IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 122

Amber Lehnerz, individually 

and on behalf of O.E.P., Petitioners and Appellees

and

Megan Christopher, Respondent and Appellant

No. 20210353

Appeal from the District Court of Golden Valley County, Southwest Judicial 

District, the Honorable James D. Gion, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Jared W. Gietzen, Dickinson, ND, for petitioners and appellees; submitted on 

brief.

Jennifer M. Gooss, Beulah, ND, for respondent and appellant; submitted on 

brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 8, 2022 

STATE OF NORTH DAKOTA
1

Lehnerz, et al. v. Christopher

No. 20210353

Crothers, Justice.

[¶1] Megan Christopher appeals from a disorderly conduct restraining order 

entered against her. Christopher argues the district court abused its discretion 

in issuing the order because reasonable grounds did not exist to believe she 

engaged in disorderly conduct, and her conduct was constitutionally protected.

We affirm.

I

[¶2] In October 2021, Amber Lehnerz, individually and on behalf of her child,

O.E.P., petitioned for a disorderly conduct restraining order against 

Christopher. Lehnerz alleged Christopher intimidated and harassed her and 

her child by taking unwanted photos and videos of them. At the time of this 

action, Christopher was employed as a trooper with the state highway patrol. 

Christopher has two children with Lehnerz’s fiancé.

[¶3] After two hearings, the district court found reasonable grounds to believe 

Christopher engaged in disorderly conduct that adversely affected the safety, 

security, or privacy of Lehnerz and her child. The court concluded Christopher’s 

conduct was not constitutionally protected. The court entered a one-year 

disorderly conduct restraining order against Christopher. 

II

[¶4] Christopher argues the district court erred in granting the disorderly 

conduct restraining order. The standard of review for a court’s decision on a 

disorderly conduct restraining order is well established:

“This Court will not reverse a district court’s decision to grant a 

restraining order or to conduct a hearing absent an abuse of 

discretion. The district court abuses its discretion when it acts in 

an arbitrary, unreasonable, or unconscionable manner, when it 

misinterprets or misapplies the law, or when its decision is not the 

product of a rational mental process leading to a reasoned 

determination.”
2

Keller v. Keller, 2017 ND 119, ¶ 5, 894 N.W.2d 883 (quoting Combs v. Lund, 

2015 ND 10, ¶ 4, 858 N.W.2d 311).

A

[¶5] Christopher claims the district court abused its discretion in finding

reasonable grounds to believe she engaged in disorderly conduct.

[¶6] “‘Disorderly conduct’ means intrusive or unwanted acts, words, or 

gestures that are intended to adversely affect the safety, security, or privacy of 

another person.” N.D.C.C. § 12.1-31.2-01(1). “Disorderly conduct does not 

include constitutionally protected activity.” Id. The court may grant a 

restraining order if, after a hearing, it finds reasonable grounds to believe the 

respondent has engaged in disorderly conduct. N.D.C.C. § 12.1-31.2-01(5)(d); 

Keller, 2017 ND 119, ¶ 7. Reasonable grounds exist for issuing a restraining 

order “when the facts and circumstances presented to the judge are sufficient 

to warrant a person of reasonable caution to believe that acts constituting 

disorderly conduct have been committed.” Gonzalez v. Witzke, 2012 ND 60, 

¶ 10, 813 N.W.2d 592.

[¶7] “A petition for relief must allege facts sufficient to show the name of the 

alleged victim, the name of the individual engaging in the disorderly conduct, 

and that the individual engaged in disorderly conduct.” N.D.C.C. § 12.1-31.2-

01(3). In addition, a petitioner must provide an affidavit with “the specific facts 

and circumstances supporting the relief sought.” Id.

[¶8] In her sworn petition, Lehnerz alleged numerous incidents involving 

Christopher over the course of approximately one year. Lehnerz alleged 

Christopher confronted her and blocked her from entering the children’s 

daycare. After Lehnerz returned to her vehicle, Christopher yelled at Lehnerz 

about Lehnerz’s fiancé. Lehnerz described another incident when Christopher 

parked near the daycare and took photos or videos while Lehnerz dropped the 

children off. 

[¶9] Lehnerz alleged three instances at sporting events where Christopher 

chose to sit next to Lehnerz. At one event, Christopher was on duty with the
3

highway patrol and “made a nasty comment to her son . . . about how [Lehnerz 

is] mean.” Lehnerz alleged Christopher took photos and videos of her and her 

daughter after Lehnerz told her to stop. Lehnerz described another incident at 

a fundraising event where Christopher took photos and videos of her and her 

daughter. Christopher testified she did not video Lehnerz at the event but did 

photo Lehnerz’s “baby bump” and sent the photo to her sister. 

