Keller v. Keller, 20160334
Decision Date | 16 May 2017 |
Docket Number | No. 20160334,20160334 |
Citation | 894 N.W.2d 883 |
Parties | Nichole R. KELLER, Petitioner v. Karen D. KELLER, Respondent and Appellant |
Court | North Dakota Supreme Court |
Nichole R. Keller, petitioner; no appearance.
Michael S. McIntee, Towner, ND 58788, for respondent and appellant.
[¶ 1] Karen Keller appeals after a district court entered a disorderly conduct restraining order against her. Karen Keller argues the district court abused its discretion in issuing the order because she did not make a threat of harm against Nichole Keller and her actions were constitutionally protected. Nichole Keller did not file a brief. We reverse the disorderly conduct restraining order against Karen Keller.
[¶ 2] 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.
[¶ 3] 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.
[¶ 4] Nichole Keller filed a petition for a disorderly conduct restraining order against Karen Keller regarding the August 14, 2016 events. The district court issued a temporary disorderly conduct restraining order and set a hearing. After hearing the testimony the district court ruled from the bench, finding reasonable grounds to support a disorderly conduct restraining order and issued a disorderly conduct restraining order against Karen Keller effective for one year. Karen Keller appeals.
[¶ 5] Karen Keller argues the district court erred in granting the disorderly conduct restraining order. This Court's standard when reviewing a district court's decision on a disorderly conduct restraining order is well settled:
Combs v. Lund , 2015 ND 10, ¶ 4, 858 N.W.2d 311 (quoting Hanisch v. Kroshus , 2013 ND 37, ¶ 9, 827 N.W.2d 528 ).
[¶ 6] Karen Keller argues the district court abused its discretion in finding reasonable grounds supporting the restraining order and by not concluding her actions were constitutionally protected. Karen Keller contends the mere holding of a weapon while on rural property and in a non-threatening manner without any communication or threat of harm cannot constitute the offense of disorderly conduct.
[¶ 7] Section 12.1–31.2–01(1), N.D.C.C., 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." "Disorderly conduct does not include constitutionally protected activity." N.D.C.C. § 12.1–31.2–01(1). The court may grant a restraining order if, after a hearing, the court finds "reasonable grounds" to believe the respondent has engaged in "disorderly conduct." Hanisch v. Kroshus , 2013 ND 37, ¶ 10, 827 N.W.2d 528 ; see also N.D.C.C. § 12.1–31.2–01(5)(d).
[¶ 8] If raised by respondent, under N.D.C.C. § 12.1–31.2–01(5)(d), the district court must determine the validity of the constitutional claim as a matter of law and exclude evidence of the activity if found valid. Section 12.1–31.2–01(5)(d) reads in its entirety:
"A court imposing a disorderly conduct restraining order must address a respondent's constitutional claims, because constitutionally protected conduct cannot be a basis for the order." Hoggarth v. Kropp , 2010 ND 197, ¶ 10, 790 N.W.2d 22.
[¶ 9] The district court considered Karen Keller's constitutional argument, stating:
[¶ 10] The district court concluded reasonable grounds supported the disorderly conduct restraining order. The basis of the district court's finding was nothing more than Karen Keller's possession of the firearm:
[¶ 11] The district court erred by not determining whether Karen Keller's actions were constitutionally protected and, if they were, by not excluding evidence of the activity as required under N.D.C.C. § 12.1–31.2–01(5)(d). "Whether an activity is constitutionally protected is a question of law, subject to full review on appeal." Rebel v. Rebel , 2013 ND 164, ¶ 23, 837 N.W.2d 351 (quoting Hoggarth v. Kropp , 2010 ND 197, ¶ 11, 790 N.W.2d 22 ).
[¶ 12] The Second Amendment guarantees an individual's right to keep and bear arms. U.S. Const. Amend. II ; District of Columbia v. Heller , 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; McDonald v. City of Chicago, Ill. , 561 U.S. 742, 767–780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ( ). In 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." 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). 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...
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