Indiana 2024 Regular Session

Indiana Senate Bill SB0289 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1
2	2	Introduced Version
3	3	SENATE BILL No. 289
4	4	_____
5	5	DIGEST OF INTRODUCED BILL
6	6	Citations Affected: IC 35-47-14.
7	7	Synopsis: Sealing of red flag records. Requires the sealing of certain
8	8	records concerning a proceeding under the red flag law if a person is
9	9	found: (1) not to be dangerous; or (2) no longer to be dangerous.
10	10	Effective: July 1, 2024.
11	11	Freeman
12	12	January 16, 2024, read first time and referred to Committee on Corrections and Criminal
13	13	Law.
14	14	2024 IN 289—LS 6905/DI 106 Introduced
15	15	Second Regular Session of the 123rd General Assembly (2024)
16	16	PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
17	17	Constitution) is being amended, the text of the existing provision will appear in this style type,
18	18	additions will appear in this style type, and deletions will appear in this style type.
19	19	Additions: Whenever a new statutory provision is being enacted (or a new constitutional
20	20	provision adopted), the text of the new provision will appear in this style type. Also, the
21	21	word NEW will appear in that style type in the introductory clause of each SECTION that adds
22	22	a new provision to the Indiana Code or the Indiana Constitution.
23	23	Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
24	24	between statutes enacted by the 2023 Regular Session of the General Assembly.
25	25	SENATE BILL No. 289
26	26	A BILL FOR AN ACT to amend the Indiana Code concerning
27	27	criminal law and procedure.
28	28	Be it enacted by the General Assembly of the State of Indiana:
29	29	1 SECTION 1. IC 35-47-14-6, AS AMENDED BY P.L.142-2020,
30	30	2 SECTION 78, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
31	31	3 JULY 1, 2024]: Sec. 6. (a) The court shall conduct a hearing as
32	32	4 required under this chapter.
33	33	5 (b) The state has the burden of proving all material facts by clear
34	34	6 and convincing evidence.
35	35	7 (c) If the court determines that the state has proved by clear and
36	36	8 convincing evidence that the individual is dangerous, the court shall
37	37	9 issue a written order:
38	38	10 (1) finding the individual is dangerous (as defined in section 1 of
39	39	11 this chapter);
40	40	12 (2) ordering the law enforcement agency having custody of the
41	41	13 seized firearm to retain the firearm;
42	42	14 (3) ordering the individual's license to carry a handgun, if
43	43	15 applicable, suspended; and
44	44	16 (4) enjoining the individual from:
45	45	17 (A) renting;
46	46	2024 IN 289—LS 6905/DI 106 2
47	47	1 (B) receiving transfer of;
48	48	2 (C) owning; or
49	49	3 (D) possessing;
50	50	4 a firearm; and
51	51	5 determine whether the individual should be referred to further
52	52	6 proceedings to consider whether the individual should be involuntarily
53	53	7 detained or committed under IC 12-26-6-2(a)(2)(B).
54	54	8 (d) If the court finds that the individual is dangerous under
55	55	9 subsection (c), the clerk shall transmit the order of the court to the
56	56	10 office of judicial administration:
57	57	11 (1) for transmission to NICS (as defined in IC 35-47-2.5-2.5); and
58	58	12 (2) beginning July 1, 2021, for the collection of certain data
59	59	13 related to the confiscation and retention of firearms taken from
60	60	14 dangerous individuals;
61	61	15 in accordance with IC 33-24-6-3.
62	62	16 (e) If the court orders a law enforcement agency to retain a firearm,
63	63	17 the law enforcement agency shall retain the firearm until the court
64	64	18 orders the firearm returned or otherwise disposed of.
65	65	19 (f) If the court determines that the state has failed to prove by clear
66	66	20 and convincing evidence that the individual is dangerous, the court
67	67	21 shall issue a written order that:
68	68	22 (1) the individual is not dangerous (as defined in section 1 of this
69	69	23 chapter); and
70	70	24 (2) the law enforcement agency having custody of the firearm
71	71	25 shall return the firearm as quickly as practicable, but not later
72	72	26 than five (5) days after the date of the order, to the individual
73	73	27 from whom it was seized; and
74	74	28 (3) the following records shall be sealed:
75	75	29 (A) The court's file.
76	76	30 (B) The records of any law enforcement agency or other
77	77	31 person involved in:
78	78	32 (i) the investigation of the individual under this chapter;
79	79	33 (ii) the filing of a search warrant and search warrant
80	80	34 return under sections 2 and 4 of this chapter; and
81	81	35 (iii) the filing of an affidavit under section 3 of this
82	82	36 chapter.
83	83	37 (C) Records relating to the proceeding under this chapter
84	84	38 contained in any central repository for criminal history or
85	85	39 civil litigation information, including the repository
86	86	40 maintained by the state police department. This clause
87	87	41 does not require the state police department to seal any
88	88	42 record the state police department does not have legal
89	89	2024 IN 289—LS 6905/DI 106 3
90	90	1 authority to seal.
