IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
CANDACE MARIE FLYNN,
Plaintiff/Appellee,
v.
CHRISTOPHER CODY ALLEN FLYNN,
Defendant/Appellant.
No. 2 CA-CV 2023-0073
Filed January 22, 2024
Appeal from the Superior Court in Pinal County
No. PO202200645
The Honorable Jessica K. Dixon, Judge
AFFIRMED
COUNSEL
Coolidge Law Firm PLLC, Chandler
By Jennifer L.B. Booth
Counsel for Defendant/Appellant
OPINION
Judge Gard authored the opinion of the Court, in which Presiding Judge
Eppich and Chief Judge Vásquez concurred.
G A R D, Judge:
FLYNN v. FLYNN
Opinion of the Court
¶1 Christopher Flynn (“Husband”) appeals from an order of
protection, which the superior court granted on behalf of Candace Flynn
(“Wife”) and affirmed after a contested evidentiary hearing. Although the
court did not enter a state-law firearms restriction or order Husband to
surrender any firearms he possessed, it issued a Notice of Brady Indicator,
reflecting Husband’s disqualification from possessing or purchasing
firearms and ammunition under federal law.1 Husband contends the court
erred by issuing this notice without first inquiring into his access to and use
of firearms and finding he presented a credible threat to Wife’s physical
safety. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In October 2022, Wife filed a petition for an order of
protection, alleging that Husband had committed several acts of domestic
violence against her. Wife did not allege in her petition that Husband
owned or carried a firearm, nor did she ask the court to preclude Husband
from possessing firearms or ammunition during the order’s duration. The
superior court granted Wife’s petition after an ex parte hearing the same
day. The resulting order of protection did not prevent Husband from
possessing or purchasing firearms or ammunition. However, the order’s
first page contained a warning to Husband: “As a result of this order, it
may be unlawful for you to possess or purchase a firearm or ammunition
pursuant to federal law under 18 U.S.C. § 922(g)(8). . . .” The order advised
Husband to consult with an attorney should he have questions about this
restriction.
¶3 The superior court thereafter conducted a contested
evidentiary hearing on the order of protection, during which Husband was
represented by counsel. At that hearing, there was no testimony concerning
Husband’s use of or access to firearms. At the hearing’s conclusion, the
court affirmed the order of protection as modified and issued an amended
order. In that order, the court found that Husband and Wife were or had
been married and that Husband had received actual notice of the hearing
and had been given an opportunity to participate. The order directed that
Husband have no contact with Wife and that he “shall not commit any
crimes, including but not limited to harassment, stalking, or conduct
involving the use, attempted use, or threatened use of physical force that
would reasonably be expected to cause bodily injury, against [Wife].” Like
1“Brady,”
as used in this decision, refers to the federal Brady
Handgun Violence Prevention Act, Pub. L. No. 103-59, 107 Stat. 1536 (1993).
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FLYNN v. FLYNN
Opinion of the Court
the initial order, the amended order did not prohibit Husband from
possessing or purchasing firearms or ammunition; although the form
included a checkbox that would have restricted Husband’s right to possess
or purchase firearms under Arizona law and required Husband to
relinquish any firearms he possessed, the court did not check that box.
¶4 In a separate hearing order, the superior court checked
several boxes that stated, “Brady applies.” And it separately filed a Notice
of Brady Indicator, which stated that “[u]nder the ‘Brady’ federal law (18
USC 922(g)(8)), [Husband] is disqualified from purchasing or possessing a
firearm or ammunition for the duration of the Order of Protection.” The
notice also provided, “This notice is issued pursuant to 18 USC § 922(g)(8),
which is not subject to Arizona statutes or court rules.”
¶5 Husband moved to modify the order of protection to remove
the “Brady restrictions,” arguing that the superior court had not inquired
into his access to firearms and had not found that he presented a credible
threat to Wife’s physical safety under A.R.S. § 13-3602(G)(4). As a result,
Husband maintained, the court had erred by entering the “Brady
restrictions.” The court denied Husband’s motion, affirming its findings
that the parties were intimate partners as defined by federal law and that it
had continued the order of protection after a hearing of which Husband
had received actual notice and in which he had been given the opportunity
to participate. This appeal followed. We have jurisdiction under A.R.S.
