                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-2691
                                    ___________

Lesa M. Primeaux, formerly known as    *
Lesa M. Lamont, formerly known as      *
Lisa M. Bad Wound,                     *
                                       *
             Plaintiff-Appellant,      *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of South Dakota.
United States of America,              *
                                       *
             Defendant-Appellee.       *
                                  ___________

                              Submitted: April 15, 1998
                                  Filed: July 27, 1998
                                   ___________

Before LOKEN and LAY, Circuit Judges, and PRATT,1 District Judge.
                               ___________

LAY, Circuit Judge.


      This matter arises out of a suit against the United States under the Federal Tort
Claims Act (FTCA) seeking damages for sexual assault by a Bureau of Indian Affairs
(BIA) police officer. This is the second time the case has been before this court. See
Primeaux v. United States, 102 F.3d 1458 (8th Cir. 1996) (Wollman J., dissenting).


      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
       At the time of the assault in November 1991, Lesa Primeaux, the victim, was a
21-year-old Native American whose car had become stuck in a snowbank on a rural
South Dakota highway.2 The district court initially found Primeaux was walking
toward the town of Martin on a cold night when Kenneth Scott, a BIA officer from the
Rosebud Reservation, approached her in his police car. Scott was driving a white
government vehicle with a police light bar on top under BIA authority outside the
reservation. He was returning from a police training session in New Mexico. Scott
offered to give Primeaux a ride, which she accepted. He subsequently drove off a side
road, assaulted and raped her. This suit followed.

        The district court originally denied vicarious liability on the ground that the
police officer was not acting within the scope of his actual authority since he was
outside his jurisdiction. App. at 259. The district court concluded that because the
officer was not acting within his actual authority, there was not a sufficient nexus under
state law to demonstrate the foreseeability of the assault. On appeal, this court found
the district court had failed to consider the government’s liability under the doctrine of
apparent or ostensible authority.3 Primeaux, 102 F.3d at 1462. We reversed and
remanded to the district court. Id. at 1463.

       On remand, the district court expressly considered the law of apparent authority,
but once again found there was an insufficient nexus between the assault and the scope
of the officer’s either actual or apparent authority. Primeaux v. United States, No. 94-
5048, slip op. at 9-10 (D. S.D. June 4, 1997). Primeaux once again appealed. She now

      2
       The detailed facts of this case are set forth in our previous opinion, Primeaux,
102 F.3d at 1460.
      3
        The South Dakota Supreme Court points out that “[a]pparent authority is
analogous to ‘ostensible’ authority which is defined in SDCL 59-3-3 as authority ‘such
as a principal intentionally, or by want of ordinary care, causes or allows or allows a
third person to believe the agent to possess.’” Leafgreen v. American Family Mut. Ins.
Co., 393 N.W.2d 275, 277 n.4 (S.D. 1986).

                                           -2-
argues that the findings of the district court are mixed questions of fact and law and
that this court must review the district court’s second decision de novo. The
government on the other hand urges this court to apply the clearly erroneous standard.
We find that although the district court discussed the doctrine of apparent authority, it
nevertheless failed to properly apply this doctrine as set forth under South Dakota law.4
In doing so, we find that the trial court erred as a matter of law.

I. Apparent Authority

        Restatement (Second) of Agency (“Restatement”) as adopted by the South
Dakota Supreme Court requires that, in applying the rule of apparent authority, a court
must view the agent’s conduct through the eyes of the victim rather than from the
agent’s point of view. See Leafgreen, 393 N.W.2d at 280 (“Under section 261 and the
theory of apparent authority, however, the agent’s conduct is seen through the eyes of
the third party.”); see also American Soc. of Mechanical Engineers, Inc. v. Hydrolevel
Corp., 456 U.S. 556, 566 (1982) (quoting Restatement (Second) of Agency § 261,
comment a, p. 571); Grease Monkey Int’l, Inc. v. Montoya, 904 P.2d 468, 475 (Colo.
1995) (same); Freeman v. Royal Shield Entertainment, Inc., 411 So.2d 559, 561 (La.
Ct. App. 1982) (“One must look from the viewpoint of a third person to determine if
apparent agency has been created.”). Therefore, in this case, the inquiry should have
been whether, from Primeaux’s viewpoint, being approached by an officer whose
police car lights are flashing would make a reasonable person believe that the officer
was acting within the scope of his employment as a police officer.

