Introduced Version
HOUSE BILL No. 1251
_____
DIGEST OF INTRODUCED BILL
Citations Affected: IC 12-26; IC 35-33-5.
Synopsis: Possession of firearms by the mentally ill. Permits a law
enforcement officer to seize a firearm possessed by an individual whom
the officer reasonably believes to be mentally ill and dangerous.
Requires that the firearm be returned to the individual within 45 days
unless a court finds that the individual is mentally ill and dangerous
and that retention of the firearm by the law enforcement agency is
appropriate. Permits a court to issue a search warrant for a firearm
possessed by an individual believed to be mentally ill and dangerous.
Allows an individual whose firearm has been seized and retained to
petition the court for review of the retention order once every six
months. Authorizes a court to order a firearm retained by a law
enforcement agency to be destroyed or otherwise disposed of after five
years. Makes conforming amendments.
Effective: July 1, 2005.
Lawson L
January 6, 2005, read first time and referred to Committee on Courts and Criminal Code.
Introduced
First Regular Session 114th General Assembly (2005)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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HOUSE BILL No. 1251
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 12-26-1-1; (05)IN1251.1.1. -->
SECTION 1. IC 12-26-1-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 1. (a) An individual
who is mentally ill and either dangerous or gravely disabled may be
involuntarily detained or committed under any of the following
statutes:
(1) IC 12-26-4 (immediate detention).
(2) IC 12-26-5 (emergency detention).
(3) IC 12-26-6 (temporary commitment).
(4) IC 12-26-7 (regular commitment).
(b) A firearm possessed by an individual who is mentally ill and
dangerous may be seized or retained under IC 12-26-7.5.
SOURCE: IC 12-26-1-5; (05)IN1251.1.2. -->
SECTION 2. IC 12-26-1-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 5. (a) If a:
(1) commitment proceeding is begun under IC 12-26-3-5,
IC 12-26-6-2(a)(1), or IC 12-26-6-2(a)(3);
or
(2) firearm retention proceeding is begun under IC 12-26-7.5;
the court acquires jurisdiction over the alleged mentally ill individual
by service of summons on the individual according to the Indiana Rules
of Trial Procedure or by entry of an appearance by the individual.
(b) If an individual is being held under IC 12-26-6-2(a)(2), the court
retains jurisdiction over the individual by the court's order for
continued detention.
(c) If a court orders a law enforcement agency to retain custody
of a firearm in a proceeding under IC 12-26-7.5-9, the court retains
jurisdiction over the individual by the court's order that the
firearm be retained.
SOURCE: IC 12-26-1-9; (05)IN1251.1.3. -->
SECTION 3. IC 12-26-1-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 9. (a) In a proceeding
involving the retention of a firearm or involuntary detention or
commitment under this article, appeals from the final orders or
judgments of the court of original jurisdiction may be taken by any of
the following:
(1) The individual who is the subject of the proceeding.
(2) A petitioner in the proceeding.
(3) An aggrieved person.
(b) An appeal must be taken in the same manner as any other civil
case according to the Indiana Rules of Trial and Appellate Procedure.
SOURCE: IC 12-26-2-2; (05)IN1251.1.4. -->
SECTION 4. IC 12-26-2-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 2. (a) This section
applies under the following statutes:
(1) IC 12-26-6.
(2) IC 12-26-7.
(3) IC 12-26-7.5.
(3) (4) IC 12-26-12.
(4) (5) IC 12-26-15.
(b) The individual alleged to be mentally ill has the following rights:
(1) To receive adequate notice of a hearing so that the individual
or the individual's attorney can prepare for the hearing.
(2) To receive a copy of a petition or an order relating to the
individual.
(3) To be present at a hearing relating to the individual. The
individual's right under this subdivision is subject to the court's
right to do the following:
(A) Remove the individual if the individual is disruptive to the
proceedings.
(B) Waive the individual's presence at a hearing if the
individual's presence would be injurious to the individual's
mental health or well-being.
(4) To be represented by counsel.
SOURCE: IC 12-26-2-3; (05)IN1251.1.5. -->
SECTION 5. IC 12-26-2-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 3. (a) This section
applies under the following statutes:
(1) IC 12-26-6.
(2) IC 12-26-7.
(3) IC 12-26-7.5.
