Congresswoman Susan W. Brooks

Representing the 5th District of Indiana
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Here's what a red flag law is — and how it works in Indiana

Aug 6, 2019
In The News

Attention surrounding red flag laws is growing after President Donald Trump's comments supporting the gun control measure following the mass shootings in El Paso, Texas, and Dayton, Ohio. 

"We must make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do those firearms can be taken through rapid due process," Trump said, according to USA TODAY's reporting. "That is why I have called for red flag laws, also known as extreme risk protection orders."

Rep. Susan W. Brooks, an Indiana Republican, is among those in Congress who have been pushing for federal legislation that would urge states to adopt laws similar to Indiana's red flag law. Other political leaders have started joining, including Sen. Mike Braun, also an Indiana Republican. 

Red flag laws also have a lot of support among Democrats. Rep. Andre Carson, an Indianapolis Democrat, has cosponsored Brooks' bill the last two years. 

What is a red flag law? 

Red flag laws generally allow law enforcement to seize guns from people who are deemed to be a danger to themselves or others. The laws also typically include language guaranteeing due process for those gun-owners, allowing them to retrieve their weapons through the courts.

In short, red flag laws are designed to balance two competing concerns: Using gun control to limit a potentially dangerous person's access to firearms vs. protecting each person's Second, Fourth and Fifth Amendment rights. 

How many states have red flag laws? 

Many states have similar laws for police at the scenes of domestic and family violence, but red flag laws are rarer and typically give police even more authority to confiscate weapons.

Seventeen states and Washington, D.C., have red flag laws, according to the Giffords Law Center to Prevent Gun Violence.

On its website, the center provides a table comparing each state's law. Some states allow family, medical professionals and educators to seek removal of firearms. Indiana's version of the red flag law is much narrower, yet it appears to be saving lives.

How does Indiana's red flag law work?

Indiana's red flag law emerged last year as a potential national model after the mass shooting at Stoneman Douglas High School in Parkland, Florida.

In conservative Indiana, where one in three adults owns a gun, the firearms restriction is proving largely uncontroversial. At the same time, the law has been linked to a 7.5 percent decline in gun suicides, according to a University of Indianapolis study.

Here's how it works: Even without a warrant or judge's signature, police can temporarily confiscate firearms from people who are threatening to harm themselves or others.

But after the warrantless seizure, the officer is required to submit a written statement to the court describing why the person is considered dangerous. Judges have 14 days to review seizures, and gun owners have opportunities to make their case in court.

If a judge finds that probable cause exists, the law enforcement agency can retain custody of the guns. 

Otherwise? The firearms are returned.

Other restrictions are in place. If a warrant is otherwise necessary at a scene, officers do not have the authority to conduct a warrantless search and seizure. And just because a person has been diagnosed with a mental illness does not provide a reason for police to confiscate weapons.

Is there a federal red flag law? 

No, but Rep. Brooks, a former federal prosecutor, co-sponsored federal legislation that would encourage more states to adopt red flag laws by providing federal grants. Brooks routinely beats the drum about what she calls a common-sense law.

Fellow Rep. Carson joined three others in his party to cosponsor the bipartisan legislation.

Senate Republicans are beginning to show support for red flag laws, too. Sen. Lindsey Graham, the South Carolina Republican, said he intends to sponsor a bipartisan bill in the Senate. 

Braun, in a statement, also said he would support a red flag law. 

Congress is in August recess, so any movement on the bill would wait until legislators return to Washington, D.C., in September. 

Who is Jake Laird? 

Brooks' bill is called the Jake Laird Act, named after an Indianapolis Police Department officer who lost his life in 2004. 

Carrying a semi-automatic rifle and two handguns, 33-year-old Kenneth Anderson fired several rounds at homes and vehicles in a south-side neighborhood. Responding to reports of gunfire,officer Laird was shot and killed by Anderson. Four other officers also were struck but survived. And the shooter's 66-year-old mother was killed in her home.

Officials later discovered that police that year had put Anderson under "immediate detention," which is when an officer takes someone with a mental illness who may be a danger to a nearby hospital, often against the person's will.

Police also seized a cache of weapons and ammunition. Officers, though, were forced to return those weapons to Anderson — just five months before the shooting.

The next year, the "Jake Laird law" gained near unanimous approval from the Indiana General Assembly. The House passed it 91-0; the Senate passed it 48-1.

Brooks, who recently wrote an op-ed in IndyStar about the officer and her legislation, named the federal bill after Officer Laird, too.