                                                                                  FILED
                                                                             Apr 05 2019, 9:59 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Guy A. Relford                                            Curtis T. Hill, Jr.
The Law Office of Guy A. Relford                          Attorney General of Indiana
Carmel, Indiana                                           Ellen H. Meilaender
                                                          Supervising Deputy
                                                          Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert E. Redington,                                      April 5, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-CR-950
        v.                                                Appeal from the Monroe Circuit
                                                          Court
State of Indiana,                                         The Honorable Mary Ellen
Appellee-Petitioner.                                      Diekhoff, Judge
                                                          Trial Court Cause No.
                                                          53C05-1208-MC-1375



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019                           Page 1 of 28
                                 Case Summary and Issue
[1]   In 2004, Indianapolis Police Department officer Jake Laird was shot and killed

      in the line of duty. The man who shot him had been temporarily committed for

      a mental health evaluation several months earlier and his cache of weapons was

      confiscated at that time. When the man was released from the hospital and

      requested the return of his weapons, IPD returned the firearms because they

      had no legal authority to retain them. Five months later, Officer Laird was

      killed. In response to the shooting, Indiana became the second state in the

      nation to enact a “red flag law” (known as the “Jake Laird Law” in honor of

      the fallen officer).1 “Red flag laws” generally allow law enforcement to seek a

      court order temporarily restricting a person’s access to firearms if that person

      shows “red flags” of being a threat of danger to themselves or others.2 In giving

      the people who notice the “red flags” the tools necessary to intervene before it is

      too late, these laws must straddle the tension between protecting a person’s

      Second Amendment right to bear arms with recognizing and working to stem

      the overwhelming tragedy that can be wrought by gun violence.




      1
        In 1998, a disgruntled employee at the Connecticut Lottery who had previously shown signs of being
      troubled gunned down four of his bosses before turning the gun on himself. That tragedy prompted
      Connecticut to enact the first red flag law. See Opinion, “Lawmakers should study the early success of
      Maryland’s red-flag law,” The Washington Post, Jan. 20, 2019 (found at
      https://www.washingtonpost.com/opinions/lawmakers-should-study-the-early-success-of-marylands-red-
      flag-law/2019/01/20/a0e83918-1aca-11e9-88fe-f9f77a3bcb6c_story.html?utm_term=.12bbcd221157, last
      visited Mar. 15, 2019).
      2
       Prior to February 2018, five states including Indiana had red flag laws. After the February 14, 2018,
      shooting at Marjory Stoneman Douglas High School in Parkland, Florida, at least eight other states and the
      District of Columbia have enacted a red flag law.

      Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019                               Page 2 of 28
[2]   This case is a classic example of that tension and the fine line that a preemptive

      determination must observe, especially when it affects constitutional rights. In

      2012, Robert Redington’s numerous firearms were seized by police pursuant to

      Indiana’s red flag law. After a hearing, the trial court determined the State had

      proven by clear and convincing evidence that Redington was dangerous and

      ordered his firearms to be retained by law enforcement. Almost three years

      later, Redington filed a petition seeking the return of his firearms. At the

      required hearing, Redington presented testimony from a psychiatrist supporting

      his position, the State presented no evidence, and the trial court took judicial

      notice of the prior proceedings. The trial court found Redington had not met

      his burden of proving by a preponderance of the evidence that he is not

      dangerous and denied Redington’s petition. Redington now appeals, arguing

      the trial court’s order denying the return of his firearms was clearly erroneous

      because he presented “overwhelming and wholly unrebutted evidence” that he

      is not presently “dangerous” as defined by statute and the State declined to

      present any evidence on that issue. Amended Appellant’s Brief at 6.


[3]   In interpreting the relevant statutes as written and passed by the legislature,

      without adding language we would prefer or deleting provisions we do not, we

      conclude that Redington proved by a preponderance of the evidence that he is

      not dangerous as that term is defined by statute. Because the State failed to

      present any current evidence to the contrary, the trial court’s decision is

      contrary to law. We therefore reverse and remand.




      Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019          Page 3 of 28
                                Facts and Procedural History
                             I. Prior Proceedings (“Redington I”)
[4]   The underlying facts of this case are set out in detail in Redington’s first appeal,

      Redington v. State, 992 N.E.2d 823 (Ind. Ct. App. 2013), trans. denied. Briefly,

      however, Redington came to the attention of Bloomington police in July 2012

      when he was found in a downtown parking garage behaving strangely twice in

      the same week. During the first encounter, Redington approached a parking

      enforcement officer and volunteered rambling tales about, among other things,

      a time he thought he might have killed a man at a gun range but then found out

      the man had killed himself, his interest in the Lauren Spierer case,3 and his

      ability to see “spirits and dark entities.” Id. at 825. Redington also told the

      officer “he had guns on him and it made [him] feel . . . courageous to have”

      them. Id. After the encounter ended, the parking officer called his supervisor,

      who told him to call the police if he saw Redington again.


[5]   Approximately one week later, the same officer saw Redington in the same

      parking garage looking through binoculars toward Kilroy’s Sports Bar4 and

      called police. Bloomington Police Department (“BPD”) officers responded and

      observed Redington on the third floor of the parking garage holding a range

      finder. With guns drawn, they approached Redington, who put his hands up




      3
          Lauren Spierer is an Indiana University student who disappeared in June 2011.
      4
          One of the last places Spierer was seen before her disappearance was Kilroy’s Sports Bar.


      Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019                                Page 4 of 28
      and told the officers he had a gun. The officers recovered two guns from

      Redington’s pockets and a shotgun and ammunition from his truck. When

      asked why he was there, Redington again referenced Spierer, mentioned that he

      had previously met her at a gun range and told her that he felt she was in some

      sort of danger, stated that he had come to Bloomington several times to look for

      her, and noted that he “ranged [from his position in the garage] to somewhere

      near the back of Kilroy’s as being approximately sixty-six yards [and] he could

      shoot accurately at that distance.” Id. at 826. He also noted it was

      approximately sixty-six yards from where he was standing to where the officers

      had entered the third floor. Redington stated that he owned several other guns.


[6]   Redington’s statements alarmed the officers and they asked him to come to the

      police station to talk with a detective assigned to the Spierer case. Redington

      agreed and drove himself to the station. The interview was riddled with strange

      stories and falsehoods, and Redington stated he wanted to avenge Spierer. The

      detective conducting the interview thought Redington was “very delusional,” as

      he jumped from one conversation to the next and would talk to himself when

      left alone and under his breath to himself when in the presence of others. Id. at

      827. Following the interview, Redington was transported to the IU Health

      Center on a 72-hour hold for a psychiatric evaluation. The nurse who handled

      his admission said he seemed to be experiencing a break with reality.

      Redington told her that his neighbors were running through his home, even

      though his wife had not witnessed any intruders; he did not feel safe at home;




      Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019        Page 5 of 28
      he saw ghosts; and he hears a voice in his head. Psychiatrist Carey Mayer

      treated Redington during his evaluation.


[7]   The same night Redington was taken to the hospital, BPD obtained

      authorization to retain the three firearms seized from Redington and a search

      warrant to search his house in Indianapolis for other firearms. Officers

      executing the search warrant at Redington’s home found guns scattered

      throughout the home as well as “enough ammunition to probably fill up the

      back of a pickup truck.” Id. Most of the firearms were found in Redington’s

      bedroom, including one in between the mattress and the frame and another

      twelve under the bed. Police recovered forty-eight firearms from Redington’s

      home, including rifles equipped with scopes, handguns, and shotguns, for a

      total of fifty-one firearms removed from Redington’s possession.


[8]   The State filed a petition pursuant to Indiana Code section 35-47-14-5 to retain

      Redington’s firearms alleging Redington was a “dangerous” individual as

      defined by Indiana Code section 35-47-14-1. The trial court held a hearing as

      required by statute at which Dr. Mayer testified to his impressions from both

      treating Redington and gathering information from Redington’s wife and other

      personnel at the hospital who interacted with him. Specifically, he testified that

      he believed Redington suffered from a schizotypal personality disorder and had

      not ruled out the possibility that Redington had a delusional or paranoid

      disorder. He prescribed an antipsychotic medication and recommended that

      Redington pursue out-patient treatment. But he had released Redington

      because he did not believe him to be an imminent danger to himself or others.

      Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019           Page 6 of 28
      Nonetheless, “[e]veryone can be potentially dangerous[,]” and Dr. Mayer had

      “some concerns[,]” based on Redington’s history of visual hallucinations,

      paranoia, and multitude of guns, that he had “a dangerous future potential.”

      Id. at 844. Dr. Mayer summarized that his professional opinion based on all the

      information available to him was that Redington “could pose a potential future

      risk[.]” Id. After the hearing, the trial court issued its order granting the State’s

      motion to retain the firearms, concluding without further explanation that the

      State “has proved by clear and convincing evidence that [Redington] was

      dangerous as defined by I.C. 35-47-14-1[.]” Id. at 828. The court also ordered

      Redington’s license to carry a handgun be suspended.


[9]   Redington appealed, arguing Indiana Code chapter 35-47-14 was

      unconstitutional and the evidence that he was “dangerous” was insufficient to

      order retention of his firearms. With respect to the constitutionality of the

      statute, Redington I held unanimously that the statute does not violate Article 1,

      section 32 of the Indiana Constitution; does not violate Article 1, section 21 of

      the Indiana Constitution or the Fifth Amendment to the United States

      Constitution; and is not void for vagueness. See id. at 835, 837, 839.

      Specifically of interest to this case, as to the right to bear arms protected by

      Article 1, section 32 of the Indiana Constitution, the court held the statute did

      not place a material burden on Redington’s right to bear arms because chapter

      35-47-14 provides a mechanism for an individual to regain his right to carry a

      handgun as well as to recover his seized firearms. Id. at 834. And as to the

      vagueness argument, the court held that the definition of “dangerous” is not


      Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019            Page 7 of 28
       vague because the legislature drew the line between trivial and substantial acts

       or omissions by specifying “the circumstances in which a court may find an

       individual to be dangerous in the future.” Id. at 839.


