L.B. v. United States

L.B., a Native American woman living on the Northern Cheyenne Reservation in Montana, was raped by a federal officer outside her own home under threat of arrest and child separation simply because she had a couple drinks that night. As a result, she became pregnant and gave birth to a child.

L.B. sued the federal government under the Federal Tort Claims Act, which provides compensation to individuals who were injured by the wrongful acts of federal employees in certain circumstances. The Ninth Circuit certified a question to the Montana Supreme Court, asking it to decide whether officers act within the scope of their employment when they use their authority as on-duty officers to sexually assault a person. We filed an amicus brief in support of L.B., urging the court to find that on-duty sexual assault was within the scope of employment and that the federal government should face liability in such cases. Our brief stressed the extent to which governments endow their officers with vast power over the civilians they encounter, and explained how officers can and do abuse this power to victimize women. We shared data with the court showing that police officers commit sexual assault at a higher rate than does the general public. And we argued that governmental liability is necessary to incentivize the federal government to implement policies and practices that deter its officers from committing sexual assault. Finally, we noted that the officer’s threat to take away L.B.’s children was a harrowing reminder of the federal government’s decades-long program of child separation from Native communities and rendered liability even more appropriate in this case. Our partners at the National Women’s Law Center, Women’s Law Project, Institute for Justice, National Police Accountability Project, and Institute for Constitutional Advocacy and Protection signed on to our brief.

The Montana Supreme Court agreed. It held that, under Montana law, officers do not 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. In reaching this decision, it recognized that officers have “considerable and intimidating powers” that carry “an inherent risk of abuse.” And it rightfully explained that when “an on-duty police officer obtains consent” for a sexual act “by misusing official authority, the wrongful act may be within the scope of employment.”