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Federal court must decide whether BIA should be held responsible for officer's sexual assault – Daily Montanan [1]

['Darrell Ehrlick', 'More From Author', '- May']

Date: 2023-05-12  

In a case that has been to the Montana Supreme Court and the U.S. Ninth Circuit Court of Appeals twice, a federal judge moved closer to determining whether the U.S. government is liable for a law enforcement officer who coerced a woman into having sex with him while on duty and impregnating her.

The criminal case against Dana Bullcoming, a former Bureau of Indian Affairs law enforcement agent on the Northern Cheyenne reservation, has concluded. Bullcoming was prosecuted and convicted of sexual assault on the victim, who also won a $1.6 million judgment against him.

However, a separate lawsuit has made a circuitous journey as attorneys for the U.S. government have argued that Bullcoming was acting outside of his role as a law enforcement officer, and so the federal agency shouldn’t be held liable for his actions.

Attorneys for the victim, identified only as “L.B” in court filings, say that because Bullcoming came to her house and threatened to arrest her for consuming alcohol on the dry reservation unless “something” was done, that the federal government should bear some liability, a point that the U.S. Attorney’s Office has repeatedly denied.

Federal Judge Susan Watters said at a hearing at the James Battin Courthouse in Billings on Friday that her role was determining whether Bullcoming was acting in the scope of his duties as a law enforcement officer.

Assistant U.S. Attorney Randy Tanner argued that Bullcoming was acting only in his personal interests in the sexual assault, and that federal prosecutors had punished him for a crime in which he was convicted and served time in prison.

However, John Heenan, attorney for the victim, said that Bullcoming was in uniform, threatening to take her children away or arrest her, which demonstrates he was acting in the scope of his employment.

The federal case has bounced around as different legal points have been argued throughout the case, including a question the Ninth Circuit had for Montana, which is whether federal law enforcement agencies could be held liable for the action of their employees or if the government was immune. In that court decision issued in 2022, the Supreme Court said the federal government could be held liable if that employee was acting within the scope of their duties.

Tanner argued that sexual assault is never part of the duties of a law enforcement officer’s job, so therefore Bullcoming was acting outside of those duties.

But Heenan argued that law enforcement officers and agencies are held responsible and liable all the time for physical injuries of citizens, particularly in cases of police brutality. Heenan told Watters that in those cases excessive force or abuse is not a part of the duties either.

“In other cases a choke hold or a knee to the neck means that the law enforcement agency is liable for misconduct, but because this is sexual violence, now the government gets to distance itself,” Heenan said. “It’s so naïve and it disregards the records and the courts. Sex equals power and that power was his authority. What the U.S. attorneys are asking is for this court to play the farce that it had no part in it or the punishment is an extremely naïve position.”

During the nearly two-hour hearing on Friday morning, Tanner argued that Bullcoming and the victim had been friends for 30 years and had maintained some romantic interest in each other. He pointed to that as evidence that what transpired was well beyond the scope of a typical law enforcement encounter.

However, Watters seemed to dismiss part of that, saying the court would not ignore the “coercive nature” of the situation, but also had to determine if the act was tied to Bullcoming’s “scope of duty.”

“Every day, my client has to revisit this and see in her daughter’s eyes the person who assaulted her,” Heenan said. “It is downright offensive to present this narrative as kids who had always liked each other. He was threatening to take away her job or her children.”

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