[10]   A majority of this court affirmed the trial court’s order with regard to the

       sufficiency of the evidence:


               Based upon our review of the record, we conclude that evidence
               of probative value exists from which the court could have
               determined that Redington was dangerous as defined by Ind.
               Code § 35-47-14-1(a)(2)(B), and accordingly it was within its
               discretion to order the Bloomington Police Department to retain
               Redington’s firearms pursuant to Ind. Code § 35-47-14-6(b).


       Id. at 845. The majority specifically noted that it did not affirm the trial court

       on the basis of section 35-47-14-1(a)(1) (individual presents an “imminent risk

       of personal injury” to self or someone else) or section 35-47-14-1(a)(2)(A)

       (individual may present a risk to self or someone else in the future and has a

       mental illness with pattern of not taking medication), but only on the basis of

       section 35-47-14-1(a)(2)(B) (may present a risk to self or someone else in the

       future and has a propensity for “violent or emotionally unstable conduct”). Id.

       at 845 n.7. Judge Riley dissented as to the sufficiency issue. Specifically, Judge

       Riley noted the following testimony of Dr. Mayer:


               At the time that somebody is discharged from the hospital our
               duty at that point is to ascertain if they are in imminent danger
               upon themselves or others.


               ***

       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019            Page 8 of 28
               We felt that [Redington] was not in imminent danger. If we
               thought that he was[,] we would have kept him longer in the
               hospital until just [the] time that he [was] no longer [ ] [an]
               imminent danger.


       Id. at 847. Accordingly, Judge Riley concluded “the mental health professional

       who assessed Redington provided testimony establishing that Redington was

       not dangerous under I.C. § 35-47-14-1 and the State provided no further

       probative evidence establishing otherwise.” Id. at 848. Redington sought

       transfer to the supreme court, but his petition was denied on November 7, 2013.


                                     II. Current Proceedings
[11]   On June 29, 2015, Redington filed a petition for return of his firearms pursuant

       to Indiana Code section 35-47-14-8. A hearing on the petition was held on

       January 17, 2018. In support of his petition, Redington offered his own

       testimony, that of his wife, and that of Doctor Shaun Wood, a psychiatrist. He

       also offered into evidence statements by two additional treatment providers.

       Generally, the testimony showed that Redington has never been arrested or

       convicted of a crime, he has never threatened anyone, he has been gainfully

       employed for decades, and he remains in a long-term marriage.


[12]   Penny Redington, Redington’s wife of seventeen years, testified that Redington

       is “very laid back . . . very generous. Kind, caring.” Transcript, Volume 2 at 9.

       She said he had firearms before they were married and “[h]e is very meticulous

       about keeping his firearms clean and in good working order. He has never

       pointed a firearm at anyone that I have ever seen. He basically uses his

       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019          Page 9 of 28
       firearms for hunting.” Id. at 10. She described how, at the time of the first

       hearing, they had a gun safe that held twelve to fifteen firearms but it was full,

       so they had firearms “in every room basically. They were not loaded.” Id.

       Since that hearing, they have acquired an additional gun safe and have agreed

       that “fifty-one firearms is a lot of firearms to have. So he said if he actually gets

       some of them back he would try and sell some of them. . . . His intention is to

       cut back.” Id. at 11. Penny had never seen Redington threaten anyone with a

       gun or handle a firearm unsafely and she had no concerns whatsoever about

       Redington’s firearms being returned to him:


               He is not a violent person. He has never been a violent person.
               He has never been arrested or charged with anything. The only
               thing that he has ever had is a traffic ticket for not wearing his
               seatbelt. . . . He is so laid back it’s not in his character.


       Id. at 14. On cross-examination, Penny denied Redington had ever talked with

       her about “death following him” or a “ghost or spirit following him,” but she

       acknowledged they are both very religious and “believe that there are spirit

       entities.” Id. at 15-16. Penny further acknowledged Redington’s interest in the

       Spierer case and that he believes he has the “gift of prophecy . . . [t]hat he can

       sense things before they happen.” Id. at 18. Penny also acknowledged that

       Redington had purchased a gun after his guns were seized, but said that he had

       returned it the next day and they currently have no firearms in the house.


[13]   Redington testified on his own behalf. He testified that he was employed as a

       machinist for most of his life. He had been at his current job for approximately


       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019             Page 10 of 28
       three years. Before that, he had been employed for twenty-five years at CMW

       until the company was closed and all employees were laid off. He had never

       been disciplined while working at CMW and his priority, for himself and those

       he trained, was safety because “[t]hose machines don’t forgive you.” Id. at 22.

       Redington testified that he has never been arrested or even been in a fight.

       Redington said that he previously had concerns about people running through

       his house because he heard footsteps, but he never felt a sense of danger and he

       no longer has those concerns. When asked why he had guns, he replied, “As a

       kid we always had guns. . . . I was always interested in deer hunting . . . .” Id.

       at 26. Redington did not believe the court should be concerned about returning

       his firearms because “[t]hings are safe. I am also going to downsize.” Id. at 30.