§§ 12-120.21(A)(1) and 12-2101(A)(5)(b).
Discussion
¶6 Husband argues the superior court erred by issuing the
Notice of Brady Indicator. Citing A.R.S. § 13-3602(G)(4) and Rule 23(i)(1),
Ariz. R. Protective Order P., Husband reasons that Arizona law required
the court to inquire into his access to firearms and to find that he presented
a credible threat to Wife’s physical safety before restricting his firearm
rights in any manner. Wife, in turn, has not filed an answering brief.2
Although we may deem the failure to file an answering brief a confession
of error, see Thompson v. Thompson, 217 Ariz. 524, n.1 (App. 2008), we do not
do so here, as we prefer to decide cases on their merits when the interests
2Wife filed a pro se document in August 2023, which we struck
because it did not conform to the Arizona Rules of Civil Appellate
Procedure. We granted Wife leave to refile a compliant brief, and thereafter
sua sponte extended her time for doing so, but Wife filed nothing further.
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FLYNN v. FLYNN
Opinion of the Court
of justice dictate, see Bugh v. Bugh, 125 Ariz. 190, 191 (App. 1980); Hoffman v.
Hoffman, 4 Ariz. App. 83, 85 (1966).
¶7 We review for an abuse of discretion a superior court’s
decision to continue an order of protection after a contested hearing. See
Michaelson v. Garr, 234 Ariz. 542, ¶ 5 (App. 2014). However, “[w]e review
the application of Arizona and federal law to the facts de novo.” Mahar v.
Acuna, 230 Ariz. 530, ¶ 14 (App. 2012) (quoting Bell v. Smitty’s Super Valu,
Inc., 183 Ariz. 66, 67 n.1 (App. 1995)). Further, when interpreting statutes
or procedural rules, we “effectuate the text if it is clear and unambiguous.”
Windhurst v. Ariz. Dep’t of Corr., __ Ariz. __, ¶ 13, 536 P.3d 764, 769 (2023)
(quoting BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, ¶ 9 (2018));
see also Chronis v. Steinle, 220 Ariz. 559, ¶ 6 (2009) (“We construe rules of
court using the same principles applicable to interpretation of statutes.”).
We “interpret [the relevant] language in view of the entire text,” and we
consider the language’s context and other provisions involving the same
subject matter. Windhurst, __ Ariz. __, ¶ 13, 536 P.3d at 769 (quoting Molera
v. Hobbs, 250 Ariz. 13, ¶ 34 (2020)).
A. Law applicable to orders of protection
¶8 Under Arizona law, a superior court may issue an ex parte
order of protection when it finds “reasonable cause to believe” that the
defendant may commit an act of domestic violence; that the defendant has
committed an act of domestic violence within the preceding year; or that
the defendant has committed an act of domestic violence at an earlier date,
if the court finds good cause to expand the time period beyond the previous
year. § 13-3602(E); see also Ariz. R. Protective Order P. 23(e)(1). A court
must, upon request, allow a defendant a hearing to contest an order of
protection. § 13-3602(L); Ariz. R. Protective Order P. 38(a). Following that
hearing, the court may either continue, modify, or quash the order.
§ 13-3602(L); Ariz. R. Protective Order P. 38(g)(4).
¶9 A court may restrict a defendant’s ability to purchase or
possess firearms as part of an order of protection but only if it finds “the
defendant is a credible threat to the physical safety of the plaintiff or other
specifically designated persons.” § 13-3602(G)(4). Our supreme court has
implemented a procedural rule to guide courts in the credible-threat
assessment: “When issuing an Order of Protection, ex parte or after a
hearing, the judicial officer must ask the plaintiff about the defendant’s use
of or access to firearms to determine whether the defendant poses a credible
threat to the physical safety of the plaintiff or other protected persons.”
Ariz. R. Protective Order P. 23(i)(1). If the court finds the defendant
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FLYNN v. FLYNN
Opinion of the Court
presents a credible threat, it may “prohibit the defendant from possessing
or purchasing a firearm for the duration of the order,” and, if the court
enters that prohibition, it must “order the defendant to transfer any firearm
owned or possessed by the defendant” to a law-enforcement agency.
§ 13-3602(G)(4); see also Ariz. R. Protective Order P. 23(i)(2).
¶10 Separately, some persons subject to domestic-violence orders
of protection become prohibited possessors under federal law. Section
922(g)(8), a criminal statute, makes it unlawful to ship, transport, possess,
or receive in interstate commerce firearms or ammunition for any person:
(8) who is subject to a court order that—
(A) was issued after a hearing of which
such person received actual notice, and at which
such person had an opportunity to participate;
(B) restrains such person from harassing,
stalking, or threatening an intimate partner of
such person or child of such intimate partner or
person, or engaging in other conduct that
would place an intimate partner in reasonable
fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person
represents a credible threat to the physical
safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the
use, attempted use, or threatened use of
physical force against such intimate partner or
child that would reasonably be expected to
cause bodily injury.
(Emphasis added.)3 An order of protection thus triggers § 922(g)(8) if it
contains the elements set forth in subsections (A) and (B), along with either
3The Supreme Court recently granted certiorari to determine
whether § 922(g)(8) violates the Second Amendment. See United States v.
Rahimi, __ U.S. __, 143 S. Ct. 2688 (2023). Husband does not raise a Second
Amendment challenge here, and Rahimi’s outcome does not affect this
case’s disposition. Husband similarly does not argue he lacked notice that
firearms restrictions were possible, nor could he reasonably have made that
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FLYNN v. FLYNN
Opinion of the Court
a finding that the defendant is a credible threat to the plaintiff under
§ 922(g)(8)(C)(i) or the explicit prohibition identified in § 922(g)(8)(C)(ii).
An individual who violates § 922(g)(8) is subject to federal prosecution and
faces penalties of up to fifteen years’ imprisonment. 18 U.S.C. § 924(a)(8).
¶11 Our supreme court has ensured statewide uniformity in
orders of protection by requiring courts to use approved forms, including
the Notice of Brady Indicator and the order-of-protection forms used here.
See Ariz. R. Protective Order P. 13(a) (“All courts and parties must use only
those protective order forms adopted by the Arizona Supreme Court.”);
Ariz. Code of Jud. Admin. § 5-207 (same); Ariz. R. Sup. Ct. Admin. Directive
2022-05 (June 27, 2022) (approving order-of-protection form used in this
case); Ariz. R. Sup. Ct. Admin. Directive 2021-06 (Apr. 13, 2021) (approving
Notice of Brady Indicator form used in this case). The mandatory order-of-
protection form contains language tracking § 922(g)(8)(C)(ii). See Ariz. R.
Sup. Ct. Admin. Directive 2022-05. Courts may not make textual changes
to the form without first obtaining approval from the director of the
Administrative Office of the Courts. See Ariz. R. Protective Order P. 13(a);
Ariz. Code of Jud. Admin. § 5-207.
B. Any error was not reversible
¶12 As a threshold matter, Husband does not challenge the order
of protection itself, nor does he challenge the hearing order on which the
superior court checked various boxes indicating “Brady applies.” Husband
further does not argue, and could not reasonably have argued, that the
amended order of protection did not satisfy all elements of § 922(g)(8): the
court issued the order after a hearing of which Husband had notice and in
which he had the opportunity to—and did—participate; Husband and Wife
were intimate partners; the order restrains Husband from stalking or
harassing Wife; and the order contains the explicit language set forth in
§ 922(g)(8)(C)(ii).4 The question before us, therefore, is whether the court’s
argument given the initial order of protection’s warning and citation to
§ 922(g)(8).
4Husband criticizes the superior court’s order containing
§ 922(g)(8)(C)(ii)’s language, describing it as a “mandatory blanket order”
required by Administrative Directive No. 2022-05. To the extent Husband
challenges our supreme court’s mandatory form order, he must address his
concern to that court, as neither the superior court nor this court may
disregard our supreme court’s rules and directives. See State v. Wagner,
253 Ariz. 201, ¶ 19 (App. 2022) (lower courts bound by decisions of Arizona
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FLYNN v. FLYNN
Opinion of the Court
failure to engage in Rule 23(i)(1)’s inquiry and to make a credible-threat
finding before issuing the Notice of Brady indicator resulted in reversible
error.5 We conclude it did not. See Ariz. Const. art. VI, § 27 (“No cause shall
be reversed for technical error in pleadings or proceedings when upon the
whole case it shall appear that substantial justice has been done.”); Creach
v. Angulo, 189 Ariz. 212, 214 (1997) (“To justify the reversal of a case, there
must not only be error, but the error must have been prejudicial to the
substantial rights of the party.” (quoting Creach v. Angulo, 186 Ariz. 548, 550
(App. 1996))).
¶13 We assume without deciding that courts must engage in Rule
23(i)(1)’s inquiry as a matter of course at a contested hearing on an order of
Supreme Court and may not overrule, disregard, or modify them). This
includes the procedural framework the supreme court has approved for
protective orders, in particular the mandatory order-of-protection form
containing § 922(g)(8)(C)(ii)’s explicit language and the court’s procedural
and administrative rules prohibiting lower courts from making textual
changes to the forms without advance approval. See Ariz. R. Protective
Order P. 13(a); Ariz. Code of Jud. Admin. § 5-207.
5Although it is not material to the outcome here, Husband appears
to equate the Notice of Brady Indicator to an order restricting his access to
firearms. The document, however, is merely a notice advising all interested
persons—including Husband himself—that the order of protection meets
§ 922(g)(8)’s elements, a fact that, as discussed above, Husband does not
challenge. Any federal restriction on Husband’s firearms rights arose by
operation of federal law once he became “subject to” an order meeting
§ 922(g)(8)’s elements, which do not include the filing of a Notice of Brady
Indicator. See United States v. Sanchez, 639 F.3d 1201, 1206 (9th Cir. 2011)
(“A court can ensure an order triggers § 922(g)(8) by including either a
finding that the person subject to the court order represented a credible
threat to the physical safety of an intimate partner or child or specific terms
prohibiting the use, attempted use, or threatened use of physical force.”);
see also United States v. Sholley-Gonzalez, 996 F.3d 887, 896 (8th Cir. 2021)
(concluding that defendant “need not have known that he was barred from
possessing firearms or ammunition” to be convicted of violating § 922(g)(8)
but need only be aware that he was “subject to a qualifying court order”);
United States v. Reddick, 203 F.3d 767, 768-71 (10th Cir. 2000) (rejecting
argument that conviction under § 922(g)(8) violated due process because
state court entering order of protection did not notify defendant of federal
firearms law).
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FLYNN v. FLYNN
Opinion of the Court
protection, as Husband proposes. See Ariz. R. Protective Order P. 23(i)(1)
(stating that judicial officer “must ask the plaintiff” about defendant’s use
of or access to firearms “[w]hen issuing” an order of protection).6 But Rule
23(i) explains that the reason for conducting an inquiry into a defendant’s
firearms use and access is to “determine whether the defendant poses a
credible threat to the physical safety of the plaintiff.” And while a credible-
threat finding is always required for a state-law firearms restriction, see
§ 13-3602(G)(4), the same is not true of a federal restriction. As discussed
above, a credible-threat finding is sufficient to trigger federal firearms
restrictions under § 922(g)(8)(C)(i) but is not necessary when the order of
protection explicitly prohibits a defendant’s “use, attempted use, or
threatened use of physical force against [an] intimate partner . . . that would
reasonably be expected to cause bodily injury,” consistent with
§ 922(g)(8)(C)(ii).
¶14 Here, because the superior court’s order contained
§ 922(g)(8)(C)(ii)’s language, the federal statute did not require a separate
credible-threat finding. The order satisfied all of § 922(c)(8)’s elements and
no result of Rule 23(i)(1)’s inquiry would have changed this circumstance.
The superior court’s failure to conduct that inquiry and to make a credible-
threat finding before issuing the Notice of Brady Indicator did not result in
reversible error.
¶15 Mahar and Savord v. Morton, 235 Ariz. 256 (App. 2014), on
which Husband relies, do not change our analysis. In Mahar, as here, the
superior court issued a Notice of Brady Indicator but did not restrict the
defendant’s ability to purchase or possess firearms under state law.
230 Ariz. 530, ¶¶ 8-10. Unlike here, however, the order of protection in
Mahar did not contain an explicit prohibition against “the use, attempted
use, or threatened use of physical force against [an] intimate partner . . . that
would reasonably be expected to cause bodily injury.” Id. ¶ 16; see
§ 922(g)(8)(C)(ii). The superior court had failed to conduct an inquiry into
6We further assume without deciding that the inquiry about
Husband’s firearms access in the form petition for an order of protection
Wife completed was insufficient to satisfy Rule 23(i)(1)’s requirement that
the court “ask the plaintiff” about the defendant’s firearms use and access
“[w]hen issuing” an order of protection. In addition, we note that the
transcript of the ex parte hearing on the order of protection is not part of our
record on appeal; it is thus unclear whether the superior court inquired
about Husband’s use of and access to firearms during that proceeding.
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FLYNN v. FLYNN
Opinion of the Court
the defendant’s use of or access to firearms, and, as a result, the record
lacked evidence that would have supported a credible-threat finding—the
only other way the federal law could have been triggered. Id. ¶¶ 15-19;
see § 922(g)(8)(C)(i). This court therefore vacated the Notice of Brady
Indicator, while leaving the remainder of the order of protection in place.
Id. ¶ 22.
¶16 The Savord court relied on Mahar to reach a similar conclusion.
The court quashed the challenged order of protection in its entirety based
on multiple errors but nonetheless addressed the Notice of Brady Indicator.
235 Ariz. 256, ¶¶ 9-24. The superior court had failed to inquire into the
defendant’s use of and access to firearms and had failed to make a finding
that the defendant posed a credible threat to the plaintiff’s safety.
Id. ¶¶ 19-23. The Savord court emphasized that a “restriction against
firearms does not automatically follow an order of protection,” and
quashed the Notice of Brady Indicator based on insufficient evidence to
sustain it, combined with the court’s failure to engage in the appropriate
inquiry. Id. ¶¶ 22-23.
¶17 Savord is silent as to whether the order of protection contained
the language set forth in § 922(g)(8)(C)(ii). The court, citing that provision,
stated that federal restrictions are triggered “only if [an] order ‘includes a
finding that [the] person represents a credible threat to the physical safety
of [the] intimate partner or child.’” 235 Ariz. 256, ¶ 20 (first alteration
added, remaining alterations in Mahar) (quoting Mahar, 230 Ariz. 530, ¶ 15).
But that statement was not necessary to the case’s resolution, and to the
extent the order at issue there included § 922(g)(8)(C)(ii)’s language, we
disagree with its interpretation of § 922(g)(8)(C) because that statute, by its
plain terms, provides two alternative means of triggering federal
restrictions.
¶18 In Mahar and Savord, therefore, the superior courts erred by
issuing the Notices of Brady Indicator because the underlying orders of
protection did not meet § 922(g)(8)’s criteria—in other words, they were not
qualifying orders under the federal statute. Mahar in particular establishes
that a credible-threat finding is necessary to trigger federal firearms
restrictions when an order of protection omits the language set forth in
§ 922(g)(8)(C)(ii). Here, however, the amended order of protection
contained an explicit prohibition that tracked § 922(g)(8)(C)(ii), making a
credible-threat finding unnecessary.
¶19 We thus conclude that the superior court’s failure to follow
Rule 23(i)’s procedures and to make a credible-threat finding did not result
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FLYNN v. FLYNN
Opinion of the Court
in reversible error. The amended order of protection satisfied all elements
of § 922(g)(8) without a credible-threat finding. See § 922(g)(8); see also
§ 13-3602(G)(4); Ariz. R. Protective Order P. 23(i)(1). Because § 922(g)(8)
was satisfied, the superior court appropriately issued the Notice of Brady
Indicator.
Disposition
¶20 For the foregoing reasons, we affirm the order of protection.
10