91	91	2 Records ordered sealed under this subdivision may not be
92	92	3 disclosed to any individual or be accessible to any person
93	93	4 unless authorized by a court order.
94	94	5 (g) If:
95	95	6 (1) a court issued an order under subsection (f) before July 1,
96	96	7 2024; and
97	97	8 (2) a person subsequently files a motion to amend the order to
98	98	9 include the provisions of subsection (f)(3);
99	99	10 the court shall grant the motion and issue an amended order
100	100	11 including the provisions of subsection (f)(3).
101	101	12 SECTION 2. IC 35-47-14-8, AS AMENDED BY P.L.142-2020,
102	102	13 SECTION 79, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
103	103	14 JULY 1, 2024]: Sec. 8. (a) At least one hundred eighty (180) days after
104	104	15 the date on which a court orders a law enforcement agency to retain an
105	105	16 individual's firearm under section 6(c) of this chapter, the individual
106	106	17 may petition the court for a finding that the individual is no longer
107	107	18 dangerous.
108	108	19 (b) Upon receipt of a petition described in subsection (a), the court
109	109	20 shall:
110	110	21 (1) enter an order setting a date for a hearing on the petition; and
111	111	22 (2) inform the prosecuting attorney of the date, time, and location
112	112	23 of the hearing.
113	113	24 (c) The prosecuting attorney shall represent the state at the hearing
114	114	25 on a petition under this section.
115	115	26 (d) In a hearing on a petition under this section, the individual may
116	116	27 be represented by an attorney.
117	117	28 (e) In a hearing on a petition under this section filed:
118	118	29 (1) not later than one (1) year after the date of the order issued
119	119	30 under section 6(c) of this chapter, the individual must prove by a
120	120	31 preponderance of the evidence that the individual is no longer
121	121	32 dangerous; and
122	122	33 (2) later than one (1) year after the date of the order issued under
123	123	34 section 6(c) of this chapter, the state must prove by clear and
124	124	35 convincing evidence that the individual is still dangerous.
125	125	36 (f) If, upon the completion of the hearing and consideration of the
126	126	37 record, the court finds that the individual is no longer dangerous, the
127	127	38 court shall:
128	128	39 (1) issue a court order that finds that the individual is no longer
129	129	40 dangerous;
130	130	41 (2) order the law enforcement agency having custody of any
131	131	42 firearm to return the firearm as quickly as practicable, but not
132	132	2024 IN 289—LS 6905/DI 106 4
133	133	1 later than five (5) days after the date of the order, to the
134	134	2 individual;
135	135	3 (3) terminate any injunction issued under section 6 of this
136	136	4 chapter; and
137	137	5 (4) terminate the suspension of the individual's license to carry a
138	138	6 handgun so that the individual may reapply for a license; and
139	139	7 (5) order that the following records be sealed:
140	140	8 (A) The court's file.
141	141	9 (B) The records of any law enforcement agency or other
142	142	10 person involved in:
143	143	11 (i) the investigation of the individual under this chapter;
144	144	12 (ii) the filing of a search warrant and search warrant
145	145	13 return under sections 2 and 4 of this chapter; and
146	146	14 (iii) the filing of an affidavit under section 3 of this
147	147	15 chapter.
148	148	16 (C) Records relating to the proceeding under this chapter
149	149	17 contained in any central repository for criminal history or
150	150	18 civil litigation information, including the repository
151	151	19 maintained by the state police department. This clause
152	152	20 does not require the state police department to seal any
153	153	21 record the state police department does not have legal
154	154	22 authority to seal.
155	155	23 Records ordered sealed under this subdivision may not be
156	156	24 disclosed to any individual or be accessible to any person
157	157	25 unless authorized by a court order.
158	158	26 (g) If:
159	159	27 (1) a court issued an order under subsection (f) before July 1,
160	160	28 2024; and
161	161	29 (2) a person subsequently files a motion to amend the order to
162	162	30 include the provisions of subsection (f)(5);
163	163	31 the court shall grant the motion and issue an amended order
164	164	32 including the provisions of subsection (f)(5).
165	165	33 (g) (h) If the court denies an individual's petition under this section,
166	166	34 the individual may not file a subsequent petition until at least one
167	167	35 hundred eighty (180) days after the date on which the court denied the
168	168	36 petition.
169	169	37 (h) (i) If a court issues an order described under subsection (f), or
170	170	38 an amended order described under subsection (g), the court's order
171	171	39 shall be transmitted, as soon as practicable, to the office of judicial
172	172	40 administration for transmission to the NICS (as defined in
173	173	41 IC 35-47-2.5-2.5) and, beginning July 1, 2021, for the collection of
174	174	42 certain data related to the confiscation and retention of firearms taken
175	175	2024 IN 289—LS 6905/DI 106 5
176	176	1 from dangerous individuals in accordance with IC 33-24-6-3.
177	177	2024 IN 289—LS 6905/DI 106