L.B. individually and on behalf of D.B., a Minor v. UNITED STATES OF AMERICA; BUREAU OF INDIAN AFFAIRS; DANA BULLCOMING, agent of the Bureau of Indian Affairs sued in his individual capacity
OP 21-0395
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 166 August 16, 2022
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.
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
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:
Clerk
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
¶3 L.B., a Northern Cheyenne tribal member, lived within the exterior boundaries of the Northern Cheyenne Reservation in Lame Deer, Montana. On October 30, 2015, L.B. and her mother went to a bar outside the reservation and had a few alcoholic drinks. After returning home, L.B.‘s mother took the truck keys and said she was going for a drive. L.B. called the police and reported that her mother was driving while intoxicated.
¶4 Bureau of Indian Affairs (BIA) Officer Dana Bullcoming (Officer Bullcoming) responded to L.B.‘s call. Officer Bullcoming determined L.B.‘s mother was safe and went to L.B.‘s residence. After entering the residence, Officer Bullcoming asked L.B. whether she was there alone. L.B. responded that her children were asleep in the other room. L.B. told Officer Bullcoming that she had consumed a few drinks that evening, including half of a beer at her residence. Officer Bullcoming threatened to call social services and arrest L.B. for child endangerment because she was intoxicated while in the presence of her children. See Northern Cheyenne Criminal Code § 7-9-6 (1998) (prohibiting intoxication within the exterior boundaries of the Northern Cheyenne Reservation). L.B. pleaded with Officer Bullcoming not to arrest her, citing fears that she would lose her job as a school bus driver.
¶5 Officer Bullcoming took L.B. outside to his patrol vehicle and administered a breathalyzer test, which L.B. recalled indicated a .132 or .136 blood alcohol content. Officer Bullcoming repeatedly told L.B. that “something had to be done.” L.B. inferred that Officer Bullcoming did not want to arrest her, so she inquired if by “something needs to be done” he meant “sex.” Officer Bullcoming replied affirmatively. L.B. believed that her choices were to go to jail or have sex with Officer Bullcoming. L.B. had unprotected sexual intercourse with Officer Bullcoming in her home. L.B. became pregnant as a result and gave birth to D.B.
¶6 In 2018, L.B. brought a Federal Tort Claims Act (FTCA) suit against the United States, seeking to hold the United States liable for Officer Bullcoming‘s misconduct.2 L.B. and the Government filed cross-motions for summary judgment. The Government asserted that Officer Bullcoming was not acting within the scope of his employment with the BIA when he sexually assaulted L.B. and, therefore, his actions fell outside the scope of the FTCA‘s limited waiver of sovereign immunity and grant of jurisdiction. The United States District Court for the District of Montana agreed, granted the Government‘s motion for summary judgment, and denied L.B.‘s cross-motion. The District Court reasoned that, under Montana‘s respondeat superior case law, the scope of employment includes only an employee‘s actions made “in furtherance of his employer‘s interest.” Relying on Maguire v. State, 254 Mont. 178, 835 P.2d 755 (1992), a respondeat superior case,
¶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
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 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 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 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.
¶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:
- whether or not the act is one commonly done by such servants;
- the time, place and purpose of the act;
- the previous relations between the master and the servant;
- the extent to which the business of the master is apportioned between different servants;
- whether the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
- whether or not the master has reason to expect that such an act will be done;
- the similarity in quality of the act done to the act authorized;
- whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
- the extent of departure from the normal method of accomplishing an authorized result; and
- 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 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
¶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.
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
¶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, 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 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
¶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 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
¶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[.]”
¶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 the consistency of our case law with the Legislature‘s decision to hold an employer responsible for an employee‘s wrongs.
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
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.,
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 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
¶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:
- “whether or not the act is one commonly done by such servants“;
- “the time, place[,] and purpose of the act“;
- “the previous relations between the master and the servant“;
- “whether . . . the act is outside the enterprise of the master“;
- “the similarity in quality of the act done to the act authorized“;
- “the extent of departure from the normal method of accomplishing an authorized result“; and
- “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
¶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 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 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
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 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
¶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.
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:
- 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
- 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 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
¶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 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. 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
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.
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 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
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
¶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
/S/ DIRK M. SANDEFUR
Justice Jim Rice joins in the dissenting Opinion of Justice Sandefur.
/S/ JIM RICE