Many states are considering or already have “red flag laws” to allow a police agency to confiscate guns from an armed citizen if someone believes they pose a danger and can get a judge to issue an order to remove their firearms.

Network President Marty Hayes, in response to members’ questions about extreme risk protection orders (ERPOs) and Red Flag Laws, sought out our affiliated attorneys’ opinions on the following questions–

1. What are a citizen’s options when the police knock on the door with a warrant and want to confiscate the citizen’s guns?

2. Assuming the guns are securely locked in a gun safe, do you advise the citizen to comply and open the safe?

3. What consequences do you anticipate would result from refusing to open a safe?

So many affiliated attorneys responded that we published the first half of their commentaries in April and complete the topic this month.

E. Michael & Alex Ooley
Boehl, Stopher and Graves LLP
400 Pearl Street, Ste 204, New Albany, IN 47106

Despite the fact that Indiana has a reputation for being a relatively free state, Indiana enacted its “red flag law” in 2005. Our law is codified at I.C. 34-47-14 and is entitled “Proceedings for the Seizure and Retention of a Firearm.” The law is commonly referred to as the “Jake Laird Law” as a result of the tragic death of Indianapolis police officer Jake Laird. Officer Laird was murdered by a man who had previously been detained and hospitalized pursuant to an emergency detention, and had a number of firearms removed from his home. However, after the man was released from the hospital, his firearms were returned to him as the police reportedly lacked any legal authority to keep the firearms. The man subsequently murdered Officer Laird, which lead the Indiana Legislature to pass its version of a “red flag law.” It provides that firearms can be seized from a “dangerous” individual. A person is a “dangerous” individual if the person poses an imminent risk of personal injury to himself or to another individual. Although troubling, the law also indicates that under some circumstances a “dangerous” individual is someone who may present a risk of personal injury in the future. The use of the word “may” and “in the future” seems vague and contemplates deprivation of rights and property based upon some possible future event.

The statute provides that firearms can be seized with a warrant, or in some circumstances, without a warrant. The warrant provision requires the warrant to be issued by a circuit or superior court with jurisdiction and based upon a sworn affidavit from a law enforcement officer that describes why the law enforcement officer believes the subject individual is dangerous and in possession of firearms. Many would argue that sufficient due process is lacking with respect to Indiana’s “red flag law,” and we would concur. However, there is a requirement that the court hold a hearing within 14 days from the seizure of firearms. The statute requires notification of the hearing to the individual from whom the firearms were seized and that the court must determine by clear and convincing evidence that it is appropriate to continue to violate the individual’s rights and deprive him of his property.

Should you be presented with a warrant at your home that directs law enforcement to seize your firearms, you would have very few legal options, at that juncture, to address the situation. The time to argue the legal merits of a warrant is not at your front door when law enforcement is presenting the warrant. We would suggest that you respectfully request to review the warrant and read it thoroughly to ensure there are no errors in the warrant and to calmly point out obvious discrepancies. For instance, the police have been known to serve warrants at the wrong address. However, under no circumstances would we suggest endangering your safety or the safety of law enforcement as there will be ample time to address your grievances regarding the validity of the warrant and law enforcement conduct in the future.

If your firearms are securely locked in a gun safe, it would be our suggestion to comply with the terms of the warrant, assuming the terms of the warrant require opening the safe, which will likely be the case. However, please make it very clear that your cooperation should not be construed as consent, but merely compliance with the orders of the court and law enforcement personnel. Police may threaten violence and a further loss of freedom should you not comply with the alleged lawful warrant. Furthermore, although it is unlikely, there could be consequences associated with refusing to open the safe in terms of potential criminal charges such as resisting. As an aside, we are aware of one case in Indiana in which law enforcement took the entire safe to a service station to gain entry. We suspect an acetylene torch was used to obtain brute force access to the contents of the safe.

The statute also provides for the warrantless seizure of a firearm by law enforcement. Arguably, the firearms could be legally seized during the normal course of law enforcement duties if the law enforcement officer could otherwise take the firearms, for instance, probable cause of a crime, voluntary relinquishing the firearm, seeing a firearm in plain view, or the ever-present wild card of “exigent circumstances.” Additionally, the police officer would also have to believe the individual to be “dangerous.” In such circumstances, the police officer must file, under oath, a written statement with a court indicating the grounds for the belief that the person is dangerous, and then the court will make a determination whether the firearms should continue to be retained. The provision for warrantless confiscation is not intended to provide additional authority to search for weapons or otherwise enter any person’s property. In other words, the law does not authorize a law enforcement officer to perform a warrantless search or seizure if a warrant would otherwise be required.

Once again, our statute has been in place since 2005, but with the murders at Parkland High School in February 2018, Indiana Governor Eric Holcomb sent out a letter to the leaders in the Indiana legislature discussing school safety issues in our state. Part of this letter directed the Indiana State Police Superintendent to provide a “red flag” educational curriculum to all law enforcement agencies in Indiana. Thus, the statute has become more prominent in terms of awareness in the law enforcement community. Although Indiana’s law does provide for some due process, keep in mind the statute provides for the deprivation of a fundamental right based upon a subjective evaluation of law enforcement. Citizens can be initially stripped of their rights based upon the allegation that you may commit a crime in the future. You do have a right to a hearing within 14 days, although you and your attorney may want to delay that hearing depending on whether your attorney has sufficient time for preparation to contest the state's actions. Fortunately, at the hearing, you have the right to an attorney, the right to present evidence and witnesses, the right to cross-examine law enforcement, as well as, any witnesses that may have provided information that led to the confiscation - like an ex-spouse or disgruntled employee. Also, at the hearing the judge has to be convinced by “clear and convincing evidence” that the continued deprivation of rights should continue. Unfortunately, even if you are successful at a hearing, there is no provision for you to recoup your attorney fees in fighting the state. Furthermore, there are no penalties for false or unsubstantiated allegations that may have led to the seizure of your firearms.

Marc S. Russo
25 Plaza Street West #1-K, Brooklyn NY 11238
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My advice is to make sure that all guns in the safe be legally owned so that the owner can comply without legal jeopardy. If they are not legal the owner should remain absolutely silent and not assist them. If the warrant doesn’t specifically allow forcing open the safe they may have to get another one. There is nothing else to do if they have an official warrant allowing entry and search, not just simple surrender, except perhaps to “go on record” that he is not consenting to the search.

John William Boelke
Boelke Law, PA
3495 Maebert Rd., Mims, FL 32754-4946

Any court order must be complied with or the citizen risks arrest and contempt charges. There will be a hearing in which the citizen can plead for the return of the guns.

Whether a safe should be opened depends on the warrant and its wording. If it says “all guns on the premises” then I would recommend compliance. If it is specific “45 caliber semiautomatic model 1911 Colt” only then they have no obligation but to provide the one gun.

In any case, legal advice should be sought ASAP.

John Monroe
John Monroe Law, PC
9640 Coleman Road, Roswell, GA 30075
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1. What are a citizen’s options when the police knock on the door with a warrant and want to confiscate the citizen’s guns?

There is virtually nothing you can do about police at your door with a warrant. Regardless of the legalities of the issuance of the warrant or the service of the warrant, anything but acquiescence will almost certainly result in further difficulties for you, possibly including physical harm and incarceration. You simply cannot talk the police out of executing a warrant.

2. Assuming the guns are securely locked in a gun safe, do you advise the citizen to comply and open the safe?


3. What consequences do you anticipate would result from refusing to open a safe?

If you do not open the safe, the police will break into it, leaving you with a ruined safe. The place to fight all this is in the courts, not standing next to your locked safe.

John Chapman
Kelly & Chapman
P.O. Box 168, Portland, ME 04112
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I would advise everyone to step outside the home. Hands up and open. Do not resist. Tell them you would like to have an attorney present prior to any questioning. Do not consent to any searches.

You run the risk of the safe being forcibly opened, possibly ruining the safe, possibly damaging any firearms in the safe.

What is at issue is the differential between the POSSIBLE additional damage to the home, safe or guns and the possible incrimination or attribution of consent. If one wants to engage in some testimonial waiver, one could have the combination to the safe written down some retrievable place and hand them the slip of paper. That action, however, puts one in constructive possession of the firearms. Possession of firearms by a prohibited person is a crime. Are you one? The pointed question is are you alleged to be one?

