Indiana was one of the first states in the nation to adopt a “red flag” law, and its been on the books in a couple of different configurations since 2005. Though full repeal is off the table, at least for this session, the Extreme Risk Protection Order statute is likely to undergo another major revision now that the Senate has signed off on changes first adopted by the House.
On Wednesday the upper chamber in Indiana’s legislature unanimously voted to create a process where “red flag” records could be expunged by the courts once someone has been deemed to not be a danger to themselves or others.
House Enrolled Act 1137 would require a judge to seal and expunge an individual’s red flag records if the court finds that the individual is not dangerous. The bill also establishes guidelines for expunging all related records, including the court files and law enforcement agency reports, ensuring that these records are sealed and inaccessible. In certain circumstances, sealed records may be disclosed to a law enforcement officer acting within the scope of their duties, but may not be accessed by any other individual unless authorized by a court order.
“This legislation aims to protect Hoosiers and their Second Amendment rights through procedural fairness, striking a balance between public safety and individual rights,” Smaltz said. “Those who have been deemed not dangerous should not be subject to unnecessary restrictions or long-lasting repercussions from red flag cases denying them due process.”
Smaltz emphasized that the legislation would amend existing Indiana statutes to establish clear direction for petitioning courts for expungement and set evidence-based standards for evaluating whether an individual remains a risk. Indiana’s current red flag law allows law enforcement officers to temporarily confiscate firearms from individuals deemed a danger to themselves or others.
Both the Senate and the House unanimously approved of HEA 1137, and its nice to see this change get bipartisan support, even from the few anti-gunners in the legislature. Of course, this also makes perfect sense: a “red flag” law, by its very nature, isn’t supposed to be a permanent deprivation of the right to keep and bear arms or a black mark on someone’s mental status they carry with them forevermore. I don’t like “red flag” laws on principle, but if they’re going to be on the books then once someone has regained their ability to keep and bear arms those “red flag” records should be locked away where they can do no harm to the recipient of an ERPO order in the future.
The real questions are why it took twenty years for the legislature to take such a common sense step, and how many Hoosiers have had their due process rights violated or were subject to those “unnecessary restrictions or long-lasting repercussions” that Smaltz complained about.
Again, I’d like to see Indiana wipe its ERPO statutes off the books completely, but there’s not enough support in either the House or Senate at the moment to make that a reality. Making the state’s “red flag” law less bad is still a good step in the right direction, though, and with unanimous passage in both the House and Senate it’s almost a foregone conclusion that Gov. Mike Braun will also give his stamp of approval to the change in the days ahead.
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