The renewed momentum for gun-control legislation following House action in March comes as authorities in Indiana said they do not know what broke down in the existing process that’s meant to prevent the bloodshed that took place. That legislation includes background checks for gun purchases but not red-flag language aimed at temporarily denying guns to those who could be a danger to themselves or others.
Murphy said he expects Senate Majority Leader Charles E. Schumer (D-N.Y.) to bring gun-control legislation to the floor this spring, possibly as soon as May.
More than a year before police say 19-year-old Brandon Hole killed eight people at a FedEx facility in Indiana, police temporarily detained him because of concerns about his mental health. Although Indiana has such a law, it’s unclear whether proceedings necessary to deny Hole a gun were initiated, experts said.
Hole’s mother had contacted law enforcement, fearing that her son would attempt “suicide by cop.”
According to the FBI, Hole’s mother contacted law enforcement in March 2020, which led Indianapolis police to place him on an “immediate detention mental health hold.” The next month, Hole was interviewed by the FBI. A shotgun was seized at Hole’s home that, according to officials, was not returned.
But in the months that followed, Hole was able to legally purchase more firearms — two assault rifles in July and September, according to police.
In Indiana, individuals are subject to an FBI background check when purchasing a firearm if they buy the weapon from a licensed gun dealer, according to experts.
Police have not said where Hole bought the rifles they say he used to carry out the shooting, only that they were purchased legally from a licensed gun store.
For a record to be entered into the FBI system prohibiting someone from purchasing a firearm, there needs to be a determination made through a court proceeding, said Daniel Webster, director of the Johns Hopkins Center for Gun Violence Prevention and Policy. No mechanism exists to prohibit someone from buying a firearm simply because of an FBI interview or investigation, he added.
Under Indiana’s extreme-risk protection law, law enforcement can seize a firearm from people who pose a risk to themselves or others. After the weapon is seized, the law states that a court hearing needs to take place within 14 days and that the state has the burden of proving that the individual is dangerous — though experts say the time between a firearm seizure and a hearing is frequently delayed.
It remains unknown whether such a hearing took place or was scheduled at all in Hole’s case.
“I don’t know honestly if they reviewed that and declined to file or, you know, because of covid couldn’t do anything with it — I know the courts were shut down — but you’d have to ask them about that,” Indianapolis Police Chief Randal Taylor said in an interview.
The Marion County prosecutor’s office did not respond to emails and calls requesting comment.
Experts and advocates say the question marks remaining in the Indianapolis case underline what may be limits to Indiana’s gun policy.
“Had they shown the court that this man was a danger to himself or others, he would have been added to a prohibited-purchaser list and he would have been unable to buy any firearms legally,” said Shannon Watts, founder of Moms Demand Action. “That does not appear to be what happened here and we saw the consequences of that.”
Allison Anderman, senior counsel with the Giffords Law Center to Prevent Gun Violence, said the Indiana law requires a petition to be filed with the court for a hearing to take place.
“It doesn’t sound like law enforcement did that in this case,” she said. “I do wonder if that is because this change in the law hasn’t been implemented as well as it can be.”
The state’s long-standing Jake Laird Law was amended in 2019 amid a wave of legislation across the country that passed in the wake of the 2018 school shooting in Parkland, Fla.
Before the 2019 change, the Indiana law only allowed law enforcement to seize firearms that individuals already had in their possession, Anderman said.
Aaron Kivisto, associate professor of clinical psychology at the University of Indianapolis, said the possibility that no court proceedings were initiated may point to the narrowness of Indiana’s law.
The state law requires the proceedings to be initiated by law enforcement, whereas some states “provide multiple avenues to initiate firearm seizure proceedings, and most frequently this allows for family members to petition the court to initiate a firearm seizure,” Kivisto said in an email.
He pointed to the Biden administration’s “model” for red-flag legislation allowing family members or law enforcement to petition the court to temporarily prohibit someone in crisis from obtaining a firearm. As part of executive actions announced this month to curb gun violence, President Biden instructed the Justice Department to create a template for states to enact such red-flag laws.
“Although there remain many uncertainties involved in the recent case from Indianapolis, the facts that have been reported seem to support the consideration of mechanisms that allow family members to petition the court directly when they are concerned about someone in crisis,” Kivisto said.
Murphy said a federal red-flag law is under discussion in the Senate, where major gun-control legislation has languished since the 1990s. It would probably take the form of financial incentives to states to pass their own laws, he said.
Murphy added that Senate Republicans he has spoken with favor passage of legislation with such incentives, but he warned that senators are unlikely to agree to a stronger measure allowing someone to seek a judge’s order in federal court to confiscate a gun.
Murphy and advocates also cautioned that such laws could still allow someone whose gun was confiscated to buy a firearm, perhaps online or through a private seller, if background-check laws aren’t strengthened.
Before the latest tragedy, the House in March passed legislation — largely along party lines — that would expand background checks for all gun sales and most gun transfers. The House also acted to close what is known as the “Charleston loophole” in which the FBI now has only three days to review whether a buyer can legally purchase a firearm. The new bill would extend that window to 10 days.
Despite rising public support for universal background checks, any Senate legislation is likely to be narrower in scope, Murphy said, given that it would require 60 votes to pass and that Republicans oppose the House bill.
Those bills do not contain red-flag provisions.
Taylor said law enforcement will conduct a review to assess how Hole’s case was handled.
“When we do our reviews, we look at what we’d done or didn’t do, and if training needs to be revamped or if it’s just a reminder to troops of what needs to happen,” Taylor said. “… But if we find that there’s a breakdown of communication between us and the courts or us and the prosecutor’s office or us and whoever else would be involved with this, we certainly have those conversations as well.”
Asked whether authorities should have done anything differently last year, when Hole’s mother shared her concerns about “suicide by cop,” Lt. Shane Foley, an Indianapolis police spokesman, said “officers did what they could at the time.” He pointed to the seizure of Hole’s shotgun.
“Now could something have been done, from then till now? … Certainly that’s something that we’ll explore,” he said.