Criminal Justice and Suicide Outcomes with Indiana's Risk-Based Gun Seizure Law

Gun Seizure Respondents and Events

From 2006 to 2013, the Indiana statute was applied to remove firearms from 395 individuals in Marion County. Table 1 describes the demographic characteristics of individuals whose firearms were removed, the frequency of documented reasons for removal, the number of firearms removed, and actions taken by police regarding transport and arrest of the individuals. The majority of cases involved white men with suicidal ideation where police removed more than one firearm and transported the individual involuntarily to a hospital for evaluation without an arrest.

Despite the statutory guideline that an initial hearing be held within 14 days of gun seizure, convening parties often encountered delays. On average, 287 days elapsed from the date of gun seizure to the date of a court decision regarding the disposition of seized firearms. More than half of the subjects (53.2%) failed to appear at the scheduled court hearing. More than a quarter of cases (28.9%) were dismissed following a court hearing, and the guns were returned to the owner. Guns were retained by court order in 62.5 percent of cases, and 2.0 percent of respondents voluntarily surrendered their guns. In 5.8 percent of cases, guns were transferred to a family member or associate of the owner. About 1 in 10 gun-seizure respondents (8.9%) agreed to have the police destroy their guns.

Outcomes of follow-up court hearings were available for 108 cases. These hearings were held to consider whether to return guns to the owner in cases where guns had been retained, or to retain guns in cases where the respondent had failed to appear at the initial hearing. In 69.4 percent of these follow-up hearings, respondents failed to appear, which resulted in their guns being destroyed. Guns were returned in 5.6 percent of the 108 cases, and returned to a designated third party (e.g., a family member) in 2.8 percent of these cases. A quarter of the 108 cases (25.9%) were dismissed. Seven individuals were the subject of more than one gun-seizure action.

Criminal Arrest and Conviction Patterns

A match to state arrest records revealed that about 25 percent (n = 99) of the gun-seizure respondents were arrested at least once during the two-year study period, including 32 individuals (8.1%) who were arrested twice or more. During the year after gun removal, 15 individuals (3.6%) were arrested for a crime classified as Tier 1 in the FBI's Uniform Crime Report System; 7 individuals (1.8%) were convicted. Eight subjects (2.0%) were arrested for a gun-related charge during the year after removal, and 2 (0.5%) were convicted. Of those arrested at any time, 89.9 percent (n = 89) were male. As a group, arrestees were significantly younger at the time of gun confiscation than those who were not arrested (37.0 years versus 44.7 years, P < .001).

Among the 99 arrested individuals, most (63.6%, n = 63) were subsequently convicted. Of the 63 who were convicted, nine (14.3%) were charged with a Tier-1 offense. Most of the convicted group (73.0%, n = 46) had convictions resulting from arrests only during or after the gun-seizure event. Convicted respondents had a mean age of 35.6 years at the time of gun seizure, and most (88.9%, n = 56) were male.

Reasons for initial gun seizure differed between those who had an arrest during the study window and those who did not. Comparing those with any arrest to those with no arrest, homicidal ideation was more often noted as the reason for gun seizure (33.3% versus 16.9%), and suicidal ideation was less often noted (55.6% versus 72.3%), as displayed in Table 2.

Slightly more individuals experienced an arrest in the year following the gun seizure than in the year preceding the gun seizure (14.7% versus 9.6%). Twenty respondents (5.1%) were matched with an official arrest record occurring in the immediate period surrounding the gun seizure event, from four days before to four days following gun seizure. This is somewhat less than the number of respondents (n = 32) whom the police reported arresting in connection with the gun-seizure action at the time. The difference could be accounted for if a few of the individuals whom the police transported to a hospital were initially reported as being arrested, but criminal charges were not filed.

