George Atkinson, Appellant-Respondent v. State of Indiana, Appellee-Petitioner (2025)

MEMORANDUM DECISION

Judges Foley and Scheele concur.

Case Summary

[1] Indiana's Red Flag Law (the “Act”)¹ authorizes the temporary seizure of firearms from dangerous individuals and provides a procedure for judicial review of the seizure. If a court finds an individual is dangerous as defined by the Act, it may order the firearms to be retained by law enforcement.²

[2] In early 2024, the Carmel Police Department (“CPD”) seized weapons and ammunition from George Atkinson under the Act while investigating a domestic dispute. Atkinson appeals the trial court's order finding him to be dangerous and ordering CPD to retain the seized firearms and ammunition. He argues the State did not present sufficient evidence to show he was “dangerous” as defined by the statute. We affirm.

Facts and Procedural History

[3] Atkinson and his wife, Natalie, were married in 2012 and are the parents of three children. According to Natalie, Atkinson would drink “[m]ultiple beers”—but “[n]ot every day”—and become intoxicated “[s]ome of the time.” Tr. Vol. 2 at 6. Natalie created a code she gave to two of her friends so they could call the police for her if there was an emergency or “an occasion in which drinking went too far.” Id. at 8. When Atkinson became intoxicated, he would sometimes abuse Natalie. One such incident occurred in December 2023. Atkinson “got a little aggressive” and was verbally abusive to Natalie. Id. at 8. He also spanked her and left bruises.

[4] One night in January 2024, Atkinson had been drinking and “it went a little bit further than [Natalie] felt comfortable [with].” Id. at 9. Natalie “was forced into a hot tub” and Atkinson grabbed her, spit on her, and told her, “I should put your head under water[.]” Id. Natalie “maneuvered out” of the hot tub, sent the emergency code to her friends because of “the hostility of the situation,” and went to a neighbor's house where it was “calmer.” Id. at 10, 13. She called the police.

[5] Police responding to the call asked Natalie if Atkinson had any weapons. She told them he did. She also answered in the affirmative to a series of questions about Atkinson's behavior, including, “Has he ever used a weapon against you or threatened you with a weapon?”; “[H]as he ever tried to choke, strangle, or cut off breathing with you?”; “Are you concerned about future assaults?”; and “Do you think [he] might try to kill you?” Id. at 21–22. After speaking with Natalie, officers went to the Atkinson home and tried to speak with Atkinson. Atkinson answered the door but told the officers to leave, so they applied for a warrant under the Act to “search for, remove and retain firearm(s)” from the Atkinson home because they had reason to believe Atkinson was a dangerous individual as defined by the Act. Appellant's App. Vol. 2 at 15.³ When they tried to serve the warrant, Atkinson did not answer the door. Officers gained entry to the house with a door code Natalie gave them and found Atkinson asleep on the couch. Officers arrested Atkinson and, pursuant to the warrant, seized three firearms and ammunition found in the house. As a result of his conduct that night, Atkinson was charged with intimidation, pleaded guilty by admitting he threatened to hold Natalie's head under water with the intent she be placed in fear the threat would be carried out, and was given a probationary sentence.

[6] On January 29, 2024, the State filed its notice of return of warrant and submitted a request for a hearing regarding retention of Atkinson's firearms. The trial court set a hearing for February 15. Due to continuances requested by both the State and Atkinson, the hearing was not held until January 31, 2025.⁴ Atkinson was still on probation for the intimidation conviction at the time of the hearing.

[7] At the hearing, Natalie said Atkinson had never threatened her with a firearm and she had never seen him point a firearm at anyone else. She said she had never been scared for her safety or her children's safety “as it revolves around firearms[.]” Tr. Vol. 2 at 18. When asked about the affirmative answers she had given officers on the night of the 2024 incident about Atkinson's prior behavior, she claimed, “If I said that, that's incorrect.” Id. at 22.

[8] Michael Stout, a neighboring landowner, testified regarding a couple of encounters that made him “cautious of Mr. Atkinson.” Id. at 27. In 2021, Stout saw Atkinson shooting fireworks from an alley near Atkinson's house into Stout's hay field. Concerned that “bits of rockets” would contaminate the “7-grain special grass hay” he grows to sell to surrounding horse farms, Stout asked Atkinson to stop shooting fireworks at his field. Id. at 24–25. Stout saw several beer cans and fireworks on the ground around Atkinson. Atkinson's response was “rowdy [and b]elligerent.” Id. at 25. Atkinson asked Stout if he had a gun. Stout said he thought that was odd, “like – my brain went to are you looking for permission to pull yours or what?” Id. at 27. Stout ignored the question and told Atkinson if he had to come back again, it would be with the police. Atkinson then said he would not do it again.

[9] But a couple of weeks later, Stout again saw fireworks being shot in the direction of his field and went to investigate. Atkinson came running at Stout's truck, blocking his path and trying to goad Stout out of the truck. Stout believed Atkinson was impaired and described his behavior as “attempted bullying” or an “attempt at intimidation.” Id. at 27. Atkinson told Natalie to call the police. While they all waited for police to arrive, Atkinson grabbed Stout's phone out of his hands and ran into his house with it. When Officer Ashley Commodore responded to the call, she could hear “a lot of commotion” and then a male voice yell, “I got the gun.” Id. at 33. She saw Atkinson “charging down his driveway in an aggressive” way. Id. Officer Commodore told Atkinson to stop and put his hands in the air, but Atkinson did not listen. He was “cussing very loudly,” yelling at the officer, and cursing at Stout who was still in his truck. Id. As the only officer on scene, Officer Commodore had to “forcibly put [Atkinson] in handcuffs” for her own safety. Id. Once the scene was under control, Officer Commodore spoke with each party. She saw fresh marks on Stout's face and determined Atkinson had scratched and hit Stout when taking his phone. Atkinson was convicted of conversion as a result of taking Stout's phone and completed probation.

[10] Finally, Atkinson testified at the hearing. He said after he took Stout's phone during the 2021 incident and went into the house, he got a gun from the top shelf of his closet and took it downstairs to the mudroom. He described “power-walk[ing], walk[ing] fast” toward Officer Commodore when he left the house, and said he did not have the gun with him. Id. at 50. He acknowledged he drank alcohol on occasion, sometimes heavily, and that it had led to verbal altercations and problems in his marriage. But he said he had not had any alcohol since the January 2024 incident—partially because it would violate his probation but also because he had voluntarily made the commitment to not drink alcohol after discussing it with Natalie “[m]ore times than [he could] count.” Id. at 51. To comply with his probation terms, Atkinson began attending therapy monthly, mostly addressing stress. He explained, “I enjoy the company. I work from home. I work a lot. I don't go hang out with people at the office all day, so it's a nice way to talk about stuff without bothering my wife with my problems[.]” Id. at 53. He replied, “yeah, sure,” when asked if he would continue therapy. Id. He denied being diagnosed with a mental illness, having suicidal thoughts, or ever being voluntarily or involuntarily committed to a mental facility.

[11] On cross-examination, Atkinson denied having “an alcohol problem.” Id. at 57. He said he has not participated in anger management counseling. He acknowledged he had a criminal recklessness conviction from 2006, an operating while intoxicated conviction from 2011, and a felony operating while intoxicated conviction from 2014, as well as the conversion and intimidation convictions.

[12] The trial court found Atkinson was a dangerous individual and that his firearms should be retained. The trial court explained:

This statute is about whether the individual would present a risk of personal injury to the individual or to another individual in the future [and] is [the] subject of documented evidence that would give rise to [a] reasonable belief that the individual has [a] propensity for violent or suicidal conduct․ He doesn't have to threaten somebody with his firearms. He has to meet the definition under this statute.

There are a number of things that I heard today that cause me concern․ [H]e has a history of five criminal arrests, the last four of which all involved alcohol. He comes here today and says he doesn't have a drinking problem. We've got no evidence he has undergone an intensive outpatient program or some significant counseling with respect to alcohol consumption.

We've got a wife who has a code that she has developed with close friends or family in the event that her husband gets out of control․ I think it's reasonable to assume that that would only occur if there was a history and the history was getting out of control with the consumption of alcohol. Mr. Atkinson, I don't think you're taking yourself seriously.