       The district court concluded that the officer had not exercised apparent authority
partly because the court was not convinced the “police vehicle had anything to do with


      4
        We deem it noteworthy and relevant to the factual circumstances of this case
that S.D. Codified Laws § 59-6-3 (Michie 1993) reads: “A principal is bound by acts
of his agent under ostensible authority, to those persons only who have in good faith,
and without negligence, incurred a liability or parted with value upon the faith thereof.”

                                           -3-
the assault which later takes place.” Primeaux, No. 94-5048, slip op. at 10. The
district court’s analysis on this point slights the South Dakota law that requires
ostensible authority to be viewed through the eyes of the third person. The undisputed
facts show that, after the officer stopped his police car in the lane across from the
victim, he turned on the red flashing police light bar on the top of his vehicle. Id. at 3.
Furthermore, the victim stated it appeared to her that the officer was wearing a police
jacket when he approached her. App. at p. 28. The victim’s reliance on Officer Scott’s
display of his badge of authority, i.e., the red flashing lights, is rejected in part by the
district court because the officer testified that he stopped to offer a ride as an individual
and not as an officer. Id. at p. 134. The district court specifically found “that the
officer was not purporting to act on behalf of the government by stopping, detaining or
arresting plaintiff for any violation of law.” Primeaux, No. 94-5048, slip op. at 8.

       The difficulty we have with this analysis is that it ignores the objective,
undisputed fact that the police lights were turned on when the officer approached the
victim. The district court erroneously accepted, contrary to South Dakota law, the
officer’s stated intentions without consideration of the victim’s reliance on the fact that
the officer had turned on the flashing red lights of the police car. Viewing this evidence
through the eyes of the victim, we deem it obvious that any ordinary citizen would
believe under similar circumstances that an officer of the law had stopped to render
assistance.

       The fact that the victim was not arrested, involuntarily stopped or detained is
barely relevant under these circumstances. An officer’s duty is not limited solely to the
arrest and apprehension of law violators. An officer of the law often displays his
apparent or actual authority to offer assistance to citizens, especially those in distress.
Any citizen, especially on a “dark, cold night in the middle of nowhere” would take
more assurance in and place greater reliance on assistance offered by an officer of the
law than by a complete stranger.



                                            -4-
       The district court also discounted Primeaux’s stated reliance on Scott’s apparent
authority because it found her reliance lacked “credibility.” The district court did not
fault Primeaux’s believability,5 but rather found that she voluntarily accepted the ride
“to escape the elements.” But once again, this discussion fails to view the conduct of
the officer through the eyes of the victim when he turned on his red police lights and
specifically told her that he was a BIA police officer.

       The district court also concluded that the events leading to the assault were not
relevant because, it reasoned, the existence of apparent authority need be determined
only at the time Primeaux voluntarily entered the officer’s car. The district court
concluded that after Primeaux got into Scott’s police car, “there was little or no action
she could have taken once she entered the vehicle.” Primeaux, No. 94-5048, slip op.
at 8. The district court therefore focused its analysis only “at the point plaintiff entered
the front seat of the vehicle.” Id. We find this to be an erroneous view of the law as
well.

        In evaluating the question of ostensible authority, the district court must review
the totality of the events from the time the officer turned on his police car lights to the
time of the assault. See McKinney v. Pioneer Life Ins. Co., 465 N.W.2d 192, 195
(S.D. 1991) (whether an agent acted within the scope of apparent authority is to be
determined from all the circumstances of the transaction); Dahl v. Sittner, 429 N.W.2d
458, 462 (S.D. 1988) (same). The district court concluded that Primeaux submitted to
the assault because of Scott’s overpowering physical presence. However, this ignores
Primeaux’s statement that when Scott stopped and directed her to get out of the car, she
believed he was a “cop.” In considering the totality of circumstances, one cannot
ignore the finding of the district court that:




       5
      In fact, in the first case, the district court found that Primeaux was more credible
than Officer Scott. App. at p. 251.

                                            -5-
      [O]n a cold winter night in [the] middle of practically nowhere near the
      Indian reservation, and a person who appeared to be an officer, a person
      with a strong personality such as the Court observed, picking up a strange
      and submissive type of personality from the roadway, is an authoritative
      figure as must have been presented to her, leaves (sic) the Court to no
      other conclusion that he faced a situation –– she faced a situation through
      the use of force, coercion, or threats with the apparent — with his
      overriding presence accompanied by an apparent power of execution.


