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- 

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CLERK OF SUPREME CBUm 

STATE OF MQNTAWA 

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, 1991 
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 nonjury 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 I1fighting words.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,'~ is equally without merit. 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: