The James F. Battin federal courthouse in Billings, Montana (Photo by Darrell Ehrlick of the Daily Montanan).
A legal battle that has spanned nearly a decade, been before two federal judges, three federal courts and the Montana Supreme Court was decided on Tuesday with the United States government, specifically the Bureau of Indian Affairs, being held liable for a police officer raping and impregnating a Northern Cheyenne woman on Halloween 2015.
U.S. District Judge Donald W. Molloy ruled after a one-day trial earlier this month that the United States government was liable for its former police officer’s conduct when he coerced, raped and impregnated a woman known in court documents as, “L.B.” Previously, the officer, Dana Bullcoming, had been found guilty of false imprisonment and had been found civilly liable for more than $1.6 million in child-support payments to the victim.
During court testimony, L.B.’s attorneys, John Heenan and Tim Bechtold, said that Bullcoming had not paid a dime in support, and federal officials had repeatedly said that the sexual assault was outside the scope of the officer’s duties, so that the government should not be responsible for its law enforcement officer’s action.
But Molloy rejected that notion, something that both the Montana Supreme Court and the U.S. Ninth Circuit Court of Appeals, have previously seemed to reject. Molloy found that without a criminal investigation into whether the victim had been drinking, coupled with Bullcoming’s authority to arrest her, the assault would have likely never occurred. Alcohol is prohibited on the Northern Cheyenne reservation in southern Montana.
The ruling is also vindication for L.B., who during the course of the investigation and the different court hearings, has brought to light as many as three other examples of officers on the reservation coercing residents into sex.
Molloy’s ruling also ordered the government to pay for costs associated with the lawsuit, which has lasted nearly a decade.
Heenan told the Daily Montanan on Wednesday:
The background for the incident stems back to a call L.B., placed to law enforcement on Oct. 31, 2015. She and her mother had been drinking, but when her mother left the house, the victim worried about the safety of her mother and called the police. Bullcoming responded and located the L.B.’s mother, and then went to L.B.’s house to follow-up. The victim testified in court that when she awoke, Bullcoming was standing over as she slept. He threatened to take her kids away and take her to jail if they didn’t “do something.” L.B. told the court she feared for her children and her job.
“Like sex?” she asked, when Bullcoming suggested something must be done.
“L.B. believed she had only two choices: To be arrested, meaning her children would be taken away and lose her job, or to have sex with Officer Bullcoming,” the court found.
BIA officers often work alone and, at that time, did not use body cameras. Furthermore, Special Agent in Charge Lenora Nioce testified in court that she was aware of other allegations of sexual assault by BIA officers on the Northern Cheyenne reservation, and Bullcoming himself later said that he had sex with as many as 20 other women on the reservation while employed by the BIA, according to court documents. Nioce also testified the BIA never investigated the incident, but the FBI did. Bullcoming changed his account several times during the course of the lawsuit, originally denying even entering L.B.’s home, let alone committing an assault. Shortly after L.B.’s child was born, FBI agent arrived at the hospital to take a blood sample which later proved Bullcoming was the biological father.
The court found that coercion, using his police powers, while illegal, was done as a part of official business and during a criminal investigation, which makes the U.S. government liable for circumstances.
“The single, dispositive question here is whether Officer Bullcoming was acting within the course and scope of federal employment when he sexually assaulted L.B.,” Molloy wrote in his opinion. “L.B. argues that the sexual assault was similar or incidental to the conduct authorized by the BIA, while the government argues that the sexual assault was a departure from conduct authorized by the BIA. Ultimately, L.B. is correct.”
Bullcoming has previously spent 36 months in prison for the crime, but this trial was to determine if the federal government had any liability, something it has fought against for years.
“Here, Officer Bullcoming’s ability to engage in invasive physical contact and exercise discretion was within the enterprise of BIA policing. His decision to exercise such powers in a criminal way does not remove these powers from what is entrusted to employees during the enterprise of policing,” the court conclusion said. “Here, Bullcoming’s tortious conduct was not an independent course of conduct from the criminal investigation he was conducting.
“The acts which comprise the sexual assault are not independent from his criminal investigation; instead, they stem from the very course of that action.”
250225.Doc. 192 Findings of Fact and Conclusions of Law