09/14/2021
DA 20-0165
Case Number: DA 20-0165
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 230
CITY OF BOZEMAN,
Plaintiff and Appellee,
v.
JACOB ANDREW HOWARD,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC-19-372B
Honorable Rienne H. McElyea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Appellate
Services Bureau Chief, Katie F. Schulz, Assistant Attorney General,
Helena, Montana
Gregory S. Sullivan, Bozeman City Attorney, Ed Hirsch, Assistant City
Attorney, Bozeman, Montana
Submitted on Briefs: July 28, 2021
Decided: September 14, 2021
Filed:
c ir-641.—if
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Jacob Andrew Howard appeals the judgment of the Montana Eighteenth Judicial
District Court, Gallatin County, affirming his conviction by a jury in Bozeman Municipal
Court for misdemeanor resisting arrest. Howard also appeals the Municipal Court’s denial
of his motion for an in camera review of the arresting officer’s personnel file for incidents
of excessive use of force. We affirm.
¶2 Howard presents the following issues for review:
1. Whether the Municipal Court abused its discretion when it denied Howard’s
motion for an in camera review of the arresting officer’s personnel file to
determine whether it contained information of prior instances of excessive use
of force.
2. Whether the District Court correctly determined that the City presented
sufficient evidence to convict Howard of resisting arrest.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In November 2018, Jasmine Sands dated Howard for four days before she ended the
relationship. Sands testified that Howard was verbally aggressive and controlling during
their short relationship. After ending their relationship, Sands met with Bozeman Police
Department (BPD) Officer Jeremy Tankink to get help recovering her belongings from
Howard. On November 20, 2018, while helping facilitate the return of Sands’s belongings,
Officer Tankink suggested to Howard that he stay away from Sands, and Howard agreed.
On the evening of November 24, 2018, while Sands was walking along Rouse Avenue in
Bozeman, Howard began following her in his car and imploring her to talk to him. Sands
initially ignored Howard but eventually told him she was walking to the Warming Center.
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He offered her a ride to the Warming Center and told her to get in his car. She declined
his offer and told him to leave her alone. Howard ignored Sands’s requests and continued
following Sands and telling her to get in his car. Howard’s conduct made Sands
uncomfortable, and she called 911. Sands described Howard and the vehicle he was
driving to the dispatcher. As heard on the 911 call, Sands repeatedly told Howard to leave
her alone. BPD Officers Thomas Lloyd and Ryan Jeppson responded to the call.
Officer Lloyd was the first to encounter Howard near a bar on Rouse Avenue.
Officer Lloyd was in uniform and driving a marked patrol car when he pulled behind
Howard’s vehicle with his overhead lights activated and shone a spotlight on Howard’s
vehicle.
¶4 Before Officer Lloyd said anything to him, Howard got out of his car and started to
approach Officer Lloyd’s vehicle. As Howard began stepping out of his vehicle,
Officer Lloyd immediately instructed Howard to place his hands up. Howard questioned
the officer’s commands but eventually raised his hands after being told three times to place
his hands up. Officer Lloyd next instructed Howard to turn around and walk backwards
toward the sound of Officer Lloyd’s voice. Howard did so but lowered his hands in the
process. Howard’s lack of compliance escalated Officer Lloyd’s safety concerns, so he
drew his handgun and again gave Howard verbal commands to “put [his] hands up.”
Howard raised his hands out to the side and asked Officer Lloyd an inaudible question, to
which Officer Lloyd responded, “Because I told you to! Do it now!” Howard remained
stationary with his hands outstretched from his sides and then moved them to his waist. He
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asked another inaudible question before Officer Lloyd shouted, “Put your hands up! What
don’t you understand?” Because Howard continued to question Officer Lloyd’s commands
and did not place his hands where Officer Lloyd could see them, Officer Lloyd told Howard
to kneel on the ground. With his gun holstered, Officer Lloyd grabbed Howard’s wrists
and held them behind Howard’s back. Officer Lloyd testified that he had to use a leg sweep
to bring Howard to the ground after Howard did not comply with his command to kneel.
He further testified that Howard continued to physically resist, flail about, and struggle
with him while Howard was on the ground. Officer Lloyd was able to put one handcuff
on after pushing Howard face-first onto the ground several times. Officer Jeppson arrived
at the scene and the two officers were able to secure and handcuff Howard. Officer Jeppson
transported Howard to the hospital after the incident to have him medically cleared for
incarceration. Howard was cited with the following misdemeanors: partner family member
assault, stalking, obstructing a peace officer, and resisting arrest. The State later dismissed
the partner family member assault. At his March 20, 2019 omnibus hearing, Howard
indicated his intent to assert the affirmative defense of justifiable use of force.
¶5 Howard filed a motion to compel the City to produce Officer Lloyd’s personnel files
for an in camera inspection based on Montana’s “right to know” under Article II, Section 9,
of the Montana Constitution. Howard alleged that he and another witness would testify
that Officer Lloyd was unjustified in using excessive force on Howard and that the officer
had lied about Howard acting aggressively toward him. Howard reasoned that if
Officer Lloyd had a history of using excessive force, it would support the officer’s motive
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to lie about the events during Howard’s arrest. Howard claimed a substantial need existed
for the Municipal Court to review the officer’s personnel file in camera to determine if
such evidence existed. Howard also asked the Municipal Court to review the files for
evidence of the officer’s untruthfulness.
¶6 The City did not object to an in camera review of Officer Lloyd’s personnel file for
instances of untruthfulness. However, it opposed Howard’s motion as to alleged incidents
of excessive use of force. The City argued that, regardless of whether the officer’s use of
force against Howard was “excessive,” his request was not supported by the principles of
Brady v. Maryland, 373 U.S. 83 (1963), or Montana’s criminal discovery statute, as
Howard failed to establish a substantial need for the alleged information because he offered
only hypothetical claims. The City argued Howard’s request was premised on the
erroneous belief that it was relevant whether Officer Lloyd “was justified in using
excessive force” against Howard because, pursuant to §§ 45-7-301(2), MCA, (resisting
arrest), and -302(2), MCA, (obstructing a peace officer), an officer’s decision to use any
force may not be used as a defense to either resisting arrest or obstruction of justice. In his
reply, Howard amended his request for relief to rely upon § 46-15-322(1)(e) and (5), MCA,
and Brady. Howard asserted prior instances of excessive force had exculpatory value and
that he had a substantial need to examine Officer Lloyd’s personnel file to support his claim
that he was “trying to protect and defend himself against an unlawful assault.”
¶7 After hearing arguments, the Municipal Court ruled that it would conduct an
in camera review of Officer Lloyd’s personnel file solely for instances of untruthfulness.
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In denying Howard’s motion as to instances of excessive force, the Municipal Court
reasoned that Howard failed to provide sufficient basis to overcome Officer Lloyd’s right
to privacy, had not presented evidence that he was aware of any prior uses of excessive
force by Officer Lloyd, and had not provided any compelling theory of admissibility. The
Municipal Court’s review found no instances of untrustworthiness. Howard was
subsequently convicted by a jury of stalking, resisting arrest, and obstructing a peace
officer. On appeal, the District Court affirmed Howard’s convictions, concluding that the
Municipal Court’s orders were correctly entered, and that sufficient evidence existed to
support Howard’s conviction. Howard appeals.
STANDARDS OF REVIEW
¶8 When a case originates in a municipal court, the district court functions as an
intermediate appellate court. City of Bozeman v. Lehrer, 2020 MT 55, ¶ 6, 399 Mont. 166,
459 P.3d 850 (citing §§ 3-5-303, 3-6-110, MCA). “Upon subsequent appeal to
[the Montana Supreme Court], this Court reviews the case ‘as if the appeal originally had
been filed in this Court.’” Lehrer, ¶ 6 (quoting City of Bozeman v. Cantu, 2013 MT 40,
¶ 10, 369 Mont. 81, 296 P.3d 461). We examine the record “independently of the district
court’s decision,” and the ultimate determination remains whether the district court
“reached the correct conclusions under the appropriate standards of review.” State v.
Davis, 2016 MT 102, ¶ 31, 383 Mont. 281, 371 P.3d 979 (quoting Stanley v. Lemire,
2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643).
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¶9 Evidentiary rulings and rulings on discovery motions are reviewed for an abuse of
discretion. City of Bozeman v. McCarthy, 2019 MT 209, ¶ 12, 397 Mont. 134,
447 P.3d 1048. A lower court abuses its discretion if it “exercises granted discretion based
on a mistake of law, erroneous finding of material fact, or otherwise acts arbitrarily, without
conscientious judgment or in excess of the bounds of reason, resulting in substantial
injustice.” McCarthy, ¶ 12.
