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A federal magistrate judge has found that a cop serving prison time for raping a woman he was while on duty acted outside the scope of his job, and the government cannot be sued for his actions.

The case remains undecided until a judge makes a ruling on the magistrate’s findings.

Magistrate Judge Timothy Cavan found that under Montana law, Dana Bullcoming was acting outside the scope of his employment with the Bureau of Indian Affairs when he showed up at a woman’s Lame Deer home in October 2015 and threatened her with arrest if she did not have sex with him.

The rape resulted in a pregnancy, and the woman is now raising the child resulting from that pregnancy.

In her lawsuit, she named the BIA, the federal government and Bullcoming.

Cavan found that in order to pursue damages against the government for Bullcoming’s actions, the plaintiff had to show that Bullcoming was acting within the scope of his BIA duties. Without that, the government is immune, Cavan found.

In another section, the magistrate judge wrote:

“In short, the circumstances of Bullcoming’s employment created an opportunity for him to rape (the victim), but he clearly did not rape (the victim) in furtherance of the BIA’s interests.”

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Cavan’s findings were issued July 16.

The next day attorneys for the plaintiff objected to the legal finding, saying it was based on outdated Montana Supreme Court precedent.

The government has yet to respond.

Bullcoming never responded to the lawsuit, and so, by default, the woman can claim damages against him.

That amount has yet to be set, but the woman’s attorney, John Heenan, said he wasn’t expecting much.

“This is a guy that’s in jail, hasn’t paid a penny in child support, and any judgment we get against him will be worth no more than the paper it’s printed on,” he said. “But, we will hold him accountable.”

In May 2018, U.S. District Court Judge Susan Watters sentenced Bullcoming to three years in prison for deprivation of rights under color of law. Prosecutors had sought the maximum of 10 years in prison.

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