Explore The NRA Universe Of Websites

Court's Commonsense Conclusion: "There Was a Gun" Isn't Enough to Justify Issuing a Restraining Order

Friday, May 19, 2017

Court's Commonsense Conclusion: "There Was a Gun" Isn't Enough to Justify Issuing a Restraining Order

The Supreme Court of North Dakota confirmed this week that simply possessing a handgun while on one’s own private property cannot support a finding of “disorderly conduct” under the state’s disorderly conduct restraining order law. The decision is Keller v. Keller, 2017 ND 119 (N.D. May 16, 2017).

Karen Keller is married to Chad Keller. They live together with Chad’s children from a previous relationship on a rural property outside of Bantry (pop. 14, as of the 2010 census) in McHenry County, North Dakota.

On August 14, 2016, Nichole, Chad’s ex-wife and the mother of the children, had emailed Chad about picking up the kids. Chad responded that the children did not want to go with her. Nonetheless, Nichole and a friend, Rachael, later drove out to the Keller property, stopping short of the driveway. Nichole did not initially get out of the car.

Karen did not recognize the vehicle and came out of the house to see who it was. When Karen turned to go back inside, Rachael and Nichole saw that Karen had been holding a handgun behind her back. The visitors remained some 200 feet away from Karen, and Karen did not leave the residential property. It was undisputed that Karen did not raise or point the gun at anyone, or make any threatening, abusive or violent statements. (It seems Karen and Nichole did not speak to one another at all during the encounter.) After talking with her child, Nichole left with Rachel.

Nichole called the police. A deputy concluded there was no cause to file charges as nothing in Karen’s conduct violated statutory limitations relating to firearms. Nichole then sought and obtained a one-year disorderly conduct restraining order against Karen, on the basis that she felt fearful for her life because of the gun. 

The court issuing the restraining order ruled that the mere presence of a firearm was enough: “[T]here was a gun. [Karen] 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…”

North Dakota, however, has a statutory definition of “disorderly conduct” in the context of a restraining order. Pursuant to N.D. Cent. Code § 12.1-31.2-01, a judge may grant an order only if there are “reasonable grounds to believe” that a person has engaged in “disorderly conduct,” defined as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.” Significantly, this definition expressly excludes any “constitutionally protected activity.”

Karen appealed the issuance of the order, claiming the court was wrong in finding that disorderly conduct existed. She argued that it was not reasonable for someone to be afraid of another person for simply holding a weapon in a non-threatening manner. Further, she pointed to the exception for conduct – like the right to keep and bear arms – protected under federal and state constitutions. 

Karen testified she carried a handgun whenever an unknown vehicle arrived at the property. The legal brief she filed with the court indicated she did not know or trust Rachel, and that Nichole had allegedly threatened violence against Karen in the past.

A unanimous, five-member panel of the Supreme Court of North Dakota invalidated the order. The court below had erred in not addressing whether Karen’s actions were constitutionally protected and, if they were, by not excluding evidence of the activity as required by state law. In fact, “Karen Keller’s conduct … was constitutionally protected. Nothing in the record suggests her conduct violated the statutory limitations of possessing a firearm… 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.” The only evidence alleged as “disorderly conduct” was constitutionally protected activity that had to be excluded from the court’s consideration, so nothing remained to support the restraining order.

This outcome is entirely consistent with the law, with common sense and with reality. The core of the Second Amendment is the fundamental, individual right to possess and carry a firearm to defend oneself and one’s family. Karen Keller lived in a rural area some distance away from the nearest city, and made it a rule to carry a firearm when unfamiliar persons dropped by. In this particular encounter, she made no threats, did not display her weapon in an aggressive or menacing way, and stayed close to her residence at all times. Millions of Americans keep a gun at home for the same reason – because the police can’t always be there to stop a burglary or home invasion or other crime as it unfolds.   

To decide – as the court of first instance did – that possessing a gun on one’s own property, without more, amounts to “disorderly conduct” is directly at odds with the U.S. Supreme Court’s decision in District of Columbia v. Heller, and equates mere gun possession with lawlessness. As we know, the overwhelming majority of gun owners are not criminals and use their lawfully possessed firearms responsibly. Unfortunately for Karen Keller, though, she had to go through a lengthy and likely expensive legal appeal process before her rights were vindicated.

TRENDING NOW
Massachusetts: Progressives Pass Radical Gun Control Bill

Friday, July 19, 2024

Massachusetts: Progressives Pass Radical Gun Control Bill

Progressive politicians in Massachusetts just passed one of the most extreme gun control bills in the country.

Massachusetts: Gov. Healey Signs Radical Gun Control Into Law

Thursday, July 25, 2024

Massachusetts: Gov. Healey Signs Radical Gun Control Into Law

On Thursday, July 25th, Governor Maura Healey (D) signed H. 4885, "an act modernizing firearm laws," one of the most extreme gun control bills in the country, into law.

Trump’s Running Mate, JD Vance, is a True Second Amendment Champion

News  

Monday, July 22, 2024

Trump’s Running Mate, JD Vance, is a True Second Amendment Champion

Last week, Sen. JD Vance (R-OH), accepted the Republican party’s nomination for vice president at the Republican National Convention in Milwaukee, WI.

Massachusetts: Senate Passes Sweeping Gun Control Without Public Hearing

Friday, February 2, 2024

Massachusetts: Senate Passes Sweeping Gun Control Without Public Hearing

On Thursday, February 1st, the Senate passed S.2572 late in the night without the bill ever receiving a public hearing, ignoring the concerns of Minority Leader Bruce Tarr and second amendment advocates across the state. 

NRA Scores Legal Victory Against ATF; “Pistol Brace Rule” Enjoined From Going Into Effect Against NRA Members

Monday, April 1, 2024

NRA Scores Legal Victory Against ATF; “Pistol Brace Rule” Enjoined From Going Into Effect Against NRA Members

NRA Members Among the Largest Class Protected from Draconian Rule

NRA Files Lawsuit Challenging ATF’s “Engaged in the Business” Rule

News  

Second Amendment  

Monday, July 22, 2024

NRA Files Lawsuit Challenging ATF’s “Engaged in the Business” Rule

The National Rifle Association of America (NRA) has filed a lawsuit challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) “Engaged in the Business” Final Rule. The ATF’s Final Rule unlawfully redefines when a person ...

Appeals Court: 21+ Age Requirement for Carry Permits is Unconstitutional

News  

Monday, July 22, 2024

Appeals Court: 21+ Age Requirement for Carry Permits is Unconstitutional

In another Bruen-based invalidation of a gun law, a federal appeals court has struck a Minnesota law that prohibits 18 to 20-year-olds from being eligible for a carry permit, declaring the law to be invalid and ...

Third Circuit Affirms Denial of Preliminary Injunction in NRA-ILA-Supported Challenge to Delaware’s ban on “assault weapons” and “large-capacity magazines.”

Tuesday, July 16, 2024

Third Circuit Affirms Denial of Preliminary Injunction in NRA-ILA-Supported Challenge to Delaware’s ban on “assault weapons” and “large-capacity magazines.”

On Monday, July 15, the Third Circuit Court of Appeals affirmed the district court’s denial of a preliminary injunction in Delaware State Sportsmen’s Association v. Delaware Department of Safety & Homeland Security, NRA-ILA’s lawsuit challenging ...

District Court Denies Preliminary Injunction in NRA’s Challenge to New Mexico’s 7-Day Waiting Period Law

Tuesday, July 23, 2024

District Court Denies Preliminary Injunction in NRA’s Challenge to New Mexico’s 7-Day Waiting Period Law

Yesterday, in Ortega v. Grisham, the U.S. District Court for the District of New Mexico denied the plaintiffs’ motion for a temporary restraining order and preliminary injunction against New Mexico’s law requiring individuals to wait 7 ...

VA Tells Congressional Panel it “Could Not” and “Would Not” Comply with Pro-gun Legislation

News  

Monday, July 15, 2024

VA Tells Congressional Panel it “Could Not” and “Would Not” Comply with Pro-gun Legislation

Last Wednesday, the Subcommittee on Disability Assistance and Memorial Affairs of the House Veterans Affairs Committee held a legislative hearing on a number of proposed bills that would change various procedures and standards for how the Department ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.