Keller v. Keller, 2017 ND 119

Nichole Keller visited her ex-husband Chad Keller’s rural property on Aug. 14, 2016 to see their child; she remained about 200 feet from the house and did not enter the property.
Karen Keller (Chad’s wife) came outside and, while about 200 feet from Nichole, had a handgun behind her back or at her side; she testified she carries a gun when unknown vehicles arrive at the driveway.
Nichole and a companion saw the gun, felt afraid, left, and called police; Nichole then petitioned for a disorderly conduct restraining order under N.D.C.C. § 12.1‑31.2‑01.
The district court issued a one‑year disorderly conduct restraining order, finding the presence of the gun and Nichole’s fear established disorderly conduct.
On appeal, the Supreme Court of North Dakota reversed, holding the court erred by not deciding whether Karen’s conduct was constitutionally protected and by relying solely on possession of a firearm on private property to find disorderly conduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Karen’s display/possession of a handgun on her private property constituted "disorderly conduct"	Possession of the gun caused fear and thus was an intrusive gesture intended to affect safety/security	Mere possession on private property for self‑defense, without threats or gestures, is constitutionally protected and not disorderly conduct	Reversed: mere possession on private property for self‑defense was constitutionally protected and cannot support the order
Whether the court must determine and exclude constitutionally protected activity before considering it as disorderly conduct	Implicit: evidence of the gun supports issuance	Statute requires the court to decide constitutional claim as a matter of law and exclude protected activity	Court erred by not resolving the constitutional claim and excluding the conduct; doing so defeats reasonable grounds for the order

Combs v. Lund, 858 N.W.2d 311 (N.D. 2015) (standard of review for restraining‑order decisions and abuse of discretion analysis)
Hanisch v. Kroshus, 827 N.W.2d 528 (N.D. 2013) (elements and standards for disorderly conduct restraining orders)
Hoggarth v. Kropp, 790 N.W.2d 22 (N.D. 2010) (court must address and resolve constitutional claims before imposing disorderly conduct order)
Rebel v. Rebel, 837 N.W.2d 351 (N.D. 2013) (whether activity is constitutionally protected is a question of law reviewed de novo)
District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects individual right to possess firearms for self‑defense)
McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010) (Second Amendment incorporated against the states)
City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991) (cannot sustain conviction or order based on unconstitutional grounds)
State v. Ricehill, 415 N.W.2d 481 (N.D. 1987) (recognizing permissible statutory limitations on firearm possession by certain classes)