(3) (4) IC 12-26-12.
(4) (5) IC 12-26-15.
(b) The individual alleged to be mentally ill, each petitioner, and all
other interested individuals shall be given an opportunity to appear at
hearings and to testify.
(c) The individual alleged to be mentally ill and each petitioner may
present and cross-examine witnesses at hearings.
(d) The court may receive the testimony of any individual.
SOURCE: IC 12-26-2-4; (05)IN1251.1.6. -->
SECTION 6. IC 12-26-2-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 4. (a) This section
applies under the following statutes:
(1) IC 12-26-6.
(2) IC 12-26-7.
(3) IC 12-26-7.5.
(3) (4) IC 12-26-12.
(4) (5) IC 12-26-15.
(b) The individual alleged to be mentally ill and a petitioner:
(1) has a right to a change of judge; and
(2) is not entitled to a change of venue from the county.
SOURCE: IC 12-26-2-5.5; (05)IN1251.1.7. -->
SECTION 7. IC 12-26-2-5.5 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2005]: Sec. 5.5. In a firearm retention proceeding under
IC 12-26-7.5-9, the prosecuting attorney must prove by a
preponderance of the evidence that:
(1) the individual is mentally ill and dangerous; and
(2) retention of a firearm possessed by the individual is
appropriate.
SOURCE: IC 12-26-2-6; (05)IN1251.1.8. -->
SECTION 8. IC 12-26-2-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 6. (a) A person who
without malice, bad faith, or negligence acts according to this article
and:
(1) participates in proceedings for the detention or commitment
of an individual; or
(2) assists in the detention, care, and treatment of an individual
alleged or adjudged to be mentally ill; or
(3) participates in:
(A) a proceeding under this article for the seizure or
retention of a firearm possessed by an individual alleged to
be mentally ill and dangerous; or
(B) the retention of a firearm from an individual adjudged
to be mentally ill and dangerous;
is immune from any civil or criminal liability that might otherwise be
imposed as a result of the person's actions.
(b) The immunity provided by this section does not permit a person
to do either of the following:
(1) Physically abuse an individual.
(2) Deprive an individual of a personal or civil right except
according to this article.
SOURCE: IC 12-26-7.5; (05)IN1251.1.9. -->
SECTION 9. IC 12-26-7.5 IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2005]:
Chapter 7.5. Proceedings for the Seizure and Retention of a
Firearm
Sec. 1. (a) A law enforcement officer who has reasonable
grounds to believe that an individual is mentally ill and dangerous
and in possession of a firearm may do any of the following:
(1) Apprehend the individual and seize a firearm in the
physical possession of the individual.
(2) Seize a firearm possessed by the individual if the firearm
is located in a place where the law enforcement officer has the
right to be.
(3) Charge the individual with an offense, if applicable.
(4) Apply for a warrant to seize a firearm possessed by the
individual.
(b) This section does not authorize a law enforcement officer to
perform a warrantless search or seizure if a warrant would
otherwise be required.
Sec. 2. (a) Except as provided in subsection (b), a law
enforcement officer who seizes a firearm under section 1 of this
chapter shall submit to the appropriate court a written statement
setting forth the reasonable grounds for the officer's belief, at the
time of the seizure, that the individual from whom the firearm was
seized was mentally ill and dangerous.
(b) A law enforcement officer who seizes a firearm from an
individual described in section 1 of this chapter by executing a
properly issued warrant is not required to submit the written
statement described in subsection (a).
Sec. 3. A firearm seized under this chapter shall be stored by the
law enforcement agency that conducted the seizure.
Sec. 4. Upon request, the law enforcement agency having
custody of a firearm seized under this chapter shall return the
firearm to the individual from whom it was seized not later than
forty-five (45) days after the date the firearm was seized unless:
(1) the prosecuting attorney petitions a court to order the law
enforcement agency to retain a firearm; and
(2) the court, following a hearing, orders the law enforcement
agency to retain the firearm.
Sec. 5. (a) The prosecuting attorney may commence a
proceeding under section 4 of this chapter seeking an order
requiring a law enforcement agency to retain a firearm by filing
with the court a written petition alleging that:
(1) the individual from whom the firearm was seized is:
(A) mentally ill; and
(B) dangerous; and
(2) retention of the firearm by the law enforcement agency is
appropriate.
