Unpreserved First Amendment As-Applied Challenges to Obstruction Convictions Require Plain-Error Showing; Police May Impose Reasonable Filming Distance Orders

1. Introduction

In City of Kalispell v. S. Doman, the Montana Supreme Court reviewed a municipal-court conviction for obstructing a peace officer arising from a common modern flashpoint: a citizen filming police during a traffic stop from a public sidewalk. Sean Michael Doman recorded Kalispell police officers while one officer conducted a stop. A second officer, responding as backup, repeatedly told Doman he could film but must move farther away. When Doman refused, officers arrested him and the City cited him under § 45-7-302, MCA.

On appeal, Doman pressed two themes: (1) the evidence was insufficient because he was engaged in constitutionally protected recording and did not “knowingly” hinder the stop; and (2) § 45-7-302(2), MCA—stating that it is “no defense” that an officer acted illegally if acting under official authority—was unconstitutional as applied, particularly through a jury instruction repeating that language. The key procedural fact drove much of the outcome: Doman did not raise his as-applied constitutional arguments in the Municipal Court and did not object to the challenged instruction there.

2. Summary of the Opinion

The Court affirmed. It held:

• Sufficiency of evidence: Viewing the evidence in the light most favorable to the prosecution, a rational juror could find beyond a reasonable doubt that Doman knowingly obstructed, impaired, or hindered enforcement of the criminal law by inserting himself close to the stopped vehicle, gesturing to occupants, escalating an on-scene confrontation, refusing repeated directions to move, and diverting officers’ attention away from the traffic stop.
• As-applied constitutional claims and plain error: Doman waived his as-applied constitutional challenge by not raising it at trial. Although free-speech rights were implicated, the Court declined plain-error review because the record did not show a manifest miscarriage of justice, unfair proceedings, or compromised judicial integrity—especially where the jury was instructed that citizens have a First Amendment right to film police subject to reasonable time, place, and manner restrictions.
• Instruction based on § 45-7-302(2), MCA: Giving the “no defense” instruction was not plain error; it did not prevent Doman from arguing that the officer’s distance directive was unreasonable under the time/place/manner instruction actually given.

A concurrence by Justice Shea underscored the professionalism of the officer’s engagement—repeatedly acknowledging Doman’s right to film—while noting that preservation failures narrowed the case to sufficiency review rather than a broad First Amendment ruling.

3. Analysis

3.1. Precedents Cited

• City of Billings v. Barth (2017 MT 56)
  Used for the appellate posture: when a district court reviews municipal court, and then the case reaches the Supreme Court, the Court reviews “as if the appeal had originally been filed” in the Supreme Court and applies the correct standard of review.
• State v. Christensen (2020 MT 237)
  Cited for de novo review of whether evidence is sufficient to support a conviction—critical because the Court’s affirmance ultimately rested on sufficiency.
• State v. Coleman (2018 MT 290) and City of Whitefish v. Curran (2023 MT 118)
  These frame the preservation rule: facial challenges may sometimes be considered for the first time on appeal, but as-applied constitutional challenges generally are waived if not presented to the trial court. The Court treated Doman’s First Amendment theory as an as-applied challenge barred by this doctrine.
• City of Kalispell v. Cameron (2002 MT 78) and State v. Eisenzimer (2014 MT 208)
  These are the core obstruction comparators.
  • Cameron reversed an obstruction conviction where the passenger’s refusal to comply did not actually impair the investigation and the defendant lacked reason to know what was occurring—undermining “knowingly.”
  • Eisenzimer affirmed a conviction where persistent, warned-at conduct during a traffic stop diverted an officer’s attention and prevented completion of the stop until the defendant was arrested.
  The Court aligned Doman with Eisenzimer, not Cameron: Doman knew a stop was underway, engaged close to the vehicle, refused repeated instructions, and the initiating officer testified Doman’s conduct pulled attention “basically completely off” the stop.
• State v. Fleming (2019 MT 237) and State v. Norman (2010 MT 253)
  Cited for the general rule that issues must be raised timely in the trial court to be preserved on appeal.
• State v. Lawrence (2016 MT 346)
  Provides the Court’s plain-error framework: first, constitutional rights must be implicated; second, review is reserved for avoiding manifest miscarriage of justice, unfairness, or compromised judicial integrity. The Court accepted prong one (speech implicated) but found prong two unsatisfied.
• State v. Yttterdahl (1986) and City of Houston v. Hill (1987)
  These are invoked for the principle that protected speech cannot constitutionally be criminalized; they support the Court’s recognition that Doman’s argument, if it truly involved only protected speech, could implicate fundamental rights. But the Court concluded the conviction rested on conduct (and refusal to comply) that a jury could find obstructive, not solely on expressive activity.
• State v. Booth (2012 MT 40) and State v. Burnett (2022 MT 10)
  Booth supplies the “any rational trier of fact” sufficiency formulation (quoted in Eisenzimer and applied here). Burnett reinforces appellate deference to the factfinder on credibility, weight, and competing narratives.
• Glik v. Cuniffe (1st Cir. 2011)
  Appears in the jury-instruction dispute: Doman sought an expanded instruction emphasizing that police must endure burdens of First Amendment activity. The Municipal Court declined, viewing the requested language as dicta, while still instructing on the right to film subject to reasonable time/place/manner restrictions.
• St. James Healthcare v. Cole (2008 MT 44) and Bose Corp. v. Consumers Union of U.S., Inc. (1984)
  Cited for the proposition that free speech is a fundamental personal right, supporting the Court’s conclusion that plain-error prong one was met.
• Clark v. Cmty. for Creative Non-Violence (1984)
  Cited for the time, place, and manner standard (narrow tailoring and alternative channels). Doman relied on this to argue the “move to the tree” directive was unreasonable because it allegedly prevented audio capture.
• State v. Taylor (2010 MT 94)
  Used to emphasize that plain-error review requires an error that is truly “plain,” informing the Court’s refusal to entertain Doman’s newly proposed statutory interpretation limiting § 45-7-302(2), MCA to force/violence scenarios.
• Tai Tam, LLC v. Missoula Cnty. (2022 MT 229)
  Cited (along with 42 U.S.C. § 1983) to identify civil remedies as an accountability mechanism for constitutional violations, reinforcing the statutory policy (in the Commission Comment) against “tak[ing] the law into [one’s] own hands” during police encounters.

3.2. Legal Reasoning

(A) The Court separated two questions: evidence versus constitutionality.
Even though Doman framed the case around First Amendment recording, the Court treated the threshold appellate constraint—preservation—as determinative of how far it could go. The Court largely confined itself to whether the elements of obstruction were proven, rather than whether the order to move away was constitutionally valid as applied, because Doman did not litigate that constitutional question at trial.

(B) “Knowingly” was assessed objectively in context, not by Doman’s stated intent.
Relying on City of Kalispell v. Cameron and State v. Eisenzimer, the Court reiterated that a person acts “knowingly” when aware it is “highly probable” the conduct will impede lawful police duties, and that subjective intent is immaterial (Eisenzimer). Doman’s insistence that he “merely intended” to exercise constitutional rights did not resolve whether his conduct, in context, created a high probability of impeding the traffic stop.

(C) Filming was treated as protected but regulable conduct—consistent with the instructions and record.
A crucial feature of the Court’s plain-error analysis was that the right to film was not contested at trial. The jury was instructed (Instruction No. 13) that filming police is protected but “may be subject to reasonable time, place, and manner restrictions.” That instruction gave the jury a framework to evaluate whether police directives were reasonable without the Supreme Court needing to decide (on an unpreserved record) whether Minaglia’s directions were content-based or content-neutral.

