The Volokh Conspiracy
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Is checking out visitors at home with gun behind your back 'disorderly conduct'?
From yesterday's North Dakota Supreme Court decision in Keller v. Keller:
Karen Keller is married to Chad Keller. Chad Keller previously was married to Nichole Keller and they had three children together.
According to Nichole Keller, she emailed Chad Keller on August 14, 2016, stating she would like to pick up the two youngest children. Chad Keller responded that the children did not want to go with her. Nichole Keller sent another email later in the day saying she would come at 5:00 p.m. to see the children.
On August 14, 2016 Nichole Keller, accompanied by Rachel Parker, went to Chad Keller's home to see her youngest daughter. Nichole Keller arrived at Chad Keller's rural property around 5:00 p.m., but stayed at the end of the property line.
According to Nichole Keller, when she arrived Karen Keller came outside with her hands behind her back. Nichole Keller and Karen Keller were about 200 feet away from each other. Rachel Parker asked Karen Keller to get Nichole Keller's daughter.
When Karen Keller turned to get the child they noticed Karen Keller was holding a handgun behind her back. Nichole Keller and Rachel Parker asked Karen Keller why she was carrying the handgun and Karen Keller responded she did not know the person Nichole Keller was with and did not trust her.
Nichole Keller testified that Karen Keller did not point the gun at her or make any threatening or violent statements. According to Nichole Keller, she is fearful for her life and the safety of her kids because of the August 14, 2016 incident. Nichole Keller and Rachel Parker left the residence and called the police. A deputy arrived and interviewed the parties.
This led to Nichole Keller getting a "disorderly conduct restraining order," based on a finding that there was "reasonable grounds" to believe that Karen Keller's actions were disorderly conduct. North Dakota law defines disorderly conduct as "intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person," but expressly excluding "constitutionally protected activity." The trial court concluded:
"[T]here was a gun. She brought it out on the property. And it's obvious that Nichole was very scared. And she testified that she is still scared. And to me, that is the definition of gestures that are intended to adversely affect the safety, security, or privacy of another person. That's the definition of disorderly conduct. Seems plain and simple to me…."
No, said the North Dakota Supreme Court, reversing the order:
The Second Amendment guarantees an individual's right to keep and bear arms. In D.C. v. Heller, the Supreme Court of the United States held the Second Amendment protects an individual's right to possess a firearm for self-defense purposes, stating the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation." Article I, Section 1 of the North Dakota Constitution provides an individual's right to keep and bear arms, stating:
"All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed."
… North Dakota law restricting carrying loaded handguns expressly exempts an individual who carries a loaded handgun "on that person's land, or in that individual's permanent or temporary residence, or fixed place of business."
Karen Keller's conduct at the complained of time and place was constitutionally protected. Nothing in the record suggests her conduct violated the statutory limitations of possessing a firearm.
Karen Keller testified she was carrying a handgun because she did not know who was at the end of the driveway when the vehicle arrived. Karen Keller indicated she carries a handgun whenever an unknown vehicle arrives at the property. Karen Keller did not leave her property and Nichole Keller did not enter the property. The record indicates the handgun was behind Karen Keller's back or at her side during the interaction.
The record supports Karen Keller did not make any threatening statements or gestures with the handgun and the parties were about 200 feet away from each other during the interaction. No evidence exists that the disorderly conduct was anything but possession of the gun, and nothing in the record suggests Karen Keller's actions went beyond her constitutional right to possess a handgun on her private property.