No. 14356
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
ALFRED A. LUCIANO,
Plaintiff and Appellant,
MICHAEL REN and THE
STATE OF MONTANA,
Defendants and Respondents.
Appeal from: District Court of the Nineteenth Judicial
District,
Honorable Robert Sykes, Judge presiding.
Counsel of Record:
For Appellant:
Moses, Tolliver and Wright, Billings, Montana
K. D. Tolliver argued, Billings, Montana
For Respondents:
Garlington, Lohn and Robinson, Missoula, Montana
Gary Graham argued and Gary Churnrau argued,
Missoula, Montana
Submitted: December 19, 1978
Decided: JAN 2 4 1973
Filed:
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiff, Alfred A. Luciano, 111, instituted a civil
action against Michael Ren and the State of Montana, in
Lincoln County District Court alleging wrongful assault and
battery.
On September 26, 1974, at approximately 11:OO p.m.,
Michael Ren, a highway patrolman for the State of Montana,
received a request from the U.S. Forest Service and the
Lincoln County Sheriff's Department to assist in an arson
investigation in the Glen Lake area near Eureka. A series
of fires had been started in the vicinity, the most recent
occurring at 3:00 a.m., September 26, approximately twenty
hours before Ren came upon the scene.
With fellow investigators, Ren walked up a dirt road .
that ended at the top of a hill. The road had been swept by
plows earlier in the day, but tire tracks from a four-wheel
drive vehicle were discovered. The tracks were similar to
plaster casts of tracks that had been obtained three days
earlier. The tracks went to the top of the hill, but there
was no sign the vehicle had exited via the dirt road. It
was decided that the vehicle probably entered the forested
area at the end of the road and disappeared.
Ren had started walking down the hill, using his flashlight
to illuminate the way, when he noticed a pickup truck coming up
the road. He assumed it belonged to the Forest Service. Ren
was certain that it was not the vehicle that had been on the
road previously. Shortly thereafter, Ren noticed Alfred Luciano,
the plaintiff, walking towards him. Ren recognized Luciano
because earlier that day Ren had issued a speeding ticket to
him. Ren did not view Luciano as a suspect in the arson investi-
gation. The two men walked together. Luciano put his arm on
Ren's shoulder and stated that he knew who the arsonist was and
would tell Ren if he would tear up the speeding ticket. Ren
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promptly informed Luciano that no deal would be made on the
ticket.
As they approached the pickup, Ren told Luciano that if
he had information regarding the fires, he must give it to the
rangers and deputy sheriff. The men parted and Luciano walked
down the right side of the pickup. Ren, thinking Luciano was
going to leave, said, "You're not going anywhere." and grabbed
his arm. Luciano pulled away, swinging his right arm at Ren,
and Ren hit Luciano on the head with his flashlight. The
flashlight was sixteen inches long and weighed approximately
five pounds. Luciano testified at trial, that he was not
attempting to strike Ren, but that he had been pulled off balance
by Ren and was spinning around. Ren admitted that he was not
sure Luciano was striking a blow at him and that he was not
acting in self-defense; rather, he was reacting to Luciano's
swinging arm.
Ren placed Luciano in a hammerlock hold and forced him
against the hood of the pickup. Luciano wrestled loose,
swung around, and Ren hit him on the head again with the
flashlight. About this time, a sheriff's deputy, Eugene
Mustard, approached and the two officers handcuffed Luciano
and put him in the patrol car. Luciano managed to get out
of the car, and Ren hit him in the solar plexus with the
butt of the flashlight and pushed him back into the car,
where he remained until arriving at the Eureka jail.
Luciano was charged with and convicted of disorderly conduct.
On October 22, 1975, Luciano instituted this civil
action seeking compensation from Michael Ren and the State
of Montana for damages caused by wrongful assault and
battery. The case was tried before a jury in District
Court, Lincoln County, Montana. At the close of evidence,
Luciano's counsel moved for a directed verdict, contending
that Ren had no privilege, as a matter of law, to strike
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Luciano. The District Court denied the motion finding that
the officer's privilege, under these circumstances, was a
question of fact for the jury to decide. The case went to
the jury and a unanimous verdict was returned in defendants'
favor.
