HELENA, Mont. (Legal Newsline) - A police officer who impregnated a woman he suspected of drunk driving after telling her “something needs to be done” wasn’t necessarily acting out of the scope of employment, the Montana Supreme Court ruled in answer to a question about state law from a federal appeals court.
A Northern Cheyenne tribal member identified as L.B. sued the government under the Federal Tort Claims Act after a Bureau of Indian Affairs officer named Dana Bullcoming allegedly entered her house, accused her of driving while intoxicated and threatened to send her to jail unless she had sex with him. L.B. got pregnant and had a child.
The U.S. argued Bullcoming was acting outside the scope of employment and the case should be dismissed. A federal court in Montana agreed, citing a 1992 Montana Supreme Court decision, Maguire v. State, involving a mental-hospital employee who raped and impregnated a resident.
That case established a test that included whether the employee was furthering the interests of the employer and stated, “it is clear this rape was outside the scope of employment.”
The plaintiff appealed to the Ninth Circuit Court of Appeals, which submitted a single question to the Montana Supreme Court: Whether Bullcoming was acting within the scope of his employment as a police officer when he had sex with L.B.
The Montana Supreme Court, in an Aug. 16 opinion it said was the first time it had answered this specific question, said it was up to a judge or jury to decide based on the specific facts in the case.
“Here, the certified facts could lead a trier of fact to conclude that Officer Bullcoming abused his employer-conferred power and authority to sexually assault L.B.,” said the majority opinion by Justice Laurie McKinnon. “Even if some of Officer Bullcoming’s motive was `self-interest,’ he was there to investigate the interests of his employer—acting as an officer and agent of the BIA investigating a crime—when he used his employer-conferred powers to sexually assault L.B.”
Just as an officer who intimidates a suspect “provides a benefit to his employer by maintaining law and order in the community,” the majority held, it isn’t self-evident “that any person who coerces another into unlawful sexual activity does so `solely’ for his own personal sexual gratification.”
Justice Dirk Sandefur dissented, joined by Justice Jim Rice, saying the majority had delivered a “result-oriented” opinion “to reach a desired ad hoc result: holding the federal government financially liable to an innocent victim for the outrageous tortious criminal conduct of a rogue federal law enforcement officer.” To do that, he said, the majority had to overlook more than 125 years of Montana law which held that the employee must be at least partially motivated by serving the employer’s interest in order to be acting within the scope of employment, they said.