Opinion
1 CA-CV 23-0738 FC
08-01-2024
In re the Matter of: CARRIE KAHLE, Petitioner/Appellee, v. EDMUND RYAN KAHLE, Respondent/Appellant.
Carrie Kahle, Protected Address Petitioner/Appellee Schiefer Law Firm PLC, Mesa By Spencer T. Schiefer Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2023-094072 The Honorable Ashley Blair Rahaman, Judge Pro Tempore
Carrie Kahle, Protected Address Petitioner/Appellee
Schiefer Law Firm PLC, Mesa By Spencer T. Schiefer Counsel for Respondent/Appellant
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.
MEMORANDUM DECISION
CATTANI, JUDGE
¶1 Edmund Ryan Kahle ("Husband") appeals the amended order of protection prohibiting contact with Carrie Kahle ("Wife") and restricting firearms possession. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2022, the superior court entered an amended order of protection that remained in effect until September 2023. The order generally prohibited Husband from contacting Wife but permitted limited email contact "for the purpose of discussing parenting issues involving the parties' child. [Husband] shall not contact [Wife] for any other reason or in any other manner." The court found that Brady restrictions applied and issued a Notice of Brady Indicator warning that Husband's right to possess firearms was restricted under 18 U.S.C. § 922(g)(8) for the duration of the order of protection.
¶3 Husband owned several guns, which Wife kept at the parties' former marital residence in a gun safe. Although the order prohibited any contact other than emails about child-related issues, Husband repeatedly emailed Wife in June and July 2023 about reclaiming his guns.
¶4 In September 2023, Wife petitioned for a new order of protection. Among other allegations, Wife stated that Husband had been emailing her about his firearms, and she noted that one firearm Husband used for concealed carry remained unaccounted for. She stated he entered their former residence and turned off the security cameras, including those aimed at the gun safe. She believed he was still a threat, and she requested he be ordered not to possess firearms because of the risk of harm to her. The court entered a new ex parte order of protection, including a restriction on Husband's right to possess firearms under Arizona law. See A.R.S. § 13-3602(G)(4). Husband requested a hearing to contest the order.
¶5 During the hearing, Wife testified she wanted an order of protection because Husband's actions were inconsistent and unpredictable, and he did not respect legal rules or authority. She testified that he entered her residence when she was not there and disabled cameras that were pointed at the gun safe, that Husband was obsessed with getting his guns back, and that she did not feel safe. Wife specifically described emails Husband sent while the 2022 order of protection remained in effect stating he wanted his guns back and threatening to file a police report that his guns were stolen. Husband likewise testified about these emails and read some of the email chain into the record. The superior court stated on the record that Husband had repeatedly violated the 2022 order of protection by sending those emails, noting that the prior order "specifically prohibit[ed] this sort of correspondence."
¶6 After the hearing, the superior court found that Husband had committed domestic violence within the past year or would commit domestic violence. The court entered an amended order of protection directing Husband not to commit crimes against Wife-specifically including a prohibition on "conduct involving the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury"-and expressly finding that Husband "pose[d] a credible threat to [Wife's] physical safety." The order restricted Husband's right to possess firearms under Arizona law, see A.R.S. § 13-3602(G)(4), and warned that it may be unlawful under federal law for Husband to possess firearms, see 18 U.S.C. § 922(g)(8). Finding Brady applied, the court issued a Notice of Brady Indicator.
¶7 Husband timely appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(5)(b) and Rule 42(a)(2) of the Arizona Rules of Protective Order Procedure.
DISCUSSION
¶8 Husband argues the superior court erred by upholding the order of protection, asserting in particular that (1) the court failed to make a finding of domestic violence (and that there was no basis for any such finding), (2) the court failed to inquire as to whether he posed a credible threat to Wife (and that there was no basis for any such finding), and (3) as applied, the federal-law-based firearms restriction violated his constitutional rights. Although Wife did not file an answering brief, we nevertheless affirm because the case presents no debatable issue. See Tiller v. Tiller, 98 Ariz. 156, 157 (1965); see also Savord v. Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014).
¶9 We review the superior court's decision to continue an order of protection for an abuse of discretion, viewing the facts in the light most favorable to upholding the ruling. Savord, 235 Ariz. at 259, ¶ 10; Shah v. Vakharwala, 244 Ariz. 201, 204, ¶ 11 (App. 2018); see also Mahar v. Acuna, 230 Ariz. 530, 534, ¶ 14 (App. 2012) (noting that an error of law or a decision lacking record support may constitute an abuse of discretion). We review de novo, however, interpretation of statutes and rules as well as the application of federal and Arizona law to the facts. Savord, 235 Ariz. at 260, ¶ 20; Flynn v. Flynn, 256 Ariz. 544, 546-47, ¶ 7 (App. 2024).
I. Domestic Violence Finding.
¶10 Husband first argues that the superior court failed to state its basis for continuing the order of protection-specifically, its finding of domestic violence-as required by Rule 38(g)(4). The court must enter an order of protection if it finds reasonable cause to believe a defendant committed an act of domestic violence within the past year. A.R.S. § 13-3602(E)(2); see also Ariz. R. Prot. Ord. P. 38(g)(3) (requiring proof by a preponderance of the evidence at a contested hearing). Interfering with judicial proceedings-which includes disobeying a lawful court order-is a domestic violence offense. See A.R.S. §§ 13-3601(A), -2810(A)(2); Douglass v. State, 219 Ariz. 152, 154-55, ¶¶ 9-11 (App. 2008).
¶11 Here, Wife alleged that Husband had violated the 2022 order of protection, and the superior court heard testimony from Husband and Wife about the emails Husband had sent in violation of the 2022 order. The court stated on the record that the 2022 order of protection "specifically prohibit[ed] this sort of correspondence" and that Husband had repeatedly violated the prior order by sending those emails. Because disobeying the 2022 order of protection was an act of domestic violence, see A.R.S. §§ 13-3601(A), -2810(A)(2); Douglass, 219 Ariz. at 154-55, ¶¶ 9-11, the court's finding here satisfied the requirements of Rule 38(g)(4). See Shah, 244 Ariz. at 204, ¶ 13.
II. Credible-Threat Inquiry and Finding.
¶12 Husband next argues that the superior court failed to inquire whether he posed a credible threat to Wife and that there was no record support for a credible-threat finding.
¶13 Under Arizona law, if a court issuing an order of protection "finds that the defendant is a credible threat to the physical safety of the plaintiff," the court may "prohibit the defendant from possessing or purchasing a firearm for the duration of the order." A.R.S. § 13-3602(G)(4) (emphasis added). Similarly, federal law prohibits possession of firearms by an individual who is subject to a protective order (A) issued after a hearing (of which the individual had notice and an opportunity to participate), (B) that restrains the individual from "harassing, stalking, or threatening an intimate partner," and (C) that either "includes a finding that such person represents a credible threat to the physical safety of [the] intimate partner" or explicitly prohibits use or threat of physical force against the intimate partner. 18 U.S.C. § 922(g)(8) (emphasis added). Rule 23(i)(1) thus requires a judicial officer issuing an order of protection to "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." See also Ariz. R. Prot. Ord. P. 23(i)(2) (describing the Arizona-law-based firearms restriction upon a credible-threat finding).
¶14 Here, although the superior court did not ask the parties about Husband's use of or access to firearms, both parties testified about it-rendering the issue moot. The parties' testimony about Husband's use of and access to firearms supports the court's credible-threat finding and thus the Arizona-law-based firearms restriction under A.R.S. § 13- 3602(G)(4). And because the order of protection met all other requirements under 18 U.S.C. § 922(g)(8)(A)-(B), the credible-threat finding triggered the federal-law-based firearms restriction under (C)(i) by operation of law. See Flynn, 256 Ariz. at 548, ¶ 12 &n.5.
III. Constitutional Claim.
¶15 Husband asserts that Arizona's protective order procedure is unconstitutional as applied to him because Arizona courts are required to use form orders of protection that include language expressly prohibiting "conduct involving the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury[] against [the] Plaintiff"-language that would trigger federal-law-based firearms restriction under 18 U.S.C. § 922(g)(8)(C)(ii) even without a credible-threat finding under (C)(i). See Flynn, 256 Ariz. at 548, ¶ 11. We need not reach this constitutional issue, however, because here, the superior court found Husband posed a credible threat to Wife's physical safety, which triggered federal firearms restrictions by operation of law under 18 U.S.C. § 922(g)(8)(C)(i). Husband does not challenge the constitutional validity of firearms restrictions under (C)(i). Cf. United States v. Rahimi, 602 U.S., 144 S.Ct. 1889 (2024) (holding 18 U.S.C. § 922(g)(8) facially constitutional when based on a credible-threat finding).
CONCLUSION
¶16 We affirm. In light of this disposition, we decline Husband's request for an award of attorney's fees on appeal.