's what else you need to know today. Today, I am announcing that the Justice Department has opened a civil investigation to determine whether the Minneapolis Police Department engages in a pattern or practice of unconstitutional or unlawful policing. On Wednesday, Attorney General Merrick Garland began an investigation into the policies and conduct of the police in Minneapolis following the murder conviction of Derek Chauvin. The investigation will seek to determine, among other things, whether the city's police use excessive force, including during protests, and whether they engage in discriminatory practices. I strongly believe that good officers do not want to work in systems that allow bad practices. Good officers welcome accountability because accountability is an essential part of building trust with the community and public safety requires public trust. And federal regulators have issued highly critical findings about the Baltimore plant that was forced to throw out about 15 million doses of Johnson & Johnson's COVID-19 vaccine after workers there contaminated doses.

The report cited multiple violations, ranging from improper training to inadequate sanitation practices and the incorrect handling of waste. After the contamination, all vaccine production at the plant was shut down. Today's episode was produced by Robert Jimison, Luke Vander Ploeg, and Diana Nguyen. It was edited by Dave Shaw, engineered by Chris Wood, and contains original music by Rochelle Bonja and Dan Powell. That's it for The Daily. I'm Michael Barbaro.

See you tomorrow.