City of Bozeman v. Howard

Can You Be Convicted of Resisting Arrest in Montana If You Didn’t Know You Were Being Arrested? City of Bozeman v. J. Howard, 2021 MT 230

Boland Aarab PLLP

Yes, if the circumstances show you could reasonably perceive that an arrest was happening. In City of Bozeman v. J. Howard, 2021 MT 230, the Montana Supreme Court affirmed a resisting-arrest conviction and held that “no individual in the State of Montana is ever justified in using force simply because they are unaware that they are being arrested.” The Court also upheld the denial of a request to have the judge privately review the officer’s personnel file for past excessive force. Chief Justice McGrath dissented on the resisting-arrest conviction.

Key Takeaways

  • A defendant acts “knowingly” for resisting arrest when the totality of the circumstances would let a person reasonably perceive that an arrest is under way or imminent (J. Howard ¶ 21).
  • Extending State v. Laughlin (1997), the Court held that not knowing you are being arrested never justifies using force against the officer (¶ 22).
  • To get a court to review an officer’s personnel file under § 46-15-322(5), MCA, the defense must first show a “substantial need.” Saying the need can’t be known until the file is reviewed is not enough (¶ 17).
  • A Brady/Giglio argument raised for the first time in a reply brief, and not pursued on the first appeal, is not preserved (¶ 12).

In this case sheet: At a glance · What the Court held · Our position and how the Court differed · What changed · Statutes · When it applies · How hard · Later decisions · FAQ

The lawyers who argued this case are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

CitationCity of Bozeman v. J. Howard, 2021 MT 230, 405 Mont. 321, 495 P.3d 72
CourtMontana Supreme Court. Opinion by Justice Laurie McKinnon, joined by Justices Baker, Gustafson and Rice. Chief Justice McGrath concurred on the personnel-file issue and dissented on the sufficiency of the evidence.
DecidedSeptember 14, 2021
DocketDA 20-0165, on appeal from the Eighteenth Judicial District, Gallatin County (reviewing a Bozeman Municipal Court conviction)
ResultResisting-arrest conviction affirmed (5–0 on the personnel file; 4–1 on sufficiency)
Appellate counsel for Mr. HowardCaitlin Boland Aarab, Boland Aarab PLLP
Read the opinionOfficial opinion (Montana Supreme Court docket, PDF)

Case documents

Read the full opinion (PDF) →

What did the Montana Supreme Court hold in City of Bozeman v. J. Howard?

In November 2018 a woman called 911 because Mr. Howard was following her in his car in Bozeman after she had ended a brief relationship. An officer had earlier suggested that he stay away from her (¶ 3). A uniformed officer in a marked car pulled up behind him with overhead lights and a spotlight (¶ 3).

Mr. Howard got out before the officer spoke. The officer shouted commands. Mr. Howard questioned them, raised and lowered his hands, and moved them toward his waist. The officer drew his gun, then holstered it, grabbed Mr. Howard’s wrists and used a leg sweep. He testified that Mr. Howard struggled on the ground until a second officer helped handcuff him. Mr. Howard was taken to the hospital before jail (¶ 4). A jury in Bozeman Municipal Court convicted him of stalking, obstructing a peace officer and resisting arrest, and the district court affirmed (¶ 7). The appeal challenged only the resisting-arrest conviction and a pretrial discovery ruling (¶¶ 1–2).

The Supreme Court affirmed on both issues:

  1. Personnel file. Before trial, Mr. Howard asked the court to review the officer’s personnel file in private for past use of excessive force. The Municipal Court reviewed the file for untruthfulness but denied the excessive-force request (¶¶ 5–7). The Supreme Court held that any Brady/Giglio claim was not preserved (¶ 12). It also held that he had not shown the “substantial need” § 46-15-322(5) requires (¶¶ 13, 17).
  2. Sufficiency of the evidence. Given the earlier warning, the 911 call, and an armed, uniformed officer shouting commands from a marked patrol car, a jury could find that Mr. Howard could reasonably perceive he was being arrested and therefore acted knowingly (¶ 21). The Court added that no one is justified in using force “simply because they are unaware that they are being arrested” (¶ 22).

What did we argue, and how did the Court differ?

Our position on appeal.

  • The personnel file. We argued that the Municipal Court applied the wrong standard and that its ruling may have kept exculpatory information from the defense (¶ 12). Prior excessive force would have given the officer a motive to be untruthful about this arrest, and the defense could not show exactly what the file contained before anyone looked at it (¶ 16).
  • Knowledge. We argued that Mr. Howard could not have acted “knowingly.” He believed he was protecting himself from an unjustified physical assault and did not know the officer was trying to arrest him (¶ 19). We acknowledged that people can sometimes perceive an arrest without hearing “you are under arrest,” but argued this was not such a case (¶ 21).

The Court’s view.

