INDIANAPOLIS -- A former employee who shot and killed eight people at a FedEx facility in Indianapolis never appeared before a judge for a hearing under Indiana's "red flag" law, even after his mother called police last year to say her son might commit "suicide by cop," a prosecutor said Monday.
Marion County Prosecutor Ryan Mears said authorities did not seek such a hearing because they did not have enough time under the law's restrictions to definitively demonstrate Brandon Scott Hole's propensity for suicidal thoughts, something they would need to have done to convince a judge that Hole should not be allowed to possess a gun.
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The "red flag" legislation, passed in Indiana in 2005 and also in effect in other states, allows police or courts to seize guns from people who show warning signs of violence. Police seized a pump-action shotgun from Hole, then 18, in March 2020 after they received the call from his mother.
But prosecutors were limited in their ability to prepare a "red flag" case due to a 2019 change in the law that requires courts to make a "good-faith effort" to hold a hearing within 14 days. An additional amendment required them to file an affidavit with the court within 48 hours.
"This individual was taken and treated by medical professionals and he was cut loose," and was not even prescribed any medication, Mears said. "The risk is, if we move forward with that [red flag] process and lose, we have to give that firearm back to that person. That's not something we were willing to do."
Indianapolis police have previously said that they never did return the shotgun to Hole. Authorities say he used two "assault-style" rifles to gun down eight people at the FedEx facility Thursday before he killed himself. Police said Hole, 19, purchased those rifles in July and September 2020, just months after police had seized the pump-action shotgun.
Other amendments to the law in 2019 made it a misdemeanor for a person deemed dangerous to buy or possess a gun and a felony offense for anyone to give or sell a gun to a dangerous person.
Republican state Sen. Erin Houchin, a sponsor of those tougher provisions, said in the Hole case the law "could have worked just as it should, but the prosecutor never pursued it."
But Mears said there are still problems that need to be addressed.
"There are a number of loopholes in the practical application of this law. ... It does not necessarily give everyone the tools they need to make the most well-informed decisions," he said.
Mears said he had already spoken to legislators in the past about lengthening the two-week timeline for holding a red flag hearing and he reiterated that call on Monday. Extending the time frame would give prosecutors more time to investigate a person's background and mental health history before going in front of a judge, he said. He added that he would also like to see the statute prohibit a person under investigation from buying a gun until the hearing is held and the judge makes a final ruling.
Mears said the red flag law is "a good start, but it's far from perfect."
"I think people hear 'red flag' and they think it's the panacea to all these issues. It's not," he said.
Mears said the prosecutor's office has filed eight red flag petitions this year. All are still awaiting rulings from a judge.
Democratic state Rep. Ed DeLaney, a gun control advocate, said he hoped Republicans would be receptive to reviewing the law in the future. He said there isn't time to force an immediate debate because the 2021 legislative session is slated to end later this week.
"What we're trying to do is write a very complicated law to deal with a small percentage of those people who have those weapons who surface," he said. "This is a very tight path we've set out to deal with those people, and obviously it's not adequate."
Indiana was one of the first states to enact a red flag law after an Indianapolis police officer was killed in 2004 by a man whose weapons were returned to him despite his hospitalization months earlier for an emergency mental health evaluation.
Information for this article was contributed by Tom Davies and Rick Callahan of The Associated Press. Casey Smith is a corps member for the AP/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.
