The James F. Battin federal courthouse in Billings, Montana (Photo by Darrell Ehrlick of the Daily Montanan).
No one debates that former Bureau of Indian Affairs Police Officer Dana Bullcoming raped a Northern Cheyenne woman on Oct. 31, 2015, falsely imprisoning her and threatening to take away her job and children if she didn’t have sex with him.
No one is debating that led to the birth of a child the woman has raised without a penny of the $1.6 million award given to her as a result of the assault and pregnancy several years ago.
But in a one-day trial in Billings federal court on Tuesday, the woman, known in court records as “L.B.,” was back again, capping more than seven years of fighting literally for her day in court, alleging that the federal government, specifically the Bureau of Indian Affairs, had a duty to supervise Bullcoming and protect her, and it failed, and as a result should be held, in part, liable for the assault.
Meanwhile, attorneys and officers from the BIA told federal district court judge Donald W. Molloy that rape and sexual assault are never part of law enforcement, and therefore, Bullcoming was acting upon his own, and therefore the government should not be liable for what happened. Moreover, attorneys for the federal government said they’ve done everything they could, including prosecuting and putting Bullcoming behind bars for his actions.
The day in court was another step in a process that has wound its way through both state and federal courts, appearing at the Montana Supreme Court as well as the U.S. Ninth Circuit of Appeals before finding its way to Molloy, who received the case after the federal appeals court removed Judge Susan P. Watters saying that she was in an untenable position having to decide between conflicting statements Bullcoming had made before and during his prosecution.
None of the details of the assault were necessarily in question on Tuesday. Instead the previous courts had distilled the matter to this question: Was Bullcoming’s assault done as part of his duties that night, thereby making the BIA partly responsible?
Attorneys for the United States have argued repeatedly that Bullcoming had a reason to stop at her house — she had called for help because she was concerned her mother was drunk and driving. However, they also argued that since rape or sexual assault is never permitted or acceptable in law enforcement, Bullcoming’s actions couldn’t have been part of his duties, and therefore, he was acting on his own.
Meanwhile, L.B.’s attorneys, John Heenan and Timothy Bechtold, argued that without a call for help, Bullcoming would have never arrived, and without the threat of imprisonment or taking away her children, Bullcoming could have never coerced the victim into having sex.
“The BIA provided the opportunity and the power for this to happen,” Bechtold told the court during closing statements. “There was no way it could have happened but for being a police officer. People follow orders because the police have the power to take away freedom.”
Randy Tanner, who led the U.S. Attorney’s defense of the case, said that despite the court hearing, everyone agrees that Bullcoming’s actions were illegal and criminal.
“The question is whether the BIA was responsible,” Tanner said. “But sexual assault never served his employer, the BIA. He admitted he had a crush on her. None of that gave him license, but it gave rise to the assault.
“And certainly the U.S. is not defending that he had sex with other women while on duty. But it’s a departure from his normal duties or scope of his employment. It is a reprehensible and serious act.”
In a rebuttal at the closing, Heenan argued to Molloy that if the government was not found to have some kind of vicarious liability for Bullcoming’s actions, it could have implications for other victims.
“That means that the victim here has no recourse,” he said. “If he was off-duty, we wouldn’t be here. But, he did it while on duty.”
Tearful testimony
Part of Tuesday’s hearing featured the witness, L.B., who recounted that night when she called for service, worried about the safety of her mother, who she said took off driving after a night of drinking. The Northern Cheyenne reservation, in south central Montana, is a dry reservation where alcohol is forbidden.
L.B. told the court that she knew drinking was illegal, but called because of a concern for her mother. She recounted Bullcoming telling her to take a breath test for alcohol, and told her that she could go to jail, lose her job and her children because “something needed to be done,” a phrase that he repeated over and over again.
She said, “Like sex?”
And he said, “Yes.”
She said that she was coerced into the act, with the threat of losing her job and her children and was not romantically involved or attracted to Bullcoming.
