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Date: 10-03-2021
Case Style:
L. B., individually and on behalf of D.B., a minor, v. UNITED STATES OF AMERICA; BUREAU OF INDIAN AFFAIRS; DANA BULLCOMING, agent of the Bureau of Indian Affairs sued in his individual capacity
Case Number: 20-35514
Judge: Before: Danny J. Boggs,
* Marsha S. Berzon, and
Mary H. Murguia, Circuit Judges.
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney:
Defendant's Attorney: United States Attorney’s Office
Description:
San Francisco, CA - Criminal defense lawyer represented Plaintiff-Appellant with a sexual assault charge.
Plaintiff-Appellant L.B., a Northern Cheyenne tribal
member, lived within the Northern Cheyenne Reservation in
Lame Deer, Montana. On October 30, 2015, L.B. and her
mother went to a bar outside the Reservation and had a few
alcoholic drinks. After they returned home, L.B.’s mother
took the truck keys and said she was going for a drive. L.B.
called the police and reported that her mother was driving
while intoxicated.
Bureau of Indian Affairs (“BIA”) Officer Dana
Bullcoming responded to L.B.’s call. Officer Bullcoming
determined that L.B.’s mother was safe and then went to
L.B.’s residence. After entering the residence, Officer
Bullcoming asked L.B. whether she was there alone; L.B.
responded that her children were asleep in the other room.
L.B. told Officer Bullcoming that she had consumed a
couple of drinks that evening, including half of a beer at her
residence. Officer Bullcoming then threatened to call social
services and arrest L.B. for child endangerment because she
was intoxicated while in the presence of her children. See
Northern Cheyenne Criminal Code § 7-9-6 (1998)
(prohibiting intoxication within the exterior boundaries of
the Northern Cheyenne Reservation). L.B. pleaded with
Officer Bullcoming not to arrest her because if he did, she
would lose her job as a school bus driver.
Officer Bullcoming took L.B. outside to his patrol car to
take a breathalyzer test, which L.B. recounts reporting a .132
or .136 blood alcohol content. Officer Bullcoming
repeatedly told L.B. that “something had to be done.” L.B.
got the impression that Officer Bullcoming did not want to
arrest her, so she inquired if by “something needs to be done”
he meant “sex.” Officer Bullcoming replied affirmatively.
L.B. believed that her choices were to go to jail or have sex
with Officer Bullcoming. L.B. and Officer Bullcoming had
unprotected sexual intercourse in her home and then he left
4 L.B. V. UNITED STATES
the residence. L.B. became pregnant as a result of the
encounter and gave birth to D.B.
In April 2018, L.B. brought this Federal Tort Claims Act
(“FTCA”) suit against the United States, seeking to hold the
United States liable for Officer Bullcoming’s misconduct.1
L.B. and the government filed cross-motions for summary
judgment. The government asserted that Officer Bullcoming
was not acting within the scope of his employment with the
BIA when he sexually assaulted L.B; therefore, Officer
Bullcoming’s actions fell outside the scope of the FTCA’s
limited waiver of sovereign immunity and grant of
jurisdiction. The district court agreed with the government,
granted the government’s motion for summary judgment,
and denied L.B.’s cross-motion. The district court reasoned
that under Montana’s respondeat superior case law, the
scope of employment includes only an employee’s actions
made “in furtherance of his employer’s interest.” Relying
on Maguire v. State, 835 P.2d 755 (Mont. 1992)—a nonlaw-enforcement respondeat superior case—the district
court concluded that Officer Bullcoming was not acting in
furtherance of his employer’s interest, and therefore was
acting outside the scope of his employment, when he
sexually assaulted L.B. Because the FTCA requires that the
challenged conduct be within the scope of the actor’s
employment, the district court concluded that L.B.’s FTCA
claim necessarily failed.
L.B. appealed, raising a single issue: whether, under
Montana law, Officer Bullcoming’s sexual assault of L.B.
was within the scope of his employment as a law1 L.B. also named Officer Bullcoming as a defendant. He failed to
answer the complaint and a default judgment was entered against him.
L.B. V. UNITED STATES 5
enforcement officer. L.B. alternatively moved this court to
certify this question to the Montana Supreme Court.
II. Explanation of Certification
Because this case comes to us under the Federal Tort
Claims Act, we apply the law of the state “where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1); see Wilson v.
Drake, 87 F.3d 1073, 1076 (9th Cir. 1996). The alleged
tortious acts in this case occurred in Montana; therefore,
Montana law applies.
In Maguire v. State, the Montana Supreme Court
suggested that sexual assault falls outside the scope of
ordinary employment. See 835 P.2d at 758–59. But the
Montana Supreme Court has not yet decided how the scope
of a law-enforcement officer’s employment is viewed, in
light of the power and authority law-enforcement officers
maintain over citizens. Other states have considered factual
situations similar to the one presented here and have
concluded that the scope of a law-enforcement officer’s
employment may include on-duty sexual assault—even
when the scope of other areas of employment may not—
because of the significant authority law-enforcement
officers possess over others. See Mary M. v. City of Los
Angeles, 814 P.2d 1341, 1349–50 (Cal. 1991)
(distinguishing the scope of a police officer’s employment
from other types of employment because of “the
considerable power and authority that police officers
possess”); Applewhite v. City of Baton Rouge, 380 So. 2d
119, 121 (La. 1979) (“A police officer is a public servant
given considerable public trust and authority. . . . [W]here
excesses are committed by such officers, their employers are
held to be responsible for their actions even though those
actions may be somewhat removed from their usual duties.
This is unquestionably the case because of the position of
6 L.B. V. UNITED STATES
such officers in our society.”). The Montana Supreme Court
has not been presented with an opportunity to decide this
question.
In Brenden v. City of Billings, the Montana Supreme
Court explained that, “[e]ven if not authorized by the
employer, and itself not motivated by any intent or purpose
to serve the employer,” an employee’s tortious conduct may
still fall within the scope of employment so long as it is
“incidental to” or “closely intermingled” with authorized
conduct. 470 P.3d 168, 178 (Mont. 2020) (quoting Keller v.
Safeway Stores, 108 P.2d 605, 612 (Mont. 1940)). But
Brenden did not answer the question presented in this case—
whether sexual assault can come within the scope of
employment in the context of law enforcement, where
officers are permitted to detain, arrest, and when necessary,
use force against members of the public.
Additionally, Montana’s post-Maguire endorsement of
the non-delegable-duty doctrine, see Paull v. Park County,
218 P.3d 1198 (Mont. 2009), complicates the issue presented
here. The non-delegable-duty doctrine holds employers who
have a duty to protect others from harm liable for harm
caused by their agents. See id. at 1205. Before Paull, the
Montana Supreme Court applied the non-delegable-duty
exception to the respondeat-superior doctrine only to
“instances of safety where the subject matter is inherently
dangerous.” Maguire, 835 P.2d at 759. Paull, however,
“adopt[ed] Restatement (Second) Agency, § 214”—which
sets forth the non-delegable-duty doctrine—“as an
appropriate statement of the law in Montana,” without any
express limitation to inherently dangerous activity. Paull,
218 P.3d at 1205.
Liability under the non-delegable-duty doctrine
ostensibly covers conduct that falls outside the scope of
L.B. V. UNITED STATES 7
employment. See Maguire, 835 P.2d at 758–60 (discussing
Restatement § 214, the non-delegable-duty exception, as a
rule that covers tortious acts of employees acting outside the
scope of employment). Because the FTCA waives sovereign
immunity in this context only for actions taken within the
scope of a law-enforcement officer’s employment, victims
of sexual assault by federal officers do not have the benefit
of the non-delegable-duty doctrine. As a result, a Montana
citizen who is a victim of sexual assault by a state, county,
or municipal law-enforcement officer has a potential remedy
in tort against the employer, while a Montana citizen who is
a victim of rape by a BIA police officer does not, simply
because the BIA officer is a federal employee. This
dichotomy likely has a disproportionate effect on Montana’s
indigenous population, who are more likely to interact with
federal, rather than state or local, law-enforcement officers.
And the Montana Supreme Court may not otherwise be
presented with this dichotomy, as claims concerning federal
officers are typically tried in federal court. This reality
further supports our decision to invoke the certification
process.
Because the unanswered question regarding the scope of
a law-enforcement officer’s employment in Montana
presents important public-policy ramifications, we find,
after careful consideration, that it is appropriate to exercise
our discretion to certify this question to the Montana
Supreme Court. See Kremen v. Cohen, 325 F.3d 1035,
1037–38 (9th Cir. 2003) (listing the factors considered when
determining whether certification is appropriate).
III. Certified Question
We respectfully certify the following question to the
Montana Supreme Court:
8 L.B. V. UNITED STATES
Under Montana law, do law-enforcement
officers act within the course and scope of
their employment when they use their
authority as on-duty officers to sexually
assault members of the public?
We acknowledge that, as the receiving court, the Montana
Supreme Court may reformulate the certified question.
Mont. R. App. P. 15(6)(a)(iii).
IV. Counsel Information
The names and addresses of counsel or the parties, as
required by Mont. R. App. P. 15(6)(a)(iv), are as follows:
Timothy M. Bechtold, Bechtold Law Firm PLLC, PO
Box 7051, Missoula, MT 59807; and John Heenan,
Heenan & Cook, 1631 Zimmerman Trail, Billings, MT
59102, for Plaintiff-Appellant L.B.
Timothy A. Tatarka, Assistant U.S. Attorney, District of
Montana, U.S. Courthouse, 2601 Second Avenue North,
Box 3200, Billings, MT 59101, for Defendant-Appellee
United States of AmericqA
Outcome: The Clerk shall forward a certified copy of this
certification order, under official seal, to the Montana
Supreme Court. The Clerk is also ordered to transmit a copy
of the Excerpts of Record filed in this appeal to the Montana
Supreme Court and, if requested by the Montana Supreme
Court, provide all or part of the district court record not
included in the Excerpts of Record. Mont. R. App. P. 15(5).
Submission of this appeal for decision is vacated and
deferred pending the Montana Supreme Court’s final
response to this certification order. The Clerk is directed to
administratively close this docket, pending further order.
The parties shall notify the Clerk of this court within
fourteen days of the Montana Supreme Court’s acceptance
or rejection of certification, and again, if certification is
accepted, within fourteen days of the Montana Supreme
Court’s issuance of a decision
Plaintiff's Experts:
Defendant's Experts:
Comments: