City of Bozeman v. McCarthy

Decision Date03 September 2019
Docket NumberDA 17-0080
Citation2019 MT 209,397 Mont. 134,447 P.3d 1048
Parties CITY OF BOZEMAN, Plaintiff and Appellee, v. Scott Reegan MCCARTHY, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: William F. Hooks, Law Office of William F. Hooks, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Bekki McLean, Greg Sullivan, Bozeman City Attorney’s Office, Bozeman, Montana

Justice Dirk M. Sandefur delivered the Opinion of the Court.

¶1 Scott Reegan McCarthy appeals the judgment of the Montana Eighteenth Judicial District Court, Gallatin County, affirming the Bozeman Municipal Court’s judgments of conviction on jury trial of misdemeanor Criminal Trespass, Assault (two counts), Resisting Arrest, and Obstructing a Peace Officer. We address the following restated issues on appeal:

1. Whether the Municipal Court erroneously subjected McCarthy’s asserted "substantial need" for the arresting officers’ personnel files under § 46-15-322(5), MCA, to balancing with their constitutional right to privacy?
2. Whether the Municipal Court erroneously excluded examining physician testimony regarding the nature and extent of injuries sustained by McCarthy incident to arrest?
3. Whether sufficient evidence existed to sustain McCarthy’s conviction for obstructing a peace officer as defined by § 45-7-302, MCA ?

¶2 We affirm.


¶3 While walking home after midnight on May 25, 2015, Bozeman residents Christopher and Kelsey Cundy observed a man, later identified as McCarthy, inside their pickup where they had left it parked on the street outside their home. As they continued to approach, they saw the man exit the pickup and attempt to get into their nearby parked car. At that point, Kelsey yelled at the man, causing him to run away with Kelsey in pursuit. Before Christopher caught up with them, McCarthy stopped, turned around, and struck Kelsey, scratching her chest with a pen. The man then again ran away with Kelsey in pursuit and Christopher still lagging behind. At some point, McCarthy stopped to confront Kelsey again. This time, however, Christopher had caught up, jumped between them, and briefly grappled with McCarthy before he broke free and ran out of sight. In response to Kelsey’s 911 call, Bozeman police officers quickly arrived on scene in numbers and spoke with the couple.

¶4 After stepping away from police to see if anything was missing from their pickup, the couple saw McCarthy reappear, running past them toward the end of the street where it dead-ended at Bozeman Creek. Christopher pursued the man toward the creek while Kelsey alerted the police. As McCarthy went into the creek, Officer Lloyd caught up, drew his sidearm, and ordered McCarthy to stop and raise his hands. When McCarthy was slow to respond, Officer Lloyd threatened to shoot him if he did not comply. McCarthy then complied. After a second officer arrived at the creek and held McCarthy at bay at Taser-point, Lloyd approached and gripped McCarthy by an arm to cuff and arrest him.

¶5 Officer Lloyd testified at trial that McCarthy then tensed up and attempted to pull free. Lloyd testified that, as McCarthy continued to struggle to break free, he punched McCarthy several times in the midsection to terminate his resistance and force him to submit to arrest. Lloyd and McCarthy fell to the ground as the struggle continued, with McCarthy face-down, holding his hands in underneath his body. Lloyd testified that McCarthy continued to defiantly hold his hands in despite repeated commands to show his hands and unsuccessful attempts by Lloyd to physically pull his hands out to subdue and cuff him. Lloyd further testified that during the process, he again repeatedly punched McCarthy in the side in an attempt to force him to submit to arrest. Meanwhile, a third officer (Officer Chaffins) soon joined the fray and also repeatedly punched McCarthy to force him into submission. The officers’ body cameras revealed the two officers on the ground struggling with McCarthy, punching and kneeing him, with another standing nearby.1 The officers eventually subdued and arrested McCarthy and had him transported to the hospital by ambulance for medical care. Officer Lloyd subsequently cited McCarthy into the City of Bozeman Municipal Court on two counts of assault, criminal trespass to a motor vehicle, obstructing a peace officer, and resisting arrest—all misdemeanors in violation of Title 45, MCA.

¶6 In a contentious pretrial discovery process, the State ultimately provided a broad swath of investigative information compiled by the Bozeman Police Department regarding the incident. The State refused, however, to permit discovery of the requested internal police department use-of-force policy, related use-of-force reports and dispositions regarding the McCarthy incident, and the involved officers’ pre-incident "personnel records."

¶7 On February 9, 2016, McCarthy filed a motion to compel discovery of the disputed information pursuant to § 46-15-322(1) and (5), MCA. Without further explanation, the motion cursorily asserted that the disputed items of information were relevant to the circumstances of McCarthy’s arrest and his contemplated defense that he was physically unable to obstruct and resist his arrest as alleged. In opposition, the State asserted that the disputed items of information were outside the scope of discovery separately required by § 46-15-322(1), MCA (required scope of state disclosure in ordinary course), and the Due Process clause of the Fourteenth Amendment to the United States Constitution (exculpatory information and other constitutionally material information2 ). Based on the "abundance" of incident-specific discovery already provided under §§ 46-15-322(1), 45-7-301(2), and -302(2), MCA (legality of arrest no defense to obstructing or resisting arrest), and the written representation of the deputy police chief that the disputed information was not Brady / Giglio information, the State asserted that McCarthy further failed to show "substantial need" for the disputed information under § 46-15-322(5), MCA (discovery information not otherwise provided for by § 46-15-322(1) - (2) ). In the contingent event that the court may nonetheless find that McCarthy had shown "substantial need" for the officers’ incident-specific use-of-force reports/dispositions or related prior disciplinary histories, the State asserted that an in camera inspection would be necessary to balance McCarthy’s asserted need with the officers’ rights to individual privacy under Montana Constitution Article II, Section 10. Asserting that a showing of "substantial need" under § 46-15-322(5), MCA, precludes any consideration of the officers’ privacy rights, McCarthy opposed the State’s request for an in camera inspection.

¶8 Without conducting an in camera inspection, the Municipal Court compelled the State to provide discovery of the police department’s use-of-force policy and related incident-specific use-of-force reports and dispositions regarding the officers. The court reasoned that:

all information ... pertaining to [McCarthy’s] arrest is entirely within the purview of § 46-15-322(1), MCA, because it may constitute a "statement" by the officers whom the State may rely on at trial ... and most, if not all, of the information could mitigate or negate [his] guilt or may reduce his potential sentence ... because it would provide additional details pertaining to the basis of the criminal charges against [him].

(Emphasis added.) However, without reference to Brady / Giglio standards, the court denied McCarthy’s request for discovery of the officers’ prior personnel records, concluding that:

employment records are subject to the right to privacy set forth in [ ] Article II, Section 10 of the Montana Constitution ... [and that i]n balancing the Defendant’s right to know with [the officers’] right to privacy in their respective personnel records, [the officers’] demand for privacy exceeds the merits of disclosure to the Defendant in this instance. [McCarthy] has not shown substantial need for the personnel records.

(Emphasis added.)

¶9 In a separate pretrial matter, the State filed a motion in limine pursuant to M. R. Evid. 402 - 03 to preclude McCarthy from presenting examining physician testimony regarding the nature and extent of injuries he sustained incident to the arrest (five fractured ribs and a partially collapsed lung). The State conceded that information describing "the sequence of events" regarding McCarthy’s "arrest or actions by those involved" was generally "relevant" to the charged offenses but asserted that any "medical information collected thereafter does not have any tendency to make the existence of any fact that is [of] consequence" to the charged offenses "more or less probable...." McCarthy contrarily asserted that the nature and extent of his injuries tended to prove that he was in fact physically unable to resist and obstruct the arrest as alleged. The Municipal Court reserved judgment pending consideration in the context of the actual trial evidence.

¶10 At trial, McCarthy made an offer of proof that the proffered testimony of the physician who examined him the next day was relevant to show the amount of force, i.e., excessive force, used by the arresting officers. The State reasserted its prior objections pursuant to M. R. Evid. 402 - 03. Noting that the physician did not examine McCarthy until the next day and that Officer Lloyd had already testified regarding his injuries, the Municipal Court rejected the offer of proof and excluded the proffered physician testimony. After a two-day trial, the jury found McCarthy guilty on all counts as charged. He appealed to the Montana Eighteenth Judicial District Court. The District Court affirmed. McCarthy timely appeals to this Court.


¶11 On appeal from municipal courts of...

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