NAELA News Journal - NAELA Journal Online

Dementia, Guns, and Red Flag Laws: Can Indiana’s Statute Balance Elders’ 
Constitutional Rights and Public Safety?

By Sarah Lynn Blodgett, JD

Published September 2020

I. Introduction

In light of recent gun violence,1 states are interested in creating legislation as a means to prevent violent people from having access to firearms. These statutes are commonly referred to as “red flag” laws.2 These laws give concerned parties the ability to petition a judge for a warrant to temporarily confiscate guns from individuals they believe pose a threat to themselves or others.3 Thirteen states now have some version of these laws, and three more states have pending legislation.4 Indiana is one of the 13 states that has implemented a red flag statute; it appears in Indiana Code § 35-47-14.5

Indiana’s statute seeks to keep those who are dangerous and/or mentally ill away from firearms. Elders with dementia-related illnesses could satisfy the statute’s definition of dangerous or mentally ill persons and subsequently be subject to the confiscation of their guns based on an assessment that they may pose a threat to themselves or others.6 Though recent literature and debates on red flag laws focus on specific mental illnesses,7 not much consideration has been given to the elderly with dementia-related illnesses. There seems to be a lack of concern for this demographic, which is arguably most at risk.8

An argument in favor of the application of Indiana’s statute to elders with dementia-related illnesses is that eliminating their access to firearms when suffering from a disease associated with confusion and depression may decrease both the rates of accidental injury and death by suicide.9 It also provides caregivers and family members a safe and legal last resort should other measures preventing elders with dementia-related illnesses from accessing a loaded firearm fail.

Removing a loved one’s firearm from his or her home is stressful for caregivers who are often unaware of how to proceed.10 On the other hand, elders own guns for many reasons, particularly for safety, sentimental and/or economic value, and recreation.11 An argument can be made that removing elders’ firearms from their home not only may leave them susceptible to injury or crime but also may be damaging to their mental health if they have an emotional attachment to the firearms.12

This article examines Indiana’s statute and how it affects elders with dementia-related illnesses. First, the article discusses the creation of the Indiana red flag law and how it passed constitutional muster. Next, the article addresses types of dementia and the determination of whether elders with dementia satisfy the “dangerous” person portions of the statute.13 The arguments in favor of and opposition to using this law to remove firearms from the homes of elders with dementia- related illnesses also are discussed.

The goal of Indiana’s statute is to balance an elder’s personal autonomy and constitutional right to own a firearm with the safety of both the elder and those around him. In order to achieve this objective, the author of this article suggests that lawmakers consider supplementing the current law with an option for those with dementia-related illnesses to seek firearm safety training and/or therapy while law enforcement retains their firearms,14 thus providing a fast-track method of returning firearms to these individuals if appropriate.

II. Background

A. History of Indiana’s Red Flag Law
Indiana’s red flag law was created after a tragic event involving gun violence and mental illness. In 2004, Kenneth Anderson, a mentally ill man, went on a rampage in which he first murdered his mother and then proceeded to fire shots around his neighborhood with a high-powered rifle and two handguns.15 Five Indianapolis Police Department officers were injured at the scene, including Officer Jake Laird, who later died from his injuries.16 After the event, it was discovered that earlier in the year Anderson had been committed and evaluated at St. Francis Hospital for an emergency detention; in addition, several firearms were removed from his home.17 However, upon Anderson’s release from the hospital, the Indiana Police Department reluctantly returned the firearms because they lacked legal authority to retain them.18 To prevent this situation from occurring again, Indiana’s legislature passed a law that allows “the seizure and retention of firearms from dangerous and mentally ill individuals.”19

B. Indiana Code § 35-47-14 Explained
The legislation was met with bipartisan support, as are many other red flag laws.20 The law was passed easily with a vote of 48 to 1 in the Indiana Senate and 91 to 0 in the Indiana House of Representatives.21 This led to the creation of “Proceedings for the Seizure and Retention of a Firearm,” in Indiana Code § 35-47-14.22 In 2018, Governor Eric Holcomb asked that this law be referred to as the “Jake Laird Law” in remembrance of the officer whose death may have been prevented had the law existed before the event.23 The first section of Indiana Code § 35-47-14-1 states:

(a) For the purposes of this chapter, an individual is “dangerous” if:

(1) the individual presents an imminent risk of personal injury to the individual or to another individual; or

(2) the individual may present a risk of personal injury to the individual or to another individual in the future and the individual:

(A) has a mental illness (as defined in IC 12-7-2-130) that may be controlled by medication, and has not demonstrated a pattern of voluntarily and consistently taking the individual’s medication while not under supervision; or

(B) is the subject of documented evidence that would give rise to a reasonable belief that the individual has a propensity for violent or emotionally unstable conduct.

(b) The fact that an individual has been released from a mental health facility or has a mental illness that is currently controlled by medication does not establish that the individual is dangerous for the purposes of this chapter.24

The second section of the statute provides that a circuit or superior court can issue a warrant for the seizure of firearms in the possession of a dangerous individual if a law enforcement officer provides an affidavit.25 The affidavit must show why the officer believes the individual is dangerous and must describe the officer’s interactions and conversations with the alleged dangerous individual or those between the officer and another individual who provides credible and reliable information that suggests that the person in question is dangerous.26 The affidavit must also include the location of the firearm.27 The court will then decide whether there is probable cause for a warrant based on the belief that the individual is dangerous and possesses a firearm.28

The third section of the statute states that a law enforcement officer may seize a firearm from a person believed to be dangerous without the court granting a warrant if the officer submits a statement to the court that affirms the basis for the belief that the individual is dangerous.29 If the court finds probable cause, the court can order that the seized firearm be retained by the law enforcement agency or, if there is no finding of probable cause, the court can order the firearm to be returned to the owner.30 If the court does issue a warrant, the officer who served the warrant must file a return that states the time and date the warrant was served, the name and address of the individual to whom the warrant was served, and the number and type of firearms seized.31 This return must be filed within 48 hours after the warrant is served.32

Within 14 days of receiving a return33 or written statement,34 the court will set a hearing to determine whether the firearm should be returned to the owner or be retained by the law enforcement agency that seized it.35 The statute states that the court should “set the hearing date as soon as possible” after a return or written statement is filed and that both the prosecuting attorney and the individual whose firearm was seized must be notified of the date, time, and location of the hearing.36 The court may choose to conduct the hearing at a different facility “not likely to have a harmful effect upon the individual’s health or well-being.”37

The state has the burden of proving the material facts at the hearing by using the clear and convincing evidence standard.38 If the state can prove that the individual is dangerous, the court will order that the firearm be retained by the law enforcement agency and order a suspension of the individual’s license to carry a handgun if the individual has one.39 In this case, the firearm will be retained by the law enforcement agency until the court decides to return or dispose of the firearm.40

After the court orders the firearm to be retained, the individual may request that the firearm be sold by the law enforcement agency and the proceeds returned to him or her.41 In order to sell a gun at a public auction, the individual must make a timely sale request and the serial number must be on the firearm.42 Should the court order the sale of the firearm, the firearm must be sold within 1 year of the order, and the law enforcement agency may keep up to 8 percent of the proceeds to pay for the cost of the sale, administrative fees, and the auctioneer’s fees.43 If the state fails to prove that the individual is dangerous, the court will order that the firearm be returned to the individual.44 If the firearm belongs to someone other than the dangerous individual in question, the court may order the firearm to be returned to its rightful owner.45

If the court orders the law enforcement agency to retain an individual’s firearm, the individual must wait 180 days before he or she can petition for its return.46 Once the court receives the petition, it will set a hearing date and inform the prosecutor of the date, time, and location of the hearing.47 At the hearing, the petitioner must prove beyond a preponderance of evidence that he or she is not dangerous.48 The court will either decide to return the firearm or deny the petition, which means that the individual must wait another 180 days before filing a second petition.49

Five years after the first hearing concerning the retention of the firearm, the court may order the disposal of the firearm.50 To do so, the court must provide notice to the individual, prosecutor, and law enforcement agency in order to conduct another hearing on the matter.51

C. Validity of Jake Laird Law
One of the many concerns involving red flag laws is the constitutionality of the laws, particularly whether they violate an individual’s Second Amendment right to bear arms. District of Columbia v. Heller is the U.S. Supreme Court case establishing that the Second Amendment of the U.S. Constitution52 grants an individual the right to keep and bear arms in his or her home.53 The Court also held that a statute that prohibits an individual from owning a legal firearm for the purpose of self-defense violates the Second Amendment.54 However, the Court also stated that the Second Amendment is not unlimited in scope and that the Court’s opinion should “not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill … [and that] the sorts of weapons protected are those ‘in common use at the time.’”55 Because the Court ruled that the Second Amendment does not necessarily extend to the mentally ill, Indiana’s statute does not violate an individual’s constitutional right to bear arms.56

The validity and the application of Indiana’s statute was discussed thoroughly in the case of Redington v. State, in which the Indiana Court of Appeals upheld the statute.57 Robert Redington was involuntarily committed and evaluated at the Indiana University Health Center in Bloomington on August 4, 2012, after several interactions with law enforcement in which he behaved suspiciously and erratically.58 While Redington was detained at the health center, an officer with the Bloomington Police Department obtained a search warrant to search Redington’s home and retain any firearms.59 Nine days later, the State set a hearing date pursuant to Indiana Code § 35-47-14-5. The court issued an order to retain firearms pursuant to Indiana Code § 35-47-14 and ruled that the State had “proved by clear and convincing evidence that [Redington] was dangerous as defined by [the statute]” and ordered that the Bloomington Police Department retain all 51 of the firearms seized from him.60 In addition to issuing this order, the court revoked Redington’s license to carry a handgun.61

Redington challenged the statute’s constitutionality and was given de novo review.62 De novo review places an extremely heavy burden on the challenger to prove a statute’s unconstitutionality.63 Redington’s three arguments were that (1) the statute as applied violated Article 1 § 32 of the Indiana Constitution, (2) the statute as applied violated Article 1 § 21 of the Indiana Constitution and the Fifth Amendment of the U.S. Constitution, and (3) the statute was void for vagueness.64

1. Did the Statute as Applied Violate Article 1 § 32 of the Indiana Constitution?
Article 1 § 32 of the Indiana Constitution gives the state’s citizens the right to bear arms for defense.65 Redington argued that the statute as applied to him was not a “rational or valid exercise of police power.”66 The test to determine whether the legislature can alienate a right appears in the Indiana Supreme Court’s decision in Price v. State, in which the court stated that “a right is impermissibly alienated when the State materially burdens one of the core values which it embodies.”67

The State argued that the Indiana Constitution recognizes police power and that it is within the State’s power to place “reasonable restrictions on the possession of firearms” without violating the constitution.68 The State also maintained that the statute is “rationally related to the State’s interest in protecting the safety and welfare of the public and therefore constitutes a valid police power.”69 Further, the State contended that the core value of § 32 was not materially burdened because the statute did not preclude Redington from owning other weapons that can be used for self-defense and does not necessarily deprive an individual of his or her firearms permanently.70 Pursuant to the statute, Redington would have the ability to regain his right to bear arms should he file a petition within 180 days of the court’s order.71

In its conclusion, the Court cited other cases in which the U.S. Supreme Court found that a legitimate government purpose of prohibiting the mentally ill from possessing firearms exists.72 Following the U.S. Supreme Court’s example, the Indiana Supreme Court found that the statute was not unconstitutional as applied to Redington on the grounds of violating Article 1 § 32 of the Indiana Constitution.