¶10 This Court reviews de novo a district court’s conclusion as to whether sufficient
evidence exists to support a jury’s verdict. State v. Sutton, 2018 MT 143, ¶ 10,
391 Mont. 485, 419 P.3d 1201. In making this assessment, we view the evidence in the
light most favorable to the prosecution to determine whether a rational trier of fact could
have found all the essential elements of the offense beyond a reasonable doubt.
Sutton, ¶ 10.
DISCUSSION
¶11 1. Whether the Municipal Court abused its discretion when it denied Howard’s
motion for an in camera review of the arresting officer’s personnel file to determine
whether it contained information of prior instances of excessive use of force.
¶12 Howard first argues that the Municipal Court’s denial of his motion potentially
deprived him of exculpatory information that may have proven relevant to his defense.
Howard next argues that the Municipal Court abused its discretion by denying his motion
for an in camera review of Officer Lloyd’s personnel file for prior instances of excessive
force, contending that the Municipal Court applied the incorrect standard for disclosure of
information. The State maintains that Howard did not present a due process claim or allege
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the City failed to disclose exculpatory information in the Municipal Court or in the
District Court. On appeal, Howard argues that he “requested an in camera inspection by
the Court for Brady/Giglio material.” However, Howard’s request based on Brady/Giglio
and § 46-15-322(1)(e), MCA, was raised for the first time in Howard’s reply brief filed in
the Municipal Court. Further, Howard did not raise a Brady/Giglio argument on appeal to
the District Court. Instead, Howard focused on his claim that a substantial need existed
under § 46-15-322(5), MCA. Accordingly, Howard has failed to preserve any
Brady/Giglio argument that may have existed. The Court has “no obligation to formulate
saving arguments” or to further develop Howard’s passing references to potential
Brady/Giglio information, or similar information under § 46-15-322(1)(e), MCA, and we
decline to address those matters further. McCarthy, ¶ 15.
¶13 The only issue remaining is whether the Municipal Court abused its discretion when
it determined that Howard failed to present a substantial need to justify an in camera review
of Officer Lloyd’s personnel file for instances of excessive force. McCarthy guides our
analysis. In McCarthy, Officer Lloyd’s personnel files again found themselves at the center
of a discovery dispute. McCarthy, ¶ 6. McCarthy filed a motion to compel discovery of
Officer Lloyd’s personnel file following an arrest that resulted in McCarthy’s
hospitalization. McCarthy, ¶¶ 5-7. The Municipal Court denied McCarthy’s motion,
concluding that he failed to demonstrate a substantial need for the personnel records.
McCarthy, ¶ 8. On appeal, we affirmed the Municipal Court, noting that “in explicitly
denying McCarthy’s motion with reference to the officers’ rights to privacy, the
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Municipal Court implicitly rejected or subordinated his predicate assertion of ‘substantial
need’ under § 46-15-322(5), MCA.” McCarthy, ¶ 16. We further noted that, while
McCarthy’s “purpose was to discover any prior history of the arresting officers’ use of
excessive force,” he had failed to “particularly articulate or show what legitimate
‘substantial need’ he had for that information . . .” McCarthy, ¶ 16. Howard correctly
notes that he followed the appropriate procedure to request a review of Officer Lloyd’s file.
In denying Howard’s motion, the Municipal Court remarked that Howard “needs to provide
reasons here to overcome the privacy issues that do arise” and that “unless the defendant
is aware of some excessive force issues, [the evidence from Officer Lloyd’s personnel file]
would not become admissible.” As in McCarthy, the Municipal Court denied Howard’s
motion with reference to the officer’s right to privacy. In so doing, Howard’s assertion of
a substantial need was implicitly rejected. We reject Howard’s argument that the
Municipal Court did not apply the appropriate standard for disclosure of information
pursuant to § 46-15-322(5), MCA.
