Ninth Circuit asks state whether federal government can be held liable for sexual assault

Case centers on a BIA agent sexually assaulting a Northern Cheyenne woman

By: - November 28, 2021 9:55 am

The James Browning U.S. Court of Appeals Building in San Francisco (Photo by Wikimedia Commons | CC-BY-SA 4.0).

In Montana, if a citizen is sexually assaulted by a state, county or municipal law enforcement officer, the victim can sue the agency for which the officer works. But in Montana, it’s unclear whether that same principle applies to a federal law enforcement agent because the officer is a federal employee.

That’s the central question the U.S. Ninth Circuit Court of Appeals has sent back to the Montana State Supreme Court to decide.

While the case law and briefings in the legal dispute run hundreds of pages long, the question isn’t hypothetical – it’s one arising out of a case in which an on-duty Bureau of Indian Affairs law enforcement officer sexually assaulted a Northern Cheyenne tribal member, got her pregnant and then has not supported the child, according to court filings. While former agent Dana Bullcoming was found liable for support in a civil court, the victim in the case has tried to sue the BIA because Bullcoming was on duty at the time of the assault and used his position to coerce the woman into having sex by threatening to take her children, according to court records.

Montana state law says that citizens have the right to sue agencies where an on-duty officer has acted illegally, but because the agent worked for the federal government, the appeals court has asked the Supreme Court to rule on whether it’s allowable for the woman to sue the federal government for Bullcoming’s actions.

‘Something had to be done’

The incident took place in Lame Deer on Oct. 30, 2015, when the victim called to report that her mom was driving intoxicated with her car, court records said. Bullcoming responded to the call, found the mother safe at her house and went to the victim’s house to follow up.

While he was there, Bullcoming asked if she was home alone. The victim said her children were asleep in the other room. Then, court documents said Bullcoming threatened to call social services and have the kids removed because he noticed she’d been drinking. He administered a portable alcoholic breath test, which revealed a 0.136 blood-alcohol content, according to court filings.

At that point, he told the victim, “something had to be done.” And the victim told the court that she thought Bullcoming was coming on to her and didn’t want to arrest her. When she asked if he meant “sex” by saying something had to be done, Bullcoming told the victim yes, according to court documents.

“(She) believed that her choices were to go to jail or have sex with Officer Bullcoming,” she said.

Because they had unprotected sex, court documents said, she got pregnant and later gave birth to a son.

The odd legal dichotomy

The question the Ninth Circuit sent back to the state was whether an officer acts within the course and scope of his or her employment when they use their authority to assault members of the public.

Lawyers for the victim argue that case law from different states helps settle this question. For example, the California Supreme Court has concluded that officers are acting within the scope of the employment when the conduct happens while they’re on duty; when the conduct happens as the officer is exercising his or her authority; and the conduct results from the use of the peace officer authority.

The lawyers also note that the original decision from the federal district court ruling, which has been appealed, held that the federal government could not be held liable for Bullcoming’s actions. The lawyers also said this has created an odd dichotomy where federal officers can be sued for certain things, but not others.

“The federal district court’s ruling has created a dichotomy where a member of the public who is physically assaulted, tasered, or even killed by a federal police officer can have a remedy in tort against an employer – since those are acknowledged aspects of policing, regardless of whether the acts are intentional or negligent, while a victim of sexual assault by a federal police officer does not,” it said. “Under this reasoning, if a federal officer beats or shoots a Montana citizen after raping her, there would be a possible remedy in tort against the federal government for the federal officer’s use of excessive force in beating and shooting the victim, but not for the preceding rape.”

What’s at stake

Several different organizations have filed amicus curiae or friend-of-the-court briefs. One of those, the National Indigenous Women’s Resource Center, pointed out that the BIA has the responsibility for public safety on reservations and that the federal department has a duty to supervise its police officers.

“Native women will be strongly incentivized not to call the police when they have been victimized or have witnessed a crime, exacerbating chronic underreporting of violent victimization on tribal lands,” attorneys argue. “Creating a legal loophole in this context will only perpetuate a cycle of violence – on a very specific population – that is already epidemic.”

They also argue that since the tribes have to rely on the BIA to provide federal law enforcement, the system sets up a situation where the leaders can’t protect their own citizens.

“Tribal nations cannot effectively protect their citizens from sexual violence by federal officers,” it said. “They lack the requisite authority to police and prosecute the majority of crimes committed against their citizens.”

An amicus brief filed by the American Civil Liberties Union argues that by Montana allowing citizens to sue the federal government, it has the added benefit of better management of the law enforcement officers.

“The prospect of liability can encourage valuable steps: Adopting more rigorous hiring criteria, improving training and education, collecting and analyzing data on individual officers, implementing reporting systems, and swiftly investigating allegations of misconduct,” it argues.

State law, the ACLU said, already makes clear that state, local and county officers “can never obtain consent from a subject or witness in their investigation,” and lawyers argue the same should apply to federal agents working in Montana.

In fact, lawyers point out that the 2019 law codifying that sexual intercourse with suspects or subjects of an investigation can never be consensual because of the power difference was passed in response to the Bullcoming case, making it clear, they say, that Montana lawmakers never intended for a legal loophole like this to exist.

Lawyers working on behalf of civil and women’s rights organization also pointed out that as of Oct. 14, Bullcoming had paid $0 of the $1.6 million award to the victim for support. In their amicus brief, they argue that the victim’s only hope of meaningful support of her child may come by suing the agency that hired and supervised Bullcoming.

They also argue that the imbalance of power didn’t allow the victim to leave, and that Bullcoming used that authority to commit assault.

“A seizure occurs for Fourth Amendment purposes when, given the totality of circumstances, a reasonable person would not feel free to leave police presence,” the brief states. “Baked into this doctrine is that idea that a police officer’s known authority, on its own, can stop a reasonable person in her tracks.”

The analysis done by the Montana Supreme Court will be submitted to the Ninth Circuit of Appeals where, pending the conclusion of the court in Helena, the appeals case will resume.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.

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