96-284
No. 96-284
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LEO G. LAUGHLIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R.W. Heineman, Wibaux, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Elizabeth L.
Griffing, Assistant Attorney General, Helena,
Montana; Scott Herring, Deputy Dawson County
Attorney, Glendive, Montana
Submitted on Briefs: January 9, 1997
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Decided: February 20, 1997
Filed:
__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Leo G. Laughlin (Laughlin) appeals the decision of
the Seventh Judicial District Court, Dawson County, denying his
motion to dismiss three charges of felony assault on the grounds
that Laughlinþs arrest was illegal. We affirm.
The sole issue on appeal is whether the District Court abused
its discretion in concluding that Laughlinþs arrest was not illegal
and, consequently, denying his motion to dismiss the charges.
The three charges of felony assault at issue in this case
arose from a attempt by law enforcement officers to serve Laughlin
with a misdemeanor arrest warrant. Glendive police officer Ross
Canen (Canen) was investigating a charge of misdemeanor criminal
mischief against Laughlin, stemming from an incident in which
Laughlin allegedly damaged the door to his estranged wifeþs
apartment. In investigating this charge, Canen repeatedly
attempted to contact Laughlin. He called Laughlinþs residence
numerous times without response, went over to the residence once,
and left a note on one of Laughlinþs two vehicles. Canen also
called Laughlin at work but, when he identified himself as a police
officer, Laughlin hung up on him. Canen then swore out a complaint
for misdemeanor criminal mischief against Laughlin and, on the
basis of this complaint, the Glendive city court judge issued a
warrant for Laughlinþs arrest. The arrest warrant specifically
provided that "[b]ond is set at $250.00."
On March 27, 1995, Canen went to Laughlinþs place of
employment to arrest him on the misdemeanor criminal mischief
charge. Because law enforcement had experienced difficulties in
dealing with Laughlin in the past, Canen took two other officers
with him. At no time did any of the officers inform Laughlin that
the arrest warrant they were attempting to execute provided that
bond in the matter had been set in the amount of $250.
When the officers confronted Laughlin at work, Canen showed
Laughlin the arrest warrant, told him that he, Canen, had tried to
contact Laughlin several times without success, and informed
Laughlin that he was under arrest. Canen also advised Laughlin to
come peacefully with the officers to make an appearance before the
judge, warning him that if he resisted he would be sprayed with
mace. Laughlin stated that he would not go with the officers.
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Canen again requested that Laughlin cooperate and Laughlin again
refused.
The situation escalated when Laughlin pushed open a door, as
if to attempt to leave, and then turned back to face the officers
in a "boxerþs stance," with his fists up. Laughlin then ran at the
officers with his head down and his arms swinging. Leaving aside
the details of the ensuing struggle, suffice it to say that
Laughlin was maced several times and all three officers received
minor injuries before he was subdued. Laughlin was then
transported to jail. He was released later that day after he
posted the required $250 bond on the misdemeanor criminal mischief
charge; however, he was later charged with three counts of felony
assault pursuant to 45-5-202(2)(c), MCA, because the police
officers were injured in the course of the arrest.
When he appeared before the District Court to answer to the
charges of felony assault, Laughlin moved to dismiss the charges.
He argued that the police had violated his constitutional rights by
failing to inform him that bond had been set in the misdemeanor
matter at $250, and by failing to give him an opportunity to
instantly post the bond and thereby avoid the arrest. Laughlin
therefore asserted that his arrest was illegal and, because the
arrest was illegal, the charges should be dismissed. The District
Court determined that the officers had no duty to inform Laughlin
that bond had been set and, therefore, denied Laughlinþs motion to
dismiss. Laughlin then entered into a plea bargain with the State
by which he pled guilty to one count of felony assault but
specifically reserved his right to appeal the denial of his motion
to dismiss. We affirm on other grounds.
In his appeal, Laughlin attempts to impose on the police
officers involved an affirmative duty to inform him that bail had
been set in the underlying misdemeanor matter. This issue,
however, is largely irrelevant to the charges from which Laughlin
now appeals. Regardless of whether this Court determined that such
a duty existed or not, that determination would not serve to excuse
Laughlin from the felony assault charges stemming from his having
resisted the arrest.
Laughlin seeks to prove that his misdemeanor arrest was
unlawful due to several asserted constitutional violations. Since
the arrest was unlawful, Laughlin argues, he was justified in
resisting and, further, the State should be precluded from charging
him with assault due to his resistance.
This theory must fail, however, because no 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. Section 45-3-108, MCA, provides:
[a] person is not authorized to use force to resist an
arrest which he knows is being made either by a peace
officer or by a private person summoned and directed by
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a peace officer to make the arrest, even if he believes
that the arrest is unlawful and the arrest is in fact
unlawful.
(Emphasis added.) As the compilerþs comments in the annotations to
the section explain:
[t]he purpose of this section on use of force in
resisting arrest is to change the common-law rule that an
illegal arrest could be resisted lawfully. That rule
encouraged resistance and breaches of the peace. This
section requires submission to arrest. If the arrest is
illegal (a determination which few citizens can make
while being arrested), the arrestee should pursue civil
and criminal remedies rather than resort to self-
help . . . .
While this Court has not before had occasion to review this
provision of the criminal code, its purpose and effect are evident
from the plain language of the statute. An individual is not
entitled to resist regardless of the legality of an arrest. Should
the individual resist, he will not be excused from the consequences
of his actions simply because the underlying arrest was unlawful.
While both Laughlin and the State argue the question of
whether or not a peace officer has a duty to inform an individual
if bond has been set prior to effecting an arrest, we need not
address this question. Even assuming, arguendo, that such a duty
existed, and further assuming, arguendo, that the failure of the
officers to fulfill the hypothetical duty rendered the arrest
itself illegal, Laughlin was still statutorily prohibited from
resisting the arrest. Since Laughlinþs resistance of the
misdemeanor arrest was illegal, the District Court did not err in
refusing to dismiss the felony assault charges which arose from
that wrongful resistance.
Affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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