[¶10] Lehnerz also testified Christopher has shown up numerous times at 

daycare when it is not her parenting time. Lehnerz testified Christopher is 

“seeking me out in public,” and “it’s really hard to go about your day-to-day 

when you’re constantly being followed, constantly being photographed.” 

Lehnerz testified Christopher continued her behavior after Lehnerz asked her 

to stop. 

[¶11] Lehnerz’s evidence satisfied the statutory requirements under N.D.C.C. 

§ 12.1-31.2-01(3). A person of reasonable caution could believe that Christopher 

intended her conduct toward Lehnerz and Lehnerz’s daughter to affect their 

safety, security or privacy. The district court did not err in finding reasonable 

grounds to believe Christopher’s conduct affected the safety, security or privacy 

of Lehnerz and her daughter.

B

[¶12] Christopher asserts the district court failed to consider whether her 

conduct was constitutionally protected. Whether an activity is constitutionally 

protected is a question of law, fully reviewable on appeal. Keller, 2017 ND 119, 

¶ 11.

[¶13] “If a person claims to have been engaged in a constitutionally protected 

activity, the court shall determine the validity of the claim as a matter of law 

and, if found valid, shall exclude evidence of the activity.” N.D.C.C. § 12.1-31.2-

01(5)(d). A district court must address a respondent’s constitutional claims 

because constitutionally protected conduct cannot be a basis for a restraining 

order. Keller, 2017 ND 119, ¶ 8.
4

[¶14] The district court addressed Christopher’s constitutional argument at 

both hearings:

“[T]he definition of disorderly conduct . . . does not include 

constitutionally protected activity. There is a caveat on that, and 

this Court has signed disorderly conduct restraining orders where 

we have neighbors that are constantly on each other, and they’re 

using what would normally be constitutionally protected activity, 

but if I walk out of my house every day and my neighbor starts 

yelling obscenities at me to the point where it’s intrusive—do they 

have the constitutional right to free speech? They do, but just like 

you can’t yell ‘fire’ in a crowded theatre, there are limits. There 

comes a point where that constitutionally protected activity is no 

longer—it goes beyond the purpose of that. 

. . . .

“As I may have stated before, these get to be difficult calls because 

you have that fine line between constitutionally-protected activity, 

but, as I stated before too, there are limitations on constitutionally 

protected activity; otherwise, we wouldn’t have any success in 

enforcing any of our laws. And there’s always an explanation, 

whether it comes from Ms. Lehnerz or Ms. Christopher, as to how 

did—what happened here? How did this happen? What was the 

intent of the other person? And we can only go by the testimony 

that we heard or what other evidence is provided.

“I’m not changing the finding that I made last time. I do 

believe that Ms. Christopher engaged in activity that went beyond 

her constitutionally-protected rights, especially—and I point out—

I believe Ms. Christopher testified she took a photograph of Ms. 

Lehnerz because she thought maybe she was pregnant. And I 

cannot fathom why you would do that, why it would matter.” 

[¶15] There are limits on free speech and not all speech is constitutionally 

protected. City of Fargo v. Roehrich, 2021 ND 145, ¶ 21, 963 N.W.2d 248. “The 

First Amendment may protect the content of the speech, but the conduct used 

in delivering the speech may not be protected.” Id. at ¶ 22. Activities that harm 

another person are not constitutionally protected. State v. Holbach, 2009 ND 

37, ¶ 16, 763 N.W.2d 761. See also Dunham v. Roer, 708 N.W.2d 552, 565 (Minn. 
5

Ct. App. 2006) (stating the government may “regulate conduct that is invasive 

of the privacy of another”); Goosen v. Walker, 714 So. 2d 1149, 1150 (Fla. Dist. 

Ct. App. 1998) (concluding the appellant’s conduct of videotaping his neighbor 

constituted stalking that served no legitimate purpose and was not 

constitutionally protected conduct); State v. Goldberg, 2019 WL 1304109, *17 

(Tenn. Crim. App. 2019) (concluding defendant’s acts of parking in front of 

victim’s home, staring at victim and taking photos served no legitimate 

purpose but were calculated to harass and intimidate and were not 

constitutionally protected).

[¶16] The district court did not err in concluding Christopher’s conduct was 

not constitutionally protected. Some of her conduct occurred in public; however, 

Christopher intended her conduct to be intrusive rather than expressive. 

Christopher continued taking photos and videos after Lehnerz asked her to 

stop. Christopher’s conduct, including taking photos and videos, invaded the 

privacy of Lehnerz and her daughter.

[¶17] The record supports the district court’s decision. The court did not abuse 

its discretion in granting Lehnerz and her daughter a disorderly conduct 

restraining order against Christopher.

III

[¶18] The order is affirmed.

[¶19] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte