L.B. v. United States

2022 MT 166, 515 P.3d 818, 409 Mont. 505

Opinion

08/16/2022

OP 21-0395 Case Number: OP 21-0395

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 166

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.

ORIGINAL PROCEEDING: Certified Question, United States Court of Appeals for the Ninth Circuit, Cause No. 20-35514 Honorable Marsha S. Berzon and Mary H. Murguia, Ninth Circuit Judges, Honorable Danny J. Boggs, Sixth Circuit Judge, sitting by designation

COUNSEL OF RECORD:

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

Argued: April 15, 2022 Submitted: April 19, 2022 Decided: August 16, 2022

Filed: , ,...C if __________________________________________ Clerk

2 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.

FACTUAL AND PROCEDURAL BACKGROUND

¶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

1 We have reformulated the certified question pursuant to M. R. App. P. 15(4).

3 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

2 L.B. also named Officer Bullcoming as a defendant. He failed to answer the complaint and a default judgment was entered against him.

4 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.

STANDARD OF REVIEW

¶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

5 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.

DISCUSSION

¶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

6 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 is liable.

Kornec, 120 Mont. at 9, 180 P.2d at 257. Thus, a tortious and wrongful act, though not

authorized or contemplated by the employer, may occur in the scope of employment when

the employee, “in carrying out his assigned duties . . . assault[s] a third party as a result of

7 a quarrel which arose as a consequence of [the] performance of the tasks . . . he was

employed to do.” Kornec, 120 Mont. at 9, 180 P.2d at 257; Brenden, ¶ 18. We explained

the test for liability centered not on “whether the assault was committed in accordance with

the master’s instructions but whether the act complained of arose out of and was committed

in prosecution of the task the servant was performing for his master.” Kornec, 120 Mont.

at 9-10, 180 P.2d at 257 (emphasis added). Thus, whether the “employee was acting at

least partially in furtherance of the employer’s interest does not depend on whether the

employer actually profited or benefitted from the act.” Brenden, ¶ 18 (citations omitted).

Even if the employee’s act is unauthorized and, the wrongful act by itself, is not motivated

by any intent or purpose to serve the employer, an employee’s tortious act may still be

incidental to expressly or implicitly authorized conduct if it is “closely intermingled” with

the employment. Keller, 111 Mont. at 40, 108 P.2d at 612.

¶12 In assessing whether an act falls outside the scope of employment, the inquiry must

focus on the nature of the employment and how the employment relates to the context in

which the commission of the wrongful act arose. The test of the employer’s liability is

whether the act complained of arose out of and was committed in prosecution of the task

the servant was performing for his master. Kornec, 120 Mont. at 12, 180 P.2d at 258.

When tortious acts are so closely associated with the employment that they arose out of

and were committed during the furtherance of a task the employee was performing for his

employer, they are within the scope of employment, making the employer liable.

Therefore, the scope of employment may extend beyond authorized acts to include acts

that the employer expressly forbids; that violate the employer’s rules, orders, or

8 instructions; that the employee commits for self-gratification or self-benefit; that breach a

professional duty; or that are egregious, malicious, or criminal.

¶13 This Court has previously recognized an underlying policy rationale for holding an

employer vicariously liable for the tortious conduct of its employees. We held in Brenden

that vicarious liability for injurious acts made in the furtherance of employment helps

prevent recurrence because it “recognizes . . . that the ‘ability to exercise control over

employees’ work-related conduct enables, and provides incentive for, the employer to take

measures to reduce the incidence of tortious conduct.’” Brenden, ¶ 13.

See also Restatement (Second) of Agency § 229 cmt. a (“[T]he ultimate question is

whether or not it is just that the loss resulting from the servant’s acts should be considered

as one of the normal risks to be borne by the business in which the servant is employed.”).

¶14 “Scope of employment” is a commonly cited principle, but its contours are not

rigidly defined. Identifying whether a tortious act falls outside an employee’s scope of

employment is necessarily fact-intensive.

An extensive search of authorities has drawn us to the conclusion that the maze of decisions on the subject is the result of a large variety of differing factual situations which in most cases are determinative of the question of whether the agent is acting within the scope of his employment. While the courts are quite harmoniously in accord in their statements of the general rules applicable, their application of those rules has brought about such a diversity of opinions as to make a uniform standard of measurement somewhat difficult to apply.

Keller, 111 Mont. at 37, 108 P.2d at 610-11. These certified facts likewise present a

similar challenge here.

9 ¶15 We have previously adopted and applied several factors of the Restatement

(Second) of Agency § 229 to determine the scope of employment. Keller, 111 Mont. at

36-37, 108 P.2d at 610. To the extent that any factor may be helpful in determining the

scope of employment, we adopt Restatement § 229 in its entirety. Restatement § 229,

entitled “Kind of Conduct Within Scope of Employment,” provides the following factors

to determine whether conduct, although not authorized, may be similar or incidental to the

conduct authorized thus making it within the scope of employment:

(a) whether or not the act is one commonly done by such servants; (b) the time, place and purpose of the act; (c) the previous relations between the master and the servant; (d) the extent to which the business of the master is apportioned between different servants; (e) whether the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant; (f) whether or not the master has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant; (i) the extent of departure from the normal method of accomplishing an authorized result; and (j) whether or not the act is seriously criminal.

Restatement (Second) of Agency § 229. While no one factor is dispositive, each factor

requires an inquiry into how the employment relates to the context in which the

commission of the wrongful act arose. Such an inquiry mandates that the wrongful “act”

referred to in the factors be accurately identified. Here, the “act” Officer Bullcoming

committed was not sexual intercourse without consent—L.B. agreed to have sexual

10 intercourse with Officer Bullcoming in return for not being charged.3 The unauthorized

“act” Officer Bullcoming committed and for which he subsequently pleaded guilty was a

violation of 18 U.S.C. § 242; that is, “under color of [] law, statute, ordinance, regulation,

or custom, [Officer Bullcoming] willfully subject[ed] [L.B] . . . to the deprivation of [her]

rights. . . .”4 Therefore, carefully and accurately identifying the nature of the unauthorized

“act” establishes the context in which it arose and whether it “arose out of and was

committed in prosecution of the task the servant was performing for his master.” Kornec,

120 Mont. at 10, 180 P.2d at 257.

¶16 The context in which the wrongful act arose is also informed by the nature of the

employment itself; that is, the activities, responsibilities, and authority that an employer

delegates to its employees through a particular employment and which constitute

authorized acts. Hence, the inquiry of whether authority inherent in the employment was

abused to accomplish a wrongful act must be made any time an employer delegates

authority to its employees and, as such, the inquiry is not unique to law enforcement. Police

officers are assigned law-enforcement and community-protection duties which include the

authority to detain, arrest, frisk, search, seize, and even use deadly force when necessary.

