This story was originally published by Daily Montanan: URL: https://dailymontanan.com This story has not been altered or edited. (C) Daily Montanan. Licensed for re-distribution through Creative Commons license CC BY-NC-ND 4.0. ------------ Montana Supreme Court hears arguments in case of federal officer who raped woman – Daily Montanan ['Keila Szpaller', 'More From Author', '- April'] Date: 2022-04-15 00:00:00 One exciting aspect of a Montana Supreme Court hearing is that justices are free to interrupt lawyers, said Annie Holland, a law student, in her introduction Friday to a case involving rape, scope of employment and the application of federal law in Montana. At the hearing of L.B. v. United States of America, the justices did not disappoint. Just two minutes after arguments started, Justice Jim Rice cut in with a question, and multiple justices jumped in throughout the presentations from four attorneys. “It seems to me that you’re both swinging for the fences here,” said Justice Jim Shea at one point in the middle of the arguments. In her introduction, Holland outlined the background of the case and the matter before the Supreme Court, which she noted had never been heard in Montana. The Supreme Court held the hearing Friday morning at the University of Montana with law students and other members of the law community in the audience for Law Day. The case started in 2015. That year on Oct. 30, “L.B.,” a Northern Cheyenne woman identified only by her initials to protect her identity as a rape victim, called the Bureau of Indian Affairs for help because her mother was driving drunk on the reservation, said the summary of events from the U.S. Court of Appeals for the Ninth Circuit. The BIA officer determined the mother was safe and then went to L.B.’s home, and after L.B. did not pass a breathalyzer, the BIA officer made it clear he wanted her to have sex with him in exchange for not arresting her for child endangerment, said the court document. L.B. got pregnant as a result of the rape and had a child, court documents said. The officer was convicted of rape and sentenced to three years in federal prison, but in subsequent civil proceedings, the courts found the government was not liable because the officer was not acting within the scope of his employment, according to the ACLU of Montana, which has filed a friend of the court brief in support of the plaintiff. 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. However, the Ninth Circuit said Montana needs to answer a question of how federal law is applied in Montana. Normally, a person can’t sue the U.S. government without its consent, but the government waives its immunity when a federal law enforcement officer acts within the scope of employment. In Maguire v. State in Montana, however, the state Supreme Court found a state hospital employee’s rape of a disabled patient was outside the scope of employment. L.B. wants to hold the United States liable for the officer’s misconduct. The Ninth Circuit said the Montana Supreme Court hasn’t decided how the scope of a law enforcement officer’s employment is viewed in light of their power and authority. So the question the Ninth Circuit asked the Montana Supreme Court is this: “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?” April Youpee-Roll, on behalf of friends of the court National Indigenous Women’s Resource Center, Sovereign Bodies Institute, Fort Belknap Indian Community, and Blackfeet Nation, argued the facts are shocking in the case, but sexual assault against Native American women is not unique. Youpee-Roll, of Munger, Tolles & Olson in California, said Native women suffer the highest rates of violence in the country, with over half reporting being victims of sexual violence. She argued Native women need to be able to trust the federal officers sworn to protect them, but she said they have no recourse when the United States falls down on the job and sends in a law enforcement officer who abuses that trust. She said the Ninth Circuit identified that gap in Montana law. “Please close the gap and protect Native women in Montana and afford them the same remedy that would be available to their peers,” Youpee-Roll said. A couple of the justices interrupted her to note that race and social policy are issues in L.B.’s story, but they aren’t the matter the court needs to decide. “The issue in the case is the federal government’s liability for criminal conduct of an employee,” said Justice Dirk Sandefur. Timothy A. Tatarka, assistant U.S. Attorney for the District of Montana, argued the United States should not be held liable because the officer was clearly acting outside his scope of duties when he raped L.B. Tatarka said the officer had a “crush” on L.B. and had no reason to go to her home for work in the first place. But Justice Ingrid Gustafson said he’s still in his uniform, and she wanted to know how someone like the plaintiff protects herself when a law enforcement officer says he’s under the authority of the law and then misuses that authority to abuse the person: “What are you suggesting the protections for that person are?” Tatarka said the crime was serious, and in this case, Officer Dana Bullcoming was investigated, prosecuted and convicted of the offense, sexual assault. Rather than doing his job, Tatarka argued the officer declined to do his job and acted out of his own sexual interest, so his employer shouldn’t be punished. But Justice Beth Baker wondered where the line should be drawn: “Let’s say he did decide to arrest her, and as he was patting her down, he ran his hands all over her body as he was handcuffing her. What then?” Tatarka said there’s never any reason to rape, but there is a reason to do a “pat down” in the scope of an officer’s work. Said Baker: “That’s not what the hypothetical was.” Justice Laurie McKinnon said that position didn’t reflect developments in society about the abuse of power in relationships and the need to hold accountable those in government who employ excessive use of force in the scope of duty. On behalf of L.B., Timothy Bechtold argued that rape needs to be viewed in light of modern scholarship and the way the U.S. Department of Justice’s experts view it. Bechtold, of the Bechtold Law Firm in Missoula, said rape isn’t about sexual gratification, but it’s a way to assert dominance over another person. It’s the same power in place when an officer kneels on the neck of a citizen and kills him, he said, such as the death of George Floyd by a policeman. In this case, he said, there was an obvious power imbalance too. The officer used his authority given to him by the BIA to negotiate sex in exchange for not making an arrest, therefore, his employer is liable: “It was only because he was in uniform on duty that he had the power to do so.” Bechtold also argued that every community in Montana except those policed by federal law enforcement have a remedy. But in the case of rape by a federal officer? “The power imbalance exists everywhere, but only people who are policed by federal law enforcement are subject to the gap,” said Bechtold, who noted L.B. has been waiting for justice for six years. On behalf of the Montana League of Cities and Towns and Montana Association of Counties, Natasha P. Jones said the remedy for the problem already exists, and if it needs work, it’s the job of the Montana Legislature, not the Supreme Court. If an agency is negligent in hiring, training or supervising an employee, she said a remedy exists, but in this case, there is no allegation of negligence on the part of the agency. Jones, of Boone Karlberg in Missoula, also argued that the law shouldn’t be changed to create liability for “an innocent agency” when one of its officers switches from serving and protecting to engaging in criminal conduct. “Rape is never an expected authorized use of force. Never. Never,” Jones said. In certifying the question to the Montana Supreme Court, the Ninth Circuit noted standards in the state are different for different citizens, and the case offered the state a chance to address the issue: “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.” In her opening, Holland noted the Montana Supreme Court’s opinion will go back to the Ninth Circuit for a decision. In closing, Chief Justice Mike McGrath said the court would take the matter under advisement and issue an opinion, although he did not give a timeframe. [END] [1] Url: https://dailymontanan.com/2022/04/15/montana-supreme-court-hears-arguments-in-case-of-federal-officer-who-raped-woman/ Content is licensed through Creative Commons license CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/montanan/