Iowa Court of Appeals: Profane Tirade at a Salvation Army Food Pantry Was Disorderly Conduct That Stripped Stand-Your-Ground Protection Before the Shove

Estimated reading time: 6 minutes

DES MOINES, IA — The Iowa Court of Appeals has affirmed the assault conviction of a man who unleashed a profane tirade on a Salvation Army receptionist and then shoved another patron to the floor, holding that his own abusive language could count as the kind of “illegal activity” that strips a person of Iowa’s stand-your-ground protection and restores the duty to retreat.

The October 21, 2026 opinion in State v. McKernan, written by Judge Greer for a three-judge panel that included Chief Judge Tabor and Judge Ahlers, lays out the sequence. On May 23, 2023, Montgomery McKernan walked into a Salvation Army food pantry without the pickup appointment staff had reminded him to make many times before. When the receptionist asked whether he had scheduled one, he answered, “You fucking bitch, I don’t need to make an appointment,” and kept repeating the slur as she told him others were ahead of him in line. A manager came out to deescalate, told him he would get food but had to wait his turn, and recalled hearing him threaten to “choke the life out of” the receptionist. She told him to leave. He refused. Two more managers came to the lobby and told him to leave again, somewhere between six and twelve times in total by the court’s count.

Another patron was in the lobby with her three-year-old son. She stepped forward over the profanity. When McKernan called the receptionist a “cunt,” she testified, “everyone kind of snapped” and several people shouted for him to leave. She moved within arm’s reach. McKernan shoved her backward. She hit the floor and injured her underarm and right leg.

McKernan’s account was different. He testified the women were “chanting” at him, that the patron pushed his chest, and that he feared the group was about to attack him, so he turned and pushed her away in self-defense. The patron denied ever touching him, and neither the receptionist nor any of the three managers saw her do so. A jury convicted him of assault causing bodily injury in May 2024, and he was sentenced to two days in jail and a $430 fine with a 15 percent surcharge.

He appealed on four grounds: the denial of his ninth motion to continue, the duty-to-retreat instruction, the refusal of a spoliation instruction, and the denial of an on-site jury view. The court rejected all four, but the retreat instruction is the one every Iowan who carries should read.

Iowa Code section 704.1(3) says a person who is not engaged in illegal activity has no duty to retreat from any place where the person is lawfully present before using force. The trial court told the jury McKernan’s force was not justified if he was not lawfully present, made no effort to retreat, and retreat was a reasonable alternative, or if he was committing disorderly conduct where he used force and the same retreat conditions applied. Disorderly conduct, under Iowa Code section 723.4(3), includes directing abusive epithets that a person knows or reasonably should know are likely to provoke a violent reaction.

McKernan argued his words were protected speech, not “fighting words,” so there was no disorderly conduct and no duty to retreat. Fighting words are the narrow category of direct personal insults, aimed at someone present, that by their very utterance inflict injury or tend to incite an immediate breach of the peace, and they get no First Amendment protection. The court applied an objective test, asking how a reasonable person in that lobby would understand the words and react, and found substantial evidence they fell inside the category: repeated, targeted epithets at one employee in a heated, face-to-face confrontation in a confined space, a bad history between the two, a receptionist who testified she was shaken, three employees pulled from the back of the building, and bystanders who stepped in. The alleged threat to “choke the life out of” the receptionist was separately a true threat, which has never been protected. McKernan’s claim that he only meant to “make a point” was immaterial.

His fallback argument has the broader reach. He contended that even if he committed disorderly conduct, the illegal activity has to be “germane,” meaning closely connected, to the later use of force before it can trigger a duty to retreat. He pointed to State v. Lorenzo Baltazar, where the Iowa Supreme Court held that a defendant’s unlawful possession of the handgun he used in a murder was illegal activity that defeated stand-your-ground, but left open whether a connection is always required. The Court of Appeals answered that the statute’s plain language contains no such requirement, and that even if it did, the shove “flowed directly from McKernan’s verbal barrage.” The panel added that fighting words are by nature an “invitation to exchange fisticuffs,” and that letting a speaker ignite a confrontation and then claim no duty to retreat from it would be an incongruous result.

The jury returned a general verdict, meaning it found him guilty without saying which theory it relied on. Under Iowa Code section 814.28, that verdict stands if any one instructed theory has enough evidence behind it, and the panel found two more that did: every witness but McKernan said the patron never touched him, so the jury could find he had no reasonable belief force was necessary, and the record is “replete” with instances of him being told to leave, so the jury could find he was trespassing when he shoved her.

More from USA Carry:

• Appeals Courts Now Split on 10-Round Magazine Bans, and California’s Is the Case Asking the Supreme Court to Step In
• Three Years Later: The Armed Citizen Who Ended a Mall Shooting in 15 Seconds and Saved Countless Lives
• Beaches, Parks and Bars Are Off Limits Again: Federal Court Clears Hawaii to Enforce Most of Its Carry Ban
• New Mexico Argued a Federal Judge Did Not Have to Follow the Appeals Court. He Blocked the State’s Gun Waiting Period Anyway
• A Federal Court Threw Out New Jersey’s Rifle and Magazine Bans. The State Is Asking to Keep Enforcing Them Anyway

The remaining issues went the same way. McKernan wanted a spoliation instruction, which tells jurors they may assume evidence the State intentionally destroyed would have hurt the State, over photographs of redness on his chest that the responding officer may or may not have taken. The court found no substantial evidence the photos ever existed, and the officer’s body camera footage of McKernan lifting his shirt was admitted anyway, so jurors could judge the redness themselves. The continuance denial was within the trial court’s discretion after eight prior continuances, five changes of counsel, and a speedy-trial waiver deadline he missed by more than a day and blamed on exhaustion. The jury view was unnecessary because photos and diagrams covered the same ground.

No gun was drawn in that lobby, but the statute the court interpreted is the same one an Iowa carrier would lean on after a shooting. Stand-your-ground is conditional on two things: being lawfully present and not being engaged in illegal activity. McKernan surrendered both before he touched anyone. He was told to leave and stayed, which made him a trespasser, and he kept the tirade going, which the jury was entitled to call disorderly conduct. Lorenzo Baltazar already showed that carrying unlawfully forfeits the protection. McKernan shows that your mouth can forfeit it too. The mindset that keeps you on the right side of section 704.1(3) walks out the door the first time you are told to leave and never says the words that invite the fight you then have to defend.

Read the original story: Iowa Court of Appeals: Profane Tirade at a Salvation Army Food Pantry Was Disorderly Conduct That Stripped Stand-Your-Ground Protection Before the Shove