L.B. v. United States

Can an Employer Be Liable in Montana When an On-Duty Officer Sexually Assaults Someone? L.B. v. United States, 2022 MT 166

Boland Aarab PLLP

It can be. In L.B. v. United States, 2022 MT 166, the Montana Supreme Court held, 5–2, 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. Whether the employer is responsible is a question for the trier of fact. Boland Aarab PLLP was not counsel for either party; Caitlin Boland Aarab filed a friend-of-the-court (amicus) brief, with the MacArthur Justice Center, for civil-rights, women’s-rights and government-accountability organizations supporting L.B.

Key Takeaways

• The test for an employer’s liability is “whether the act complained of arose out of and was committed in prosecution of the task” the employee was performing for the employer (L.B. ¶¶ 12, 26).
• The scope of employment can include acts the employer forbids and acts that are “egregious, malicious, or criminal” (¶ 12).
• Montana adopted the factors of Restatement (Second) of Agency § 229 “in its entirety” for deciding scope of employment (¶ 15).
• An employee can act with mixed motives. When reasonable minds could draw different inferences about motive, the question goes to the trier of fact (¶ 19).

In this case sheet: At a glance · What the Court held · What our brief argued · The Ninth Circuit’s follow-on order · What changed · Statutes · When it applies · How difficult · Later decisions · FAQ

The lawyers behind this brief are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in L.B. v. United States?

The Court took the facts from the Ninth Circuit’s certification order (¶ 2). In October 2015, L.B., a Northern Cheyenne tribal member in Lame Deer, called police to report that her mother was driving drunk. Bureau of Indian Affairs Officer Dana Bullcoming responded and then went to L.B.’s home (¶¶ 3–4). He threatened to arrest her and to call social services because she had been drinking with her children in the home. He gave her a breath test in his patrol car and repeatedly said “something had to be done.” L.B. understood him to mean sex and believed her choices were jail or sex. He had sex with her in her home, and she became pregnant (¶¶ 4–5). He later pleaded guilty to a federal civil-rights crime, deprivation of rights under color of law (¶ 15 n.4).

L.B. sued the United States under the Federal Tort Claims Act. The federal district court granted summary judgment to the government, holding that the officer acted outside the scope of his employment. L.B. appealed, and the Ninth Circuit asked the Montana Supreme Court to decide the state-law question (¶¶ 6–7).

The answer. The Court held that the officer was not, as a matter of law, outside the scope of his employment (¶ 26):

• The right test. The question is whether the wrongful act “arose out of and was committed in prosecution of the task” the officer was performing. An unauthorized, even criminal, act can still fall within the scope of employment (¶¶ 10–12).
• The nature of police work. Officers are given authority to detain, search, arrest and use force, and they carry visible signs of that authority. When an officer’s abuse of that authority arises from employment activities, it is for the trier of fact to decide whether it was within the scope of employment (¶¶ 16–17).
• The facts. The officer was on duty, investigating a crime, used a government breath-test device, and threatened arrest and the removal of her children. A trier of fact could find that he was acting at least partly for his employer (¶ 19).
• Maguire does not control. The Court held that Maguire v. State (1992), which the government relied on, did not decide scope of employment and was factually distinct (¶¶ 21–23).

The dissent. Justice Sandefur, joined by Justice Rice, wrote that the majority applied settled law in a “result-oriented manner.” In his view, the record had no evidence that the officer acted with any motive other than his own gratification (¶ 27).

What did our amicus brief argue?

Boland Aarab PLLP did not represent L.B. or the United States. The firm, with the MacArthur Justice Center, filed a friend-of-the-court brief on October 14, 2021 on behalf of the MacArthur Justice Center, the National Women’s Law Center, the Women’s Law Project, the Institute for Constitutional Advocacy and Protection, the National Police Accountability Project and the Institute for Justice. The brief urged the Court to answer that officers who use their authority to sexually assault people act within the scope of employment. Its two main arguments were:

1. Sexual assault by law enforcement is a systemic problem that demands institutional liability. The brief collected data on police sexual misconduct. It argued that it is fair for employers to bear misconduct that their officers’ power makes possible, and that government liability encourages the reforms individual officers cannot make.
2. Institutional liability fits existing doctrines that recognize the power imbalance between police and the public. The brief pointed to search-and-seizure law and consent doctrine. It also noted that several states, including Montana in 2019, have enacted laws providing that a person under investigation cannot consent to sex with the investigating officer.

The Court’s opinion does not cite the brief by name. It did rely on reasoning in the same direction: the policy of making employers bear the cost of risks their businesses create (¶ 13), the power and authority police carry (¶¶ 16–17), and Montana’s 2019 change to the definition of consent (¶ 15 n.3). Several amicus briefs were filed, and the majority refers generally to arguments by “Amici and L.B.” (¶ 20).

What happened next in the Ninth Circuit?

On September 23, 2022, the Ninth Circuit panel (Chief Judge Murguia, Judge Berzon and Judge Boggs, sitting by designation) issued a published order in No. 20-35514. In light of the Montana Supreme Court’s answer, it reversed the district court’s summary judgment for the United States and remanded the case for further proceedings, quoting ¶ 26 of the Montana opinion. It also denied the government’s motion for supplemental briefing. The firm did not appear in the Ninth Circuit.

What did L.B. change in Montana law?

1. A full adoption of Restatement § 229. Montana had applied some of its factors before. L.B. adopted the section “in its entirety” (¶ 15).
2. Identify the wrongful act accurately. The Court said the analysis depends on correctly naming the act. Here, it was the officer’s abuse of his authority under color of law (¶ 15).
3. Maguire and Paull clarified. Those cases concerned nondelegable duties, not scope of employment, and do not bar claims like L.B.’s (¶¶ 21–24).
4. Consistent with the statute. The Court tied its answer to § 28-10-602, MCA, which makes a principal responsible for an agent’s wrongful acts “in and as a part of the transaction of business” (¶ 25).

For later decisions, see Later decisions citing this case below.

Which Montana laws and rules apply?

• § 28-10-602, MCA: a principal’s responsibility for an agent’s negligence, omissions and wrongs (¶ 25)
• § 45-5-501, MCA: definitions for sexual crimes, including the 2019 provision that a person under investigation is incapable of consent to the investigating officer (¶ 15 n.3)
• 28 U.S.C. § 1346(b): the Federal Tort Claims Act’s grant of jurisdiction, limited to acts within the scope of employment (¶ 24)
• 18 U.S.C. § 242: deprivation of rights under color of law, the crime the officer pleaded guilty to (¶ 15 n.4)
• M. R. App. P. 15: the Montana rule under which the Court answers certified questions (¶¶ 2, 8)

When might L.B. apply to you?

• You were hurt by someone on the job. The same scope-of-employment test decides whether a company answers for the conduct of its employee, whether a driver, a guard or a caregiver. The Court said the inquiry “is not unique to law enforcement” (¶ 16).
• The employee broke the rules. An employer’s policy against the conduct does not end the question. Forbidden, self-serving and even criminal acts can fall within the scope of employment if they arose out of the work (¶ 12).
• The wrongdoer was a federal employee. A claim against the United States under the FTCA depends on this same scope-of-employment question under state law (¶¶ 6, 24).

Every case turns on its own facts; the Court stressed that the inquiry is “necessarily fact-intensive” (¶ 14).

How difficult is it to hold an employer responsible in Montana?

• The plaintiff must connect the act to the job. An unauthorized act is within the scope of employment only if it was incidental to authorized work and “at least partially motivated” by a purpose to serve the employer (¶¶ 9, 17).
• Statutory limits. Under § 28-10-602(2), MCA, a principal is not responsible for other wrongs unless it authorized or ratified them (¶ 25).
• But it is usually a jury question. Scope of employment “is not easily disposed of as a matter of law” (¶ 25). When two or more reasonable inferences can be drawn, the trier of fact decides (¶ 19).
• Certified questions are narrow. In answering a certified question, the Court interprets the law on the agreed facts and goes no further (¶ 8). L.B. still had to prove her case on remand.

Related law and later decisions

Statutes and rules

• § 28-10-602, MCA: principal’s responsibility for an agent’s wrongs. Enacted in 1895 in substance; last amended in 2009.
• § 45-5-501, MCA: definitions for sexual crimes. The officer-investigation consent provision was added in 2019, after the 2015 events in this case; the section was amended again in 2023.
• M. R. App. P. 15: certified questions from other courts.

Later decisions citing this case

• T.M.B. v. West Mont & State, 2024 MT 319 (cites ¶ 9 on respondeat superior)
• L.B. v. United States, No. 20-35514 (9th Cir. Sept. 23, 2022) (the certifying court’s order applying ¶ 26)

The Boland Aarab Way

Boland Aarab PLLP filed a friend-of-the-court brief in this case and was not counsel for any party. We take on amicus work when a question of Montana law will shape how injured people are treated in court. The question here, when an employer answers for what its employee does on the job, is the same question at the center of many serious trucking and injury cases and catastrophic injury cases. When you hire Boland Aarab, you work with the attorneys whose names are on opinions like this one.

Frequently Asked Questions

What is “scope of employment” in Montana? An act is within the scope of employment if the employer authorized it, or if it was incidental to authorized work and at least partly motivated by a purpose to serve the employer. The test is whether the act arose out of and was committed in carrying out the employee’s task (L.B. ¶¶ 9, 12).

Can an employer be liable for an employee’s crime in Montana? It can be. Scope of employment can extend to acts that are forbidden, self-serving or criminal, depending on how the act relates to the employment (L.B. ¶¶ 10, 12).

Who decides whether an employee acted within the scope of employment? Usually the jury or other trier of fact. When reasonable people could draw different inferences about the employee’s motive, the question is left to the trier of fact (L.B. ¶ 19).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• L.B. v. United States, 2022 MT 166 (official opinion)
• L.B. v. United States, No. 20-35514 (9th Cir. Sept. 23, 2022) (order)
• Amici curiae brief of civil rights, women’s rights and government accountability organizations (Oct. 14, 2021)
• § 28-10-602, MCA
• § 45-5-501, MCA
• 28 U.S.C. § 1346
• 18 U.S.C. § 242

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.