No. 90-284 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

CITY OF COLUMBIA FALLS, Plaintiff and Respondent,
v. STEVEN M. BENNETT, Defendant and Appellant. 

## FEBl9 1- 

# ZJ3mid CLERKOFSUPREMECBUm STATE OFMQNTAWA

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.

Filed: Submitted on briefs: November 29, 1990 Decided: February 19, 1991Justice 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 nonjury trial in the Eleventh Judicial ~istrictCourt, 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 languageI1in violation of 5 45-8-101(~),MCA. 2. Whether the District Court erred in finding the defendant's language disturbed the peace. Justaftermidnight onAugust 21, 1988,an officerof 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 aparking lotadjacent to theCircle 

### 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 streetand spoketo thedriver. Thedefendant then returned to the bar and the wrecker arrived to tow the vehicle. As the wrecker driver was preparing to hook up the vehicle, thedefendant again came out of thebar andbegan loudlyand vehemently protesting the activity. The defendant told thewrecker 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'refucking 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 complaintwas 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 issueraised on appeal iswhether theDistrict Court erred in finding the defendant used "threatening, profane, or abusive languagewin 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 sucha nature that "men of common intelligencewould 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 Itwas not necessary, however, for thedefendant's words to be "fightingwords.@@ 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 thepeace by using profane and abusive language, within the common understanding of those terms,toboth thewrecker driverand tothe officer. He had thereforeviolated the statute. Both parties to this appeal rely on City of Whitefish v. OIShaughnessy, 216Mont. 433, 704 P.2d 1021 (1985)

# . Thedefendant 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 "fightingwordswwithin thedefinition set outby theUnited 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 iswritten, the District Court did not err in finding a violation. Thedefendant's initialappellate brief tothis Court doesnot challenge the constitutionalityof 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 thepeace. The defendant maintains that because the environment surrounding the incidentwas noisy fromvehicle and bar activity, there was no "peace1'to be disturbed and he therefore could not have cornmittedtheoffense ofdisorderly conduct. The conducthere 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 causedpeople 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,'~ is equallywithoutmerit. Thewreckerdrivertowhom the languagewas 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: