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Redington v. State

Court of Appeals of Indiana

April 5, 2019

Robert E. Redington, Appellant-Respondent,
State of Indiana, Appellee-Petitioner .

          Appeal from the Monroe Circuit Court Cause No. 53C05-1208-MC-1375 The Honorable Mary Ellen Diekhoff, Judge.

          Attorney for Appellant Guy A. Relford The Law Office of Guy A. Relford Carmel, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] In 2004, Indianapolis Police Department officer Jake Laird was shot and killed in the line of duty. The man who shot him had been temporarily committed for a mental health evaluation several months earlier and his cache of weapons was confiscated at that time. When the man was released from the hospital and requested the return of his weapons, IPD returned the firearms because they had no legal authority to retain them. Five months later, Officer Laird was killed. In response to the shooting, Indiana became the second state in the nation to enact a "red flag law" (known as the "Jake Laird Law" in honor of the fallen officer).[1] "Red flag laws" generally allow law enforcement to seek a court order temporarily restricting a person's access to firearms if that person shows "red flags" of being a threat of danger to themselves or others.[2] In giving the people who notice the "red flags" the tools necessary to intervene before it is too late, these laws must straddle the tension between protecting a person's Second Amendment right to bear arms with recognizing and working to stem the overwhelming tragedy that can be wrought by gun violence.

         [¶2] This case is a classic example of that tension and the fine line that a preemptive determination must observe, especially when it affects constitutional rights. In 2012, Robert Redington's numerous firearms were seized by police pursuant to Indiana's red flag law. After a hearing, the trial court determined the State had proven by clear and convincing evidence that Redington was dangerous and ordered his firearms to be retained by law enforcement. Almost three years later, Redington filed a petition seeking the return of his firearms. At the required hearing, Redington presented testimony from a psychiatrist supporting his position, the State presented no evidence, and the trial court took judicial notice of the prior proceedings. The trial court found Redington had not met his burden of proving by a preponderance of the evidence that he is not dangerous and denied Redington's petition. Redington now appeals, arguing the trial court's order denying the return of his firearms was clearly erroneous because he presented "overwhelming and wholly unrebutted evidence" that he is not presently "dangerous" as defined by statute and the State declined to present any evidence on that issue. Amended Appellant's Brief at 6.

         [¶3] In interpreting the relevant statutes as written and passed by the legislature, without adding language we would prefer or deleting provisions we do not, we conclude that Redington proved by a preponderance of the evidence that he is not dangerous as that term is defined by statute. Because the State failed to present any current evidence to the contrary, the trial court's decision is contrary to law. We therefore reverse and remand.

         Facts and Procedural History

         I. Prior Proceedings ("Redington I")

         [¶4] The underlying facts of this case are set out in detail in Redington's first appeal, Redington v. State, 992 N.E.2d 823 (Ind.Ct.App. 2013), trans. denied. Briefly, however, Redington came to the attention of Bloomington police in July 2012 when he was found in a downtown parking garage behaving strangely twice in the same week. During the first encounter, Redington approached a parking enforcement officer and volunteered rambling tales about, among other things, a time he thought he might have killed a man at a gun range but then found out the man had killed himself, his interest in the Lauren Spierer case, [3] and his ability to see "spirits and dark entities." Id. at 825. Redington also told the officer "he had guns on him and it made [him] feel . . . courageous to have" them. Id. After the encounter ended, the parking officer called his supervisor, who told him to call the police if he saw Redington again.

         [¶5] Approximately one week later, the same officer saw Redington in the same parking garage looking through binoculars toward Kilroy's Sports Bar[4] and called police. Bloomington Police Department ("BPD") officers responded and observed Redington on the third floor of the parking garage holding a range finder. With guns drawn, they approached Redington, who put his hands up and told the officers he had a gun. The officers recovered two guns from Redington's pockets and a shotgun and ammunition from his truck. When asked why he was there, Redington again referenced Spierer, mentioned that he had previously met her at a gun range and told her that he felt she was in some sort of danger, stated that he had come to Bloomington several times to look for her, and noted that he "ranged [from his position in the garage] to somewhere near the back of Kilroy's as being approximately sixty-six yards [and] he could shoot accurately at that distance." Id. at 826. He also noted it was approximately sixty-six yards from where he was standing to where the officers had entered the third floor. Redington stated that he owned several other guns.

         [¶6] Redington's statements alarmed the officers and they asked him to come to the police station to talk with a detective assigned to the Spierer case. Redington agreed and drove himself to the station. The interview was riddled with strange stories and falsehoods, and Redington stated he wanted to avenge Spierer. The detective conducting the interview thought Redington was "very delusional," as he jumped from one conversation to the next and would talk to himself when left alone and under his breath to himself when in the presence of others. Id. at 827. Following the interview, Redington was transported to the IU Health Center on a 72-hour hold for a psychiatric evaluation. The nurse who handled his admission said he seemed to be experiencing a break with reality. Redington told her that his neighbors were running through his home, even though his wife had not witnessed any intruders; he did not feel safe at home; he saw ghosts; and he hears a voice in his head. Psychiatrist Carey Mayer treated Redington during his evaluation.

         [¶7] The same night Redington was taken to the hospital, BPD obtained authorization to retain the three firearms seized from Redington and a search warrant to search his house in Indianapolis for other firearms. Officers executing the search warrant at Redington's home found guns scattered throughout the home as well as "enough ammunition to probably fill up the back of a pickup truck." Id. Most of the firearms were found in Redington's bedroom, including one in between the mattress and the frame and another twelve under the bed. Police recovered forty-eight firearms from Redington's home, including rifles equipped with scopes, handguns, and shotguns, for a total of fifty-one firearms removed from Redington's possession.

         [¶8] The State filed a petition pursuant to Indiana Code section 35-47-14-5 to retain Redington's firearms alleging Redington was a "dangerous" individual as defined by Indiana Code section 35-47-14-1. The trial court held a hearing as required by statute at which Dr. Mayer testified to his impressions from both treating Redington and gathering information from Redington's wife and other personnel at the hospital who interacted with him. Specifically, he testified that he believed Redington suffered from a schizotypal personality disorder and had not ruled out the possibility that Redington had a delusional or paranoid disorder. He prescribed an antipsychotic medication and recommended that Redington pursue out-patient treatment. But he had released Redington because he did not believe him to be an imminent danger to himself or others. Nonetheless, "[e]veryone can be potentially dangerous[, ]" and Dr. Mayer had "some concerns[, ]" based on Redington's history of visual hallucinations, paranoia, and multitude of guns, that he had "a dangerous future potential." Id. at 844. Dr. Mayer summarized that his professional opinion based on all the information available to him was that Redington "could pose a potential future risk[.]" Id. After the hearing, the trial court issued its order granting the State's motion to retain the firearms, concluding without further explanation that the State "has proved by clear and convincing evidence that [Redington] was dangerous as defined by I.C. 35-47-14-1[.]" Id. at 828. The court also ordered Redington's license to carry a handgun be suspended.

         [¶9] Redington appealed, arguing Indiana Code chapter 35-47-14 was unconstitutional and the evidence that he was "dangerous" was insufficient to order retention of his firearms. With respect to the constitutionality of the statute, Redington I held unanimously that the statute does not violate Article 1, section 32 of the Indiana Constitution; does not violate Article 1, section 21 of the Indiana Constitution or the Fifth Amendment to the United States Constitution; and is not void for vagueness. See id. at 835, 837, 839. Specifically of interest to this case, as to the right to bear arms protected by Article 1, section 32 of the Indiana Constitution, the court held the statute did not place a material burden on Redington's right to bear arms because chapter 35-47-14 provides a mechanism for an individual to regain his right to carry a handgun as well as to recover his seized firearms. Id. at 834. And as to the vagueness argument, the court held that the definition of "dangerous" is not vague because the legislature drew the line between trivial and substantial acts or omissions by specifying "the circumstances in which a court may find an individual to be dangerous in the future." Id. at 839.

         [¶10] A majority of this court affirmed the trial court's order with regard to the sufficiency of the evidence:

Based upon our review of the record, we conclude that evidence of probative value exists from which the court could have determined that Redington was dangerous as defined by Ind. Code § 35-47-14-1(a)(2)(B), and accordingly it was within its discretion to order the Bloomington Police Department to retain Redington's firearms pursuant to Ind. Code § 35-47-14-6(b).

Id. at 845. The majority specifically noted that it did not affirm the trial court on the basis of section 35-47-14-1(a)(1) (individual presents an "imminent risk of personal injury" to self or someone else) or section 35-47-14-1(a)(2)(A) (individual may present a risk to self or someone else in the future and has a mental illness with pattern of not taking medication), but only on the basis of section 35-47-14-1(a)(2)(B) (may present a risk to self or someone else in the future and has a propensity for "violent or emotionally unstable conduct"). Id. at 845 n.7. Judge Riley dissented as to the sufficiency issue. Specifically, Judge Riley noted the following testimony of Dr. Mayer:

At the time that somebody is discharged from the hospital our duty at that point is to ascertain if they are in imminent danger upon themselves or others.
* * *
We felt that [Redington] was not in imminent danger. If we thought that he was[, ] we would have kept him longer in the hospital until just [the] time that he [was] no longer [ ] [an] imminent danger.

Id. at 847. Accordingly, Judge Riley concluded "the mental health professional who assessed Redington provided testimony establishing that Redington was not dangerous under I.C. § 35-47-14-1 and the State provided no further probative evidence establishing otherwise." Id. at 848. Redington sought transfer to the supreme court, but his petition was denied on November 7, 2013.

         II. Current Proceedings

         [¶11] On June 29, 2015, Redington filed a petition for return of his firearms pursuant to Indiana Code section 35-47-14-8. A hearing on the petition was held on January 17, 2018. In support of his petition, Redington offered his own testimony, that of his wife, and that of Doctor Shaun Wood, a psychiatrist. He also offered into evidence statements by two additional treatment providers. Generally, the testimony showed that Redington has never been arrested or convicted of a crime, he has never threatened anyone, he has been gainfully employed for decades, and he remains in a long-term marriage.

         [¶12] Penny Redington, Redington's wife of seventeen years, testified that Redington is "very laid back . . . very generous. Kind, caring." Transcript, Volume 2 at 9. She said he had firearms before they were married and "[h]e is very meticulous about keeping his firearms clean and in good working order. He has never pointed a firearm at anyone that I have ever seen. He basically uses his firearms for hunting." Id. at 10. She described how, at the time of the first hearing, they had a gun safe that held twelve to fifteen firearms but it was full, so they had firearms "in every room basically. They were not loaded." Id. Since that hearing, they have acquired an additional gun safe and have agreed that "fifty-one firearms is a lot of firearms to have. So he said if he actually gets some of them back he would try and sell some of them. . . . His intention is to cut back." Id. at 11. Penny had never seen Redington threaten anyone with a gun or handle a firearm unsafely and she had no concerns whatsoever about Redington's firearms being returned to him:

He is not a violent person. He has never been a violent person. He has never been arrested or charged with anything. The only thing that he has ever had is a traffic ticket for not wearing his seatbelt. . . . ...

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