  • On the file, the Court held that the Brady/Giglio theory was raised only in a reply brief and not raised on the first appeal to the district court, so it was not preserved (¶ 12). On substantial need, it followed City of Bozeman v. McCarthy, 2019 MT 209, and City of Billings v. Peterson, 2004 MT 232: the statute requires a motion showing need, and the argument that need could not be shown before review “ignore[s] the plain language” of § 46-15-322(5) (¶¶ 13, 17).
  • The Court did acknowledge our point about the parallels between this arrest and the same officer’s arrest in McCarthy, where the arrestee suffered fractured ribs and a collapsed lung. It noted that McCarthy was decided after the Municipal Court ruled, so neither that court nor Mr. Howard had the benefit of it (¶ 16).
  • On knowledge, the Court held that the totality of the circumstances allowed the jury to find he acted knowingly (¶ 21). It declined to adopt a rule that would let lack of awareness excuse the use of force (¶ 22).

The Chief Justice would have reversed. Chief Justice McGrath agreed on the personnel-file issue but dissented on sufficiency. He wrote that the patrol-car video showed the officer “far too aggressive” toward a man who was “clearly confused and nonthreatening,” and that the officer body-slammed Mr. Howard face first onto the pavement several times (¶ 26). He reached reversal by a different route than our knowledge argument: in his view the City did not prove the “violence” element under State v. Sutton, 2018 MT 143, and the officer “instigated the aggressive behavior to the extent that Howard did not have the opportunity to resist arrest” (¶¶ 28–29).

What did J. Howard change in Montana law?

  1. Lack of awareness is not a defense to force. The Court extended Laughlin‘s rule (no one may use force to resist even an unlawful arrest) to people who say they did not know they were being arrested (¶ 22). Justifiable use of force may still be a defense to other charges, such as assault on a peace officer, but it was not at issue here (¶ 22).
  2. Excessive force is not a defense to resisting arrest, so evidence of an officer’s past excessive force is relevant, if at all, only as impeachment (¶ 16; §§ 45-7-301(2), 45-3-108, MCA).
  3. Substantial need must come first. A defendant who wants a private court review of an officer’s personnel file must make a specific showing of need before the review (¶ 17).

Later decisions cite J. Howard on the substantial-need requirement and on the abuse-of-discretion standard. See Later decisions citing this case below.

Which Montana laws and rules apply?

When might J. Howard apply to you?

  • An officer shouts commands before saying “you’re under arrest.” Courts look at the whole situation, including lights, uniform, commands and what you already knew, to decide whether you could perceive an arrest (¶ 21).
  • You think an officer is using too much force. Montana law says to comply and pursue civil or criminal remedies afterward, not self-help (¶ 22).
  • You want an officer’s disciplinary history. A request must explain the specific need for the information up front (¶ 17).

How difficult is a sufficiency-of-the-evidence appeal in Montana?

These appeals rarely succeed:

  • Viewed for the prosecution. The Supreme Court reviews sufficiency de novo, but it views the evidence “in the light most favorable to the prosecution” and asks whether “a rational trier of fact could have found all the essential elements” beyond a reasonable doubt (¶ 10).
  • Discovery rulings get deference. Rulings on discovery motions are reviewed for abuse of discretion (¶ 9).
  • Preservation. Arguments not properly raised in the trial court, and on any first-level appeal, are waived (¶ 12).
  • Municipal-court appeals. When a case starts in municipal court, the Supreme Court reviews it as if the appeal had been filed there originally (¶ 8).

J. Howard shows how close these cases can be. The Chief Justice, reviewing the same video, would have reversed.

Statutes and rules

  • § 45-7-301, MCA: resisting arrest. Last amended in 2009; the current text matches what the Court applied.
  • § 45-3-108, MCA: use of force in resisting arrest. Last amended in 2009.
  • § 45-2-101, MCA: general definitions, including “knowingly.” Amended in 2023 and 2025, so the subsection number the opinion cites (35) may have changed.
  • § 46-15-322, MCA: disclosure by the prosecution, including substantial need in (5). Last amended in 1993.
  • § 45-7-302, MCA: obstructing a peace officer. Last amended in 1997.
  • Mont. Const. art. II, § 9: right to know.

Later decisions citing this case

The Boland Aarab Way

Boland Aarab PLLP represented Mr. Howard in this appeal. The Court affirmed his conviction, with the Chief Justice dissenting. We publish every published decision in our appeals, whatever the disposition, because the record shows where Montana law draws its lines. In this case the video, and the parallels to the same officer’s earlier arrest, were at the center of the appeal. We put the same work into records and recordings in our serious trucking and injury cases and catastrophic injury cases. When you hire Boland Aarab, you work with the attorneys whose names are on opinions like this one.

Frequently Asked Questions

Do police have to say “you’re under arrest” for resisting arrest to apply in Montana? No. The question is whether, under the totality of the circumstances, you could reasonably perceive that you were being arrested or soon would be (J. Howard ¶ 21).

Is it a defense to resisting arrest in Montana that the arrest was unlawful? No, if the officer was acting under color of official authority (§ 45-7-301(2), MCA). Montana law also prohibits using force to resist an arrest you know is being made, even if you believe it is unlawful (J. Howard ¶ 20; § 45-3-108, MCA).

Can a defendant get a police officer’s personnel file in Montana? Only by motion showing a substantial need for specific information that cannot otherwise be obtained without undue hardship. A general wish to find impeachment material is not enough (J. Howard ¶¶ 14, 17; § 46-15-322(5), MCA).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.