Arizona Court of Appeals

Harter v. Molina

Summary

Harter v. Molina was an unpublished memorandum decision where the Arizona Court of Appeals affirmed the superior court’s decisions to issue and uphold an order of protection and Brady notice.

Background

A little less than a year after Mother filed for divorce, she sought an order of protection for herself and the parties’ child based primarily on belief that Father was having her followed. The court issued the order of protection and ordered Father to surrender all firearms in his possession to the Maricopa County Sheriff’s Office pursuant to the Brady Handgun Violence Prevention Act (“Brady”).

After Father was served, he timely requested a hearing to contest the order of protection. At the hearing, Mother testified about Father’s history of alcohol abuse and verbally abusive behavior. She recalled one event where Father brandished a firearm during or after an argument and warned Mother not to “test” him.

Father’s testimony portrayed a different version of events. He described Mother as erratic and explained that he removed the firearm from the home because of Mother’s behavior. He testified that he did this after she “tore apart the kitchen” and screamed at their young child.

The superior court found by a preponderance of evidence that Father committed an act of domestic violence against Mother. It reasoned that the verbal abuse Mother described and the incident with the firearm were sufficient to uphold the order of protection as it pertained to Mother. However, the court did remove the child as a protected person.

Domestic Violence Defined

Father appealed and argued that the order of protection should not have been issued in the first place. He maintained that “absolutely no competent evidence [established] father committed or will commit an act of domestic violence against mother.”

For purposes of protective orders, the term domestic violence is broad and includes far more than just physical violence. A.R.S. § 13-3601 defines domestic violence to include “communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner than harasses” another person. It also includes “caus[ing] another person to surveil a person for not legitimate purpose.”

The Court of Appeals further explained that harassment, both verbal and through text message, are sufficient to issue and uphold a protective order. Because Mother’s testimony established harassment and surveillance, the Court of Appeals deferred to the superior court’s determination that she was credible and found no abuse of discretion.

Brady Notice

Pursuant to A.R.S. § 13-3602(G)(4) and the federal Brady Act, state courts can enter orders to prohibit possession or purchase of firearms during the duration of a protective order when the defendant is a credible threat to the physical safety of the plaintiff. This type of order is commonly referred to as a Brady Notice.

Here, the superior court found that Father threatened Mother when he warned her not to “test” him after she asked why he placed his firearm on the bed. The Court of Appeals agreed that this incident and Father’s verbal abuse established that Father was a credible threat to Mother’s physical safety and affirmed the Brady Notice.

Full decision