(D) Instruction No. 11 (§ 45-7-302(2), MCA) did not “force” guilt because another instruction preserved the reasonableness inquiry.
Doman argued that the “no defense” instruction prevented him from arguing that the officer’s directive was unlawful. The Court disagreed on a practical reading of the trial: counsel in fact argued reasonableness using Instruction No. 13, and the jury heard evidence about whether moving back impaired audio capture. Thus, even if § 45-7-302(2), MCA potentially raises difficult constitutional questions in some circumstances, the Court found no plain-error necessity to reach them here.

(E) The Court refused to transform plain-error review into a vehicle for new statutory theory.
Doman’s late-stage argument that § 45-7-302(2), MCA applies only where a defendant uses or threatens force was rejected as neither textually apparent nor “plain” error under State v. Taylor. The Court also invoked the statute’s Commission Comment: the provision reflects a policy against self-help resistance to perceived illegality during police activity, leaving challenges to courts and civil remedies.

3.3. Impact

• Preservation is outcome-determinative in police-recording obstruction cases.
  The decision signals that defendants who want meaningful appellate review of as-applied First Amendment limits on obstruction prosecutions must build the record in the trial court—by motions, objections to instructions, and clearly framed constitutional theories.
• Montana strengthens the practical compatibility of a right-to-record with officer-controlled scene management.
  Without announcing a broad new First Amendment test, the Court effectively endorsed the proposition (as applied to these facts and posture) that an officer may acknowledge the right to film yet still impose distance directives, and refusal to comply can support obstruction when it materially diverts attention and affects the stop.
• Municipal courts will likely continue using “time, place, and manner” instructions in recording cases.
  The Court’s reliance on Instruction No. 13—rather than crafting new constitutional standards—encourages trial courts to give juries an explicit reasonableness framework when recording is part of the factual narrative.
• § 45-7-302(2), MCA remains robust absent timely, targeted constitutional litigation.
  The Court declined to narrow the subsection via plain error, and it indicated that statutory policy disfavors on-scene self-help. Future litigants seeking to limit subsection (2) will need preserved briefing and a developed record.

4. Complex Concepts Simplified

• “Sufficiency of the evidence”: On appeal, the question is not whether the appellate judges think the defendant should have won; it is whether any rational juror could have found guilt beyond a reasonable doubt when viewing evidence favorably to the prosecution.
• “Knowingly” (in obstruction): Not “I meant to obstruct,” but “I acted in circumstances where I was aware it was highly probable my conduct would impede police duties.”
• “As-applied” vs. “facial” constitutional challenge: An as-applied challenge argues the law is unconstitutional in the specific situation at hand; a facial challenge argues the law is unconstitutional in all (or most) applications. Montana generally requires as-applied challenges to be raised in the trial court.
• “Plain error” review: A narrow safety valve allowing appellate review of unpreserved issues only when (1) a fundamental constitutional right is implicated and (2) ignoring the issue risks a manifest miscarriage of justice, unfair proceedings, or compromised judicial integrity.
• “Time, place, and manner restrictions”: Even protected speech can be regulated in neutral ways related to safety and order—such as requiring someone to stand back—so long as restrictions are reasonable under the applicable constitutional test.
• § 45-7-302(2), MCA (“no defense”): In an obstruction prosecution, a defendant generally cannot justify refusal to comply by arguing the officer’s conduct was illegal, so long as the officer acted under official authority; the remedy is typically later judicial review or civil claims.

5. Conclusion

City of Kalispell v. S. Doman is less a sweeping pronouncement about the First Amendment right to record police than a procedural-and-evidentiary decision about how such disputes are litigated and reviewed in Montana. The Court affirmed an obstruction conviction where a citizen, while filming, physically positioned himself close to an active stop, engaged occupants, refused repeated orders to move, escalated the encounter, and diverted officer attention—conduct a jury could find knowingly hindered enforcement duties.

The opinion’s central precedential message is practical: constitutional arguments about recording restrictions and the scope of § 45-7-302(2), MCA must be preserved in the trial court to receive full appellate consideration; absent that, plain-error review will not be invoked merely because speech rights are implicated where the trial record already included a right-to-record instruction and the conviction can be supported as obstruction based on conduct and refusal to comply with scene-management directives.