Katie  Stancombe for www.theindianalawyer.com

After more than six years of being considered statutorily “dangerous” and unfit to possess firearms, a man whose 51 guns were taken from him by the state for his bizarre behavior will have them returned to his care.

The Indiana Court of Appeals reversed a lower court’s ruling Friday that had denied Robert Redington the return of his firearm collection after he was deemed to be dangerous due to strange actions near a Bloomington sports bar in 2012. Redington argued the “dangerous” finding no longer applied  because it was based on evidence his behavior years earlier when law enforcement said Redington had acted erratically near the site where missing Indiana University coed Lauren Spierer had last been seen. The Indiana Supreme Court in 2013 affirmed the seizure of Redington’s guns.

Redington’s guns had been confiscated by police pursuant to Jake Laird’s Law, enacted after Laird, an Indianapolis police officer, was shot and killed by a mentally ill man wielding a gun. More commonly known as the “red flag law,” I.C. § 35-47-14-1(a)(2)(B) enables law enforcement to take possession of firearms, pending formal hearings, from people who are found to be statutorily “dangerous.”

The state relied on the same evidence years later when Redington unsuccessfully petitioned for their return. Redington was denied upon the finding that he failed to carry his burden of proving by a preponderance of the evidence that circumstances had changed since 2012 and that he was no longer dangerous.

But an appellate panel disagreed with the state’s reliance on evidence from 2012, noting that it failed to offer current evidence and elicit testimony on cross-examination of Redington’s witnesses that he had a current propensity for emotionally unstable conduct.

On appeal, Redington argued that because the original finding he was “dangerous” was based on the possibility of future conduct, there was no legitimate way for him to prove he was no longer dangerous.

The appellate court agreed Friday in Robert E. Redington v. State of Indiana, 18A-CR-950, noting that the statute is written in the present tense and has no qualifying language requiring Redington to prove that he “is no longer dangerous.”

“In other words, the trial court in 2012 made a determination at that specific point in time, but in 2018, the trial court should have made a determination based on the instant timeframe rather than incorporating its earlier decision,” Judge Margret Robb wrote for the unanimous panel. “Likewise, we are not revisiting the 2012 determination but reviewing the facts and circumstances before the trial court in 2018.”

Regarding issues of future risk, the appellate court noted that no documented evidence existed at the time of the 2018 hearing that gave rise to reasonable belief that Redington had a propensity for being violent or exhibiting emotionally unstable conduct. It also rejected the state’s reliance on Redington’s comments regarding his ability to see spirits or prophesy as irrelevant.

“We note two things about section 35-47-14-1(a)(2)(B): first, it requires documented evidence that an individual has a propensity for certain conduct. Like section 35-47-14-8, this section is written in the present tense and therefore requires current evidence of such a propensity,” the panel continued. “Second, to be found ‘dangerous,’ the statute requires a propensity for violent or emotionally unstable conduct. The statute does not hinge on thoughts or words.”

Thus, the appellate court found the trial court’s denial of returning Redington’s guns to be clearly erroneous. The court reversed and remanded the case to the Monroe Circuit Court to issue an order that the firearms and ammunition be returned to Redington.