Ban On Gun Possession Voided By Appeals Court After It Already Expired

Pima County Superior Court

A Pima County judge failed to follow court rules and neglected to protect a man’s due process rights when issuing an Order of Protection (OOP) in January 2019, the Arizona Court of Appeals ruled last week.

For Gabriel A. Rodriguez, the appellate decision comes after the one-year OOP expired and after he had been denied his constitutional right to possess firearms and ammunition during that period. But Presiding Judge Philip Espinosa noted in the unanimous decision that the court chose to address the substance of Rodriguez’s appeal because even expired orders of protection “have ongoing collateral legal consequences.”

Court records show a preliminary OOP was issued against Rodriguez without a court hearing in December 2019 at the request of his ex-wife, Desiree Y. Romero. The petition Romero submitted on behalf of herself and two minor children contained a generalized reference to an “open” criminal investigation and Arizona Department of Child Safety (DCS) case, but no details were provided.

Read more by Terri Jo Neff >>

State law allows the subject or defendant of an OOP to request a hearing on the petition, something Rodriguez did. But first, he asked the judge to require Romero to provide a “more definite statement” as to the alleged grounds for the OOP, as her petition failed to include dates or details of his alleged abusive or threatening conduct.

The judge denied Rodriguez’s request for a better understanding of what he was being accused of. Instead, the judge said Rodriguez would have to question Romero about the specifics of her allegations during a court hearing.

That, according to the appellate decision, was the judge’s first error.

Arizona law requires Romero to prove “by a preponderance of the evidence” that Rodriguez “may commit an act of domestic violence” or has committed such an act within the past year (or a longer period if a court finds good cause exists to consider a longer period).

However, the unanimous appellate decision notes Romero acknowledged Rodriguez had not been physically near her nor the minor children for at least two years. She also did not allege any recent threats of harm or acts of abuse, although she testified to being subjected to various types of “abuse” during her 18-year relationship with Rodriguez.

Romero testified that Rodriguez allegedly hit her with a bat nearly seven years earlier, that he had put a knife to the throat of another child about 10 years earlier, and had threatened to kill their children “throughout the whole relationship.” She also testified that two of the children had purportedly come forth recently with allegations that Rodriguez sexually abused them years earlier.

Rodriguez denied posing a threat to Romero or their children, but at the conclusion of the hearing the judge affirmed the OOP, which continued it for one year.

On appeal, Rodriguez argued he was denied due process under the Fourteenth Amendment because he had insufficient notice prior to the OOP hearing of the allegations against him.  He also challenged the judge’s decision to consider Romero’s testimony about people and incidents not mentioned in the petition.

The court of appeals’ decision notes that an OOP petition must allege “each specific act of domestic violence” that will be considered by a judge. Court rules also require an OOP petition to contain dates of the domestic violence alleged, although the dates can be approximated.

“Romero’s petition did not allege any particular instance of domestic violence or timeframe in which it had occurred, but instead only alleged there were open DCS and (Tucson Police Department) investigations,” the appellate decision notes, adding that Rodriguez pointed out the deficiencies of both state law and court rules to the judge before the hearing.

“Accordingly, the order of protection against Rodriguez should not have been continued and cannot stand,” the decision notes.

The court of appeals then addressed the lower court judge’s other error—the one which required Rodriguez to surrender all firearms and ammunition to his local law enforcement agency within 24 hours and then banned him from possessing or purchasing any firearms or ammo during the one-year duration of the OOP.

An OOP does not automatically result in a Notice of Positive Brady Indicator (PBI), the appellate decision noted. Instead, a judge is required to make a specific finding that the subject of the OOP “is a credible threat” to the physical safety of the plaintiff or any other persons protected by the OOP.

Only then can the court take the restrictive action of issuing a Notice of PBI to the local sheriff’s office, which in turn enters the firearms restriction in a national database.

“The court did not ask Romero or Rodriguez about any weapons or firearms Rodriguez had access to,” the decision notes. “Rodriguez correctly points out that the court made no inquiries of either Romero or him in that regard. We therefore cannot sustain the Notice of PBI.”

Rodriguez was represented on appeal by the Grynkewich Law Offices in Tucson. Romero did not file an answer to the appeal.