*** Victory! Update! *** On August 16, 2022, the Montana Supreme Court held that law enforcement officers do not, as a matter of law, act “within 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. Specifically, the test of an employer’s liability is whether the act “arose out of and was committed in prosecution of the task the officer was performing for his employer,” which is based on “the nature of the employment and how the employment relates to the context in which the commission of the wrongful act arose.” Therefore, in L.B.’s case, this is a question for a jury to decide.
On October 14, 2021, NWLC, along with our partners The Roderick & Solange Macarthur Justice Center and Women’s Law Project, filed an amicus brief to the Montana Supreme Court from six organizations in support of L.B. in L.B. v. U.S.A. L.B. is an Indigenous woman who was raped by a federal law enforcement officer under threat of being arrested and having her children taken away from her. As a result of the rape, L.B. became pregnant and gave birth. A federal district court in Montana ruled that the officer was not acting within the scope of his employment when he raped L.B., and therefore the United States was not liable under the Federal Tort Claims Act (FTCA). L.B. appealed to the Ninth Circuit and, the Ninth Circuit certified to the Montana Supreme Court the question of whether, under Montana law, law enforcement officers act “within the scope of their employment” when they use their authority to sexually assault members of the public.
Our amicus brief explains that sexual assault by police officers is widely prevalent, especially among women of color, including Indigenous women like L.B., and is facilitated by the enormous power and authority that police wield over civilians. Therefore, institutional liability is required as a matter of both ensuring the government is accountable in response to these extraordinarily high numbers of sexual assaults by the police and to help ensure that the government works to prevent sexual assaults by the police from occurring in the first place.
Read our blog post to learn more.