In FedEx shooting's wake, prosecutor filed wave of red flag cases after they sat for weeks
INDIANAPOLIS – On the same day Marion County Prosecutor Ryan Mears gave a news conference slamming Indiana's red flag law for not giving him enough time to build a court case against the FedEx shooter, his office filed a red flag case in court that it had been sitting on for 44 days against another potentially dangerous person.
That filing was just the beginning.
IndyStar, a part of the Paste BN Network, conducted a review of Indiana Metro Police Department weapons seizure data and red flag case information found that the prosecutor's office nearly tripled the number of red flag filings it made in court in the weeks following the FedEx shooting, when compared with the number of cases it filed in the first three months of the year.
In some cases, the office didn’t file a red flag petition until more than a month after police warned the prosecutor that the person posed a risk to themselves or others.
Mears declined multiple requests for an interview. When presented with IndyStar's findings, Michael Leffler, a spokesperson for the office, provided the following statement:
"We know this law has prevented suicides, but clearly more needs to be done in the community to help individuals with mental health issues. We will continue to advocate for the legislature to address the limitations and loopholes of the law."
Indiana's red flag law allows law enforcement to remove firearms from people they believe are dangerous. After that seizure, a prosecutor can present evidence against them to a judge, who ultimately determines whether the individual is such a danger that his or her name should be sent to the FBI. Doing so blocks the individual from legally purchasing a firearm in the future.
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Mears' sudden reliance on red flag filings contrasts with his past comments. He has long contended that the law has significant timing weaknesses: that his office only gets 14 days to prepare for a hearing against a red flag target and that the person can still purchase a firearm while that hearing is pending.
He told reporters those loopholes undercut his confidence in how effective the law could be in court — particularly in the case of Brandon Scott Hole, the FedEx shooter, who landed on the radar of law enforcement in March 2020 after IMPD took a shotgun from him through a red flag seizure.
Mears did not follow up with a red flag petition in court against Hole. That may have stopped him from purchasing the two rifles he used to kill eight people and himself at the FedEx Ground facility in April.
"I think people hear red flag and they think it's the panacea to all these issues. It's not," Mears said in April after the shooting. "What it is, is a good start where there's a number of loopholes and the practical application of this law does not necessarily give everyone the tools they need to make the most well-informed decision."
That said, in the days after making those comments, Mears' office began filing red flag petitions in court at an unprecedented rate, according to red flag court data from Jan. 1 to May 6.
On April 19, the office told reporters it had filed red flag petitions against eight individuals in court in 2021. Two and a half weeks later, that number had suddenly jumped to 22 petitions, far outpacing the monthly rhythm at which the office was filing petitions during the first part of the year.
It is unknown whether IMPD also increased its red flag seizures in the weeks following FedEx. But eight of the 14 cases filed by the prosecutor's office after the shooting involved individuals that had been intervened by police prior to the shooting. Four of those cases were filed in a three-day timespan: from April 19, the date Mears gave a news conference, to April 21.
Indianapolis Fraternal Order of Police President Rick Snyder, who railed against Mears' decision to not pursue red flag proceedings against Hole, said the increase in filings is surprising, particularly if IMPD red flag seizures remained steady after the FedEx shooting.
"I would say I'm stunned that it's that significant" of an increase, he said. "It's just very, very telling."
Snyder previously said the system didn't fail in the 2020 case involving Hole. "The prosecutor didn't give the system a chance," he told IndyStar.
"It leads one to wonder, did the number of filings dramatically increase because of the tragedy or is it more because it was revealed as to where the shortfalls in the system were lying?" Snyder said.
In six of the cases filed after the FedEx shooting, IMPD had warned the prosecutor's office about the person before Hole opened fire on the logistics facility. But the office didn't act until after that event.
Three red flag petitions from 2021 experienced delays of a month or longer before the prosecutor's office placed them in front of a judge.
In one case, the prosecutor's office waited 44 days to request a judge bar the gun rights of a suicidal male who was placed under immediate detention and had a semiautomatic Diamondback rifle confiscated by IMPD, according to police department's data. The office filed that petition in court on the same day of Mears' news conference, during which he blamed aspects of the law for his reluctance to file a petition against Hole.
Prosecutors tend to agree with Mears. Bradley Keffer, a former Marion County deputy prosecutor who now works as a criminal defense attorney, told reporters that the court timeline laid out in the law prevents prosecutors from building a strong case against anyone.
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"You're looking at a lot of procedural investigative tools that are just simply not available in that short of timeframe," he told IndyStar, referring to legal considerations such as subpoenas for medical records.
It is worth noting that the law is not hard-and-fast about the 14-day hearing timeframe, however. Courts have to make a "good faith effort" to hold a hearing within 14 days "or as soon as possible," to quote the law.
But Jennifer Lukemeyer, a criminal defense attorney who has represented clients in five red flag cases, said the types of delays seen in Marion County may constitute a violation of due process.
Mears is not alone in holding up the process. The suicidal male with a semiautomatic rifle was intervened by police in early February. IMPD didn't put the incident in front of the prosecutor's office until 23 days after they confiscated his weapon.
Indiana's red flag law says a probable cause affidavit must be filed with a court within 48 hours after a firearm is seized. But in at least 11 of the cases that Mears' office filed in court this year, police did not inform the prosecutor about the person until days or weeks after they had already taken their firearm.
IMPD did not respond to IndyStar's request for an interview. When asked about the delays on IMPD's end, spokesperson Lt. Shane Foley provided the following statement:
"We cannot comment on specific cases, but our detectives have been following the process required in Marion County. We have since worked with our criminal justice partners to refine the process, which now requires law enforcement to submit a probable cause affidavit directly to the court after seizing a weapon during a Jake Laird law investigation."
A spokesperson for the Marion County court system confirmed that the red flag process has been updated. Until May it was at odds with Indiana's red flag law.
The Marion County judge who reviews red flag petitions, Amy Jones, led the overhaul with feedback from the prosecutor and law enforcement. Now IMPD must go directly to judges with a probable cause affidavit — meaning red flag seizures may now be in line with the law as legislators intended when they passed it in 2005 and updated it in 2019.
How 2021 red flag cases compare to Hole
The red flag petitions presented to a judge this year tell the tragic stories of people struggling, often in plain view of law enforcement, to get through mental health crises, according to law enforcement affidavits reviewed by IndyStar.
A military veteran with PTSD experiencing war flashbacks. A son diagnosed with bipolar disorder as a teen. A 21-year-old who had survived a suicide attempt the year before. A wife who suspects her husband has schizophrenia.
Police officers arrived to one scene in August where they found a woman with a belt tightened around her left leg as she tried to stop a gunshot wound on her thigh from bleeding.
"She wouldn't leave," the red flag suspect told police, "so I shot her one time."
Those dramatic encounters may be unlike what IMPD experienced when officers visited Hole's house in March 2020. In the report of IMPD's interaction with Hole from that time, police said Hole "downplayed" suicidal thoughts but admitted he was feeling sad and depressed. There's no information about a diagnosis or history of mental illness. The report only mentions that Hole's dad died by suicide when Hole was three years old.
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Indiana's law says that a mental health diagnosis on its own isn't enough to justify removing someone's weapon. But it does weigh against them in court if they show violent behavior or make threats and a firearm is involved.
"The bulk of the state's case,' Keffer explained, "is going to circle around what those officers experienced when they were interacting with this individual."
IMPD also interviews family members, witnesses and in some cases the target of the red flag seizure in the days following the incident. Those follow-ups provide the substance that law enforcement use to craft a court narrative arguing that the person is dangerous.
"A person like that don't need no gun," one family member told law enforcement in a follow-up interview in April. IMPD had removed a firearm from her grandson after he became violent during a schizophrenic episode.
Because Mears did not file a red flag petition in court against Hole, there is no court narrative describing Hole's past that can be compared with the cases filed this year.
IMPD said police followed up days later, but no police report was made, and no affidavit was filed to a judge. It's unknown what more, if anything, was revealed during those follow-ups.
Follow Johnny Magdaleno and Elizabeth DePompei on Twitter: @IndyStarJohnny; @edepompei.