Fourteen individuals (3.5%) were charged with offenses involving firearms at some time during the study window, for a total of 16 gun-related charges (Table 3). Thirteen of those charged with gun crimes were male, and their average age was 38.4 years. Handguns were seized from 12 (85.7%) of these individuals. Homicidal ideation was the most common reason for gun removal in these cases (57.1%, n = 8), followed by suicidal ideation, domestic violence, and mental or cognitive problems. Of the 14 people charged with firearm offenses, five (35.7%) were convicted, one for an arrest that occurred prior to the seizure. Two of the convictions were for pointing a firearm, two for carrying a handgun without a license, and one for hunting on private land without consent of the landowner.

Suicide Outcomes

Eleven individuals in the study died from suicide after the gun-removal event, according to death records obtained from the Indiana Department of Health. Unlike analysis of other outcomes in this study, analysis of death following gun removal included all years since the gun-removal policy began through December 2017, and it was not limited to the single year following a given gun-removal event. Additionally, three decedents whose cause of death was listed as “drug overdose” had made documented suicide threats and engaged in suicidal behavior around the time of gun removal. Based on this additional information about suicidality obtained from the gun-seizure records, these three self-injury deaths were counted as suicides for our analysis, for a total of 14 (3.5%).

All but one of the 14 individuals who died of suicide were white males. Their ages ranged from 22 years to 74 years, with an average of 43.2 years. U.S. military veterans were over-represented because four (28.6%) of the suicide decedents were veterans, compared with 9.5 percent of the Indiana adult population, according to the U.S. Census and U.S. Department of Veterans Affairs.

The study population's suicide rate was 421 per 100,000 per year, averaged over the period from the date of gun removal to the date of death or study end. This rate is approximately 31 times higher than the average age-adjusted suicide rate in the general adult population of Indiana during the same period, and 15 times higher than the suicide rate for adult males in the state during this time.¹

Seven of the 14 suicides were carried out with firearms, four by drug overdose, and three by hanging. The proportion of these suicides that involved guns was lower than the corresponding proportion for men in the general population of Indiana (50% versus 58%, respectively), and substantially lower than would have been expected in a population of gun owners (65% or higher).¹⁷ It is notable, however, that three individuals obtained access to another firearm within 12 months after the gun seizure and died by suicide with a firearm. One of these gun deaths occurred just one day after firearm removal; the others occurred 36 and 103 days after gun removal.

An average of three firearms per individual were seized from subjects who eventually died of suicide; handguns were removed in 11 of the 14 cases. The court had retained the seized firearms at the hearing in 10 of the 14 cases. In two cases in which the court had not retained the firearms, the individuals who got their guns back later used a firearm in suicide. The period of time between the date of gun removal and the date of death by suicide was approximately eight months longer for those who used guns than for those who used other means (average 40 versus 32 months).

We followed the approach described by Swanson and colleagues¹⁷ to estimate that the study population had made approximately 131 (largely nonfatal) suicide attempts by differing means over an average of 36 months following gun seizure. In a counterfactual scenario in which no firearms would have been removed from any of these individuals, and assuming that this study population of gun owners would have been as likely as other male gun owners to use a gun in any suicide attempt, we calculated that an additional 39 suicide deaths would have occurred over the study period. Dividing the total population of gun seizure cases by this estimated number of averted suicides yields 1 life saved for every 10.1 gun-removal actions.

Implementation of the Gun-Seizure Law

Enacting a preemptive gun seizure law was controversial in Indiana, a state where hunting and gun collecting are valued traditions, gun rights are cherished, and “gun control” tends to be viewed with suspicion. According to the prosecutor, “Most people have a very definite opinion about their right to bear arms, and, as a kid growing up on a farm where we hunted and target-shot and everything else, I kind of get that.”

Initially, some legal professionals were skeptical about the law, while others were supportive, according to one of the interviewees. A judge stated that his fellow judicial officers “were very surprised [this law] was found to be constitutional.” But the prosecutor believed that most prosecutors, especially those with long experience, were in favor of risk-based preemptive gun seizure to ensure public safety: I think there was some mixed feeling about it, but I think a lot of prosecutors, a lot of what I call the old-timers, the ones that had been around a long time and had seen a lot of things happen, they applauded it.

