Robb, J.
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). …
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. … 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.
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.
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. …
Approximately one week later, the same officer saw Redington in the same parking garage looking through binoculars toward Kilroy’s Sports Bar 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. …
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. … 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. Following the interview, Redington was transported to the IU Health Center on a 72-hour hold for a psychiatric evaluation. …
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.” 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.
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. … 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.
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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.
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The State offered no evidence but did request the trial court take judicial notice of the proceedings in Redington I. …
The trial court issued its order on February 16, 2018, denying Redington’s petition. In relevant part, the trial court found:
Respondent did not present credible evidence to show that circumstances have changed since the initial hearing in this matter.
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“In a hearing on a petition [to return firearms], the individual . . . must prove by a preponderance of the evidence that the individual is not dangerous.” Ind. Code § 35-47-14-8(d)(2) (emphasis added). Moreover, the definition of “dangerous” requires a determination that a person “has a propensity for violent or emotionally unstable conduct” in the future. …
Based on the plain language of this statute, Redington had to prove that he is not now dangerous under the statutory definition of that term. The statute is written in the present tense, and it has no qualifying language, such as that he must prove that he “is no longer dangerous” or that the circumstances that led to him being found dangerous in the past have changed. If the legislature intended that the individual be required to overcome the previous determination, it knows how to do so. … But the legislature did not do so in the case. …
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Redington met his burden of proving by a preponderance of the evidence that he is not dangerous by presenting the testimony of a psychiatrist that he does not present a risk in the future because there is no evidence he has a propensity for violent or emotionally unstable conduct. …
Because the State put on no evidence relevant to Redington’s status at the time of his petition for return of his firearms and instead relied solely on evidence from 2012, the undisputed evidence and all reasonable inferences to be drawn from that evidence lead to but one conclusion—that Redington is not dangerous—and therefore, the trial court’s judgment to the contrary is clearly erroneous. We reverse the trial court’s order and remand for the trial court to enter an order that Redington’s firearms be returned to him.
Reversed and remanded.
Riley, J., and Kirsch, J., concur.