Stick to your non-consent, no resistance, keep calm (not angry) and hands in the open.

Wyatt A. Brochu, Esq.
Ruggiero Brochu & Petrarca
20 Centerville Road, Warwick, RI 02886

In Rhode Island the Emergency Risk Protection Order is applied for by the police department and if issued is accompanied by a search warrant in order for the police to search for and to seize any alleged firearms. As an officer of the court, the “attorney’s advice” must adhere to the rule of law and not be biased; therefore, the advice is from that perspective, without regards to how one may personally view the judicial process for issuance of ERPOs; therefore, the options in giving legal advice are somewhat limited.

1. What are a citizen’s options when the police knock on the door with a warrant and want to confiscate the citizen’s guns?

If the police are at your door with a search warrant it is advised the citizen not take any action to stop the police from executing the search warrant. The police will control the scene. The citizen can confirm the existence of the search warrant and that it applies to the citizen and his / her property.

2. Assuming the guns are securely locked in a gun safe, do you advise the citizen to comply and open the safe? What consequences do you anticipate would result from refusing to open a safe?

The citizen must ask themselves what is to be gained and lost by refusing to open the safe for the police? In discussing this issue with a few local police departments, if the citizen refuses to open the safe, the police will open the safe by any necessary means to secure the firearms in accordance with the ERPO and search warrant, whether that occurs at the citizen’s property or at the police station after the safe is removed from the property. We are assuming the police ‘know’ the firearms are in the safe; if the police do not then they likely will seize the safe and apply for a second search warrant to gain forcible entry to open the safe -- If the police do not find the firearms they are expecting to find elsewhere in the citizen’s house, that fact likely will be sufficient probable cause for the second search warrant to forcibly open the safe.

In evaluating whether to cooperate with the police, the citizen should keep in mind what contents are in the safe other than firearms, such as personal items, electronic files and documents, jewelry, financial statements, tax returns, etc. and does the citizen want the police to have possession of those items, as the entire safe may be seized by the police, and the resulting damage to the safe and its contents from any forcible entry by the police.

The police should not charge the citizen with obstruction if he / she refuses to open the safe as the search warrant does not require the target to assist the police with the search; however, that opinion does not ensure the police will not arrest the target and charge him / her with obstruction.

The legal advice is premised that the citizens will always have his / her ‘day in court’ where he / she can argue the ERPO process and that the firearms should be returned. As an attorney the advice is for the citizen to bring the fight to court, do not fight the police during the execution of the search warrant.

Additionally, I recommend, just as a matter of practice, that citizens have documented and stored (not with the firearms) identifying information and photographs of the firearms. This is usually done from the perspective of theft. Moreover, if the police do seize firearms, I recommend the citizen ask the police to document and photograph the firearms before they are removed from the property. This may not always be done, especially photographs, depending on the policies and training in the department; but will be a benefit to the citizen to show if any of the firearms were damaged while in police custody.

Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580

The failure to allow police to act under a warrant, or to interfere with such action, is illegal. The real question is whether to comply with a warrantless “request,” which is the most common situation. An example is a traffic stop where the police officer says, “Sir, would you open the trunk?” Most people hear that as a command, but really it is a request, and it does not have to be honored. But, what to do: anger the policeman, or open the trunk?

This might, or might not, be the situation faced with a warrantless request to surrender weapons or open a safe. If a “red flag” law does not specifically direct a citizen to comply, is there legal jeopardy in non-compliance? The courts will decide, and the answer depends on whether courts will allow this type of warrantless seizure of property. In the meantime, it should be assumed that a refusal to comply likely will be charged as interference or obstruction.

A further complicating factor is gun licensing. In New York, we have no licensing of rifles and shotguns generally, though in a few places they are licensed. But all handguns are licensed, and it is a violation of local licensing rules to refuse compliance with any police order regarding guns. A refusal almost certainly will result in license revocation.
A big “Thank You!” to our affiliated attorneys for their comments. Please return next month when we pose a new question to our affiliated attorneys.

To read more of this month's journal, please click here.