No. 90-284
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
CITY OF COLUMBIA FALLS,
Plaintiff and Respondent,
v. FEBl9 -
1
STEVEN M. BENNETT, ZJ 3 m i d
CLERK OF SUPREME C U
Bm
STATE OF MQNTAWA
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry A. Wallace, Missoula, Montana
For Respondent:
Katherine R. Curtis, Columbia Falls City Attorney,
Columbia Falls, Montana; Marc Racicot, Attorney
General; Paul Johnson, Assistant Attorney General,
Helena, Montana.
Submitted on briefs: November 29, 1990
Decided: February 19, 1991
Filed:
Justice William E. Hunt, Sr., authored the opinion of the Court.
On October 27, 1989, defendant and appellant Steven Bennett
was found guilty of the offense of disorderly conduct in a non-
jury trial in the Eleventh Judicial ~istrict Court, Flathead
County. He appeals from that conviction.
We affirm.
Two issues are raised on appeal:
1. Whether the District Court erred in finding the defendant
used "threatening, profane, or abusive languageI1 in violation of
5 45-8-101(~), MCA.
2. Whether the District Court erred in finding the
defendant's language disturbed the peace.
Just after midnight on August 21, 1988, an officer of the City
of Columbia Falls Police Department stopped a driver on suspicion
of driving under the influence of alcohol. The officer pulled the
driver over into a parking lot adjacent to the Circle K convenience
store, which was across the street from the Paul Bunyan Bar. The
officer administered field sobriety tests to the driver, and
subsequently arrested him for driving under the influence. The
officer called a wrecker to tow the vehicle and the driver was
confined in the patrol car.
At this point, the defendant, owner of the Paul Bunyan Bar,
came across the street and spoke to the driver. The defendant then
returned to the bar and the wrecker arrived to tow the vehicle.
As the wrecker driver was preparing to hook up the vehicle, the
defendant again came out of the bar and began loudly and vehemently
protesting the activity. The defendant told the wrecker driver in
a loud and threatening voice that he was a "son of a bitchu and a
Itbastard"and that he (the defendant) was going to "put a stop to
it.
The policeman told the defendant to "back off." The officer
testified that the defendant then told him, among other things,
ItYou're fucking out of line. You've done it this time, you're
fucked." The defendant returned to the Paul Bunyan Bar. The
confrontation lasted five or ten minutes.
On September 20, 1988, a complaint was filed in the City Court
of the City of Columbia Falls, charging the defendant with one
count of disorderly conduct and one count of obstructing a peace
officer. He was found guilty of disorderly conduct, and he
appealed from that conviction. The District Court, in a non-jury
trial de novo, found the defendant guilty of disorderly conduct.
The first issue raised on appeal is whether the District Court
erred in finding the defendant used "threatening, profane, or
abusive languagew in violation of 5 45-8-101(c), MCA.
section 45-8-101, MCA, provides in part:
(1) A person commits the offense of disorderly conduct
if he knowingly disturbs the peace by:
(c) using threatening, profane, or abusive language;
The District Court stated that the defendant's words were of such
a nature that "men of common intelligence would understand that the
words were likely to cause an average person to fight." Defendant
maintains that his words were neither threatening nor obscene and
therefore could not be labelled I1fightingwords.It
It was not necessary, however, for the defendant's words to be
"fighting words.@@ Section 45-8-101(c), under which the defendant
was charged, simply makes it a violation to use ltthreatening,
profane, or abusivew language. The defendant knowingly disturbed
the peace by using profane and abusive language, within the common
understanding of those terms, to both the wrecker driver and to the
officer. He had therefore violated the statute.
Both parties to this appeal rely on City of Whitefish v.
OIShaughnessy,216 Mont. 433, 704 P.2d 1021 (1985) . The defendant
in Whitefish was charged under a municipal ordinance forbidding
offensive behavior when he called the officer a "[m. f. ]Iv and "this
statement was made willfully, maliciously, visually, and directly
to the officer, and that the language used constituted 'fighting1
words." Whitefish at 436, 704 P.2d at 1023. At trial, the court
instructed the jury that Ifthreatening,profane and obscene words,
said without a disarming smile, are generally considered to be
fighting words. On appeal, we held that certain taunting and
namecalling directed toward a peace officer did constitute
"fighting wordsw within the definition set out by the United States
Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 62
S.Ct.766, 86 L.Ed. 1031 (1942).
whitefish is distinguishable from the case before us. Here
we have no "fighting wordsw requirement in the charging document
or in a jury instruction. As the statute is written, the District
Court did not err in finding a violation.
The defendant's initial appellate brief to this Court does not
challenge the constitutionality of 5 45-8-101(c) either under the
United States Constitution or under the Montana constitution, so
we need not reach that issue. His discussion of constitutionality
is limited to his reply to the City's brief, and therefore is not
properly a subject of this Opinion.
The second issue is whether the District Court erred in
finding the defendant's language disturbed the peace.
The defendant maintains that because the environment
surrounding the incident was noisy from vehicle and bar activity,
there was no "peace1' to be disturbed and he therefore could not
have cornmittedthe offense of disorderly conduct. The conduct here
did not disturb a quiet residential neighborhood like that in City
of Billings v. Batten, 218 Mont. 64, 705 P.2d 1120 (1985), but it
nevertheless caused a crowd to form and caused people to stop other
business and observe the confrontation. As such it upset the
status quo, or "disturbed the peace."
The appellant's next argument that the only ones disturbed
were police or their agents who "must not conceive that every
threatening or insulting word or gesture or motion amounts to
disorderly c~nduct,'~ equally without merit.
is The wrecker driver
to whom the language was addressed was not a police officer and the
crowd that formed was not comprised of police officers. The
District Court did not err in finding disorderly conduct by
disturbing the peace.
Affirmed .
We concur: