In Re: Mh 2022-006131

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE: MH2022-006131

No. 1 CA-MH 25-0083
FILED 12-08-2025

Appeal from the Superior Court in Maricopa County
No. MH2022-006131
The Honorable Thomas A Kaipio, Judge Pro Tempore

AFFIRMED

COUNSEL

Grand Canyon Law Group LLC, Mesa
By Victoria Wilde
Counsel for Appellant

Maricopa County Attorney's Office, Phoenix
By Joseph J. Branco, Sean M. Moore
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Anni Hill Foster and Judge Veronika Fabian joined.
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Decision of the Court

M O R S E, Judge:

¶1 J.B. ("Petitioner") appeals the denial of his petition for
restoration of gun rights under A.R.S. § 13-925. For the following reasons,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In late July 2022, Petitioner experienced an episode of severe
visual and auditory hallucinations involving snipers targeting his house.
During this episode, Petitioner fired a gun and hit the wall of an occupied
room in a neighboring house. Phoenix police found him with two guns,
delirious and roaming the streets. The state petitioned for a court-ordered
mental-health evaluation. In August 2022, after multiple medical
professionals evaluated him, Petitioner was designated Seriously Mentally
Ill ("SMI") under A.R.S. § 36-550(4), "persistently or acutely disabled" and
"dangerous to others," and the court ordered treatment under
A.R.S. § 36-540. As a result of the SMI designation, Petitioner became a
prohibited possessor under A.R.S. § 13-3101(A)(7)(a) and lost his right to
possess firearms.

¶3 Four months later, in January 2023, Petitioner successfully
had the court-ordered treatment terminated. In March 2023, he requested
clinical decertification of the SMI designation and offered an attestation by
his healthcare provider that he no longer met the criteria. Solari, the
provider of mental-health crisis services, denied the request because it
wanted to see long-term stability first. Petitioner appealed, and following
an August 2023 administrative hearing, the administrative law judge
denied the request. Solari granted a subsequent August 2024 decertification
request. Petitioner then filed his September 2024 petition under section
13-925 to restore his right to possess firearms. Petitioner claimed the
hallucinations and erratic behavior were an isolated incident, caused solely
by Petitioner mixing alcohol, opiates, and medications to manage the pain
from a recent cancer surgery. The superior court held the hearing required
by the statute and denied the petition.

¶4 Petitioner timely appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(5)(d).

DISCUSSION

¶5 On appeal, Petitioner claims insufficient evidence supports
the denial of his restoration request. He also argues that, under the facts of

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his case, denying restoration unconstitutionally deprives him of his right to
bear arms under the Second Amendment to the U.S. Constitution.

I. Sufficiency of the Evidence.

¶6 Petitioner argues the court's denial rests on insufficient
evidence. He claims that because the statute requires assessment of
Petitioner's current mental state, the State must present evidence to
contradict the evidence from Petitioner's expert. Because the State failed to
do so, Petitioner asserts that the court should have found his evidence clear
and convincing and granted the petition.

¶7 Both parties agree that the standard of review in this case
should be clear error. That is only partially correct. A challenge to the
sufficiency of the evidence is a mixed question of fact and law, so we defer
to the court's factual findings, unless clearly erroneous, and review the
court's legal conclusions de novo. Murphy Farrell Dev., LLLP v. Sourant, 229
Ariz. 124, 128, ¶ 13 (App. 2012). A factual finding supported by substantial
evidence is not clearly erroneous, even if the record contains conflicting
substantial evidence. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51–52, ¶ 11
(App. 2009). Petitioner challenges the substantive outcome of the hearing
and the underlying factual findings, so we review both.

¶8 A person found to be a danger to self or others, or to be
persistently or acutely disabled, loses the right to possess a firearm. A.R.S.
§ 13-3101(A)(7)(a). Section 13-925(C) allows that person to petition for a
restoration hearing, at which the court must receive evidence on six factors:
(1) the circumstances leading to the original prohibited possessor
designation, (2) the person's criminal and mental-health records, (3)
character evidence of the person's reputation, (4) whether the danger,
disability, or other circumstances that triggered the original order remain
in effect, (5) any relevant change to the person's condition or circumstances,
and (6) any other evidence the court deems admissible.

¶9 The petitioning party must prove by clear and convincing
evidence that he is not likely to endanger public safety, and restoration is
not contrary to public interest. A.R.S. § 13-925(D). The court must then
issue findings of fact and conclusions of law. A.R.S. § 13-925(E).

¶10 The court's decision complied with the statutory
requirements. The court explicitly considered all available evidence: the
state-provided criminal record that included mental-health records, the
findings of the administrative law judge at the earlier hearing, the written
report and testimony by Petitioner's expert, and Petitioner's testimony. The

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court also analyzed the statutory factors. It reviewed the evaluations and
order for treatment that led to the prohibited-possessor designation. It
found the character evidence insufficient because none of the letters
addressed Petitioner's firearm use—a key event that triggered the events
leading up to the proceedings. The court also noted Petitioner's pre-
incident mental-health and other issues, including post-traumatic stress
disorder (“PTSD”), chronic pain, depression with a prior prescription for
an antidepressant, and alcohol and opiate use around the time of the
incident. Because the record lacked evidence of treatment for some of these
issues, the court discounted the expert opinion. Even if, as Petitioner's
expert claimed, the specific circumstances that triggered the hallucinations
no longer existed and there was no risk of recurrence, the court found other
substantive evidence in the record that Petitioner could still pose a risk to
public safety.

¶11 Petitioner argues that the court clearly erred because the State
stipulated to the expert's qualifications and did not offer any rebuttal
evidence. Thus, Petitioner concludes, the court failed to consider evidence
of his current state of mind.

¶12 As noted above, Petitioner bears the burden of proof. A.R.S.
§ 13-925(C). The State only had to provide a copy of Petitioner's criminal
record, not present its own case-in-chief. Id. We have also previously
emphasized that the court's role in a restoration hearing is "predictive and
discretionary," and the legislature never contemplated a "full-blown
adversar[ial] hearing." Pinal Cnty. Bd. of Supervisors v. Georgini, 235 Ariz.
578, 586, ¶ 29 (App. 2014). Petitioner's argument imposes a higher burden
on the State than the statutory text and our case law support.

¶13 While we agree that section 13-925(D) places the burden on
Petitioner to demonstrate, by clear and convincing evidence, that he is not
a danger to the public now, Petitioner misunderstands the basis for the
court's decision. The court discounted the expert’s opinion that Petitioner
did not pose a current risk because Petitioner did not provide any record of
treatment for his other issues (PTSD, depression, and substance abuse
around the time of the incident). The statute explicitly grants the court
broad discretion to consider any admissible evidence. A.R.S. § 13-925(C)(6).
And a court sitting as finder of fact weighs the evidence. See Crosby v. Fish, 259 Ariz. 127, 150, ¶ 25 (App. 2024). We will not reweigh the evidence or
substitute our evaluation of the facts. Castro, 222 Ariz. at 52, ¶ 11. The court
did not clearly err in finding that Petitioner's unaddressed mental-health
issues were evidence of present risk and he did not prove by clear and
convincing evidence that restoration was not contrary to the public interest.

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¶14 Petitioner's related argument—that the court improperly
substituted its own opinion by discounting the expert opinion in the
absence of contrary evidence—also fails. Section 13-925 does not require
the court to find Petitioner suffers from a mental disorder, only that he is
unlikely to endanger the public, and the restoration is not contrary to the
public interest. Georgini, 235 Ariz. at 582–583, ¶ 12. The court did not
substitute its own opinion. It simply weighed the evidence differently than
Petitioner and concluded that, as a matter of law, he had not met the bar for
restoration.

¶15 Seeing no clear error in the superior court's factual findings,
we see no error in its final decision.

II. Arguments Waived on Appeal.

¶16 In his reply brief, Petitioner additionally argues that the
medical professionals who evaluated Petitioner initially were not called to
testify and the statute does not require the character letters to address
Petitioner's firearm use. Arguments raised for the first time in the reply are
waived. Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007).
Therefore, we do not address them.

¶17 Petitioner also raises a Second Amendment claim, citing that
the right to bear arms is a fundamental constitutional right under District of
Columbia v. Heller, 554 U.S. 570 (2008). Petitioner acknowledges that a
person experiencing a mental-health crisis could be lawfully restricted from
possessing firearms for a limited time. But he also claims the State's interest
in ensuring public safety must be balanced against Petitioner's interest in
having his Second Amendment right restored when the underlying basis
for the restriction no longer applies. Petitioner essentially challenges the
constitutionality of the statute "as-applied" to him, suggesting a heightened
standard should apply to the denial because it implicates a fundamental
constitutional right.

¶18 But Petitioner did not raise this argument before the superior
court. "[W]e generally do not consider issues, even constitutional issues,
raised for the first time on appeal." Englert v. Carondelet Health Network, 199 Ariz. 21, 27, ¶ 13 (App. 2000). And as-applied challenges require that
we look at specific facts and circumstances that show the application of the
statute to Petitioner was unconstitutional. Ctr. for Arizona Pol'y Inc. v.
Arizona Sec. of State, 258 Ariz. 570, 586, ¶ 49 (App. 2024). "In most instances,
issues must be raised in the trial court, both to create a record to serve as a
foundation for review, and to allow the lower court an opportunity to

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weigh and decide the issue." State v. White, 194 Ariz. 344, 354, ¶ 44 (1999)
(finding waiver is proper for an alleged constitutional violation not raised
at trial). But we have recognized that certain issues are so egregious and
important to the integrity of the system that they require review as
fundamental error. Id. at ¶ 45. Because there is no risk of permanent
deprivation, we see no such error here. Petitioner is free to request another
hearing and present additional evidence in favor of restoration. Petitioner
failed to present this argument to the superior court, and we decline to
address it.

CONCLUSION

¶19 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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