I think your wife was under pressure as to what she was testifying today that caused her to be untruthful. She was impeached. I am not satisfied that you have taken the steps you need to take in order to rectify the issues that came to a head in January of 2024. So I believe with this history of very concerning conduct and alcohol abuse, I do find that you meet the definition, that the State has met its burden, that you are a dangerous person as defined under [the Act] and I will issue an order consistent with the State's request.

Id. at 70–72; see also Appellant's App. Vol. 2 at 38–39 (written order finding Atkinson to be “dangerous” as that term is defined in the Act and ordering CPD to retain the firearms and ammunition seized from Atkinson).⁵

Clear and convincing evidence supports the trial court's order.

[13] Atkinson argues the State did not prove by sufficient evidence that his firearms should be retained because he was dangerous as defined by the Act. The Act specifies that the State is required to prove “all material facts by clear and convincing evidence.” I.C. § 35-47-14-6(b) (2020). “The clear and convincing evidence standard is an intermediate standard of proof greater than a preponderance of the evidence and less than proof beyond a reasonable doubt.” Morgan v. State, 228 N.E.3d 512, 518 (Ind. Ct. App. 2024) (citation omitted), trans. denied. “In order to be clear and convincing, the existence of a fact must be highly probable.” Commitment of B.J. v. Eskenazi Hosp./Midtown CMHC, 67 N.E.3d 1034, 1038 (Ind. Ct. App. 2016).

[14] As with other sufficiency matters, in reviewing a judgment requiring proof by clear and convincing evidence, we consider only the evidence favorable to the judgment and all reasonable inferences. See Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We do not reweigh the evidence or assess the credibility of witnesses. Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied. If the court reaches a conclusion a reasonable person could have drawn, the order must be affirmed, even if other reasonable conclusions are possible. Redington v. State, 992 N.E.2d 823, 839–40 (Ind. Ct. App. 2013).

[15] In the context of proceedings for the seizure and retention of firearms, an individual is “dangerous” if:

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

(2) It is probable that the individual will 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 suicidal conduct.

I.C. § 35-47-14-1(a) (2019).

[16] The trial court did not find that Atkinson presented an imminent risk of personal injury to himself or another individual under subsection (a)(1) of the definition, so we focus on subsection (a)(2).⁶ Under that subsection, the State must first prove it is probable an individual “will present a risk of personal injury to the individual or to another individual in the future” and then also prove circumstances supporting either subsection (a)(2)(A) or subsection (a)(2)(B). I.C. § 35-47-14-1(a)(2).

[17] Atkinson first argues the State did not prove by clear and convincing evidence that it is probable he presents a risk of personal injury to himself or another individual in the future. Atkinson argues the evidence does not show he poses such a risk because the officers in January 2024 did not “act in a manner that showed a concern of personal injury” when they left him at his house while they got a warrant. Appellant's Br. at 15. But the fact they sought a warrant to retrieve and retain his firearms because they believed he was dangerous after speaking with Natalie says otherwise. Atkinson also argues the State failed to prove a probability he would be a danger in the future because there were no further allegations in the year leading up to the hearing, he had been in counseling during that year, and Natalie testified she was not in fear. These arguments amount to a request to reweigh the evidence which our standard of review forbids. Brantley, 91 N.E.3d at 570. The trial court expressed its assessment of Natalie's credibility as untruthful and noted Atkinson had not gotten counseling to address his long history of alcohol use. The trial court could reasonably conclude the State established by clear and convincing evidence a probability Atkinson will present a risk of personal injury to himself or to another individual in the future for purposes of Indiana Code section 35-47-14-1(a)(2). See Morgan, 228 N.E.3d at 519 (holding evidence was sufficient to conclude defendant presented a risk of personal injury to himself or another in the future despite victims testifying they trusted him not to repeat his behavior and defendant “demonstrating some degree of reasonableness” in allowing officers to handcuff him and speaking to them in a “logical” manner).

[18] As for the additional circumstances required to be proved by subsection 35-47-14-1(a)(2), there was no evidence Atkinson has a mental illness, see I.C. § 35-47-14-1(a)(2)(A), so the State needed to show by clear and convincing evidence that Atkinson “is the subject of documented evidence” giving rise to a reasonable belief that he “has a propensity for violent or suicidal conduct,” I.C. § 35-47-14-1(a)(2)(B).⁷

[19] Atkinson acknowledges his five criminal convictions since 2006 but claims “physical violence did not make up the basis for any of the convictions.” Appellant's Br. at 16. But Officer Commodore testified—with no objection from Atkinson—that Atkinson hit and scratched Stout as part of the 2021 incident giving rise to the conversion conviction. Moreover, she testified Atkinson approached her aggressively and resisted when she handcuffed him. And Natalie gave affirmative responses to officers filling out the ODARA ⁸ form when investigating the 2024 incident—indicating Atkinson had used a weapon against her or threatened her with a weapon; had committed prior violence against her; and she was concerned about future assaults. Natalie testified Atkinson had been physically abusive to her before, leaving bruises when he spanked her. Again, Atkinson's arguments to the contrary are largely requests for us to reweigh the evidence by ignoring or minimizing evidence supporting the trial court's judgment. The documented evidence and testimony before the trial court supports a reasonable belief that Atkinson has a propensity for violent conduct.

[20] Clear and convincing evidence exists from which the trial court could have concluded Atkinson was dangerous as defined by Indiana Code Section 35-47-14-1(a)(2).

Conclusion

[21] The trial court's order for CPD to retain Atkinson's firearms under the Act is affirmed.

[22] Affirmed.

FOOTNOTES

1.   Ind. Code ch. 35-47-14.

2.   The firearms may also be transferred to a responsible third party or sold at auction. I.C. § 35-47-14-10(a) (2019).

3.   Indiana Code Section 35-47-14-2 lists the requirements for a court to issue a warrant “to search for and seize a firearm in the possession of an individual who is dangerous[.]” A search warrant return listing the type and quantity of firearms seized must be filed with the court no later than forty-eight hours after the warrant is served. I.C. § 35-47-14-4 (2006). Indiana Code Section 35-47-14-3 lists the requirements to be followed if a law enforcement officer seizes a weapon from an individual believed to be dangerous without first obtaining a warrant.

4.   The Act requires the trial court to make a good-faith effort to conduct the hearing not later than fourteen days after the filing of the search warrant return. I.C. § 35-47-14-5(b) (2019). If the hearing cannot be conducted in that time frame, the hearing shall be held as soon as possible. Id. Atkinson raises no issue concerning how long it took to hold a hearing.

5.   As allowed by Indiana Code Section 35-47-14-10, the State and Atkinson thereafter agreed with the trial court's approval for CPD to transfer the firearms to Atkinson's attorney as a responsible third party. See Appellant's App. Vol. 2 at 41–42.

6.   Although Atkinson is correct that the trial court did not identify in its written order the specific provisions of the definition of “dangerous” that it applied, it is clear from the trial court's statement at the conclusion of the hearing that it determined the State had proved subsections (a)(2) and (a)(2)(B). See Tr. Vol. 2 at 70–71.

7.   Atkinson argues in his reply brief that the “history and usage of the statute shows that the underlying purpose of the law is to prevent mentally ill people who have been determined to be violent or suicidal from having access to firearms.” Appellant's Reply Br. at 8. There are only two reported cases addressing an initial order for retention of firearms and both concern individuals with a mental illness and medication history. See Morgan, 228 N.E.3d at 516; Redington, 992 N.E.2d at 828. Even so, neither case was decided on the basis of mental illness, and the plain language of the “dangerous” definition requires proof of a mental illness or propensity for violent or suicidal conduct.

8.   ODARA stands for Ontario Domestic Assault Risk Assessment, and it is intended to “identify the risk of future assaults against intimate partners.” Indiana Department of Correction, Specialty Risk Assessments, https://www.in.gov/idoc/community-corrections/community-corrections-and-justice-reinvestment-grants/assessments/#Specialty_Risk_Assessments (last visited November 12, 2025) [https://perma.cc/2AGF-4UZN].

Kenworthy, Judge.

Foley, J., and Scheele, J., concur.