(b) The petition described in subsection (a) must contain a
statement by a physician that, based on:
(1) an examination; or
(2) information given to the physician;
the individual may be mentally ill and dangerous.
Sec. 6. (a) Not later than three (3) days after the prosecuting
attorney files a petition under section 5 of this chapter, the court
shall:
(1) enter an order setting a hearing date; and
(2) inform:
(A) the prosecuting attorney; and
(B) the individual from whom the firearm was seized;
of the date, time, and place of the hearing.
(b) The hearing date set under subsection (a) must be:
(1) at least two (2) days after the date of issuance of the
court's order; and
(2) less than forty-five (45) days after the date on which the
firearm was seized.
(c) The court may hold the hearing at a facility or other suitable
place not likely to have a harmful effect on the individual's health
or well-being.
Sec. 7. After setting a hearing date under section 6 of this
chapter, the court may appoint a physician to do the following:
(1) Examine the individual.
(2) Report, before the hearing, the physician's opinion as to
whether the individual is mentally ill and dangerous.
Sec. 8. If a physician reports under section 7 of this chapter that
the individual from whom a firearm was seized is not either
mentally ill or dangerous, the court may terminate the proceedings
and order the law enforcement agency having custody of the
firearm to return the firearm to the individual. Otherwise, the
hearing shall proceed as scheduled by the court.
Sec. 9. (a) After a hearing on a petition filed under section 5 of
this chapter, if the court, upon consideration of the record, finds
that:
(1) the individual from whom a firearm was seized is mentally
ill and dangerous; and
(2) retention of the firearm seized from the individual is
appropriate;
the court may order the law enforcement agency to retain the
firearm.
(b) In determining whether an individual is dangerous, the court
shall consider whether the individual:
(1) presents a danger to the individual or to another
individual;
(2) may present a danger to the individual or to another
individual in the future; and
(3) has demonstrated a pattern of voluntarily and consistently
taking the individual's medication while not under
supervision, if the individual has a mental illness that may be
controlled by medication.
The fact that an individual has been released from a mental health
facility or that the individual's mental illness is currently
controlled by medication does not establish that the individual is
not dangerous for purposes of this section.
(c) If the court:
(1) makes the findings described in subsection (a); and
(2) determines that a firearm seized from the individual is
owned by another person;
the court may order the law enforcement agency to return the
firearm to the owner.
Sec. 10. (a) At least one hundred eighty (180) days after the date
a court orders a law enforcement agency to retain an individual's
firearm under section 9 of this chapter, the individual may petition
the court for return of the firearm.
(b) Upon receipt of the petition described in subsection (a), the
court shall:
(1) enter an order setting a hearing date; and
(2) inform:
(A) the prosecuting attorney; and
(B) the individual who filed the petition;
of the date, time, and place of the hearing.
(c) In a hearing under this section, the individual:
(1) may be represented by an attorney; and
(2) must prove by a preponderance of the evidence that:
(A) the individual is not mentally ill;
(B) the individual is not dangerous; or
(C) retention of the firearm seized from the individual is
not appropriate.
(d) After a hearing under this section, if the court, upon
consideration of the record, finds that:
(1) the individual is not mentally ill;
(2) the individual is not dangerous; or
(3) retention of the firearm seized from the individual is not
appropriate;
the court shall order the law enforcement agency having custody
of the firearm to return the firearm to the individual.
(e) In determining whether the individual petitioning for the
return of a firearm is dangerous, the court shall consider the issues
described in section 9(b) of this chapter. The fact that an individual
has been released from a mental health facility or that the
individual's mental illness is currently controlled by medication
does not establish that the individual is not dangerous for purposes
of this section.
(f) If the court denies an individual's petition under this section,
the individual may not file a subsequent petition until at least one
hundred eighty (180) days after the date the court denied the
petition.
Sec. 11. If at least five (5) years have passed since a court
ordered a law enforcement agency to retain a firearm seized from
an individual under section 9 of this chapter, the court, after giving
notice to the individual and conducting a hearing, may order the
law enforcement agency to destroy or otherwise permanently
dispose of the firearm.
SOURCE: IC 35-33-5-1; (05)IN1251.1.10. -->
SECTION 10. IC 35-33-5-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 1. (a) A court may issue
warrants only upon probable cause, supported by oath or affirmation,
to search any place for any of the following:
(1) Property which is obtained unlawfully.
(2) Property, the possession of which is unlawful.
(3) Property used or possessed with intent to be used as the means
of committing an offense or concealed to prevent an offense from
being discovered.
(4) Property constituting evidence of an offense or tending to
show that a particular person committed an offense.
(5) Any person.
(6) Evidence necessary to enforce statutes enacted to prevent
cruelty to or neglect of children.
(7) A firearm possessed by a person who is mentally ill and
dangerous.
(b) As used in this section, "place" includes any location where
property might be secreted or hidden, including buildings, persons, or
vehicles.
SOURCE: IC 35-33-5-5; (05)IN1251.1.11. -->
SECTION 11. IC 35-33-5-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 5. (a)
All items of
property seized by any law enforcement agency as a result of an arrest,
search warrant, or warrantless search, shall be securely held by the law
enforcement agency under the order of the court trying the cause,
except as provided in this section.
(b) Evidence that consists of property obtained unlawfully from its
owner may be returned by the law enforcement agency to the owner
before trial, in accordance with IC 35-43-4-4(h).
(c) Following the final disposition of the cause at trial level or any
other final disposition the following shall be done:
(1) Property which may be lawfully possessed shall be returned
to its rightful owner, if known. If ownership is unknown, a
reasonable attempt shall be made by the law enforcement agency
holding the property to ascertain ownership of the property. After
ninety (90) days from the time:
(A) the rightful owner has been notified to take possession of
the property; or
(B) a reasonable effort has been made to ascertain ownership
of the property;
the law enforcement agency holding the property shall, at such
time as it is convenient, dispose of this property at a public
auction. The proceeds of this property shall be paid into the
county general fund.
(2) Except as provided in subsection (e), property, the possession
of which is unlawful, shall be destroyed by the law enforcement
agency holding it sixty (60) days after final disposition of the
cause.
(3) A firearm seized from a mentally ill and dangerous person
shall be retained, returned, or disposed of in accordance with
IC 12-26-7.5.
(d) If any property described in subsection (c) was admitted into
evidence in the cause, the property shall be disposed of in accordance
with an order of the court trying the cause.
(e) A law enforcement agency may destroy or cause to be destroyed
chemicals or controlled substances associated with the illegal
manufacture of drugs or controlled substances without a court order if
all the following conditions are met:
(1) The law enforcement agency collects and preserves a
sufficient quantity of the chemicals or controlled substances to
demonstrate that the chemicals or controlled substances were
associated with the illegal manufacture of drugs or controlled
substances.
(2) The law enforcement agency takes photographs of the illegal
drug manufacturing site that accurately depict the presence and
quantity of chemicals and controlled substances.
(3) The law enforcement agency completes a chemical inventory
report that describes the type and quantities of chemicals and
controlled substances present at the illegal manufacturing site.
The photographs and description of the property shall be admissible
into evidence in place of the actual physical evidence.
(f) For purposes of preserving the record of any conviction on
appeal, a photograph demonstrating the nature of the property, and an
adequate description of the property must be obtained before the
disposition of it. In the event of a retrial, the photograph and
description of the property shall be admissible into evidence in place
of the actual physical evidence. All other rules of law governing the
admissibility of evidence shall apply to the photographs.
(g) The law enforcement agency disposing of property in any
manner provided in subsection (b), (c), or (e) shall maintain certified
records of any such disposition. Disposition by destruction of property
shall be witnessed by two (2) persons who shall also attest to the
destruction.
(h) This section does not affect the procedure for the disposition of
firearms seized by a law enforcement agency.
(i) A law enforcement agency that disposes of property by auction
under this section shall permanently stamp or otherwise permanently
identify the property as property sold by the law enforcement agency.
(j) Upon motion of the prosecuting attorney, the court shall order
property seized under IC 34-24-1 transferred, subject to the perfected
liens or other security interests of any person in the property, to the
appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
by the United States Department of Justice.
(k) Upon request, a law enforcement agency shall return a
firearm seized under IC 12-26-7.5 to its owner, if:
(1) at least forty-five (45) days have passed since the firearm
was seized; and
(2) a court has not ordered the law enforcement agency to
retain the firearm.