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: JK/Q 2 d qrn ) '. 
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 investigation. 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 circumstances 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". 

Terry -- v. Ohio, 392 U.S. at 17. "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, constable, 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 ---- on the Law of Sheriffs, Coroners, and Constables 

(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. 

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We Concur: 

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