2. Did the Statute as Applied Violate Article 1 § 21 of the Indiana Constitution and the Fifth Amendment of the U.S. Constitution?
Redington’s second argument was that the statute violated Article 1 § 21 of the Indiana Constitution and the Takings Clause of the Fifth Amendment of the U.S. Constitution.73 Article 1 § 21 of the Indiana Constitution states that “no person’s particular services shall be demanded, without just compensation [and] no person’s property shall be taken by law, without just compensation; nor, except in the case of the State, without such compensation first assessed and tendered.”74 The Takings Clause is almost identical in language, and courts have determined that the issues are identical.75

Redington argued that the removal and retention of his guns by the State without any compensation had deprived him of any “economic or productive use of his property.”76 Redington also asserted that because he had neither been convicted of a crime nor had his property been used in furtherance of a crime that the court should treat this situation as different from a forfeiture case.77

The State maintained that Redington had fundamentally misunderstood the operation of § 21 because this provision concerns only eminent domain issues in which private property is confiscated for public use and provides no restraint on the power the police exercised the night they removed Redington’s firearms.78 The State also asserted that it can destroy private property without providing compensation when it exercises police power to protect citizens’ health and lives.79 Case law has also recognized that when an individual’s property and privacy rights, implicated by the Takings Clause, and the individual’s rights of life, liberty, safety, and the pursuit of happiness are in conflict, it is the government’s duty to “provide a way of life and safety that will protect both [sets of] rights.”80 The legislature also has a duty to enact reasonable laws that, if possible, “will not be in conflict of the guaranteed rights of the individual.”81

The rights of an individual may not be violated or taken away through police power or regulation unless “the taking or destruction has a just relation to the protection of public health, welfare, morals, or safety.”82 Such power also extends to the taking and destruction of personal property when police are acting to protect the public’s welfare.83 For the reasons stated, the court ruled that Redington’s constitutional rights were not violated nor infringed upon and that Redington was not entitled to any compensation for the taking of his guns.84

 3. Was the Statute Void for Vagueness?
Redington’s third and final argument was that a portion of the statute, Indiana Code § 35-47-14-1(a)(1), was void due to vagueness. The rule applied was that a “statute will not be found unconstitutionally vague if individuals of ordinary intelligence would comprehend it adequately to inform them of the proscribed conduct.” … “The statute ‘need only inform the individual of the generally proscribed conduct, [and] need not list with itemized exactitude each item of conduct prohibited.’”85 The State contended that the statute is not vague because an individual of ordinary intelligence would understand what “risk of personal injury to another” means, especially when read in the context of the rest of the statute.86

Finally, the State contended that the legislature qualified the section of the statute in question by stating that to find “an individual [to] be dangerous in the future, the State must prove by clear and convincing evidence not only that the individual may present a risk of personal injury to the individual or another individual in the future”87 but also must “demonstrate that the individual has a mental illness or that the individual has documented evidence of a propensity for violence.”88 After review, the court found Indiana’s Jake Laird Law constitutional because it does not violate a person’s right to own a gun and is not void for vagueness.

III. How Elders With Dementia-Related Illnesses Satisfy the “Dangerous” Person Component of Indiana’s Statute

A. Defining Mental Illnesses
Now that Indiana’s red flag law has been established as valid and constitutional, the next step is to determine whether those suffering from dementia-related illnesses meet the “dangerous” person component of Indiana’s statute.89 Dementia-related illnesses are neurodegenerative diseases that are “incurable and debilitating conditions that result in progressive degeneration and/or death of nerve cells [that cause] problems with movement (called ataxias), or mental functioning (called dementias)” and occur “when nerve cells in the brain or peripheral nervous system lose function over time and ultimately die.”90

The most common and most severe type of dementia is Alzheimer’s disease, which makes up 60 percent to 80 percent of dementia cases.91 A study published in 2019 estimated that 5 million Americans age 65 and older were diagnosed with Alzheimer’s disease or related dementias in 2014.92 The study projects this number to nearly triple by 2060, with approximately 13 million Americans expected to be affected.93 Alzheimer’s disease is a “progressive disease beginning with mild memory loss possibly leading to loss of the ability to carry on a conversation and respond to the environment,” and because Alzheimer’s disease involves parts of the brain that control thought, memory, and language, the effects can be detrimental to an individual’s “ability to carry out daily activities.”94

Scientists do not know the exact cause or causes of Alzheimer’s disease; however, the best-known risk factor for the disease is age.95 Signs of Alzheimer’s disease follow:

• Memory loss that disrupts daily life, such as getting lost in a familiar place or repeating questions.

• Trouble handling money and paying bills.

• Difficulty completing familiar tasks at home, at work or at leisure.

• Decreased or poor judgment.

• [Misplacement of] things and being unable to retrace steps to find them.96

Changes in mood, personality, or behavior are also signs of Alzheimer’s.97

B. Diagnosing and Treating Dementia
Dementia is diagnosed by a medical professional who finds evidence of “significant memory problems, and impairment of at least one other cognitive function such as speech, the ability to think abstractly and exercise judgment, or the ability to articulate or manage previously learned information.”98 Although some types of dementia are specifically identified only after a deceased individual’s brain is examined, several diagnostic steps help physicians diagnose dementia in its early stages.99

The first step is to review the individual’s and the individual’s family medical history not only to see whether dementia runs in the family but also to check for certain lifestyle risk factors, such as smoking, poor diet, and little physical activity.100 The next step is to conduct a physical examination in which vital signs, such as blood pressure, are checked to detect conditions associated with dementia.101 By treating some underlying causes, such as high cholesterol, high blood pressure, and high blood sugar levels, the physician can reduce the patient’s risk of getting dementia.102

The next step in diagnosing dementia is conducting cognitive and neurophysiological tests, laboratory tests, and brain scans.103 Cognitive and neurophysiological tests ideally show whether an individual has issues with short-term memory or communicating.104 Laboratory tests, such as blood tests, are administered to rule out any chemical, hormone, or vitamin imbalances that can manifest themselves in dementia-like symptoms.105 CT, MRI, and PET scans are used to produce images of the brain to find causes of dementia, such as strokes and tumors.106

Another step in diagnosing dementia is conducting a psychiatric evaluation.107 A psychiatric evaluation is used to determine whether a mental illness, such as depression, is contributing to the individual’s symptoms or mimicking signs of dementia.108 Urinary tract infections, though common in seniors and relatively easy to treat, can present themselves differently in older adults and cause dementia-like symptoms, such as delirium, agitation, and confusion, which can lead to a false dementia diagnosis.109

Because some symptoms of dementia can be reversed, it is important to get an early diagnosis and begin treatment right away.110 Though there is no cure for Alzheimer’s disease, treatments can improve an individual’s quality of life, help maintain mental function, manage behavioral symptoms, and delay the effects of the disease.111

The three stages of dementia are (1) the mild phase, which can last an average of 5.6 years; (2) the moderate phase, which lasts on average 3.5 years; and (3) the severe phase, which lasts only 3.2 years.112 During the mild phase, an individual may still be competent and show little cognitive impairment.113 Because dementia-related illnesses are progressive and the length of time spent in each stage is inexact, it is difficult to pinpoint exactly when to take firearms away.114 Dr. Potts, a neurologist at the Tuscaloosa Veterans Affairs Medical Center, believes “that guns should be removed from the homes of those with documented dementia, or at least sequestered safely so that only family members with their faculties have access to them.”115

C. Defining Mental Illness Under Indiana’s Statute116
Indiana case law supports the notion that those with dementia-related illnesses are mentally ill,117 which means that Indiana’s red flag law is applicable to those with dementia-related illnesses. Indiana Code § 35-47-14(a) states that an individual is dangerous if the individual (a) presents a risk of personal injury to either himself/herself or to another person now or in the future or (b) has either “a mental illness … that may be controlled by medication, and has not demonstrated a pattern of voluntarily and consistently taking [his or her] medication while not under supervision” or “is the subject of documented evidence that would give rise to a reasonable belief that the individual has a propensity for violent or emotionally unstable conduct.”118

Indiana Code § 12-7-2-130 defines mental illness as “a psychiatric disorder that: (A) substantially disturbs an individual’s thinking, feeling, or behavior; and (B) impairs the individual’s ability to function. The term includes intellectual disability, alcoholism, and addiction to narcotics or dangerous drugs.”119 Jackson v. Indiana Adult Protective Services and Cheek v. State are cases in which Indiana Code § 12-7-2-130 has been used to determine whether someone is mentally ill.120

In Jackson v. Indiana Adult Protective Services, the court discussed the appeal for a protective order for an elderly woman (Jackson) granted by the circuit court, which provided that she be committed to a nursing facility and receive around the clock care.121 Jackson, who was 81 years old, struck a tree with her car while driving home, causing severe damage to her car.122 After the accident and Jackson’s repeated calls to the police department inquiring about the location of her car, the police ordered a welfare check on her.123

Jackson refused the officers’ entry into her home and displayed signs of confusion, including not knowing what day it was and not knowing the name of the current president of the United States.124 Jackson was admitted to the Gero-Psychiatric Unit of Meridian Services at Indiana University Health Ball Memorial Hospital that same day.125 Jackson’s physician at the hospital diagnosed her with “dementia NOS [not otherwise specified], most likely the Alzheimer’s type” and found that she was mentally ill according to Indiana Code § 12-7-2-130.126

Cheek v. State involved an appeal for an involuntary commitment proceeding for Cheek, a 20-year old man. Cheek argued in his appeal that the evidence indicating that he was dangerous or gravely disabled was not clear and convincing.127 Cheek was hospitalized at the time of the involuntary commitment hearing, and records showed that he had been hospitalized previously.128 Cheek’s physician provided evidence suggesting that Cheek was mentally ill, gravely disabled, and dangerous to others.129 The physician stated that Cheek was “not able to work, able to take care of himself independently with just routine activity of daily life” and that Cheek had been “belligerent with impulsive behavior including striking out against nurses and other patients, had thoughts of killing others, and was impulsive and unpredictable.”130 The court defined “gravely disabled” as “a condition in which an individual, as a result of mental illness, is in danger of coming to harm because he is unable to provide for his own food, clothing, shelter or other essential human needs; or has substantial impairment of judgment, reasoning or behavior that results in his inability to function independently.”131