[14]   At the request of CMW, Redington had undertaken counseling to determine his

       fitness for work after the underlying events of Redington I. He acknowledged

       that he had undergone counseling during his testimony but had little to say

       about it. Redington counseled with Michael Fallahay at Hope Counseling from

       October 23, 2012 through March 5, 2013, attending eight scheduled sessions.

       Fallahay described himself as an “Individual, Couple, and Family Therapist”

       and stated that he is “neither a licensed clinical psychologist nor a forensic

       psychologist.” Exhibit Index, Volume 1 at 6. Redington was also evaluated by

       Andrew Brothers, a psychologist at Indiana Health Group, on September 26,

       2012. Their reports were reviewed by Dr. Wood as part of his evaluation of




       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019         Page 11 of 28
       Redington and were admitted into evidence at the hearing.5 The reports were

       addressed to CMW and, in assessing Redington’s fitness to return to the

       workplace, essentially stated that Redington was not “dangerous” pursuant to

       the statutory definition. The Hope Counseling report stated, “While his

       thoughts may seem unusual at times to others, he has never in my presence

       expressed any desire or intention to harm another person or location.” Exhibit

       Index, Volume 1 at 6. Brothers concluded “it is not possible to substantiate that

       he is an ‘imminent’ risk of harm to himself or others at this time in a manner

       that would preclude his ability to engage in effective work functioning as a

       machinist.” Id. at 8.


[15]   Finally, Dr. Wood testified. He met with Redington in 2016 and reviewed the

       2012 reports made by Hope Counseling Ministries and Indiana Health Group

       as well as the medical records submitted during the Redington I proceedings.

       Based on Redington’s lack of violent history, his history of stable and long-

       standing employment, and the nature of his marital relationship, Dr. Wood

       opined that Redington does not have a mental illness, as that term is defined by

       statute, nor does he have a personality disorder. Further, Dr. Wood testified:




       5
         These reports were offered into evidence during Dr. Wood’s testimony. The State objected, and the court
       ruled that even though it believed the State’s objection was proper, it was “going to admit them anyway.
       Because I do believe that the more information that the Court has will be more beneficial in this hearing”
       because it was “a close determination as to whether Mr. Redington is competent under the statute to be able
       to retrieve his guns.” Tr., Vol. 2 at 39. The trial court allowed the reports only for the purpose that Dr.
       Wood “used these to help formulate whatever opinion, I am assuming, you [are] going to have him put
       before the Court.” Id. at 40. Neither Fallahay nor Brothers appeared to testify at the hearing.

       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019                               Page 12 of 28
               He presents no risk. He presents no danger. There is no bases
               [sic] to which even make that ascertain [sic].


               ***


               [F]or a person to say may present a danger in the future or a risk
               of whatever there has to be a factual basis today to assert that at
               some point in time this would be behavior that they would repeat
               or this fact presents a precursor for this behavior in the future.
               We have not been able to confirm any risk based, evidence based,
               historical based, fact or data point to say that he represents a
               future risk.


       Tr., Vol. 2 at 46-47. Dr. Wood also testified that Redington “is less likely than

       the average citizen to have any [propensity] for emotional instability. Given his

       typical way of coping and dealing.” Id. at 49. Similarly, Dr. Wood’s written

       report concluded:


               Mr. Redington has no history of violent behavior, illness causing
               violence, nor demonstrated propensity for violence. None of his
               records reviewed demonstrated any factual evidence nor basis on
               which to assert a propensity for violence. He has interpersonal
               oddities in the way he relates and expresses himself but, the
               discomfort a person . . . might feel in response to this
               interpersonal style is not a basis to assert a propensity for
               violence.


       Exhibit Index, Vol. 1 at 14.


[16]   The State offered no evidence but did request the trial court take judicial notice

       of the proceedings in Redington I. Redington did not object to the trial court

       doing so, “with a caveat”:

       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019         Page 13 of 28
               [W]hat brings us here today is Mr. Redington[’s] request for a
               hearing on the issue of whether quote unquote no longer having
               the Court rule as it did in [2012]. That is the issue and it
               recognizes that a person could have been found dangerous in a
               previous proceeding. The issue today as defined by statute is
               whether he is no longer dangerous. With the State having
               offered no testimony or evidence as to Mr. Redington’s current
               mental health we would submit that everything submitted today
               is completely unrebutted and refuted [sic] since the statute
               recognizes that someone may be dangerous on one date and no
               longer dangerous on a different date.


       Tr., Vol. 2 at 56.


[17]   The trial court issued its order on February 16, 2018, denying Redington’s

       petition. In relevant part, the trial court found:

               Respondent did not present credible evidence to show that circumstances
               have changed since the initial hearing in this matter.


               At the time of the initial hearing, when Respondent’s firearms
               were seized and retained by the Order of this Court, Respondent
               had been employed with the same employer (“CMW”) for an
               extended period of time and had been married for twelve years.
               Respondent spoke of seeing spirits and possessing the gift of
               prophecy. Moreover, Respondent believed that neighbors were
               entering and running through his home based on noises he would
               hear. This Court, and subsequently the Court of Appeals, found
               Respondent to be dangerous as defined by I.C. 35-47-14-l, and
               ordered the seized firearms to remain in the custody of the
               Bloomington Police Department.


               At the hearing on January 17, Respondent testified that he is no
               longer employed with CMW and has since held two jobs after
               being laid off by CMW. While his termination was due to the
       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019              Page 14 of 28
        company shutting down, Respondent had been placed on leave
        following the initial Court Order and required to undergo a
        “Fitness for Duty” examination. Respondent is still married.
        Respondent testified on January 17, 2018, that he believes people
        were in his home in the past and has, just recently, made
        comments to his wife about hearing noises in the house. Both
        Respondent and Respondent’s wife testified to his continued
        belief that Respondent has the gift of prophecy.


        ***


        Respondent relies heavily on the testimony of Dr. Wood as
        evidence that Respondent is not dangerous. Dr. Wood disagrees
        with the prior finding that Respondent is dangerous but does not
        provide any credible evidence to show that anything has changed since
        the initial hearing. Dr. Wood’s opinion of Respondent is bolstered
        by two separate evaluations that were conducted to determine
        whether Respondent would pose a danger under specific
        circumstances at a specific time, and only one of those
        assessments was conducted by a medical professional.
        Respondent has failed to show how either his behavior or the
        circumstances from the initial hearing in this action have changed in
        such a way that would show that he is not dangerous. While
        Respondent does maintain employment and his marriage is still
        intact, these factors existed prior. But since the initial hearing,
        Respondent went out and purchased another firearm despite the
        order seizing his other firearms and suspending his license.
        Respondent still believes that he has heard people in his home
        and that he has the gift of prophecy, despite having taken
        medication to address a diagnosed personality disorder. He no
        longer attends counseling sessions that were recommended.
        Furthermore, Respondent does not offer any reason as to why
        this Court should find him not dangerous when asked if there
        should be concern with regard to returning the firearms.



Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019           Page 15 of 28
               Finally, at the hearing on January 17, 2018, Respondent noted
               that the State did not rebut any of the evidence given nor call any
               witnesses to show Respondent is dangerous. Pursuant to I.C. 35-
               47-14-8(d)(2), the burden is on the Respondent to show by a
               preponderance of the evidence that he is not dangerous. The
               State does not have a burden to once again prove that
               Respondent is a danger.


       Appealed Order at 1-3 (emphasis added). Accordingly, the trial court denied

       Redington’s petition, ordered that Redington’s firearms remain in the custody

       of BPD, and ordered that Redington’s license to carry a handgun remain

       suspended. Redington now appeals.



                                  Discussion and Decision                           6




                                         I. Relevant Statutes
[18]   Indiana’s procedure for the seizure and retention of a firearm owned by an

       allegedly dangerous individual is described in Indiana Code chapter 35-47-14.

       In 2012, BPD used this procedure to seize Redington’s firearms because BPD

       believed, and the trial court found probable cause to believe, that Redington

       was dangerous. See Ind. Code § 35-47-14-3 (pursuant to which the firearms

       Redington was carrying were immediately seized and the trial court later found

       probable cause) and Ind. Code § 35-47-14-2 (pursuant to which a warrant was

       issued to search Redington’s house). The trial court then held a hearing as



       6
        We held oral argument in this case on February 26, 2019 in the Court of Appeals courtroom in
       Indianapolis, Indiana. We thank counsel for their presentations.

       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019                            Page 16 of 28
required by section 35-47-14-5 to determine whether the firearms should be

returned to Redington or retained by police. At the hearing, the burden was on

the State to prove all material facts by clear and convincing evidence. Ind.

Code § 35-47-14-6(a). The question to be answered was whether or not

Redington was a “dangerous” individual as defined by statute:


        (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 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.


Ind. Code § 35-47-41-1(a) (emphasis added). After hearing evidence from BPD

officers, IU Health Center personnel including Dr. Mayer, Redington, and

Redington’s wife, the trial court determined the State proved by clear and

convincing evidence that Redington was “dangerous” and therefore, ordered



Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019               Page 17 of 28
       BPD to retain Redington’s firearms and suspended Redington’s license to carry

       a handgun. See Ind. Code § 35-47-14-6(b).


[19]   Indiana Code section 35-47-14-8(a) provides that after at least 180 days have

       passed from such an order being issued, the individual may petition the court

       for return of the firearms. The trial court’s order to retain Redington’s firearms

       was issued on September 19, 2012. Redington filed his petition for their return

       on June 29, 2015. In this proceeding, Redington was required to prove “by a

       preponderance of the evidence that [he] is not dangerous.” Ind. Code § 35-47-

       14-8(d)(2). Having been denied the return of his firearms on this first request,

       Redington must wait at least 180 more days before filing a subsequent petition

       seeking their return. Ind. Code § 35-47-14-8(f). If at least five years pass

       without the firearms being returned to Redington, the court may order the

       police department to dispose of the firearms.7 Ind. Code § 35-47-14-9. If the

       firearms are to be disposed of, the court must first give notice to the parties and

       conduct a hearing, but section 9 gives no guidance as to who may request

       disposal, what the hearing must address, or who has the burden of proof.