The U.S. Attorney’s Office repeatedly through the trial had suggested something more, pointing out that Bullcoming had grown up on the Northern Cheyenne reservation as nearby neighbors and the best friend of one the victim’s siblings, recounting at one point that he had a “crush” on her.
“I just did it. You do what they tell you,” she said. “He was saying something had to be done. He said he would call social services to take my kids away.”
“So you had an understanding of your choice: Your kids would be taken away or you had to have sex with him. Which did you choose?”asked Heenan.
“Having sex with him,” she said. “It’s not something I wanted to do.”
“Did you perceive it as fun or as punishment,” Heenan asked.
“It felt like I was being punished, but I didn’t know why,” she said.
She recalled it took about a month for her to work up the courage to report Bullcoming, scared that no one would believe her or that there would be retribution.
“I was scared because he was a cop. How do you report a cop to a cop?” L.B. asked. “They (stick up) for each other and I thought they wouldn’t believe me because it’s my word against his.”
Attorneys asked how she knew that he was suggesting something sexual.
“He kept on referencing something has to be done,” she said. “He was positive, and then it clicked and I said, ‘Oh, you mean sex,’ and he said, ‘Yeah.’”
L.B. also recounted not feeling believed, even having FBI agents come to the hospital the day after she gave birth to the child to take a blood test to prove Bullcoming’s paternity.
Other allegations
As part of the case, Heenan and Bechtold painted a picture that suggested sexual assault happened much more frequently, and that the BIA had repeatedly ignored it. As part of the testimony, the federal government didn’t dispute that during depositions, Bullcoming said he had sex with at least three other women on duty and may have had sexual contact with as many as a dozen women.
Former FBI agent John Teeling, who worked part of the case, testified that as a special agent, he had reservations about the case.
“I was disgusted with the case and I didn’t want to get involved defending a rapist. I made it clear that it was difficult and I didn’t like it,” he said.
He said that government attorneys had told him that he wasn’t part of a case defending a rapist, rather defending the federal government.
“I said, ‘I don’t like cops who rape women, and I wanted no part of it,’” Teeling told the court. “That was the first time I went against the government. I have always prided myself on being a very loyal agent.”
Teeling said that he had investigated the L.B. case and had worked for Heenan on other cases, and he described a pattern of abuse and victimization on the reservation.
“I believe it’s a pattern to protect one another, to cover,” he said.
BIA Special Agent in Charge Lenora Nioce testified that what Bullcoming did to L.B. was neither known nor authorized by any BIA policy or police tactic.
“It was a crime,” Nioce said.
She disputed the suggestion that sexual assault or any abusive behavior was condoned by the BIA or prevalent on the reservations. Nioce is the special agent in charge of a region that includes Montana and Wyoming.
Attorneys for L.B. also pointed out that every call for service must have a report generated, and questioned why Bullcoming didn’t file one on the night of the assault. However, Nioce said because of low budgets, and frequent openings, procedures like report writing often get backlogged or not completed.
Heenan and Bechtold also asked witnesses who worked for the BIA what training and resources they were given for sexual assault and what kind of supervision was offered, but none of the U.S. government’s witnesses could testify to any specific training beyond that which they received as part of their law enforcement training.
BIA officials, including former Northern Cheyenne Police Chief Donovan Wind, said that BIA had never investigated the other reports of sexual conduct while on duty from Bullcoming because they had never received reports about them from the victims.
“If it came out after he was an employee because of this, it meant that the BIA knew that there may be a dozen or so others, why not investigate them?” Heenan asked Nioce.
“There was no way to discipline him because he was no longer an officer,” Nioce said.
“So nobody’s looking into it?” he asked.
“Again, that would be the FBI,” she replied.
“Would it preclude the BIA from making further inquiry,” Heenan asked.
“It would be a conflict of interest, and it’s a criminal matter. And that would belong to the FBI,” Nioce said.
“How would the FBI know if the BIA didn’t report it?” Heenan asked.
Molloy told the courtroom that he hoped to have a decision on the case by the end of next week.