The appellate court ruled that the physician’s testimony was sufficient to establish that Cheek was mentally ill because Cheek could not provide for his most basic needs. The court also defined the term “dangerous” regarding someone with a mental illness as a “condition, as a result of mental illness, which presents a substantial risk that the individual will harm himself or others.”132 Because of the physician’s account of Cheek’s impulsive and unpredictable behavior, the appellate court ruled as the previous court had: that the physician’s testimony was sufficient to establish that Cheek was “dangerous.”133

One scholar has argued that because dementia “cannot be ‘controlled’ by medication,” a “history of violent or unstable conduct would almost certainly be required for someone with dementia to lose [his or her] firearm under [Indiana’s] regime.”134 Though it is true that most types of dementia cannot be cured through medication, medications and therapies do exist that treat the symptoms and may slow the progression of the disease.135 As stated previously, the Jackson court held that because of Jackson’s behavior and dementia diagnosis, she was to be considered mentally ill under the law.136 Further, other case law provides that individuals can be defined as dangerous according to the statute if their behavior is impulsive and unpredictable and they pose a risk to themselves or others due to a mental illness.137

Given Indiana’s statutory language and case law, individuals with dementia-related illnesses who are suffering from acute symptoms that place either themselves or others in imminent danger satisfy Indiana’s statutory definition of mentally ill or dangerous.138

IV. Elderly Gun Ownership
A large portion of the elderly population in the United States owns firearms. Firearm prevalence is high in households with family members with dementia.139 According to a Pew Research Center study, 33 percent of adults over the age of 65 own a gun.140 In addition, 73 percent of gun owners say that they cannot imagine not owning a gun, and 66 percent say that they own more than one gun.141 Though hunting, collection, and sport shooting are cited as reasons for owning a gun, more than two-thirds of gun owners cite protection as their main reason for owning a gun.142 The study also found that about half of adults in the United States grew up in a gun-owning household, and 67 percent of gun owners were raised in a home with guns.143

Results from a study published in 2015 revealed a “high prevalence of firearm prevalence in households with demented family members … (60.4%).”144 Further, the study stated that “[g]un ownership was equally prevalent in households regardless of the severity of the dementia, severity of behavioral disturbance or depressive symptoms.”145 For families with firearms in their households, 44.6 percent stated that the guns were kept loaded, while 38 percent of families reported that they did not know whether they were.146 The study also stated, “Only 16.9% of the families reported that guns were maintained in an unloaded state.”147 This study concluded that clinicians should inquire about firearms in the homes of individuals with dementia and advocate for the removal of the firearms.148 In sum, many elderly individuals with dementia have access to guns and thus may be subject to red flag laws such as Indiana’s.

V. Results From Use of Indiana’s Red Flag Law
A study investigated the use of the Indiana red flag law in Marion County from 2005 through 2007.149 Marion County courts conducted 55 firearm retention hearings in 2006 and 78 in 2007.150 The largest demographic of defendants for these hearings were white middle-age males with a mean age of 42.1 and a standard deviation of 14.151 The mean number of firearms seized per incident was 3.0 and 2.5 in 2006 and 2007, respectively.152 Forty-seven percent of the defendants in 2006 and 27 percent in 2007 had prior arrests, with a minority of both groups having been convicted as a result of said arrests.153 Further, most of the prior arrests were for drug-related incidents.154 According to the study, the “most common reasons for firearm seizure were risk of suicide, substance abuse, risk of violence, domestic disturbance, and psychosis, in that order.”155 In addition to firearm retention, some defendants chose to voluntarily be transported to the hospital for psychiatric evaluation.156

The Marion County courts used the clear and convincing evidence standard to retain firearms and made their decisions at final hearings that took place an average of 174 days after the firearms were seized in 2006 and an average of 323 days after seizure in 2007.157 In 2006, the court retained the confiscated firearms in 53 percent of the cases; in 42 percent of the remaining cases, the individuals surrendered their firearms voluntarily.158 This left only 6 percent of the cases ending with the court returning the firearms to the owners.159 However, in 2007, the court retained the firearms in only 8 percent of cases and individuals surrendered their firearms voluntarily in only 14 percent of cases.160

In total, the Marion County courts used the red flag law 55 times in 2006 and 78 times in 2007.161 The confiscations for risk of suicide increased, while the confiscation for domestic disturbances decreased, over the 2 years that were studied.162 Unfortunately, the study did not categorize the individuals based on whether they had any mental illnesses or neurodegenerative diseases.163 Table 1 in the study lists reasons for confiscations and labeled a group “active psychosis” and another “other” but goes into no further detail on diagnoses,164 which dementia-related illnesses may fall under. However, it is plausible to assume that an individual with Alzheimer’s disease or another form of dementia may fit into a category of “active psychosis” or “other.”165

Cases in which this statute was used specifically for removing firearms from elders with dementia-related illnesses are difficult to access because most of these cases involve a mental illness diagnosis or a threat of suicide, which results in the cases remaining sealed.166 However, the law has been used in situations involving elders suffering from diminished capacity as a result of dementia-related illnesses.167 The petitions are usually made by relatives who are concerned about an older family member who exhibits signs of dementia (e.g., anger) and has access to a firearm.168 Though law enforcement agencies are aware of the Indiana red flag law and how to apply it, they are also encouraging family members and friends who notice something off about an individual to follow the adage that “if you see something, say something.”169

 VI. Arguments for Using Indiana’s Statute to Legally Remove Firearms From At-Risk Elders With Dementia-Related Illnesses

A. Provides Opportunity for Family Members to Avoid Being Involved in Firearm Removal Process
The first argument favoring the application of Indiana’s statute is that it gives caregivers and other concerned parties an opportunity to legally remove guns from elderly individuals with dementia-related illnesses without violating their constitutional rights.170 To ensure home safety, the Alzheimer’s Association urges caregivers and family members to remove firearms from the homes of individuals with Alzheimer’s disease to avoid “unexpected danger[s].”171 Dementia-related illnesses have been linked to violent behavior.172 Yet many caregivers and family members are not likely to assume the worst of individuals and do not believe that they could be dangerous to themselves or others. Therefore, they hesitate to confront individuals about the removal of their guns.173

In Indiana, cities are required to provide body armor to active police department members.174 Because of their training and access to bullet-resistant body armor, Indiana law enforcement officers are better prepared to deal with unpredictable individuals with dementia.175 Family members can use Indiana’s red flag law to have law enforcement officers remove firearms from an individual’s home, thus providing a safe and legal way of ensuring the safety of family members.

B. Reduces Elderly Suicide Rate
Another benefit of the application of Indiana’s statute and the removal of guns from homes of the elderly with dementia is that doing so may reduce the rate of elderly suicide. Suicide is a concern for the elderly with dementia.176 A study published in 2011 used data from the Department of Veterans Affairs to analyze predictors of suicide in patients with dementia.177 The sample consisted of 294,952 people age 60 and older who received a dementia diagnosis in the early 2000s, 241 of whom committed suicide.178 The study investigated how advanced the stage of dementia was in those who committed suicide.179 The sample was divided into categories based on how long the patients had been living with dementia.180 The results showed that the majority of patients who committed suicide were in the category of “newly” diagnosed patients with dementia.181

The study also analyzed suicide methods.182 The authors stated, “The method used in the vast majority of suicides was a firearm (72.6%).”183 “The next most common methods were self-poisoning and hanging (9.5% each).”184 “Much less common means used in suicide were harm with a sharp object (2.9%), jumping from a high place or moving object (2.4%), drowning (1.2%) or self-immolation (0.4%).”185 The authors also stated that though “prior work regarding suicide and self-injurious behavi[or] in nursing homes has been inconclusive, we found a decreased risk of suicide in patients with nursing home admissions.”186 A hypothesis explaining why this is the case is that elders may not be allowed to have guns in assisted living facilities or nursing homes.187 The Second Amendment does not preclude private entities from establishing gun control policies on private campuses.188 Not having access to a gun in these living situations may be why the data shows a smaller percentage of elders committing suicide once admitted to an assisted living facility or nursing home.

In a study on suicide in the state for 2011–2015, the Indiana State Department of Health reported that Alzheimer’s disease was the fifth leading cause of death for Indiana citizens age 65 and older.189 Perhaps more concerning is the fact that suicide was the eighth leading cause of death for Indiana citizens ages 55–64190 and the fourth leading for Hoosiers ages 45–54.191

It is important to keep in mind that early-onset Alzheimer’s disease affects those under the age of 65 and that up to 5 percent of those diagnosed with Alzheimer’s disease have early onset.192 Individuals between 45 and 64 have higher rates of suicide. This correlates with the finding from the aforementioned study of Department of Veterans Affairs data showing that a higher percentage of those with a recent dementia diagnosis committed suicide than those who had lived with the disease longer.193 The Indiana suicide report also showed that 80 percent of those over the age of 65 committed suicide using firearms, which was a higher percentage (20 percent higher) than any other age group that used a firearm as the method of suicide.194 Though the suicide rate in Indiana is higher than the national average in most age categories, the 65 and older category had a lower suicide rate than the national average.195 This may be a result of Indiana’s red flag law being applied.

Evidence shows that the use of red flag laws has decreased the suicide rate.196 A study that investigated Connecticut’s and Indiana’s red flag laws in 1981–2015 stated, “Indiana’s firearm seizure law was associated with a 7.5% reduction in firearm suicides in the 10 years following its enactment, an effect specific to suicides with firearms and larger than that seen in any comparison state by chance alone.”197 Indiana may be more successful in either the writing of or the application of its statute when compared with other states’ red flag laws because “Indiana demonstrated an aggregate decrease in suicides, [while] Connecticut’s estimated reduction in firearm suicides was offset by increased nonfirearm suicides.”198 This suggests that Indiana’s decreased suicide rates are more likely to be related to the removal of guns from homes.

C. Reduces Risk of Torts Involving the Elderly and Gun Crimes Committed by Them
Lastly, the application of the Indiana statute and removal of guns from elders’ homes may reduce the risk of torts involving the elderly and gun crimes committed by them. Many people who are diagnosed with dementia are not aware that they are forgetful or otherwise impaired.199 Individuals with Alzheimer’s disease are particularly unaware of the effects of their condition.200 Individuals who struggle with recognizing their cognitive disabilities or who underappreciate their severity arguably have decisional incapacity.201 How this issue should be addressed in legislation, or even whether this issue should be addressed in legislation at all, is rarely discussed.202

Because of the cognitive impairments and mood changes associated with dementia-related illnesses, those who suffer from these illnesses are subjects of both intentional and unintentional torts.203 The majority of torts involving the elderly with dementia and their caregivers are unintentional torts; specifically, negligence and strict liability torts.204 To claim negligence, a plaintiff must show that (a) the defendant had a duty of care, (b) the defendant breached that duty of care, (c) this breach of duty caused an actual injury to the plaintiff, and (d) the breach of duty was the proximate cause of the injury.205

Under current law, an individual with dementia can be held liable for torts to the general public and their caregivers, and these caregivers can be held liable for torts to the general public and the individual in their care.206 In most states, an individual who commits a tort against a professional caregiver would be strictly liable for any injury he or she causes to his or her caregiver.207 Indiana is one of the few states that created an exception for those with Alzheimer’s disease to not be held strictly liable for every tort committed against their caregivers.208

In Creasy v. Rusk, a nursing assistant (Creasy) sued a patient with Alzheimer’s disease after the patient (Rusk) kicked her several times while she attempted to put him to bed, resulting in her back being injured.209 Creasy was not specially trained to assist patients with Alzheimer’s disease but had attended a presentation that discussed the effects of the disease and was aware that Rusk had this condition.210 Creasy filed a suit of negligence, asking for monetary damages for the injury Rusk caused.211 The trial court granted summary judgment to Rusk, and Creasy appealed.212

“The Court of Appeals reversed, holding ‘that a person’s mental capacity, whether that person is a child or an adult, must be factored [into] the determination of whether a legal duty exists,’ and that a genuine issue of material fact existed as to the level of Rusk’s mental capacity.”213 The appellate court discussed two issues: “(1) [w]hether the general duty of care imposed upon adults with mental disabilities is the same as that for adults without mental disabilities [and] (2) [w]hether the circumstances of Rusk’s case are such that the general duty of care imposed upon adults with mental disabilities should be imposed upon him.”214

The Indiana Supreme Court disagreed with the appellate court’s holding that an individual with mental disabilities is excused from conforming to the usual reasonable person standard of care.215 The Court stated that Indiana’s law needs to be revised to reflect the Restatement (Second) of Torts, which states that “unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.”216 The Court stated:

The public policy reasons most often cited for holding individuals with mental disabilities to a standard of reasonable care in negligence claims include the following.

(1) Allocates losses between two innocent parties to the one who caused or occasioned the loss. …

(2) Provides incentive to those responsible for people with disabilities and interested in their estates to prevent harm and restrain those who are potentially dangerous. …

(3) Removes inducements for alleged tortfeasors to fake a mental disability in order to escape liability. …

(4) Avoids administrative problems involved in courts and juries attempting to identify and assess the significance of an actor’s disability. …

(5) Forces persons with disabilities to pay for the damage they do if they are to live in the world.217

The Indiana Supreme Court also found that a nurse who had worked at the nursing home for 9 years was qualified as an expert witness.218 The nurse provided an affidavit explaining that Rusk “was in the advanced stage of Alzheimer’s and was therefore unable to appreciate the consequences of his actions.”219 Based in part on this assessment, the Court held “that it would be contrary to public policy to hold Rusk to a duty to Creasy when it would place ‘too great a burden on him because his disorientation and potential for violence is the very reason he was institutionalized and needed the aid of employed caretakers.’”220 Essentially, states such as Indiana that have made an exception for those with Alzheimer’s disease have applied the “fireman’s rule” to formal caregivers to Alzheimer’s disease patients who live in nursing homes or convalescent centers.221

Informal caregivers are usually the individual’s family members or significant others.222 These caregivers are often “subject to the same abusive behavior as the institutional caregivers, but seldom have the training or resources to manage it as effectively as do the institutions. Their only resort in severe cases is to call the police or emergency medical personnel.”223 Informal caregivers are also potentially more at risk from violence because they serve the individual outside a center or nursing home. For example, On May 16, 2015, a man named Darrel Hill shot his wife, Dee Hill, in the stomach, nearly ending her life.224 Darrel was a wheelchair-using 76-year-old man suffering from progressive dementia when he confusedly shot his wife.225 His wife was able to call for emergency personnel; Darrel was completely unaware that he had shot her.226

Informal caregivers are also more at risk for being held liable for what their charges do under their care. Irons v. Cole established that the parents of an adult child were 30 percent liable for the murder committed by their son because they knew that he was mentally disturbed, they owned the premises where the murder had taken place, and they owed a duty of care with respect to the storage and maintenance of the firearms on the property.227

Applying Indiana’s red flag law and removing firearms from individuals with dementia may reduce the incidence of torts and gun crimes as well as liability for these torts and crimes for both the sick individual and his or her caretaker.

VII. Arguments Against Using Indiana’s Statute for Elders With Dementia-Related Illnesses

A. Removing Firearms May Leave Elders Defenseless
Conversely, strong and reasonable arguments exist as to why Indiana Code § 35-14-1 should not be used to remove firearms from the homes of the elderly with dementia-related illnesses. Removing firearms from elders may leave them more vulnerable to home invasions. In fact, many examples exist in which firearms have protected the elderly. For instance, a 65-year-old woman protected herself by shooting a would-be robber when he demanded that she surrender her purse while blocking her path to her home.228 Another individual, Tony Pitts, a disabled 71-year-old, was in his home watching television late at night when he heard the doorbell ring.229 When he did not answer the door, the intruder broke his door down and entered Pitts’ home. Pitts fired three shots, two hitting the intruder.230 Pitts stated that he had to do something because he was elderly and disabled and that “[i]f I hadn’t shot him, he might have shot me.”231 In these scenarios, not having access to a gun could have led to injury, theft, or worse.

B. Firearms Represent Independence and May Have Both Sentimental and Economic Value
Some elders are attached to their firearms, finding both sentimental and economic value in them, and firearms give some elders a sense of independence.232 This is true especially for elders who have served in the military or in law enforcement and have held onto their firearms for years.233

A former police officer told a medical technician after the death of his wife just 2 days before that he was going to commit suicide because he had little left to live for.234 John McGuire was 76 and owned 81 guns, a collection he started in the 1970s.235 The police confiscated all of the guns from his home, claiming that he satisfied the “imminent danger” clause of Connecticut’s red flag law.236 McGuire stated that his guns were “my babies” and that his guns were an area of his life — as opposed to other areas — over which he had control.237 McGuire also said that apart from sentimental value, his extensive gun collection made up a large part of his savings.238 After the removal of his guns, McGuire stated that he felt “stressed, vulnerable and at risk” without them and that he was sorry he had ever said “something dumb” in reference to his suicide threat.239

Guns not only keep elderly people safe; they also hold both sentimental and economic value. Removing guns from individuals’ homes may leave them susceptible to crime or depression or hurt them financially.240

VIII. Recommendations

A. Conduct More Studies
This topic is both relevant and important because lawmakers are being urged to take action in response to gun violence and more states are considering implementing similar laws.241 In general, more studies should be conducted to determine the effectiveness of Indiana’s statute both to assist other states in implementing the best version of a red flag law and to determine how the statute affects Indiana’s elderly. Indiana appears to be successful in its use of the statute but would benefit from more detailed analysis, especially since it was one of the earliest states to create this type of law and has more legal history as a result.242 Though some case files are sealed for privacy,243 it would be beneficial to have the substance of the cases open to the public for the purpose of providing more concrete statistics on the application and effectiveness of the statute.

B. Supplement the Law With Voluntary Firearm Safety Training and Therapy for Faster Return of Firearms
As discussed previously, dementia-related illnesses create a wide spectrum of mental and physical competency244 in which some with a dementia diagnosis may be perfectly safe possessing a firearm. For those in this situation, a red flag law would not be applied245 because an Alzheimer’s disease or other dementia diagnosis is usually not a basis for a constitutional right to be taken away under normal circumstances.246 However, two states have implemented a statute that does just that.247

We know that individuals in Indiana whose firearms have been confiscated via the state’s red flag law can have their firearms returned if they can prove by a preponderance of evidence that they are not currently dangerous.248 Legislators should consider creating a supplemental law that creates a point system in which an elderly individual diagnosed with a dementia-related illness whose firearm has been seized can choose to take safety measures that will expediate the court’s decision on whether to return the firearm to the individual. Some of these measures would be attending counseling or therapy for depression, anger, and anxiety related to dementia after guns are confiscated; participating in a gun safety training course; and following up with a geriatric physician or dementia specialist between the time the firearm was seized and the hearing is conducted.

Should the individual show cognitive or emotional improvement by a preponderance of evidence, the court may be persuaded to return the firearm to the individual. On the other hand, if none of the safety measures lead to change in the individual’s behavior, the court will have an easier decision in allowing law enforcement to retain the firearm. Because individuals would participate in this process on a voluntary basis, no constitutional rights would be infringed upon and firearms could be returned to those on the dementia spectrum who are still competent enough to own a gun while firearms of those who are not competent would be retained.

For those who fail to prove that they are capable of possessing their firearms, a provision should be created that allows the firearms to be returned to family members, to someone of the individual’s choosing, or to the person’s court-appointed guardian. To ensure that the firearms are returned safely to a stable family member or friend, a petition by a family member, friend, or guardian for the return of the firearms as well as a background check should be required. Currently, Indiana’s statute only allows a confiscated firearm to be sold at a public auction.249 With this suggested provision, the firearms (which may be considered family heirlooms, collectables, hunting instruments, or financial investments) can either be kept safely by the family or be sold in a manner of the owner’s or the owner’s family’s choosing.

IX. Conclusion
As this article has established, the number of elders with dementia is on the rise, many of whom have a large number of firearms in their homes.250 Unfortunately, no research has been conducted to determine the intersection of these two trends to determine whether the correlation has any effect on the rates of elderly suicide, torts involving the elderly, or gun crimes committed by them.251 The best method for removing firearms from an elder suffering from dementia would be to explain the risks associated with this condition and to encourage the individual to surrender the firearms voluntarily to trustworthy family members or consent to having the firearms locked away where they are not easily accessible. However, since this method is not always possible, Indiana’s statute, if applied correctly, can safely and legally allow families and caregivers to remove guns from at-risk elders’ homes.

Interestingly, red flag laws have bipartisan support, which suggests that statutes such as Indiana’s are more health and safety oriented rather than politically oriented.252 This supports the notion that there must be a balance between an elder’s personal autonomy and the safety of the elder and others. Further, removing firearms from the homes of elders with dementia who are confused and/or may not be aware of their actions may decrease the rates of elderly suicide, torts involving the elderly, and gun crimes committed by them. Though arguments exist in support of gun ownership by the elderly, including safety and autonomy, applying a red flag statute to elders with dementia benefits not only the public’s safety but also the safety of elders suffering from the disease.

About the Author
Sarah Lynn Blodgett earned her JD and Certificate of Health Law in 2020 from the Indiana University Robert H. McKinney School of Law and her BA in 2016 from Grove City College.