Attitudes among police officers also varied. According to one of the judges, many officers disapproved of the law's potential “overreaches … [and] the idea of firearm seizure.” A police officer, however, stated that his fellow officers “all like” the law, mainly because it is the police whose lives are often on the line in cases involving risky people with guns. In this officer's opinion, older officers supported the law from the outset, due to having witnessed gun violence involving people who were known to pose a high risk.

The informants were asked to describe some of the challenges to implementing the gun-removal law once it had been enacted. The prosecutor described the early roll-out of the law as “pretty rocky,” because the law was unprecedented: [T]there was nothing [like it], no precedent for it, and so working out … the procedure of officers getting information and getting it into the courts to be able to get the guns … was our biggest issue.

All interviewees stated that more specific policies and procedures, including training for the police, should have been developed prior to implementation. The prosecutor made the point directly: Pass the law, okay. Then the first thing they need to do is sit down with [those] involved, the courts, law enforcement, the prosecutors, and the defense, and work out a procedure for moving these cases through the courts effectively so that they can flush out some of the issues that might come up, ahead of time …. The second is education, especially with police officers, about what they are going to need to know and do when they respond [to a gun-seizure call].

Perceived Effectiveness of the Gun-Seizure Law

Despite the “pretty rocky” start and initial uncertainty about the process of preemptive gun seizure, all informants noted that, after the law went into effect, prosecutors and police eventually worked together to ensure legal enforcement and the advancement of strong cases that would hold up in a hearing. Still, it often fell to police officers in the field to improvise and work out the complex logistics of the process, including protocols for documentation, safe removal of firearms from respondents' homes, warehousing the firearms, and returning guns to respondents. A police officer described what became routine police practice in gun seizures involving individuals who appear to be mentally ill or emotionally unstable: [W]hat the uniformed officers will do is place the person under an immediate detention and transport them to the nearest hospital. If it's a veteran, they try to get them in the VA or the nearest hospital to the location where the person lives …. [The officers] will collect any firearms on the scene …. [G]enerally, the person will tell them, “This was the gun I was going to use,” or a family member will say, you know, “That's what he had in his hand when I called you.” The officers will take it. Generally, they ask, “Are there any other firearms in the home?” And the person will [say], “Yeah, I've got a, you know, shotgun in my closet,” that sort of thing. They try to collect all the firearms that are in the home, and they go into the property room [while] the person [is] placed under immediate detention … and the petition is presented to the prosecutor's office.

The officer went on to describe a process that was developed in which the documentation supporting multiple cases of gun seizures are batched and processed together by single individuals with different roles (i.e., screening, presentation in court, adjudication) to maximize efficiency and consistency. [A] lot of times we find several other incidents and we put them all together in a packet [where we list] probable cause [and] all of the specific firearms that we want to keep and we take; we have one screener who looks at all those cases and one prosecutor who takes them before the judge. So, [we] try to get consistency that way because one person is making the decisions [about] what's going to go here and one person is deciding, you know, who they need to ask to come in and what to give to the judge, so, try to keep as small as possible the subjectiveness into them by having one person do this and one do that.

Informants characterized the most common scenarios resulting in gun removal as involving suicide risk and serious mental illness. Both police officers described the most common scenario in similar terms: a concerned citizen calls police about a family member who is threatening or contemplating suicide and has a gun. One of the judges also cited suicide risk as the major concern in many gun-seizure cases but added that psychosis was also important. Most of it's this depression and, and suicide threat, but then the others that I've seen are, in my humble opinion, seriously affected by mental illness … they're very paranoid …. Some are psychotic, I mean, they're actively, in the courtroom, displaying very strange behavior.

The prosecutor stated that the two most common scenarios involved people with “mental health conditions” and people threatening domestic violence.

