L.B. v. United States

Citation409 Mont. 505,515 P.3d 818
Decision Date16 August 2022
Docket NumberOP 21-0395
Parties L.B. individually and on behalf of D.B., a Minor, Plaintiff and Appellant, v. UNITED STATES of America; Bureau of Indian Affairs; Dana Bullcoming, agent of the Bureau of Indian Affairs sued in his individual capacity, Defendants and Appellees.
CourtUnited States State Supreme Court of Montana

For Appellant: Timothy M. Bechtold (argued), Bechtold Law Firm PLLC, Missoula, Montana, John Heenan, Heenan & Cook, Billings, Montana

For Appellees: Jesse Laslovich, U.S. Attorney, Victoria L. Francis, Timothy A. Tatarka (argued), Assistant U.S. Attorneys, Billings, Montana

For Amici National Indigenous Women's Resource Center, Sovereign Bodies Institute, Fort Belknap Indian Community and Blackfeet Nation: April Youpee-Roll (argued), Munger, Tolles & Olson LLP, Los Angeles, California, Mary Katherine Nagle, Pipestem and Nagle Law, P.C., Tulsa, Oklahoma, Jennifer Weddle, Greenberg Traurig, LLP, Denver, Colorado

For Amici Civil Rights, Women's Rights, and Government Accountability Organizations: Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, Montana, Devi Rao, Megha Ram, Roderick & Solange MacArthur Justice Center, Washington, District of Columbia

For Amici Montana Association of Counties and Montana League of Cities and Towns: Natasha Prinzing Jones (argued), Tracey Neighbor Johnson, Thomas J. Leonard, Boone Karlberg P.C., Missoula, Montana

For Amici American Civil Liberties Union and ACLU of Montana Foundation, Inc.: Alex H. Rate, ACLU of Montana Foundation, Inc., Missoula, Montana, Steven S. Sparling, Jeffrey L. Braun, Chase Mechanick, Julia A. Quigley, Kramer Levin Naftalis & Frankel LLP, New York, New York, Sandra S. Park, Linda S. Morris, Stephen L. Pevar, American Civil Liberties Union, New York, New York

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 The United States Court of Appeals for the Ninth Circuit has submitted the following state law question to this Court:1

Under Montana law, do law-enforcement officers act outside the scope of their employment, as a matter of law, when they use their authority as on-duty officers to sexually assault a person they are investigating for a crime?

We accepted certification by Order dated August 17, 2021. For the reasons set forth below, our answer is no.


¶2 In accordance with M. R. App. P. 15(6)(a)(ii), the Ninth Circuit provided the relevant factual and procedural background to the certified question in its Certification Order, which we restate here.

¶3 L.B., a Northern Cheyenne tribal member, lived within the exterior boundaries of 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 returning 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.

¶4 Bureau of Indian Affairs (BIA) Officer Dana Bullcoming (Officer Bullcoming) responded to L.B.’s call. Officer Bullcoming determined L.B.’s mother was safe and 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 few drinks that evening, including half of a beer at her residence. Officer Bullcoming 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, citing fears that she would lose her job as a school bus driver.

¶5 Officer Bullcoming took L.B. outside to his patrol vehicle and administered a breathalyzer test, which L.B. recalled indicated a .132 or .136 blood alcohol content. Officer Bullcoming repeatedly told L.B. that "something had to be done." L.B. inferred 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. had unprotected sexual intercourse with Officer Bullcoming in her home. L.B. became pregnant as a result and gave birth to D.B.

¶6 In 2018, L.B. brought a Federal Tort Claims Act (FTCA) suit against the United States, seeking to hold the United States liable for Officer Bullcoming's misconduct.2 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. and, therefore, his actions fell outside the scope of the FTCA's limited waiver of sovereign immunity and grant of jurisdiction. The United States District Court for the District of Montana agreed, 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 , 254 Mont. 178, 835 P.2d 755 (1992), a 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 the challenged conduct be within the scope of the actor's employment, the District Court concluded that L.B.’s FTCA claim necessarily failed.

¶7 L.B. appealed to the Ninth Circuit, 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 law enforcement officer. Noting that the question was one of first impression under Montana law and presented important public policy concerns, the Ninth Circuit certified the question to this Court.


¶8 M. R. App. P. 15(3) permits this Court to answer a question of law certified to it by another qualifying court. Our review of the certified question is purely an interpretation of the law as applied to the agreed facts underlying the action. Murray v. BEJ Minerals, LLC , 2020 MT 131, ¶ 11, 400 Mont. 135, 464 P.3d 80 (citations omitted). The scope of our review is limited to the certified question. Frontline Processing Corp. v. Am. Econ. Ins. Co. , 2006 MT 344, ¶ 31, 335 Mont. 192, 149 P.3d 906.


¶9 The common law doctrine of respondeat superior imposes vicarious liability on employers for the tortious conduct of employees committed while acting within the scope of their employment. Kornec v. Mike Horse Mining & Milling Co. , 120 Mont. 1, 7, 180 P.2d 252, 256 (1947). The doctrine is designed to hold an employer liable for wrongful conduct by its employees. Denke v. Shoemaker , 2008 MT 418, ¶ 79, 347 Mont. 322, 198 P.3d 284. A tortious act occurs within the scope of employment if the act was either expressly or implicitly authorized by the employer or was incidental to an expressly or implicitly authorized act. Brenden v. City of Billings , 2020 MT 72, ¶ 14, 399 Mont. 352, 470 P.3d 168. An act not authorized by the employer may nonetheless be within the scope of employment if the act was incidental to the performance of an authorized act and at least partially motivated by the employee's intent or purpose to serve the employer's interest. Brenden , ¶ 16.

¶10 Importantly, "[a]n act may be incidental to an authorized act, although considered separately it is an entirely different kind of act." Restatement (Second) of Agency § 229 cmt. b. Thus, the fact that an employer had no reason to expect the employee to perform the act is not conclusive. See Brenden , ¶ 16 ; Restatement (Second) of Agency § 229 cmt. b. An employer may remain liable even where the employee fails in their duty to the principal or disobeys instructions. Grorud v. Lossl , 48 Mont. 274, 280, 136 P. 1069, 1071 (1913). "[T]he wrongs for which liability may attach to the principal not only include negligent acts, but malicious, wanton[,] and willful acts as well." Keller v. Safeway Stores , 111 Mont. 28, 37, 108 P.2d 605, 611 (1940). Here, Officer Bullcoming's investigation of L.B. for violations related to alcohol consumption were authorized acts of his employment as an officer and agent of the BIA. Undisputedly, governments do not authorize their police officers to sexually assault people when performing these authorized acts. Nevertheless, simply characterizing the act as unauthorized does not answer the question because the doctrine of vicarious liability contemplates the employer's liability for wrongful acts of the employee, which could include felonious criminal conduct. Characterization of the act as unauthorized does not necessarily place an officer's sexual assault outside the sphere of employee actions for which the employer may be liable.

¶11 In Kornec , we noted acts which are illegal, unauthorized, or disobedient could still result in the employer's vicarious liability if the acts were "so connected with and immediately grow[ing] out of another act of the servant imputable to the master, that both acts are treated as one indivisible tort, which, for the purposes of the master's liability, takes its color and quality from the earlier [authorized] act. " Kornec , 120 Mont. at 9, 180 P.2d at 256 (citations omitted, emphasis supplied). We concluded that

[w]hen a servant in carrying out his assigned duties makes an assault on a third party as a result of a quarrel which arose as a consequence of his performance of the tasks imposed and at the time and place of performance of the duties he was employed to do, then the master

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