Firearm Ownership Restricted Due to an Order of Protection
Some people have asked us the question can you be restricted from owning a firearm as a result of an Order of Protection in Arizona.
The short answer is yes.
A judge may order a defendant to turn over his or her firearms if the judge finds the defendant poses a credible threat to the plaintiff or other protected persons.
The person subject to such an order must surrender his or her firearms to a local law enforcement agency.
You may, however, request the return of your firearms after the protective order expires or may seek a hearing to overturn the Order of Protection before that order expires to allow you to obtain the return of your firearms.
Requirements a Judge Must Follow in Arizona Before Restricting Your Constitutional Right to Possess a Firearm
The Arizona Court of Appeals in the case of Quezada vs. Servin addressed the standard a judge must apply, pursuant to the Brady Act, before restricting a person’s right to possess firearms despite being subject to the restrictions of an Order of Protection in Arizona.
The Arizona Court of Appeals concluded a judge must assess whether a person against whom an Order of Protection is issued presents a credible threat of physical harm and must enter findings of fact to support that conclusion before the judge has the authority to order a person not to possess firearms or to turn those firearms over to authorities.
Former Wife file and obtained an Order of Protection against her former husband. The former husband was served with that Order of Protection and requested a hearing to contest the allegations made by his former wife.
After the hearing concluded, the judge upheld the Order of Protection and issued an order confirming the Order of Protection and entered an order prohibiting the former husband from possessing any firearms without specifically issuing any findings establishing that the former husband posed any credible threat to the former wife.
The Arizona Court of Appeals concluded the trial judge committed an error when he restricted the former husband’s right to possess firearms because the trial judge did not enter necessary findings that the former husband posed a credible threat to the former wife. Specifically, the Arizona Court of Appeals ruled as follows:
The court imposed the firearm restrictions pursuant to the
Brady Act, which prohibits the subject of a protective order from
possessing firearms if the protective order “by its terms explicitly
prohibits the use, attempted use, or threatened use of physical force
against [an] intimate partner or child that would reasonably be expected
to cause bodily injury.” 18 U.S.C. § 922(g)(8)(C)(ii).
The trial judge, instead, ruled that once he decided to uphold the Order of Protection he was also required to restrict the former husband’s possession of a firearm, pursuant to the Brady Act. The Arizona Court of Appeals disagreed with the trial judge and concluded that additional findings of a credible threat must be made before a judge can restrict a person from possessing a firearm even if the court upholds an Order of Protection against that person.
It is important to understand that even if a judge decides a person poses a credible threat of harm to another person for an Order of Protection, the restriction on possessing a firearm only lasts until that Order of Protection expires. An Order of Protection in Arizona expires one year after it is served on the other person.
Arizona Order of Protection Attorneys at Hildebrand Law, PC
If you have questions about order of protection and firearm restrictions in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona restraining order and family law attorneys have over 100 years of combined experience successfully representing clients in restraining order and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your restraining order or family law case around today.
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