(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Victim appeals court decision that says BIA can't be held responsible for police officer's rape – Daily Montanan [1] ['Darrell Ehrlick', 'More From Author', '- November'] Date: 2023-11-30 Attorneys for a Northern Cheyenne woman who was raped by a Bureau of Indian Affairs police officer and was impregnated as a result has appealed a federal court’s ruling that even though the assault happened while he was on duty, the federal government shouldn’t be held liable for his conduct. In a separate civil lawsuit, the woman won a $1.6 million judgment for child support, but according to the latest legal filings, former police officer Dana Michael Bullcoming hasn’t paid a dime of that money. The challenge, which is heading to the U.S. Ninth Circuit Court of Appeals in San Francisco, claims that despite federal law and a ruling by the Montana Supreme Court that says the federal government can indeed be held responsible for its employee’s conduct, the federal judge in the case refused to hold the government liable. In their brief, the victim’s attorneys, Timothy Bechtold and John Heenan, argued that U.S. District Court Judge Susan Watters not only created new legal conditions not found in state or federal law in order to absolve the federal government, but that she should be removed from the case entirely. Furthermore, the attorneys argue that Watters also disallowed motions that would have allowed them to examine evidence they said proves that attorneys with the U.S. Attorney’s Office in Montana manipulated former BIA officer Dana Bullcoming’s testimony after he’d already admitted to the crime in order to allow the judge enough latitude to hold the federal government harmless in the crime. The U.S. Attorney’s Office told the Daily Montanan that it does not comment on pending litigation or appeals. In a case that dates back to 2015, Bullcoming served federal prison time for three years, much shorter than the recommended time of between 168 to 210 months (14 to 17.5 years), for raping the woman. He originally responded to her house on a call that reported she was intoxicated while caring for her children on the Northern Cheyenne reservation, which is dry. He coerced her into having sex by threatening to remove her children. Court records are undisputed that Bullcoming was there while on duty and that he forced her into having sex by threatening her. However, in her ruling, Watters said that attorneys for the victim had not proven that Bullcoming believed his actions were somehow advancing the BIA’s position. In other words, the victim’s lawyers would have to prove that Bullcoming believed he was helping the agency by sexually assaulting her. “The district court ignored the Montana Supreme Court’s ruling and invented a new requirement that Montana law does not recognize, and that no plaintiff could possibly prove,” the appeal said. “In addition, in a desperate attempt to avoid the fate dictated by the Montana Supreme Court’s decision, the government flip-flopped on its previous stated positions, and, troublingly, proffered testimony by the offending officer that contradicted his prior testimony.” Montana attorneys abusing their positions The brief said that Assistant U.S. Attorneys Randy Tanner and Mark Smith conducted a private phone call with Bullcoming in October 2022, which did not include notifying attorneys for the victim. It claims that attorneys did not have a phone call or notes from that meeting, but got Bullcoming to admit that the sexual encounter had “no law enforcement purpose.” They later used that testimony in court, which contradicted other testimony that he had previously given. Bullcoming had previously said he told the victim that something had to be done to remedy the situation because she was intoxicated, or he would have to take her children away. Attorneys for the victim asked the U.S. Attorneys to agree that they would not rely on Bullcoming’s perjured testimony, or if they did, that the victim’s attorneys could pursue impeachment. The government refused both requests. “The government essentially offered Bullcoming immunity from criminal prosecution in exchange for his deposition testimony,” the attorneys said. Remove the judge The victim’s attorneys in the case have taken the unusual step of asking the appeals court to remove Watters as the judge in the case because of her refusal to allow cross-examination and for her interpretation of a case that has bounced between the state and federal courts. “Neither the Montana Supreme Court (nor federal law), which is relied upon by the Montana Supreme Court, requires that the plaintiff must prove that the employee had a subjective belief that he was acting at least in part in further of the employer’s interest,” the appeal brief said. “By defining the issue this way, the district court makes it impossible for a victim like L.B. to prevail because it is unlikely that a police officer like Officer Bullcoming would subjectively believe that, by engaging in sex with a person under his authority, he was furthering his employer’s interest. The Montana Supreme Court established an objective test, not a subjective test, of the wrongdoer’s motives.” Attorneys point out that in Bullcoming’s criminal case the U.S. Attorney’s Office had already established that he deprived the victim of her civil rights under the color of law, something he did as a federal law enforcement agent. But the victim’s attorneys said when it came to Bullcoming’s civil case, including the one which charged the federal government with vicarious liability – meaning, it should be responsible for the conduct of its employees – they said the court allowed a completely opposite argument. “(The federal government) argued that Bullcoming was not a governmental actor and that his sexual assault of L.B. was not in the course and scope of employment,” it said. “The district court erred in allowing the government to take positions contrary to those it had taken previously.” Attorneys for the victim say they’ve satisfied three different prongs that are necessary to reassign – or remand – the case to a different judge. “The district court has twice erroneously granted summary judgment to the government in this case, the latter time ignoring Montana law as applied by the Montana Supreme Court in this very case,” the brief said. “L.B. asks this court to direct the district court to a different district court judge upon remand so that a different judge can make an objective determination about the contradictory testimony offered to the district court by Bullcoming.” [END] --- [1] Url: https://dailymontanan.com/2023/11/30/victim-appeals-court-decision-that-says-bia-cant-be-held-responsible-for-police-officers-rape/ Published and (C) by Daily Montanan Content appears here under this condition or license: Creative Commons CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/montanan/