¶14 Criminal prosecutors have an “affirmative duty to disclose all information and
materials known to the prosecutor that are favorable to the accused and constitutionally
material to the determination of his or her guilt or punishment.” McCarthy, ¶ 14;
Brady, 373 U.S. at 87-88, 83 S. Ct. at 1196-97; Giglio v. United States, 405 U.S. 150,
153-55, 92 S. Ct. 763, 766 (1972). Montana imposes an independent, but corollary,
obligation on prosecutors to make available upon request all material or information that
tends to mitigate or negate the defendant’s guilt as to the offense charged or that would
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potentially reduce the defendant’s sentence. Section 46-15-322(1)(e), MCA. These
obligations do not, however, “create a general constitutional discovery right entitling an
accused to unfettered access to sift through all information available to the government that
might be helpful at trial or sentencing.” McCarthy, ¶ 14. Independent of a prosecutor’s
Brady/Giglio duty, § 46-15-322(5), MCA, provides that upon motion showing that the
defendant has “substantial need” for additional material or information not otherwise
provided and for which the defendant is unable to obtain the substantial equivalent without
undue hardship, a court may order that the information be made available.
¶15 Regarding nonexculpatory information such as information used for impeachment,
the scope of the required disclosure is limited to constitutionally material evidence tending
to show that a prosecution witness is unreliable, biased, has an interest or motive to testify
falsely, or has a character for untruthfulness. United States v. Bagley, 473 U.S. 667,
676-77, 105 S. Ct. 3375, 3380-81 (1985); Giglio, 405 U.S. at 154-55, 92 S. Ct. at 766;
McCarthy, ¶ 14. Nonexculpatory information is constitutionally material only if
nondisclosure would be reasonably likely to “undermine confidence” in the fairness of the
trial or sentencing determination under the totality of circumstances. Bagley,
473 U.S. at 678-82, 105 S. Ct. at 3380-81; Giglio, 405 U.S. at 154, 92 S. Ct. at 766;
McCarthy, ¶ 14. Nonexculpatory evidence is constitutionally material only where the
subject witness provides “key ‘evidence linking the defendant(s) to the crime, or where the
likely impact on the witness’s credibility would . . . undermine[] a critical element of the
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prosecution’s case.’” McCarthy, ¶ 14 (quoting United States v. Payne, 63 F.3d 1200,
1210 (2d Cir. 1995)).
¶16 Howard asserts that evidence of prior excessive force by Officer Lloyd would prove
necessary to impeach Officer Lloyd. Howard reasons that if there are instances of prior
excessive force, Officer Lloyd would have a motive to be untruthful in his testimony about
the offense. Howard further contends that he was denied access because he could not
demonstrate, prior to review of the file, whether the file contained the information he
sought. Preliminarily, we note that the BPD has handled these proceedings in a manner
similar to McCarthy, inasmuch as the BPD deputy chief submitted a letter stating that he
had reviewed Officer Lloyd’s personnel file and did not find any information relevant to
instances of untruthfulness or excessive or unjustified use of force. This suggests that no
information was placed in Officer Lloyd’s file relative to the proceedings in McCarthy,
which occurred prior to the instant case. We also observe that our decision in McCarthy,
wherein we set forth the injuries McCarthy sustained during his arrest by Officer Lloyd
and other officers—multiple fractured ribs and a collapsed lung—was decided after the
Municipal Court’s decision in this matter. The parallels between the facts in McCarthy
and the facts here are noteworthy. In McCarthy, Officer Lloyd “ordered McCarthy to stop
and raise his hands . . . [and] [w]hen McCarthy was slow to respond, Officer Lloyd
threatened to shoot him if he did not comply.” McCarthy, ¶ 4. Officer Lloyd further
testified that “McCarthy then tensed up and attempted to pull free . . . [and] that, as
McCarthy continued to struggle to break free, [Officer Lloyd] punched McCarthy several
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times in the midsection to terminate his resistance and force him to submit to arrest.”
McCarthy, ¶ 5. The Municipal Court and Howard did not have the benefit of our decision
in McCarthy. Finally, we discern Howard’s argument to be not that the use of excessive
force in and of itself is relevant, but that any prior instances of excessive force by
Officer Lloyd would be relevant as impeachment to demonstrate that Officer Lloyd would
have a motive to be untruthful in his testimony about the offense. This distinction is
well-taken because an officer’s use of excessive force to make an arrest is not a defense to
resisting arrest. With these observations in mind, we turn to whether Officer Lloyd’s
personnel file should have been examined for prior instances of excessive force.
¶17 In City of Billings v. Peterson, we affirmed a district court’s conclusion that no
substantial need existed under § 46-15-322(5), MCA, when the basis of the denied request
was for “cross-examination purposes.” 2004 MT 232, ¶ 42, 322 Mont. 444, 97 P.3d 532.
On appeal, Peterson contended that he remained unable to specify how he would use the
information until he obtained it. Peterson, ¶ 43. In concluding that Peterson failed to
establish a substantial need, we remarked that “[t]his argument ignores the plain language
of § 46-15-322(5), MCA, which requires a motion demonstrating substantial need.”
Peterson, ¶¶ 43-44. Likewise, Howard contends that the personnel file is relevant for
cross-examination purposes to impeach Officer Lloyd’s credibility. Howard further argues
that he cannot demonstrate a substantial need until he reviews the file. These arguments
ignore the plain language of § 46-15-322(5), MCA. While this Court, as well as the
District Court and the Municipal Court, are not privy to BPD personnel policy and have no
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information regarding whether or why circumstances such as those underlying McCarthy’s
arrest were not addressed or documented in BPD personnel files, the dispositive fact
remains that Howard was unable to demonstrate a substantial need for particular
information in Officer Lloyd’s personnel file at the time he made his request.
Howard did not present any evidence to the Municipal Court that Officer Lloyd was
unreliable, biased, untruthful, or had a motive to testify falsely. Howard has failed to
demonstrate—particularly given the statutory language of §§ 45-7-301(2) and
45-3-108, MCA, which prohibit as a defense that the arrest was unlawful or the use of force
to resist an arrest—that the nonexculpatory impeachment information was constitutionally
material and that failure to make it available would undermine the confidence in the
fairness of his trial. Accordingly, under the facts present here, the Municipal Court did not
abuse its discretion in denying Howard’s motion for an in camera review of
Officer Lloyd’s personnel file for instances of excessive force.
¶18 2. Whether the District Court correctly determined that the City presented sufficient
evidence to convict Howard of resisting arrest.
¶19 Howard argues that insufficient evidence existed to support his conviction for
resisting arrest. Specifically, Howard contends that he could not have acted knowingly
because he believed he was acting to prevent an unjustified physical assault and was
unaware that Officer Lloyd was attempting to arrest him. The State argues that the
evidence presented at trial supported the jury’s conclusion that Howard acted knowingly.
¶20 Section 45-7-301(1)(a), MCA, provides, pertinently, that a person “commits the
offense of resisting arrest if the person knowingly prevents or attempts to prevent a
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peace officer from effecting an arrest by using or threatening to use physical force or
violence against the peace officer or another.” A person acts knowingly with respect to
conduct or to a circumstance described by a statute defining an offense when the person is
aware of the person’s own conduct or that the circumstance exists.
Section 45-2-101(35), MCA. Further, “[i]t is no defense to [the charge of resisting arrest]
that the arrest was unlawful, if the peace officer was acting under color of the officer’s
official authority.” Section 45-7-301(2), MCA. This language reinforces
§ 45-3-108, MCA, which prohibits the use of force to resist an arrest “that the person knows
is being made . . . by a peace officer . . . even if the person believes that the arrest is unlawful
and the arrest in fact is unlawful.” The prohibition on use of force in resisting arrest arises
from the view that “the common law rule that an illegal arrest could be resisted lawfully .
. . encouraged resistance and breaches of the peace.” State v. Laughlin, 281 Mont. 179,
182, 933 P.2d 813, 815 (1997).
¶21 Howard acknowledges that “in some situations a person could reasonably be
expected to perceive that he is under arrest without hearing [‘you are under arrest’],” but
argues that this was not such a situation. We disagree. The record provides substantial
evidence to support the jury’s finding that Howard could reasonably perceive that he was
under arrest and therefore acted knowingly. The State provided evidence that Howard had
been warned by Officer Tankink to stay away from Sands. Howard disregarded that advice
and approached Sands, prompting Sands to call 911 and provide a description of Howard.
Regardless of whether Howard was aware that Sands called 911, he was aware that he had
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been warned to stay away and that Sands had called someone. Moreover, while Howard
did not admit that he knew Sands had called the police, he did admit that he assumed Sands
would call the police and that he would have to speak with law enforcement as a result.
Officer Lloyd responded to Sands’s 911 call and pulled behind Howard’s vehicle in a
marked patrol vehicle with his overhead lights activated. Howard immediately exited his
vehicle, prompting Officer Lloyd to shout several commands. Howard failed to comply
with those commands. Faced with an armed, uniformed police officer exiting a patrol car
and shouting commands, a person could reasonably perceive that they are or will soon be
under arrest. Failure to comply with those commands would, inevitably, lead to an arrest.
Howard’s trial testimony indicates that, at a minimum, he was aware that Sands may have
called law enforcement. Officer Lloyd’s appearance confirmed Howard’s assumptions.
At that moment, with the totality of the circumstances indicating that Officer Lloyd was
clearly a police officer and having at least some awareness of the reason for his presence,
Howard acted knowingly and resisted Officer Lloyd’s commands.
¶22 Howard’s argument that he could not have resisted arrest because he did not know
that Officer Lloyd was attempting to arrest him would inevitably lead to a troubling logical
conclusion that this Court is not prepared to reach. As this Court stated clearly in Laughlin,
“[N]o individual in the State of Montana is ever justified in using force to resist an arrest
by a police officer, regardless of whether the arrest was lawful or not.” 281 Mont. at 182,
933 P.2d at 814-15. Similarly, no individual in the State of Montana is ever justified in
using force simply because they are unaware that they are being arrested. While justifiable
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use of force may be a defense to a charge of, for example, assault on a peace officer, that
issue is not present here. State v. Courville, 2002 MT 330, ¶¶ 35-40, 313 Mont. 218, 226,
61 P.3d 749. Instead, civil and criminal remedies should be pursued, rather than self-help.
See Laughlin, 281 Mont. at 182, 933 P.2d at 815.
¶23 Howard does not contest the sufficiency of the evidence as to the remaining
elements of the offense. Therefore, the Court will not address the remaining elements. The
District Court correctly determined that sufficient evidence existed to support Howard’s
conviction for resisting arrest.
CONCLUSION
¶24 Howard failed to demonstrate a substantial need for an in camera review of
Officer Lloyd’s personnel file for instances of excessive force. Sufficient evidence was
presented to the jury to support every element of the offense of resisting arrest.
Howard’s conviction is affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
Chief Justice Mike McGrath, concurring and dissenting.
¶25 While I agree with the majority on Issue One, I dissent from the majority Opinion
on Issue Two.
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¶26 In my view the officer was far too aggressive in his response to the situation he
faced. The video from Officer Lloyd’s police vehicle shows Officer Lloyd’s initial contact
quickly escalated to loud and vigorous demands directed at Howard, who was clearly
confused and nonthreatening. Officer Lloyd drew his weapon, and his speech grew
increasingly angry. The confrontation became physical as Officer Lloyd attempted to place
handcuffs on Howard. Officer Lloyd kicked Howard’s feet from under him, causing
Howard to fall, and body-slammed him face first onto the pavement several times, injuring
Howard to the extent that he was taken for emergency health care following his arrest.
¶27 Section 45-7-301, MCA, specifically requires a person to knowingly prevent or
attempt to prevent a peace officer from effecting an arrest by “(a) using or threatening to
use physical force or violence against the peace officer or another; or (b) using any other
means that creates a risk of causing physical injury to the peace officer or another.”
Section 45-7-301(1), MCA.
¶28 In State v. Sutton, 2018 MT 143, ¶ 26, 391 Mont. 485, 419 P.3d 1201, this Court
cited Black’s Law Dictionary (7th ed. 1999) to define the term “violence” in
§ 45-7-301(1)(a), MCA, as “unjust or unwarranted use of force, usually accompanied by
fury, vehemence, or outrage.” Here, the City was unable to demonstrate that Howard
engaged in any violence. In my view there was insufficient evidence to support Howard’s
conviction of resisting arrest. But see State v. Carter, 285 Mont. 449, 948 P.2d 1173
(1997).
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¶29 While there is no doubt that officers on the street are often forced to engage in
dangerous situations, especially when making an arrest, here the video demonstrates
Officer Lloyd instigated the aggressive behavior to the extent that Howard did not have the
opportunity to resist arrest.
¶30 I concur as to Issue One and dissent as to Issue Two.
/S/ MIKE McGRATH
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State v. J. Howard
Combined Opinion