On appeal, Luciano raises two issues:
1. Was Ren's use of force privileged under Montana's
"stop and frisk" statute, section 95-719, R.C.M. 1947?
2. Did the District Court improperly refuse to admit
evidence of Rents prior assaults and altercations?
k peace officer is given a privilege, by statute, to
use all necessary and reasonable force in making an arrest.
Section 95-602, R.C.M. 1947. The privilege extends to the
use of force necessary to prevent the escape of the arrested
person. Section 94-3-106, R.C.M. 1947. However, the right
to make an arrest is vested in the officer by law and an
arrest without lawful authority violates the right of the
citizen to the "enjoyment of his personal liberty free from
aggression by anyone." State v. Bradshaw (1916), 53 Mcnt.
In 1973, section 95-719, R.C.M. 1947, was enacted. It
provides :
"Stop and frisk. (1) A peace officer may stop
any person he observes in circumstances that
give him reasonable cause to suspect that the
person has committed, is committing, or is
about to commit an offense involving the use
or attempted use of force against a person or
theft, damage, or destruction of property if
the stop is reasonably necessary to obtain or
verify an acccunt of the person's presence or
conduct or to determine whether to arrest the
person.
"(2) A peace officer may stop any person he
finds near the scene of an offense that he
has reasonable cause to suspect has just been
committed if:
"(a) he has reasonable cause to suspect that
the person has knowledge of material aid to
the investigation of the offense; or
"(I;) the stop is reasonably necessary to
obtain or verify the person's identity
or an account of the offense.
" (3) A peace officer may stcp any person
in connection with an offense that he has
probable cause to believe has been committed
if:
"(a) the offense is a felony involving the use
or the attempted use of force against a person
or theft, damage, or destruction of property;
" (b) he has reasonable cause to suspect the
person committed the felony; and
" (c) (i) the stop is reasonably necessary to
obtain or verify the person's identity to
determine whether to arrest the person for
the felony; or
"(ii) the peace officer has reasonable cause
to suspect that the person was present at the
scene of the offense and the stop is reasonably
necessary to obtain or verify the person's
identity.
"(4) A peace officer who has lawfully stopped
a person under this section may:
"(a) frisk the person and take other reasonably
necessary steps for protection if he has
reasonable cause to suspect that the person is
armed and presently dangerous to him or another
person present; and
"(b) take possession of any object that he
discovers during the course of the frisk if he
has probable cause to believe the object is
a deadly weapon.
" ( 5 ) A peace officer who has lawfully stopped
a person under this section may demand of the
person his name and his present or last address.
"(6) A peace officer who has lawfully stcpped
a person under this section shall inform the
person, as promptly as possible under the cir-
cumstances and in any case before questioning
the person, that he is a peace officer, that the
stop is not an arrest but rather a temporary
detention for an investigation, and that upon
completion of the investigation the person will
be released unless he is arrested.
"(7) After the authorized purpose of the stop
has been accomplished or 30 minutes have elapsed,
whichever occurs first, the peace officer shall
allow the person to go unless he has arrested
the person."
Section 95-719 does not specifically grant peace officers
a statutory privilege to use necessary and reasonable force
as the arrest statutes do. However, as a general proposition
of law, peace officers are expected to use such force as is
necessary to perform their regular duties. Miller, Criminal
Law 864 (b), p. 191.
-
"One who is interfered with in the discharge
of a duty, ... may, when force is required, use
such force as is reasonably necessary to enable
him to carry out his lawful purpose . ..
Hence a public officer acting under authority
of law and without malice is not liable for
assault and battery provided he uses no more
force than is reasonably necessary under the
circumstance to properly perform his official
duties." 6A C.J.S. Assault and Battery 826.
Whether the force used in a particular case is reasonable
is a question of fact for the jury to decide. As stated in
Mead v. O'Connor (1959), 66 N.M. 170, 344 P.2d 478:
"Officers, within reasonable limits, are
the judges of the force necessary to enable
them to make arrests or to preserve the
peace. When acting in good faith, the
courts will afford them the utmost protection,
and they will recognize the fact that
emergencies arise when the officer cannot
be expected to exercise that cool and
deliberate judgment which courts and juries
exercise afterwards upon investigations
in court. However, it devolves upon the
jury, under the evidence in the case and
proper instructions of the court, to
resolve these questions."
It should be noted that section 95-719 does specifically
refer to the officer's right to frisk the detained person
and take other reasonably necessary steps for protection if
he has reasonable cause to suspect that the person is armed
and presently dangerous. The United States Supreme Court
discussed the necessity for this privilege in the landmark
"stop and frisk" case, Terry v. Ohio (1967), 392 U.S. 1, 23,
"Certainly it would be unreasonable to
require that police officers take unnecessary
risks in the performance of their duties.
American criminals have a long tradition of
armed violence, and every year in this country
many law enforcement officers are killed in the
line of duty, and thousands more are wounded.
Virtually all of these deaths and a substantial
portion of the injuries are inflicted with guns
and knives.
"In view of these facts, we cannot blind ourselves
to the need for law enforcement officers to
protect themselves and other prospective victims
of violence in situations where they may lack
probable cause for an arrest. When an officer
is justified in believing that the individual
whose suspicious behavior he is investigating
at close range is armed and presently dangerous
to the officer or to others, it would appear to
be clearly unreasonable to deny the officer the
power to take necessary measures to determine
whether the person is in fact carrying a weapon
and to neutralize the threat of physical harm."
Ren and the State of Montana contend the use of force
was privileged in this case because Ren was attempting to
stop and frisk Luciano as allowed by section 95-719(2) (a).
Section 95-719(2)(a), allows a peace officer to stop any
person he finds near the scene of an offense that he has
reasonable cause to suspect has just been committed, if he
has reasonable cause to suspect that the person has knowledge
of material aid to the investigation of the offense. Luciano
told Ren he knew who started the fires and Luciano was at
the scene of the fires, but the crime had not just been
committed. It had been committed approximately twenty hours
earlier.
We must assume the Legislature had a legitimate reason
for including the above mentioned requirement in the statute.
State ex rel. Irvin, Inc. v. Anderson (1974), 164 Mont. 513,
525 P.2d 564. We cannot assume the Legislature intended to
allow peace officers to stop and frisk any person they
believe has useful information that is at the scene of an
offense nearly a full day after the offense was committed.
A stop and frisk "is a serious intrusion upon the sanctity
of the person, which may inflict great indignity and arouse
strong resentment, and it is not to be undertaken lightly".
v. Ohio, 392 U.S. at 17.
Terry - - "No right is held more
sacred, or is more carefully guarded, by common law, than
the right of every individual to the possession and control
of his own person, free from all restraint or interference
of others, unless by clear and unquestionable authority of
law." Union Pac. R. Co. v. Botsford (1891), 141 U.S. 250,
251, 11 S.Ct. 1000, 35 L.E. 734.
". . . [Ilt is not the province of the sheriff, con-
stable, or other officer to exert more force upon a citizen
than is necessary for the carrying out of his duties, and
discharging the functions of his office." Anderson, -
A
Treatise - - - -of Sheriffs, Coroners, and Constables
on the Law
(1941), 5294, p. 294-295. "A public officer has no right
because he is such to use violence toward a citizen, even
when in the discharge of his duty, except when the character
of the duty requires it, and even then he must go no further
than the circumstances demand." Rand v. Butte Electric Ry.
Co. et al. (1910), 40 Mont. 398, 407, 107 P. 87.
We find that Michael Ren was not performing a duty of
his office when he used force to stop Alfred Luciano on the
night of September 26, 1974. Therefore the use of force was
unprivileged and counsel's motion for a directed verdict
should have been granted. Having so decided, we need not
consider plaintiff's second issue.
Reversed and remanded for a determination of plaintiff's
damages.
We Concur:
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