3 In 2019, the definition of “consent” was modified to include a provision that a “victim is incapable of consent” when the victim is “a witness in a criminal investigation or a person who is under investigation in a criminal matter and the perpetrator is a law enforcement officer who is involved with the case in which the victim is a witness or is being investigated.” See § 45-5-501(1)(b)(xi), MCA. 4 After a paternity test proved he impregnated L.B., Officer Bullcoming pled guilty to 18 U.S.C. § 242, deprivation of rights under color of law, and was sentenced to three years in the custody of the U.S. Bureau of Prisons.

11 Broadly, the job duties of law enforcement officers include initiating nonconsensual, and

at times invasive, physical contact with members of the public pursuant to law enforcement

goals. See, e.g., Mitchell v. Wisconsin, ___ U.S. ___, ___, 139 S. Ct. 2525, 2538-39 (2019)

(plurality) (permitting warrantless blood tests on unconscious drivers pursuant to

drunk-driving investigations); Mullenix v. Luna, 577 U.S. 7, 19, 136 S. Ct. 305, 312 (2015)

(per curiam) (granting qualified immunity to an officer who fired six shots at a fleeing

felon’s vehicle, killing the driver); Maryland v. King, 569 U.S. 435, 465-66, 133 S. Ct.

1958, 1980 (2013) (permitting DNA cheek swabs as part of police booking procedures);

Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 324, 132 S. Ct.

1510, 1514 (2012) (describing and permitting strip searches requiring inmates to “lift

[their] genitals, turn around, and cough in a squatting position as part of the process”);

Terry v. Ohio, 392 U.S. 1, 17 n. 13, 88 S. Ct. 1868, 1877 (1968) (describing the physically

invasive nature of patdowns). Thus, policing commonly involves invasive physical

contact. This Court has previously acknowledged that “[t]o create liability for a battery by

a servant upon a third person, the employment must be one which is likely to bring a servant

into conflict with others.” Kornec, 120 Mont. at 10, 180 P.2d at 257. It is therefore

foreseeable that a police officer will have invasive physical contact with persons they are

investigating. Hence, the scope of a police officer’s employment contemplates physical

contact, whether wrongfully or appropriately exercised.

¶17 Further, police officers wear visible signs of this employer-conferred authority—a

marked car, uniform, badge, and weapons—which officers use to carry out their

employment duties. These duties frequently authorize and involve entering homes,

12 detaining criminal suspects at gunpoint, placing suspects in handcuffs and into police

vehicles, and subjecting them to forceful, nonconsensual, and offensive contact. With

these considerable and intimidating powers comes an inherent risk of abuse, as our

jurisprudence on searches, seizures, and consent reveals. When the abuse is a tortious act

arising from the police officer’s employment activities, it falls to the trier of fact to

determine whether it is within the scope of employment for which the employer is liable.

Thus, if an on-duty police officer obtains consent by misusing official authority, the

wrongful act may be within the scope of employment if it arose out of the employment and

was at least partially motivated by an intent or purpose to serve the interests of his

employer. Brenden, ¶¶ 14, 16 (citing Kornec, 120 Mont. at 8-12, 180 P.2d at 256-58;

Keller, 111 Mont. at 36-40, 108 P.2d at 610-12).

¶18 The question of law for this Court to decide is whether Officer Bullcoming’s threat

of charging L.B. with a criminal offense to obtain her consent to sexual intercourse was so

disconnected from his employment activities that a trier of fact could not find that his

wrongful conduct arose out of and was committed in furtherance of Officer Bullcoming’s

criminal investigation—the authorized task he was performing for his BIA employer.

See Kornec, 120 Mont. at 12, 180 P.2d at 258. We hold that Officer Bullcoming’s wrongful

conduct was not so disconnected from his employment.

¶19 While an employee’s actions only come within the scope of employment if they are

motivated in part by a desire to serve the employer to an appreciable extent, an employee

may act with a mixed motive. Brenden, ¶¶ 17-18. The Government’s argument that

Officer Bullcoming could not have been motivated to serve the BIA’s interests assumes

13 that when Officer Bullcoming used his position as a BIA officer to obtain L.B.’s consent,

he was not in some way motivated to serve the BIA’s interests. The Government does not

support this proposition but asks this Court to accept it as axiomatic. However, here, the

certified facts could lead a trier of fact to conclude that Officer Bullcoming abused his

employer-conferred power and authority to sexually assault L.B. Officer Bullcoming was

on-duty and was dispatched to investigate a DUI involving L.B.’s mother. He entered

L.B.’s home, inquired if she was alone, took her to his patrol car, administered a

BIA-owned breathalyzer test, accused her of being intoxicated, threatened her with arrest,

and threatened to contact social services and have her children removed. Even if some of

Officer Bullcoming’s motive was “self-interest,” he was there to investigate the interests

of his employer—acting as an officer and agent of the BIA investigating a crime—when

he used his employer-conferred powers to sexually assault L.B. Officers have significant

police discretion to enforce certain laws and to let civilians off with a warning. This

discretion benefits the law enforcement agency and ultimately the taxpayers by keeping

certain violations out of the criminal justice system and freeing up government resources.

When an officer tells a law-breaking civilian he will let her go as long as she, for example,

repairs her windshield, replaces her tail-light, promises not to repeat the same unlawful

conduct, or offers to give up a criminal associate, he does so, in part, to benefit his

employer. Similarly, when an officer intimidates a civilian through, for example, the

use-of-force or the threat of force, he provides a benefit to his employer by maintaining

law and order in the community. The certified facts could lead a trier of fact to conclude

that Officer Bullcoming’s wrongful conduct was predicated upon and incident to his

14 employment as a BIA officer. The Dissent claims that any evidence of a “mixed” or “dual

motive” is purely speculative. But it is no more speculative to suggest that Officer

Bullcoming acted, in part, to further the BIA’s interests than it is to presume that he acted

“for his own personal gratification.” Dissent, ¶ 38 (emphasis omitted). There is no explicit

evidence of this in the certified facts, yet the Dissent accepts as self-evident that any person

who coerces another into unlawful sexual activity does so “solely” for his own personal

sexual gratification. Dissent, ¶ 38. Our precedents indicate that when two or more

reasonable inferences may be drawn regarding the scope of employment, the question is

one left for the trier of fact. See Bowyer v. Loftus, 2008 MT 332, ¶ 8, 346 Mont. 182, 194

P.3d 92. The certified facts indicate that, under our respondeat superior jurisprudence,

reasonable minds could differ regarding Officer Bullcoming’s motives.

¶20 Amici and L.B. argue there is systemic misconduct within the BIA and violence

against Native American women on reservations, referring this Court to United States v.

Bryant, 579 U.S. 140, 144, 136 S. Ct. 1954, 1959 (2016) (noting that “American

Indian . . . women are 2.5 times more likely to be raped or sexually assaulted than women

in the United States in general” (internal punctuation and citations omitted)). The certified

facts establish that L.B. believed Officer Bullcoming’s statement that “something had to

be done” referred to sex. This illustrates her belief in and understanding of the power

dynamic at play, which, also under the certified facts, was between a BIA officer and

Northern Cheyenne resident. L.B. has established that her case should not be dismissed as

a matter of law and that she should have the opportunity to present evidence to a trier of

fact in support of her contention that Officer Bullcoming was acting within the scope of

15 his employment when he threatened her with criminal charges if she did not consent to

having sexual intercourse with him. What evidence L.B. chooses to present to prove her

allegations will be up to her, but there is no state-law bar to her claim.

¶21 The parties devote extensive briefing to the applicability of Maguire. The United

States contends Maguire is dispositive of L.B.’s claim, while L.B. urges us to overrule

Maguire. Maguire, however, fails to answer the certified question for several reasons.

First, the scope of employment was not at issue in Maguire. Rather, noting in conclusory

fashion that sexual assault was outside the scope of employment, the Court addressed the

central issue on appeal: the applicability of the nondelegable duty exception to the

respondeat superior doctrine. Maguire, 254 Mont. at 184-85, 835 P.2d at 760. Liability

under the nondelegable duty exception may cover conduct outside the scope of

employment, and Maguire declined to extend this exception and § 214 of the Restatement

(Second) of Agency beyond inherently dangerous activities. Maguire, 254 Mont. at

184-85, 835 P.2d at 759. While acknowledging the respondeat superior doctrine as a

precursor to reaching the exception, the Court did not meaningfully consider factors

relevant to determining whether a tortious act fell outside the scope of employment, a

different consideration altogether. Accordingly, Maguire does little to inform the scope of

a law enforcement officer’s employment.5

5 The Government relies on United States v. Olson, 546 U.S. 43, 126 S. Ct. 510 (2005), to argue its waiver of sovereign immunity under the FTCA extends only to when there would be liability of a “private person” for the acts of employees and that liability may not be premised upon an entity’s government status. The Government’s argument is based upon its conclusion that Maguire presents a bar to L.B.’s claims. However, because we distinguish Maguire and conclude it is not 16 ¶22 Further, and notwithstanding the inapplicability of Maguire, the factual record here

is distinguishable. Maguire involved the sexual assault of an intellectually and

developmentally disabled individual by her caretaker, an employee of the State. Maguire,

254 Mont. at 181, 835 P.2d at 757. Maguire lacked evidence of threats, quid pro quo

coercion by the orderly, or even whether the sexual assault arose out of his employment—

indeed, the record contained no factual background concerning the assault whatsoever.

Maguire, 254 Mont. at 180-81, 835 P.2d at 757. The factual record in Maguire required

no development on this issue because scope of employment was not at issue. Moreover,

the sexual assault in Maguire concerned an individual incapable of consent in any

circumstance. See § 45-5-501(1)(b)(i), MCA. Thus, whether the act fell within the scope

of his employment failed to change the calculus—it would have been sexual assault

regardless of whether it was committed by her caretaker or a stranger. Conversely, the

record here contains evidence concerning the circumstances under which L.B.’s sexual

assault by Officer Bullcoming occurred. Officer Bullcoming was only in L.B.’s home by

virtue of his status as a BIA officer. L.B. was otherwise capable of consent, but for Officer

Bullcoming’s coercive threats. It is unlikely that the statement “something had to be done”

uttered by anyone without law enforcement or similar authority would have the same

coercive weight and connotations as when Officer Bullcoming uttered those words,

repeatedly, to L.B. Maguire thus remains factually distinct.

dispositive of the issue, we decline to further address the Government’s argument and the applicability of Olson.

17 ¶23 Finally, Maguire proves inapplicable because the certified question does not ask

whether the government may be liable under the nondelegable duty exception to acts

occurring outside the scope of employment. Rather, we must address whether an

employee’s sexual assault of a member of the public while purportedly acting as an agent

of his employer constitutes behavior at the heart of the respondeat superior doctrine itself—

tortious conduct within the scope of employment.

¶24 Likewise, our holding in Paull v. Park Cty., 2009 MT 321, 352 Mont. 465, 218 P.3d

1198, has limited application here. While we adopted the Restatement (Second) of Agency

§ 214, without limitation, our antecedent analysis concluded the State owed Paull a

statutory duty arising out of the Interstate Compact for Adult Offender Supervision and

thus was in a “continuing relationship” with Paull, which we concluded was a nondelegable

duty. Paull, ¶¶ 34-38. See also Smith v. Ripley, 446 F. Supp. 3d 683, 691 n. 5 (D. Mont.

2020) (applying Paull by conducting a two-part analysis of Montana statutory law and the

ensuing relationship arising out of a statutory duty); Shepherd v. Amtrak, 2018 U.S. Dist.

LEXIS 226726 at *4-5 (D. Mont. Aug. 15, 2018) (applying the common carrier exception

of Restatement (Second) Agency § 214 as adopted by Paull). The FTCA imparts liability

upon the United States only for actions “of any employee of the Government while acting

within the scope of his office or employment[.]” 28 U.S.C. § 1346(b)(1). Our analysis

thus focuses on whether Officer Bullcoming’s sexual assault falls outside the scope of his

employment, an issue on which Paull and Maguire have no bearing.

¶25 Well-established case law guides our decision today, with an understandably needed

clarification of Maguire and Paull in the context of the certified facts. We expressly note

18 the consistency of our case law with the Legislature’s decision to hold an employer

responsible for an employee’s wrongs. Section 28-10-602(1), MCA, establishes that “a

principal is responsible to third persons for the . . . wrongful acts committed by the agent

in and as a part of the transaction of business, and for the agent’s willful omission to fulfill

the obligations of the principal.” (Emphasis added.) Notwithstanding, the Legislature also

provided “a principal is not responsible for other wrongs committed by the principal’s

agent except those mentioned in subsection (1) unless the principal has authorized or

ratified the acts, even though committed while engaged in the principal’s services.”

Section 28-10-602(2), MCA (emphasis added). We draw on our established jurisprudence

to inform the question of when a wrongful act is considered “[with]in and as a part of the

transaction of business.” We similarly draw on our established precedent to inform the

question of what constitutes an “authorized” act. In Keller, decided in 1940, and Kornec,

decided in 1947, and precedent thereafter, we set forth the relevant factors for determining

the scope of employment. For over 80 years, the general test of an employer’s liability

has been whether the act complained of arose out of and was committed in prosecution of

the task the servant was performing for his master. Kornec, 120 Mont. at 12, 180 P.2d at

258; Opinion, ¶ 12. While our precedent has explained the formula within the factual

contours of different cases, those cases make clear that whether a tortious act falls outside

the scope of employment will depend on the facts of the case and is not easily disposed of

as a matter of law. We conclude that whether Officer Bullcoming acted outside the scope

of his employment when he used that employment as a vehicle to obtain L.B.’s consent to

19 sexual intercourse must be answered by the trier of fact, with the guidance of the principles

set forth herein.

CONCLUSION

¶26 Our answer to the certified question is that law-enforcement officers do not, as a

matter of law, act outside the scope of their employment when they use their authority as

on-duty officers to sexually assault a person they are investigating for a crime. The test of

an employer’s liability is whether the act complained of arose out of and was committed in

prosecution of the task the officer was performing for his employer. Accordingly, in any

case evaluating whether an act falls outside the scope of employment, the inquiry must be

on the nature of the employment and how the employment relates to the context in which

the commission of the wrongful act arose. We reject the United States’ argument that

Maguire bars L.B.’s claims as a matter of law. The certified facts establish that Officer

Bullcoming was not, as a matter of law, acting outside the scope of his employment when

he sexually assaulted L.B. and the question is one for a trier of fact.

/S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JAMES JEREMIAH SHEA

20 Justice Dirk Sandefur, dissenting.

¶27 I dissent. For over 125 years, generally-applicable legal standards for determining

whether, for purposes of vicarious employer liability, an employee’s unauthorized tortious

conduct was committed or engaged in within the course or scope of his or her employment

have been clearly, concisely, and consistently defined under Montana statutory and

common law. See, e.g., § 28-10-602, MCA (first enacted as Montana Civil Code §§ 3118

and 3119 (1895));1 Brenden v. City of Billings, 2020 MT 72, ¶¶ 13-31, 399 Mont. 352, 470

P.3d 168; Kornec v. Mike Horse Mining & Milling Co., 120 Mont. 1, 7-12, 180 P.2d 252,

256-57 (1947); Keller v. Safeway Stores, 111 Mont. 28, 35-40, 108 P.2d 605, 610-12

(1940); Harrington v. H.D. Lee Mercantile Co., 97 Mont. 40, 59, 33 P.2d 553, 558 (1934);

Hoffman v. Roehl, 61 Mont. 290, 295-300, 203 P. 349, 349-51 (1921); Kirk v. Mont.

Transfer Co., 56 Mont. 292, 297-99, 184 P. 987, 988-89 (1919); Ellinghouse v. Ajax

Livestock Co., 51 Mont. 275, 286-87, 152 P. 481, 484-85 (1915). Today, however, the

Court erroneously applies our heretofore clear and consistent respondeat superior

precedent in a result-oriented manner to reach a desired ad hoc result: holding the federal

government financially liable to an innocent victim for the outrageous tortious criminal

conduct of a rogue federal law enforcement officer. The Court’s application of the

1 Section 28-10-602(1), MCA, is merely “declaratory of the common law” doctrine of respondeat superior. Harrington v. H.D. Lee Mercantile Co., 97 Mont. 40, 59, 33 P.2d 553, 558 (1934) (construing § 7965, RCM (1921)); Hoffman v. Roehl, 61 Mont. 290, 297, 203 P. 349, 350 (1921) (construing § 5450, RCM (1907)). Accord Brenden v. City of Billings, 2020 MT 72, ¶ 13 n.2, 399 Mont. 352, 470 P.3d 168; Kornec v. Mike Horse Mining & Milling Co., 120 Mont. 1, 7, 180 P.2d 252, 256 (1947) (citing §§ 7965-66, RCM (1935)); Keller v. Safeway Stores, 111 Mont. 28, 35-36, 108 P.2d 605, 610 (1940) (citing §§ 7965-66, RCM (1935)); Restatement (Third) of Agency § 2.04 Reporter’s Note a (Am. Law Inst. 2006) (construing § 28-10-601, MCA). 21 pertinent Montana law is patently erroneous in the manifest absence of any record

evidentiary basis upon which the finder of fact could reasonably conclude that the officer

was acting with any motive or purpose other than for his own personal sexual gratification.

A. Long Established Montana Employee Purpose/Motive Theory of Vicarious Liability for Unauthorized Tortious Acts of Employees.

¶28 “Distinct from direct liability for an employer’s own [negligent] conduct, 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.” Brenden, ¶ 13 (citing Kornec, 120 Mont. at 7, 180 P.2d at 256; Keller, 111

Mont. at 35, 108 P.2d at 610; Restatement (Third) of Agency §§ 2.04, 7.03(2)(a), and 7.07

(Am. Law Inst. 2006)).2 As the jump-off point for its errant application of our long and

well settled Montana vicarious employer liability standards, the Court misleadingly quotes

isolated language from our 1940 Keller decision to the effect that the “diversity of” the

various outcomes that result from application of those generally applicable standards to the

myriad of case-specific fact patterns has rendered “a uniform standard of measurement

somewhat difficult to apply.” Opinion, ¶ 14 (quoting Keller, 111 Mont. at 37, 108 P.2d at

610). After laying out what can at best be characterized as a wandering, result-oriented

2 In contrast to vicarious employer liability in respondeat superior, negligence is, of course, a distinct theory of direct employer liability. See Brenden, ¶ 13 (distinguishing vicarious employer liability in respondeat superior from direct theories of liability for employer’s own negligence); Restatement (Third) of Agency § 7.07 cmt. b (the more direct and applicable theory of employer liability is negligence “when tortious conduct by employees is reasonably foreseeable by [the] employer”). I thus concur with the Court that neither Paull v. Park Cty., 2009 MT 321, 352 Mont. 465, 218 P.3d 1198, nor Maguire v. State, 254 Mont. 178, 835 P.2d 755 (1992), have any dispositive bearing in this case to the extent that the specific theories of employer liability at issue in those cases were alleged breaches of employer non-delegable duties of care. 22 analytical framework, the Court then essentially concludes that the answer to the Ninth

Circuit’s question of law should be left to ad hoc jury determination based on the particular

facts of this case because “whether a tortious act falls outside the scope of employment . . .

is not easily disposed of as a matter of law.” Opinion, ¶ 24. Not so.