When asked whether they think the law has been effective, both judges suggested that the law's potential benefit has been hampered by its limited implementation, mainly because key legal actors in the process (e.g., police, prosecutors, public defenders, and judges) have little awareness of the law. I think most people are not really aware of it … even judges …. There's only one court in the 36 courts that deals with these [cases], and I don't know how many are presented to the court right now …. So I don't think many judges, or anyone else, for that matter, knows much about the law.I have a feeling it's probably not used enough, maybe because police officers don't realize it [exists] …. I think [the prosecutors] figured it was so much of a non-entity they weren't very worried about it … and I think the public defender's office, they took more of a back seat than they did for a regular case.

On Whether Gun Seizure Is Fair

Apart from the question of whether removing guns from putatively risky people is an effective policy, an important question of ethics and law is whether it is fair. The answer involves balancing the risk of harm that might occur if guns are not removed from a person, against the potential infringement of the individual's constitutional right to gun ownership if guns are removed without good cause.

When asked whether the gun seizure law is “fair,” one judge who supported the law responded, “I don't know that this particular [law] is about fairness. I think this is about safety.” The judge's statement appears to assume that public safety can take priority over ensuring fairness to an individual. This could imply the view that perceived “unfairness” to a few individuals might be an acceptable social cost for a policy that could protect many others.

A more equivocal opinion was expressed by one of the police officers. He suggested that judgements of “fairness” are a matter of perspective and of whose interests are being considered: If you're looking at protecting society, yes, [the law is fair]. If you're the person looking at having your gun seized, then probably no …. [I]t depends on your perspective.

The prosecutor answered the question about fairness in a third way, focusing on the limits that the law places on the reach and duration of gun seizures, the requirement that police officers have strong evidence of dangerousness, and the legal due-process features that are built into the gun-removal procedure as authorized in the statute: There are checks … within that statute that don't allow the state unfettered access to people's homes for [gun removal] …. [N]obody just comes in and takes [the guns]. There has to be a basis for thinking that that individual has a weapon … and could present a danger to other people …. Part of the reason for [the police] setting up this history of going back to the same address a lot … is establishing that there is a basis for getting the weapons in the first place. But once the weapon is taken, it's not like anybody is being denied a particular right that they believe they have, because the state is also restricted in how long they can hold [the gun], and if they think they need it longer, they have to present an argument for why …. So, yeah, I think it's fair. I think it's a balanced law, and I think it's been used pretty wisely.

Some individuals in these cases voluntarily agreed to give up their guns, and mental health information was sought and considered in judicial decisions about whether to return the guns. A judge related such a case: So a street officer went there, got a hold of the supervisor, and the individual voluntarily gave up his guns. So typically when that happens you have to put [the guns] in the property room and you mark “return to claimant” so they have to come get their guns. They e-mailed me the next day. I arranged for a mental health professional to do a home visit. Based on what she sent me back, I got a hold of [a sergeant] to say “Hey, I don't think he should get his guns back. Can you start [the process under the gun-seizure law]?”

A police officer also explained the role of liaison with the mental health system in facilitating appropriate intervention in the case of mentally ill gun-seizure respondents, particularly those who may not yet be experiencing a dangerous mental health crisis but could benefit from treatment to prevent such a crisis from occurring. I get the phone call on the borderline ones … that they're not ready to be immediately detained, [but] “Can we do some follow-up? What do you think?” And I've asked officers to do this, so I can try and get someone there, or get them into an appointment before they're in crisis. That's our goal at the moment …. We have a mental health person in the east district and we're talking about hiring two more. So we should be doing a lot more home visits, at least my unit. I mean, we weren't tasked with it originally, but we do it anyway.

An important goal of the gun-seizure action, according to this officer, is to use it as an opportunity to identify individuals in crisis who need mental health treatment, and to provide access to treatment. Doing this effectively, however, may require additional resources for the police and the public mental health system.