[20]   This chapter has been substantively addressed in exactly one case: Redington I.

       Therefore, the section allowing an individual to petition for return of firearms

       has yet to be construed.




       7
        At any time after a retention order is issued, the individual may request the court order the law enforcement
       agency to sell the firearms at an auction and return the proceeds, less costs, to the individual. Ind. Code § 35-
       47-14-10.

       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019                                   Page 18 of 28
                                      II. Standard of Review
[21]   “On appeal of claims tried by the court without a jury . . . the court on appeal

       shall not set aside the findings or judgment unless clearly erroneous, and due

       regard shall be given to the opportunity of the trial court to judge the credibility

       of the witnesses.” Ind. Trial Rule 52(A); see also Merlington v. State, 839 N.E.2d

       260, 262 (Ind. Ct. App. 2005) (noting when reviewing a ruling on a motion for

       return of property seized during an arrest, “we are reviewing a case tried to a

       court without a jury, and therefore we will not reverse unless the decision is

       clearly erroneous and cannot be sustained upon any legal theory supported by

       the evidence”). We define the clearly erroneous standard based upon whether

       the party is appealing a negative judgment or an adverse judgment. Fowler v.

       Perry, 830 N.E.2d 97, 102 (Ind. Ct. App. 2005). Because the trial court entered

       an order against Redington, who had the burden of proof, he is appealing from

       a negative judgment. See Garling v. Ind. Dep’t of Nat. Res., 766 N.E.2d 409, 411

       (Ind. Ct. App. 2002), trans. denied. We will reverse a negative judgment only

       where the decision of the trial court is contrary to law. Kotsopoulos v. Peters

       Broadcast Eng’g, 962 N.E.2d 97, 105 (Ind. Ct. App. 2011). In determining

       whether a trial court’s decision is contrary to law, we must determine if the

       undisputed evidence and all reasonable inferences to be drawn from that

       evidence lead to but one conclusion, and the trial court has reached a different

       conclusion. Id.




       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019          Page 19 of 28
                           III. Petition for Return of Firearms
[22]   By statute, Redington was required to prove by a preponderance of the evidence

       that he “is not dangerous” in order to have his firearms returned to him. Ind.

       Code § 35-47-14-8(d)(2). “Preponderance of the evidence” “simply means the

       greater weight of the evidence.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 (Ind.

       Ct. App. 2014) (quotation omitted).


[23]   The parties agree that the basis for retaining Redington’s firearms in 2012 was a

       finding pursuant to Indiana Code section 35-47-14-1(a)(2)(B) that he “may

       present a risk of personal injury to [himself] or to another individual in the

       future and [he] is the subject of documented evidence that would give rise to a

       reasonable belief that [he] has a propensity for violent or emotionally unstable

       conduct.” See Redington, 992 N.E.2d at 842 (holding “the record is substantial”

       as to both a future risk and propensity for emotionally unstable conduct);

       Amended Br. of Appellant at 25 (noting Redington I “only affirmed the trial

       court’s determination that Redington was ‘dangerous’ under I.C. § 35-47-14-

       1(a)(2)(B)”); Brief of Appellee at 13 (“The trial court previously found, and this

       Court previously affirmed, that the State had proved by clear and convincing

       evidence that [Redington] was dangerous under subsection (a)(2)(B) of the

       statute in that he posed a risk of harm in the future due to his documented

       emotionally unstable conduct.”).


[24]   Based on that agreement, Redington argues that because the original finding he

       was “dangerous” was based on the possibility of future conduct, there is no


       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019         Page 20 of 28
       legitimate way for him to prove that he is no longer dangerous if the standard is

       as the trial court stated: that he must show either his behavior or his

       circumstances have changed since the first hearing. See Appealed Order at 1.

       He argues that the trial court’s interpretation would make section 35-47-14-8

       illusory and call into question this court’s holding in Redington I that the statute

       is constitutional, a holding that was based in part on the “magnitude of the

       [statute’s] impairment” on his Second Amendment right being lessened due to

       the possibility of regaining his right to carry a firearm through the statutory

       process. See 992 N.E.2d at 834. Redington points out that he presented “the

       only possible evidence available on the issue of his likelihood of becoming a

       danger in the future[,]” Amended Br. of Appellant at 26, the unrefuted expert

       testimony of Dr. Wood that he was not a risk, now or in the future, of causing

       personal injury to himself or others; was not emotionally unstable; and has no

       propensity for violence. Redington also notes that he is not asking this court to

       reweigh the evidence in his favor because “there is simply no evidence to place

       on the State’s side of the scale.” Id. at 27.


[25]   The State, on the other hand, agrees with the trial court’s formulation of the

       standard under section 35-47-14-8 and succinctly states in its Summary of

       Argument what it believes Redington needed to show to meet his burden:


               The evidence presented by [Redington] did nothing to rebut the
               evidence which previously established [his] dangerousness
               because it did not demonstrate any way in which those
               circumstances had changed during the intervening years.
               Testimony from [Redington’s] witnesses showed there had been
               no changes in his emotional stability or in his delusional beliefs.
       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019          Page 21 of 28
                [Redington] has not received any mental health treatment during
                the intervening years that has improved his psychiatric problems
                or ameliorated the manifestations of those problems.


       Br. of Appellee at 11. The State posits that the 2012 evidence established that

       Redington was dangerous, “and that status remained in effect unless and until

       [Redington] showed that the prior evidence was no longer applicable to his

       current state.” Id. at 23. Therefore, the State contends that it was not required

       to present new evidence to prove that Redington was still dangerous. 8 The

       State also argues the trial court was not required to believe Dr. Wood’s

       testimony at the current hearing over Dr. Mayer’s testimony at the 2012 hearing

       and therefore, Redington’s evidence was not wholly unrebutted because the

       trial court took judicial notice of the 2012 proceedings.


[26]   “In a hearing on a petition [to return firearms], the individual . . . must prove by

       a preponderance of the evidence that the individual is not dangerous.” Ind. Code

       § 35-47-14-8(d)(2) (emphasis added). Moreover, the definition of “dangerous”

       requires a determination that a person “has a propensity for violent or

       emotionally unstable conduct” in the future. Ind. Code § 35-47-14-1(a)(2)




       8
         Of note, Indiana Code chapter 35-47-14 does not put a time limit on the trial court’s initial retention order.
       Contra Conn. Gen. Stat. § 29-38c(d) (1999) (an order that firearms be confiscated may be issued for a period
       not to exceed one year); Vt. Stat. tit. 13 § 4053(e)(2) (an order may be issued for a period of up to six
       months). In fact, our survey of the other thirteen red flag laws shows that they all impose a time limit on the
       initial retention order, and if the petitioner wishes to extend the order beyond its original limit, it must
       petition the court before the expiration of the order and again prove that the individual meets the criteria.
       See, e.g., Cal. Penal Code § 18190; 430 Ill. Comp. Stat. 67/45(b); but see Conn. Gen. Stat. § 29-38c (one year
       limit with no provision for renewal). In addition, several other red flag laws allow not just law enforcement
       but also family members to petition for a retention order. See Cal. Penal Code § 18150(a).

       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019                                   Page 22 of 28
(emphasis added). Based on the plain language of this statute, Redington had

to prove that he is not now dangerous under the statutory definition of that

term. The statute is written in the present tense, and it has no qualifying

language, such as that he must prove that he “is no longer dangerous” or that

the circumstances that led to him being found dangerous in the past have

changed. If the legislature intended that the individual be required to overcome

the previous determination, it knows how to do so. See, e.g., Ind. Code § 31-17-

2-21 (criteria for modification of a child custody order includes a showing that

“there is a substantial change” in the previously considered factors); Ind. Code

§ 31-16-8-1 (criteria for modification of a child support order includes a

“showing of changed circumstances so substantial and continuing as to make

the terms unreasonable”). But the legislature did not do so in the case.

Therefore, contrary to the State’s argument that Redington must prove he is no

longer dangerous by rebutting the evidence that previously established he was

dangerous with evidence that circumstances have changed, see Br. of Appellee

at 11, the determination under section 8 is essentially a new determination in

which the court must consider present circumstances and look prospectively

when applying the definition of “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. Likewise, we are not revisiting the 2012

determination but reviewing the facts and circumstances before the trial court in

2018.


Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019           Page 23 of 28
[27]   As there has never been any evidence that Redington presents an imminent risk

       of personal injury to himself or others (section 35-47-14-1(a)(1)) or that he has a

       mental illness (section 35-47-14-1(a)(2)(A)), we evaluate whether he is

       dangerous solely under section 35-47-14-1(a)(2)(B): does the evidence show

       that as of 2018 Redington may present a risk of personal injury to himself or

       another in the future and is he the subject of documented evidence that would

       give rise to a reasonable belief in 2018 that he has a propensity for emotionally

       unstable conduct?


[28]   As to Redington’s future risk, the State relies solely on the 2012 determination

       that Redington may present a risk of personal injury to himself or someone else

       in the future and argues the trial court was entitled to continue to credit Dr.

       Mayer’s testimony from the first hearing over Dr. Wood’s testimony from the

       more recent hearing.9 Under the State’s formulation, a person could never

       prove they are not dangerous under section 35-47-14-8 because once a person

       has been deemed potentially dangerous in the future, “the future” becomes

       essentially endless and nothing that happens—or perhaps more relevantly, does

       not happen—after the original determination is relevant. The State’s constant

       refrain both in its brief and at oral argument was that “nothing has changed”

       from 2012; for instance, the State gives no credit to Redington’s 2018 evidence




       9
         The State focuses on Dr. Wood’s disagreement with Dr. Mayer’s 2012 opinion. It is true that Dr. Wood
       did not believe there was a basis in 2012 to find Redington dangerous, but as we have stated, we are not
       revisiting the 2012 determination. Importantly for our purposes, Dr. Wood testified that Redington does not
       now present a risk of future danger.

       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019                              Page 24 of 28
       that he is still married to the same woman, still gainfully employed, and still has

       no criminal history despite those facts showing stability, because they are “facts

       that had been equally true in 2012[.]” Br. of Appellee at 16. But if the lack of

       aggressive or alarming behavior for several years is not a “change,” then there is

       nothing Redington could ever show to prove he is not currently dangerous.

       And if, as the State posits, the earlier determination is entitled to at least equal

       weight with current evidence, then a person could never overcome the original

       determination because it will always be a consideration. If the State’s position

       were correct, the statute would be unconstitutional as applied to Redington

       because the Redington I decision that the statute passed constitutional muster

       would have been based on the false promise that he could someday regain

       possession of his firearms. In short, the fact that we interpret the language in

       section 35-47-14-8 to require a new determination when a return of firearms is

       requested is what keeps the statutory scheme from being unconstitutional as

       applied, if not unconstitutional on its face.


[29]   As Dr. Mayer said in 2012, “Everyone can be potentially dangerous.”

       Redington, 992 N.E.2d at 844. Therefore, the crucial determination is whether

       Redington is the subject of documented evidence that would give rise to a

       reasonable belief in 2018 that he has a propensity for violent or emotionally

       unstable conduct. Dr. Wood testified that gauging a propensity for violent or

       emotionally unstable conduct “would have to be based on a set of behaviors or

       certain predictive factors.” Tr., Vol. 2 at 48. The best evidence of the predictive

       factors for future risk in 2012 was the odd behavior Redington demonstrated in


       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019           Page 25 of 28
       Bloomington on two occasions and the testimony of Dr. Mayer that Redington

       had “a dangerous future potential.” 992 N.E.2d at 844. The best evidence of

       the predictive factors for future risk now is what has happened between the

       original determination and the current proceeding. In this regard, we note that

       Redington could have asked for the return of his firearms after just six months.

       Ind. Code § 35-47-14-8(a). Instead, he did not file his petition until nearly three

       years after his firearms were confiscated and a hearing was not held for another

       two and one-half years. This is not a small sample size by which to gauge

       Redington’s behavior—nearly six years have passed. And in those six years,

       the 2012 prediction has failed to come true: nothing has happened from which

       one could predict in 2018 that Redington is a risk now or in the future.


[30]   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, see supra ¶ 26, this section is written in the present tense

       and therefore requires current evidence of such a propensity. 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. Dr. Wood

       testified that emotional instability “represents a person who has lost their

       capacity to cope with their external emotional experience and they start acting

       it out, verbally, physically.” Tr., Vol. 2 at 48. Therefore, the State’s reliance

       on, as Dr. Wood phrased it in his report, Redington’s “interpersonal oddities,”

       exhibit index, vol. 1 at 14, such as believing he has the gift of prophecy, is

       irrelevant absent evidence of him acting on those thoughts.


       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019           Page 26 of 28
[31]   Redington met his burden of proving by a preponderance of the evidence that

       he is not dangerous by presenting the testimony of a psychiatrist that he does

       not present a risk in the future because there is no evidence he has a propensity

       for violent or emotionally unstable conduct. The burden of going forward then

       shifted to the State to show otherwise. See Calumet Motor Sales of Hammond, Inc.

       v. M.F. Cooper Builders, Inc., 140 Ind. App. 624, 221 N.E.2d 438, 441 (1966)

       (“Once plaintiff-appellee introduced evidence to establish the essential elements

       of his cause of action, the burden of going forward shifted to the defendant-

       appellant to introduce evidence if, in its opinion, the evidence produced by

       plaintiff was not correct.”). But the State offered no current evidence and

       elicited no testimony on cross-examination of Redington’s witnesses that

       Redington currently has a propensity for emotionally unstable conduct. The

       undisputed evidence Redington offered in 2018 is that he currently has no

       propensity for violent or emotionally unstable conduct, which leads only to the

       conclusion that Redington is not currently dangerous; therefore, the trial court’s

       judgment to the contrary is clearly erroneous. Redington is entitled to the

       return of his firearms.



                                                Conclusion
[32]   Because the State put on no evidence relevant to Redington’s status at the time

       of his petition for return of his firearms and instead relied solely on evidence

       from 2012, the undisputed evidence and all reasonable inferences to be drawn

       from that evidence lead to but one conclusion—that Redington is not


       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019         Page 27 of 28
       dangerous—and therefore, the trial court’s judgment to the contrary is clearly

       erroneous. We reverse the trial court’s order and remand for the trial court to

       enter an order that Redington’s firearms be returned to him.


[33]   Reversed and remanded.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-950 | April 5, 2019       Page 28 of 28