¶29 As a preliminary matter, most, if not all, generally applicable legal standards, such

as, for example, the reasonable care standard in negligence cases, have broad and generally

applicable legal meaning suitable for flexible but consistent application to the myriad of

case-specific factual circumstances that necessarily vary widely from case to case. As with

other generally applicable legal standards, the suitability of our generally applicable scope

of employment standard, and its course of employment synonym, for flexible application to

a wide variety of case-specific fact patterns does not render it “difficult to apply,” whether

by the trier of fact or by the court as a matter of law in accordance with the clear and concise

evidentiary standard set forth in Fed. R. Civ. P. 56 or M. R. Civ. P 56, as applicable. Like

other ultimate legal standards of general applicability, the course or scope of employment

standard has definite and consistent meaning when properly viewed and applied as a

function of the well settled legal standards that go with it. Courts may then easily apply

those standards to the particular facts and circumstances of a particular case as a matter of

law where, as here, the Rule 56 factual record manifests no genuine issue of material fact

on an essential element of factual proof.3

3 Under M. R. App. P. 15(3), the pertinent evidentiary record here narrowly consists of the stipulated facts stated in the Ninth Circuit’s certified question which directly derive from and are coextensive with the underlying Fed. R. Civ. P. 56 factual record in L.B. v. United States, No. CV-18-74-BLG-SPW (D. Mont. Aug. 28, 2019), and the underlying L.B. v. United States, No. 23 ¶30 Even prior to 1940, we recognized that the traditional common law course or scope

of employment standard of vicarious employer liability was “well settled in this state.”

Staff v. Mont. Petroleum Co., 88 Mont. 145, 153-54, 291 P. 1042, 1045 (1930) (citing

Ellinghouse, 51 Mont. at 285; 152 P. at 485). In that regard, the overarching legal standard

or test for whether an employee committed or engaged in the tortious conduct at issue

(regardless of whether negligent, willful, malicious, or criminal) while acting within the

course or scope of his or her employment is whether the subject act or conduct was “either

expressly or implicitly authorized by the employer” or, if not, whether the employee

nonetheless performed or engaged in the unauthorized act or conduct “incidental to the

performance of an expressly or implicitly authorized act” and was “at least partially

motivated by the employee’s intent or purpose to serve the employer’s interest.” Brenden,

¶¶ 14 and 16 (citing Kornec, 120 Mont. at 9-10, 180 P.2d at 256-57; Keller, 111 Mont. at

36-40, 108 P.2d at 610-12; Restatement (Third) of Agency § 7.07(2) cmt. b; Restatement

(Second) of Agency §§ 228(1)(a), (c), and 229(1) (Am. Law Inst. 1958)—emphasis added).

Accord Harrington, 97 Mont. at 59-62, 33 P.2d at 558-59; Hoffman, 61 Mont. at 298-300,

203 P. at 350-51; Kirk, 56 Mont. at 297-98, 184 P. at 988; Ellinghouse, 51 Mont. at 285-89,

152 P. at 485-86. See also Restatement (Third) of Agency § 2.04 cmt. a and § 7.07(2)

(including cmts. b-c); Restatement (Second) of Agency §§ 228(1)(c), (2), 229, and 235;

Restatement (First) of Agency §§ 228, 229, and 235 (Am. Law Inst. 1933). Depending

CV 18-74-BLG-SPW-TJC (D. Mont. July 16, 2019). See L.B. v. United States, 8 F.4th 868, 869-70 (9th Cir. 2021).

24 upon the circumstances, the scope of unauthorized tortious acts for which an employer may

be vicariously liable may include not only negligent conduct but that which is willful,

malicious, and even criminal. Brenden, ¶ 16 (citing Kornec, 120 Mont. at 7-8, 180 P.2d at

256; Keller, 111 Mont. at 38, 108 P.2d at 611).

¶31 The first prong of the test for whether an employee committed or engaged in a

particular unauthorized act or type of conduct within the scope or course of his or her

employment—i.e., whether he or she committed or engaged in the unauthorized act or

conduct incidental to an expressly or implicitly authorized act or conduct—requires proof

that the unauthorized act or conduct both “arose out of” and was “closely related to,” or

“intermingled with,” the “performance of an expressly or implicitly authorized act or

function.” Brenden, ¶¶ 16 and 27 (citing Kornec, 120 Mont. at 9-10, 180 P.2d at 256-57;

Keller, 111 Mont. at 40, 108 P.2d at 612—internal punctuation omitted and emphasis

added); Keller, 111 Mont. at 40, 108 P.2d at 612 (noting existence of a genuine issue of

material fact as to whether the subject employee conduct was “so closely intermingled with

the employment [the employee] was . . . authorized to do”—emphasis added). Thus, an

authorized act or conduct may have been committed or engaged in incidental to an

authorized act “even [if] an entirely different kind of an act.” Brenden, ¶ 16 (quoting

Restatement (Second) of Agency § 229 cmt. b—internal punctuation omitted). Factual

considerations relevant to whether an unauthorized employee act or conduct was

committed or occurred incidental to (i.e., arose out of and was closely related to or

intermingled with) an expressly or implicitly authorized act or conduct include, inter alia:

25 (1) “whether or not the act is one commonly done by such servants”;

(2) “the time, place[,] and purpose of the act”;

(3) “the previous relations between the master and the servant”;

(4) “whether . . . the act is outside the enterprise of the master”;

(5) “the similarity in quality of the act done to the act authorized”;

(6) “the extent of departure from the normal method of accomplishing an authorized result”; and

(7) “whether or not the act is seriously criminal.”

Restatement (Second) of Agency § 229(2)(a)-(c), (e), (g), and (i)-(j). See also Keller, 111

Mont. at 36-37, 108 P.2d at 610 (quoting Restatement (First) of Agency § 229(1), (2)(a),

(b), (f), and (i)).4

¶32 The second prong of the test for whether an unauthorized employee act or conduct

was committed or engaged in within the course or scope of the subject employment

requires proof by direct or circumstantial evidence that the employee performed or engaged

in the unauthorized tortious act or conduct at least in part with a motive or purpose to serve

or further the employer’s interest. Brenden, ¶ 16 (citing Kornec, 120 Mont. at 9-10, 180

P.2d at 256-57; Keller, 111 Mont. at 36-40, 108 P.2d at 610-12; Restatement (Third) of

4 Other relevant factors depending upon the circumstances at issue in a particular case include, inter alia, “the extent to which the business of the master is apportioned between different servants,” whether the master has “entrusted [the act] to any servant” if “within the [master’s] enterprise,” whether “the master has reason to expect that such an act will be done,” and whether “the instrumentality by which the harm is done has been furnished by the master to the servant.” Restatement (Second) of Agency § 229(2)(d)-(e), (f), and (h). Note further that Restatement (First) of Agency § 229 is identical to Restatement (Second) of Agency § 229 and, as stated in its Reporter’s Note a, Restatement (Third) of Agency § 7.07 “is a consolidated treatment of topics covered in several separate sections of Restatement Second of Agency” including §§ 228, 229, and 235, inter alia. 26 Agency § 7.07(2) cmt. b; Restatement (Second) of Agency §§ 228(1), (c), and 229(1)).

Accord Kornec, 120 Mont. at 11, 180 P.2d at 257 (holding that sufficient evidence was

present to support a jury finding that the subject unauthorized tortious act was committed

by the employee “while engaged in his master’s business and in furtherance of [the

master’s] business and . . . interest”—emphasis added); Kirk, 56 Mont. at 298, 184 P. at

988 (“[t]he tort of an agent is within the course of his employment where the agent, in

performing it, is endeavoring to promote the principal’s business”—quoting 2 Corpus Juris

853, as later quoted in Keller, 111 Mont. at 39, 108 P.2d at 611); Ellinghouse, 51 Mont. at

288, 152 P. at 485 (ultimate question in whether subject employee was “acting within the

scope of the[] employment” is whether “he [was] acting in furtherance of his master’s

business”—emphasis added). In other words, the second prong of the test for whether the

unauthorized act or conduct of an employee was performed or occurred within the course

or scope of the subject employment requires direct or circumstantial proof that the

employee “at least partially intended” the unauthorized tortious act or conduct “as a means

to accomplish” an expressly or implicitly authorized task, purpose, or function. Brenden,

¶ 27 (citing Keller, 111 Mont. at 40, 108 P.2d at 612—emphasis added). Accord W. Page

Keeton, et al., Prosser & Keeton on Torts § 70, 503 (5th ed. 1984) (“no matter how

specific, detailed, and emphatic” the employer’s instructions “have been to the contrary”

the employer is vicariously liable if the circumstances indicate that the unauthorized act or

conduct was “merely the servant’s own way of accomplishing an authorized purpose”). A

“dual or mixed motive” or purpose for engaging in the unauthorized act or conduct at issue

thus does not preclude a finding that the unauthorized act or conduct was committed or

27 occurred within the course or scope of the subject employment. Brenden, ¶¶ 17-18

(internal citations omitted). The fact that the employee’s “predominant motive” or purpose

may have been to further his or her own independent self-interest does not preclude a

finding that the unauthorized act or conduct of an employee was performed or occurred

within the scope or course of the subject employment as long as there is sufficient evidence

upon which to reasonably conclude that the employee at least partially intended the

unauthorized tortious act or conduct as a means to accomplish an expressly or implicitly

authorized task, purpose, or function. Brenden, ¶ 17 (internal citations omitted). See also

Kornec, 120 Mont. at 11, 180 P.2d at 257 (holding that sufficient evidence was present to

support a jury finding that employee assaulted the third party “in furtherance of”

accomplishing the authorized task).

¶33 In contrast, however, independent acts or conduct “not intended” by the employee

“to serve any purpose of the employer” are not within the course of his or her employment.

Brenden, ¶¶ 17-18 (citing Restatement (Third) of Agency § 7.07(2) cmt. b; Keller, 111

Mont. at 37-38, 108 P.2d at 611). An employee’s “personal motive[]” or purpose takes the

tortious act beyond the scope of employment where it is clear that the employee “could not

have been directly or indirectly serving his master” in any regard. Keller, 111 Mont. at

37-38, 108 P.2d at 611 (emphasis added).

If the servant steps outside of his employment to do some act for himself, not connected with the master’s business, there is no more responsibility for what he does than for the acts of a stranger. If he has no intention, not even in part, to perform [that act] for the employer, but intends only to further a personal end, his act is not within the scope of the employment. . . . [I]f he acts from purely personal motives, . . . he is considered . . . to have departed

28 from his employment, and the master is not liable . . . unless some non-delegable duty [applies].

W. Page Keeton, et al., Prosser & Keeton on Torts § 70, 503 and 505-07 (5th ed. 1984)

(emphasis added).

When an employee commits a tort with the sole intention of furthering the employee’s own purposes, and not any purpose of the employer, it is neither fair nor true-to-life to characterize the employee’s action as that of a representative of the employer. The employee’s intention severs the basis for treating the employee’s act as that of the employer in the employee’s interaction with the third party.

Restatement (Third) of Agency § 7.07 cmt. b. Accord Kornec, 120 Mont. at 8, 180 P.2d at

256 (employee “who acts entirely for his own benefit” is not acting in the scope of his

employment—internal citation omitted); Keller, 111 Mont. at 37-38, 108 P.2d at 611 (a

negligent, malicious, or willful act is not within the scope of the subject employment if

“animated purely by [the] personal motives or desires” of the employee—internal citations

omitted); Harrington, 97 Mont. at 59-60, 33 P.2d at 558 (no vicarious employer liability

in respondeat superior under § 7965, RCM (1921) (now § 28-10-602(1), MCA), for

unauthorized tortious acts where the employee “was not acting . . . in the furtherance of his

principal’s business” but “independently of his employer . . . [upon] missions or purposes

of his own”); Hoffman, 61 Mont. at 298-99, 203 P. at 349-50 (no vicarious employer

liability where the servant “acted independently . . . upon [a] mission[] or purpose[] of his

own . . . for the [exclusive] purpose of doing something which had no connection with the

servant’s duty”—master is not liable “where the servant steps aside from his master’s

business, . . . [even] for a short space of time, and does [a harmful] act not connected with

the business . . . [because] the relation of master and servant does not . . . exist” at that

29 time); Ellinghouse, 51 Mont. at 287-88, 152 P. at 485 (“[a] servant may abandon his

master’s employment for the time to accomplish some purpose of his own” and, “[i]f in

accomplishing this purpose he does an injury to another, his master is not liable”);

Restatement (Third) of Agency § 7.07(2) (employee conduct is “not within the scope of

employment when it occurs within an independent course of conduct not intended . . . to

serve any purpose of the employer”); Restatement (Second) of Agency § 228(2)

(“[c]onduct of a servant is not within the scope of employment” if not “actuated by a

purpose to serve the master”—emphasis added); Restatement (Second) of Agency § 230

cmt. c (“[c]onduct is not within the scope of employment if it has no connection with the

act which the employee is required to perform”); Restatement (Second) of Agency § 235

(an act is not within the scope of employment if performed “with no intention to perform

it as a part of or incident to a service on account of which he [or she] is employed”). See

similarly Restatement (First) of Agency §§ 228 and 235.

¶34 Whether an employee intended the unauthorized tortious conduct at issue at least in

part as a means to accomplish an expressly or implicitly authorized employment purpose,

task, or function is generally “a question of fact . . . under the totality of the circumstances”

in each case. Brenden, ¶ 18 (internal citations omitted). The trial court may make that

determination as a matter of law, however, based on pertinent facts and circumstances

beyond genuine material dispute. M. R. Civ. P. 56(c)(3) and (d)(1); Keller, 111 Mont. at

36, 108 P.2d at 610 (question of law “in plain and palpable cases”); Restatement (Second)

of Agency § 228 cmt. d. In either event, “[t]he state of mind of the employee is

30 determinative.” Brenden, ¶ 18 (citing Restatement (Third) of Agency § 7.07 cmt. b;

Restatement (Second) of Agency § 235 cmt. a).

B. Erroneous Application of Montana Respondeat Superior Standards Here.

¶35 The tortious conduct at issue here is the BIA officer’s abuse of his official authority

by expressly or implicitly threatening L.B. with arrest and criminal prosecution with the

intent and purpose to coerce her into engaging in sexual intercourse with him. Opinion,

¶¶ 15 and 18. It is beyond dispute that there is no basis on the stipulated facts upon which

to reasonably conclude that the BIA expressly or implicitly authorized the officer’s

conduct. Consequently, under long established Montana law, supra, the officer’s employer

(the United States government) may be vicariously liable for his tortious conduct only upon

direct or circumstantial evidence, and resulting findings of fact, that:

(1) the officer’s unauthorized use of his official authority to coerce L.B. into engaging in sexual intercourse both arose out of and was closely related to, or intermingled with, the performance of an expressly or implicitly authorized act or function; and

(2) the officer used his authority to coerce L.B. to engage in sexual intercourse at least in part as a means to accomplish an expressly or implicitly authorized official task, purpose, or function rather than solely for his own personal purpose or benefit.

¶36 Under the first prong of the test here, the pertinent expressly or implicitly authorized

employment task or function was the officer’s duty to respond to and investigate L.B.’s

report of possible criminal conduct involving her mother (driving while under the influence

of alcohol (DUI)). Ancillary to that duty, the officer was further authorized to investigate

and act appropriately on any indication of other criminal activity that he might thereafter

discover. In that regard, based on his observation of L.B. and her admission of prior

31 drinking that evening, the officer expressed his belief that she was intoxicated while in the

custody of her sleeping children, both in violation of the Northern Cheyenne Criminal Code

prohibitions of intoxication and endangering the welfare of children. When confirmatory

field testing indicated that she had a blood-alcohol content in excess of .132%, the officer

advised L.B. that she was subject to arrest which in turn would necessitate notification and

involvement of Northern Cheyenne social services officials to attend to her children. In

fear of losing her job, L.B. repeatedly pled with the officer to not arrest her. When he

responded that “something had to be done,” L.B. asked whether he was referring to “sex.”

After the officer answered in the affirmative, L.B. engaged in sexual intercourse with him

to avoid being arrested. The officer thus crossed the line between authorized conduct on

one hand, and tortious criminal conduct on the other, when he acknowledged that he was

referring to sex and then engaged in sexual intercourse with L.B. in return for not arresting

her.

¶37 Under those circumstances, I agree that it was at least a question of fact for jury

determination, if not beyond genuine material dispute for purposes of Fed. R. Civ. P. 56,

that the officer’s unauthorized use of his official authority to coerce L.B. into engaging in

sexual intercourse both arose out of and was closely related to, or intermingled with, the

performance of an expressly or implicitly authorized act or function. However, while an

outstanding jury question may or may not exist under the first prong of the pertinent legal

test in this case, the analysis does not end there. In either event, the dispositive issue on

the particular evidentiary record in this case is whether there is sufficient evidence on the

stipulated factual record presented upon which the finder of fact could further reasonably

32 conclude that the officer used his authority to coerce L.B. to engage in sexual intercourse

at least in part as a means to accomplish an expressly or implicitly authorized official task,

duty, function, or purpose, rather than solely for his own personal purpose or benefit. This

dispositive question is a purely factual matter in regard to which the “[t]he state of mind of

the employee” at the time “is determinative.” Brenden, ¶ 18 (citing Restatement (Third)

of Agency § 7.07 cmt. b; Restatement (Second) of Agency § 235 cmt. a).

¶38 Based on the stipulated factual record here, there is simply no non-speculative

factual basis upon which the finder of fact could reasonably conclude that the BIA officer

used his authority to coerce L.B. to engage in sexual intercourse for any purpose other than

solely for his own personal sexual gratification. As a threshold matter, contrary to the

Court’s apparent assertion, there is no record factual basis upon which to conclude that the

abusive use of an officer’s authority to coerce the subject of an investigation into engaging

in sexual intercourse is either an act typically or normally performed by, or reasonably

expected of, law enforcement officers in general, or BIA officers in particular. Nor does

the Court squarely dispute that the officer coerced L.B. to engage in sexual intercourse, at

least in part, in furtherance of his own personal sexual gratification. There is no

non-speculative record factual basis upon which to reasonably conclude otherwise. In the

face of those record facts beyond genuine material dispute, L.B.’s vicarious liability claim

against the United States simply fails as a matter of law absent a non-speculative record

factual basis upon which the factfinder could reasonably conclude that the BIA officer

also, at least in part, intended his use of his official authority to coerce L.B. into engaging

in sexual intercourse as a means, however misguided or illegal, to further or accomplish

33 an authorized law enforcement task, duty, function, or purpose apart from his own personal

sexual gratification.

¶39 Contrary to the Court’s cursory assertion, the fact that the officer responded to

L.B.’s pleas by stating that “something had to be done” about her apparent criminal conduct

is clearly not alone a sufficient non-speculative evidentiary basis upon which to reasonably

conclude that he in any regard pressured L.B. to engage in sexual intercourse as a means

to further or accomplish any authorized law enforcement task, duty, function, or purpose.

Manifesting the glaring lack of requisite record proof under the employee motive/purpose

prong of the course or scope of employment test, the Court wanders off into a patently

irrelevant and misleading discussion of the facts that: (1) law enforcement officers often

“initiat[e] nonconsensual” and “invasive[] physical contact with” criminal suspects; (2) law

enforcement officers have “considerable and intimidating powers” to use reasonable force

in executing lawful searches and apprehending suspected criminals in furtherance of “law

enforcement goals”; (3) L.B. and Amici “argue there is systemic misconduct within the

BIA and violence against Native American women on reservations”; and (4) the officer’s

statement that “something had to be done” “illustrates [L.B.’s] belief of the power dynamic

at play . . . between a BIA officer and . . . [tribal] resident.” However, none of those facts

have any probative value or bearing whatsoever, much less as affirmative proof, on the

dispositive question as to whether the subject officer intended his tortious coercion of L.B.

34 to engage in sexual intercourse at least in part as a means to accomplish any conceivable

law enforcement purpose aside from his own personal sexual gratification.5

¶40 Tacitly recognizing this glaring lack of requisite record proof, the Court attempts to

suggest a conceivable law enforcement purpose which the BIA officer may have intended

his coercion of L.B. to engage in sexual intercourse to accomplish, to wit:

Officers have significant police discretion to enforce certain laws and to let civilians off with a warning. This discretion benefits the law enforcement agency and ultimately the taxpayers by keeping certain violations out of the criminal justice system and freeing up government resources. When an officer tells a law-breaking civilian he will let her go as long as she, e.g., repairs her windshield, replaces her tail-light, promises not to repeat the same unlawful conduct, or offers to give up a criminal associate, he does so, in part, to benefit his employer. Similarly, when an officer intimidates a civilian through, e.g., the use-of-force or the threat of force, he provides a benefit to his employer by maintaining law and order in the community. The certified facts could lead a trier of fact to conclude that Officer Bullcoming’s wrongful conduct was predicated upon and incident to his employment as a BIA officer. 5 Beyond its manifest irrelevance, the Court’s reference to the arguments of L.B. and Amici, regarding alleged “systemic misconduct within the BIA and violence against Native American women on reservations” is even further peculiar here. From a relevance standpoint, none of the secondary factual sources cited by L.B. or Amici draw or manifest any correlative link between the noted epidemic of violence committed against Native American women on reservations and any “systemic” abusive use of power by BIA officers to assault Native American women, whether sexually or otherwise. Even more disturbingly, the Court’s notice of those asserted facts as part of its decisional rationale patently violates and disregards our rule and admonition that, when “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 [limited to] an interpretation of the law as applied to the agreed facts underlying the action.” Bassett v. Lamantia, 2018 MT 119, ¶ 7, 391 Mont. 309, 417 P.3d 299 (emphasis added). Here, neither of the referenced factual assertions of L.B. and Amici noted by the Court is included in the agreed facts stated in the certified question. Compare L.B. v. United States, 8 F.4th 868, 869-70 (9th Cir. 2021) (certified question). See similarly L.B. v. United States, No. CV-18-74-BLG-SPW (D. Mont. Aug. 28, 2019) (adopting Magistrate’s proposed findings and recommendations in full and granting BIA’s motion for summary judgment that FTCA bars L.B.’s respondeat superior claim); L.B. v. United States, No. CV 18-74-BLG-SPW-TJC (D. Mont. July 16, 2019) (Magistrate’s proposed findings and recommendation for grant of BIA motion for summary judgment that FTCA bars L.B.’s respondeat superior claim).

35 Opinion, ¶ 18. Reducing this proffered rationale to its pertinent essence, the Court thus

suggests that the finder of fact could reasonably conclude on the limited evidentiary record

presented that, in addition to furthering his own personal sexual gratification, the BIA

officer, at least in part, intended his coercion of L.B. to engage in sexual intercourse as a

means of “benefiting the [BIA] and ultimately the taxpayers by keeping [her alleged

criminal conduct] out of the criminal justice system and freeing up government resources,”

thereby “benefit[ting] his employer” “by maintaining law and order in the community.”

However, apart from the manifest ridiculousness of that assertion, the Court’s reasoning

has two fatal flaws: it is purely speculative without any inferential basis in the stipulated

facts stated in the certified question, and further, falsely equates the abusive use of an

officer’s authority to coerce a citizen into engaging in sexual intercourse with an officer’s

perfectly legitimate and proper act of threatening a citizen with arrest and criminal

prosecution as a means to coerce his or her compliance with the law or cooperation with a

separate law enforcement investigation. Further undermining its analysis, the Court

incredibly asserts that it is speculative, without record inferential basis, to suggest here that

the subject BIA officer abusively coerced L.B. into engaging in sexual intercourse for his

own personal sexual gratification, but then inconsistently concludes that a jury question

exists because the record facts are susceptible to “two or more reasonable inferences”

regarding the officer’s motive or purpose. Opinion, ¶ 18. The Court’s faulty reasoning

aside, there is, as a threshold matter of law, simply no non-speculative direct or inferential

factual basis on the factual record stated in the certified question upon which the finder of

fact could reasonably conclude that the subject BIA officer, at least in part, intended his

36 coercion of L.B. to engage in sexual intercourse as a means of accomplishing any

authorized law enforcement task, duty, function, or purpose, apart from furthering his own

personal sexual gratification. Thus, based on the stated stipulated record facts, the only

correct answer to the certified question under M. R. App. P. 15(3) is “no,” in the manifest

absence of any evidentiary basis upon which to reasonably conclude that the officer

intended his tortious conduct at least in part as a means to accomplish an authorized law

enforcement task, duty, function, or purpose apart from his own sexual gratification, a law

enforcement officer does not act within the course and scope of his or her employment for

purposes of Montana common law vicarious employer liability when he or she abuses his

or her official authority to coerce the subject of an investigation to engage in sexual activity.

C. Conclusion.

¶41 Upon close comparison of the essence of the Majority and dissenting analyses here,

the Ninth Circuit will surely recognize that, regardless of the Majority’s failure to state the

pertinent Montana respondeat superior law in a more concise and logically progressive

manner, the difference in our disparate answers to the certified question does not lie in any

significant disagreement regarding the essential legal requirements of proof under Montana

law, as applicable in this case. At bottom, both essentially recognize in pertinent part that

the substantive Montana respondeat superior test for whether unauthorized employee

conduct was nonetheless committed in the course or scope of the subject employment

requires proof of two distinct legal elements: (1) that the unauthorized employee conduct

at issue both arose out of and was closely related to, or intermingled with, the performance

of an expressly or implicitly authorized act or function; and (2) the employee intended the

37 subject unauthorized conduct, at least in part, as a means to accomplish an expressly or

implicitly authorized act, task, function, or purpose, rather than solely for his or her own

personal purpose or benefit. The essential difference is thus the disparate manner in which

the Majority and dissenting opinions apply the dispositive Montana proof requirement

regarding the BIA officer’s motive or intent to the stipulated facts stated in the certified

question under the governing evidentiary standard of Fed. R. Civ. P. 56, a matter ultimately

in the exclusive power and domain of the Ninth Circuit upon further appellate review.

¶42 In that regard, I certainly understand and share this Court’s outrage with the abusive

criminal conduct of the rogue law enforcement officer at issue here. I thus agree that, in

the ordinary course in accordance with Fed. R. Civ. P.56, L.B. “should have the opportunity

to present evidence” to a jury “in support of her contention” that the subject BIA officer

was acting within the scope of his employment when he used his official authority to

pressure her for sex. But, like all other tort claimants, she should have that opportunity

only after clearing the hurdle of making a non-speculative Rule 56 evidentiary showing on

both of the elements of proof required under Montana law to establish that an employee

engaged in the unauthorized tortious conduct at issue while acting within the course or

scope of his or her employment. Unfortunately for her, the stipulated evidentiary facts

stated in the certified question are insufficient as a matter of law to satisfy that burden under

the substantive requirements of the governing Montana law. I dissent.

/S/ DIRK M. SANDEFUR

Justice Jim Rice joins in the dissenting Opinion of Justice Sandefur.

/S/ JIM RICE