Mahar v. Acuna, II
230 Ariz. 530
Ariz. Ct. App.2012Background
- Hector Acuna must refrain from firearms due to a Brady notice issued with an order of protection against Gina Mahar.
- The trial court found reasonable cause to issue an order of protection and separately issued a Brady notice restricting firearms for one year.
- The record shows no explicit finding of a credible threat or cited evidence of threats by Acuna against Mahar.
- The firearms restriction was based on gun-control statutes (18 U.S.C. § 922(g)(8)) and Arizona statutes, but the court did not follow requisite procedures.
- Acuna appealed, challenging the legality and basis of the firearm prohibition and the related procedures.
- The appellate court vacated the firearms restriction while affirming the remainder of the order of protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether the court had proper basis to restrict firearms | Mahar argues trial court properly restricted; Acuna contends lack of credible threat | Acuna contends no credible threat or proper findings | Firearms restriction vacated; lack of evidentiary support |
| whether procedures for firearms restrictions were followed | Procedures followed to restrict firearms | Procedures not followed (Rule 6(C)(5)(d), transfer order) | Procedural defects; vacatur of firearms restriction |
| whether federal/state standards for firearm restrictions apply to protective orders | Federal and state law support restriction | no explicit finding of credible threat; general no-contact order not enough | Restriction not supported under applicable standards; vacated |
| whether the order of protection properly addresses the parties' relationship and specific acts | Order sufficiently targeted | Order overly broad or improperly tailored | Court erred in specificity and scope impacting firearms prohibition |
| whether appellate review can uphold the remainder of the order while vacating firearms portion | Remaining order should stand | Only firearms portion challenged | Remnant order affirmed; firearms restriction vacated |
Key Cases Cited
- United States v. Sanchez, 639 F.3d 1201 (9th Cir. 2011) (federal restrictions not triggered by general no-contact orders; needs clear basis for firearm denial)
- LaFaro v. Cahill, 203 Ariz. 482 (Ariz. App. 2002) (injunctions; appealability of orders; context for protective orders)
- Hurd v. Hurd, 223 Ariz. 48 (App. 2009) (standard for abuse of discretion; evidence review for protective orders)
- Bell v. Smitty’s Super Valu, Inc., 183 Ariz. 66 (App. 1995) (review standard; deference to trial court on injunctions)
- Gutierrez v. Gutierrez, 193 Ariz. 343 (App. 1998) (liberal construction of notices of appeal; sufficiency considerations)