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DID JUDGE WEST HAVE AUTHORITY TO ORDER GIANFORTE TO TAKE MUG SHOT?

Posted by Thomas J. Karem | Aug 26, 2017 | 0 Comments

Justice Rick West, Gallatin County Justice Court, denied representative Greg Gianforte's motion to be excused from the condition of his sentence that he have his mug shot and fingerprints taken by the Gallatin County Sheriff's Office. Gianforte's attorney, Gianforte argued that Justice West's sentencing condition was not allowed under the laws of Montana. Gallatin County attorney Marty Lambert argued that it was. So which party was right? I've not read Gianforte or Lambert's briefs filed in court, but the answer is obvious--judges may impose reasonable conditions when a sentence is suspended or deferred.

On May 24, 2017, representative Gianforte was charged with misdemeanor assault for body slamming news reporter Ken Jacobs. Gianforte also chocked and punched the reporter. Penalties for misdemeanor assault in Montana are up to a $500 fine, up to 6 months in jail, or both. Misdemeanor assault occurs when a person causes another person either bodily injury or threat of bodily injury. "Bodily injury" means physical pain, illness, or an impairment of physical condition and includes mental illness or impairment. If the assault causes a person serious bodily injury, then it is aggravated (felony) assault. Gianforte's assault could have easily become a felony had he, for instance, broken the reporter's arm when Gianorte slammed him to the floor. Gianforte pled "no contest" to the charge. "No contest" or "nolo contendre" simply means that a defendant neither admits nor denies the charge. In such case, the prosecutor states the facts to satisfy the elements of the crime, and the defendant does not dispute them. Initially, Justice West sentenced Gianforte to four days in jail but moments later changed his sentence to a six month deferred sentence. The issue was whether or not Justice West was authorized to impose the condition that Gianforte be photographed and fingerprinted as part of his deferred sentence.

Section 46-18-201(4), MCA, allows a judge to impose any reasonable restrictions or conditions when a sentence is deferred or suspended. Reasonable restrictions or conditions include, but are not limited to, any restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society. The key language is "any reasonable" restrictions or conditions. This grants a judge very broad authority to impose conditions he determines appropriate for the defendant and crime committed. Conversely, had Gianforte's sentence not been suspended or deferred, then the judge would have been limited to sentencing him to up to six months in jail, up to a $500 fine, or both.

Gianforte argued that because he was not arrested, Justice West was not authorized to force Gianforte to be photographed and fingerprinted. The law is contrary. Under section 44-5-202(3), MCA, the Gallation County Sheriff must fingerprint and photograph a person who has been arrested or noticed or summoned to appear to answer an information or indictment if it is required to do so by court order. In Gianforte's case, he was cited for assault and noticed or summoned to appear for arraignment. Justice West could have ordered Gianforte to be photographed and fingerprinted at his arraignment. That Justice West did not order so at that time does not change the law that Justice West also had the authority to impose the condition as part of Gianforte's deferred sentence.

Justice West was well within his authority to order Gianforte to be photographed and fingerprinted. Of course, restrictions and conditions must be germane (related) to the crime committed and the accompanying circumstances. For example, if a person is convicted of a crime unrelated to alcohol, imposing a condition of alcohol testing would not be related to the crime unless the person was also intoxicated when the crime was committed. Justice West tailored Gianforte's condition appropriately because it is likely to rehabilitate Gianforte and protect society, i.e., he is not likely to assault a reporter again. Justice West also set an example that no matter what your political persuasion is, we should not lose sight of our human dignity, no matter who you are.

Thomas Karem

About the Author

Thomas J. Karem

Admitted to Practice Montana District Courts Montana Supreme Court Federal District Courts for Montana United States Ninth Circuit

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