La ley de incautación y retención de armas de fuego le permite a el/la juez/a a ordenarle a la policía a que remueva y se quede (incaute y retenga) con las armas de fuego de una persona peligrosa.
What is allowed under the firearms seizure and retention law?
The firearms seizure and retention law allows law enforcement officers to remove firearms from “dangerous individuals” and keep them until a hearing can be held where a judge decides whether the individual is a threat to himself/herself or others.1 In addition, if law enforcement already removed the firearm from someone who s/he believes to be a dangerous individual without a warrant, this law empowers the judge to allow law enforcement to keep the firearm.2
1 Ind. Code §§ 35-47-14-3(a)
2 Ind. Code § 35-47-14-3(b)
What is the legal definition of a “dangerous individual”?
A dangerous individual is someone who presents:
- an “imminent risk” (immediate risk) of personal injury to himself/herself or another person; or
- a risk of personal injury to himself/herself or another person in the future and either:
- s/he has a mental illness that may be controlled by medication and has not shown a pattern of taking medication willingly and consistently while not under supervision; or
- there is a reasonable belief, supported by documented evidence, that s/he has a tendency for violent or suicidal behavior.1
If the judge finds probable cause exists to believe the individual is dangerous and in possession of a firearm, the judge may issue a search and seizure warrant for the individual’s firearms.2
1 Ind. Code § 35-47-14-1(a)
2 Ind. Code § 35-47-14-2(3)
Who can get firearms removed under the firearms seizure and retention law?
Only law enforcement officers can file to have an individual’s firearms removed. There are two ways that law enforcement can remove an individual’s firearms.
- Law enforcement officers may take and remove (seize) firearms from any individual whom the law enforcement officer believes to be dangerous without getting permission from a judge in a warrant. When this happens, the judge must have a hearing within 14 to 16 days to determine whether probable cause exists to find that the individual is dangerous and law enforcement should keep his/her firearms and concealed carry license, if s/he has one.1
- Law enforcement can also remove firearms by first filing an affidavit in court describing the facts that have led the officer to believe that a person is a “dangerous individual” and that s/he possesses a firearm.2 The affidavit must describe the officer’s interactions and conversations with either the individual who s/he believes is dangerous or interactions with another person who the officer believes to be credible and reliable.3
1 Ind. Code § 35-47-14-5
2 Ind. Code § 35-47-14-3(a)
3 Ind. Code § 35-47-14-2(1), (2)
How are firearms removed from a dangerous individual under this law? For how long are they removed?
There are two ways that an officer can take (seize) the firearms from an individual believed to be dangerous:
- A law enforcement officer can seize the firearms from any individual who the officer believes to be dangerous without a warrant. In this case, the officer must:
- file an affidavit in court within 48 hours that:
- explains why s/he seized the firearms; and
- states the quantity and type of each firearm seized from the individual;
- ask the judge for permission to keep (retain) the firearm.
- file an affidavit in court within 48 hours that:
- A law enforcement officer can file a petition in court asking the judge to issue a warrant allowing the officer to seize the firearm.1
In either scenario, after the firearms are seized, the officer must file a “search warrant return” with the court within 48 hours that lists the quantity and type of firearms seized.2
After the affidavit or the search warrant return is filed in court, the judge must hold a hearing within 14 days, or within 60 days if a continuance is requested, during which time the state must prove by “clear and convincing evidence” that the individual is dangerous.3 If this is proven, the judge will issue an order that does the following:
- declares the person to be a dangerous individual;
- orders law enforcement to keep the firearms that were seized;
- suspends the individual’s license to carry a handgun;
- prohibits the individual from renting, receiving, owning, or possessing a firearm; and
- determines whether the individual should be referred to further proceedings regarding involuntarily detainment or commitment for mentally ill individuals.4
If the individual chooses to, s/he can file a petition asking the judge to allow the firearms to be:
- transferred from law enforcement to a responsible third party or a federally-licensed firearms dealer; or
- sold at auction by law enforcement with the money from the sale going to the individual.5
1 Ind. Code §§ 35-47-14-3(a); 35-47-14-4; 35-47-14-2(b)
2 Ind. Code §§ 35-47-14-2(b); 35-47-14-2(e)
3 Ind. Code §§ 35-47-14-5(a), (b); 35-47-14-6
4 Ind. Code § 35-47-14-6(c)
5 Ind. Code § 35-47-14-10(a)
Under what circumstances can the firearms be returned to the individual?
There are two ways in which a firearm that was seized would be returned.
- At the hearing to determine if the individual is “dangerous,” if the state does not prove its case by “clear and convincing evidence,” the law enforcement agency having custody of the firearm must return the firearm within five days.1
- At the hearing to determine if the individual is “dangerous,” if the state does prove its case and the firearms are kept by law enforcement, the individual can file a petition after 180 days have passed for a new hearing. At the hearing, the individual may be represented by an attorney. If the petition is filed within one year from when the firearms were seized, it’s the individual’s burden to prove that s/he is no longer dangerous. If the petition is filed after one year, it is the state’s burden to prove that the individual is still dangerous. If the judge determines that the individual is no longer dangerous, the judge must:
- order the law enforcement agency having custody of the firearms to return them within five days;
- terminate the order that prohibits the individual from having firearms; and
- removed the suspension of the individual’s license to carry a handgun so that the individual may reapply for a license.2
If the judge rules against the individual in the hearing and declares that s/he is still a dangerous individual, the individual must wait another 180 days before filing a petition for another hearing.3
Note: If at least five years have passed since a judge held the first hearing, then the judge may order the law enforcement agency having custody of the firearm to dispose of the firearm permanently. However, before ordering law enforcement to permanently get rid of the firearms, the judge must give notice to the parties and conduct a hearing.4
1 Ind. Code § 35-47-14-3(6)(f)
2 Ind. Code § 35-47-14-8(a)-(f)
3 Ind. Code § 35-47-14-8(g)
4 Ind. Code § 35-47-14-9
What happens if a dangerous individual possesses a gun after the judge removes his/her firearms?
If the judge has ruled that the person whose firearms were removed is a “dangerous individual,” it is a class A misdemeanor for that person to knowingly or intentionally rents, purchase, receive, own, or possess a firearm.1 The punishment for a class A misdemeanor is up to one year in jail and up to a $5,000 fine.2 The penalty is more serious for the person who sells or gives the firearm to the dangerous individual. That person can be guilty of a level 5 felony, which can be punished with between one to six years in prison and a fine of up to $10,000.3
1 Ind. Code § 35-47-4-6.5
2 Ind. Code § 35-50-3-2
3 Ind. Code §§ 35-47-4-6.7; 35-50-2-6(b)