App. at p. 252 (emphasis added). Based on the foregoing, we conclude that the district
court failed to properly apply the principles of apparent or ostensible authority in
accordance with South Dakota law.

II. Foreseeability

        The district court found that because Scott was not acting within the scope of his
apparent or actual authority, the assault was not foreseeable. As the South Dakota
Supreme Court has acknowledged, the issue of foreseeability as to vicarious liability
is distinct from the issue of foreseeability in negligence cases.6 Here, the question is


      6
       In Leafgreen, the court observed:

      One way to determine whether a risk is inherent in, or created by, an
      enterprise is to ask whether the actual occurrence was a generally
      foreseeable consequence of the activity. However, “foreseeability” in this
      context must be distinguished from “foreseeability” as a test for
      negligence. In the later sense “foreseeable” means a level of probability
      which would lead a prudent person to take effective precautions whereas
      “foreseeability” as a test for respondeat superior merely means that in the
      context of the particular enterprise an employee’s conduct is not so
      unusual or startling that it would seem unfair to include the loss resulting
      from it among other costs of the employer’s business. [citations omitted]
      In other words, where the question is one of vicarious liability, the inquiry
      should be whether the risk was one “that may fairly be regarded as typical

                                           -6-
whether the agent’s employment put him in a position of trust where harmful conduct
to a third party would not be so unusual or startling that it would be unfair to include
the loss caused by the injury among the costs of the employer’s business. Leafgreen,
393 N.W.2d at 280-81. We find our statement in Red Elk controlling here:

      A police officer is a public servant given considerable public trust and
      authority. Our review of the jurisprudence indicates that, almost
      uniformly, where excesses are committed by such officers, their
      employers are held to be responsible for their actions even though those
      actions may be somewhat removed from their usual duties. This is
      unquestionably the case because of the position of such officers in our
      society.


Red Elk v. United States, 62 F.3d 1102, 1107 (8th Cir. 1995) (quoting AppleWhite v.
City of Baton Rouge, 380 So.2d 119, 121 (La. Ct. App. 1979).7




      of or broadly incidental” to the enterprise undertaken by the employer.
      Leafgreen, 393 N.W.2d at 280 (quoting Rodgers v. Kemper Const. Co.,
      124 Cal. Rptr. 143, 148-49 (Cal. Ct. App. 1975)).
      7
       This court emphasized a similar observation in the first appeal:

      [W]hile it is unfortunate and uncommon, sexual misconduct by an officer
      is in some circumstances reasonably foreseeable. . . . It is no less
      foreseeable that such an abuse of authority could occur while the officer
      is not technically on duty, but rather possesses the apparent authority
      sufficient to cause a person to rely on or fear that authority and succumb
      to sexual advances. Cases holding employers liable for sexual assaults or
      excessive use of force by police officers reason that such conduct is
      foreseeable because of the unique position of trust held by such officers.
      Primeaux, 102 F.3d at 1463 (citations omitted) (emphasis added).

                                          -7-
       In cases involving scope of employment, although the factual issues must be
resolved, the ultimate holding turns on state respondeat superior and agency law. Here,
the factual issues are no longer in dispute. The only remaining question is whether
under the facts found by the district court, the BIA will be liable as a matter of law for
Scott’s assault. We find as a useful analogue Justice Souter’s analysis in the recent
sexual harassment case, Faragher v. City of Boca Raton, 66 U.S. L.W. 4643 (June 30,
1998).8 The Court relied on the Restatement § 219(d) in stating:

      an employer “is not subject to liability for the torts of his servants acting
      outside the scope of their employment unless . . . the servant purported to
      act or speak on behalf of the principal and there was reliance on apparent
      authority, or he was aided in accomplishing the tort by the existence of
      the agency relation.”

66 U.S.L.W. at 4650.

       In the present case, there is little doubt the officer purported to speak on behalf
of the BIA (who authorized his journey): (1) Scott turned on his red lights atop the
police car, (2) Scott told Primeaux he was a BIA officer, (3) Primeaux testified she
followed Scott’s command to get out of the car because he was a “cop,” and (4) the
trial court found that Scott accomplished the tort by the existence of his agency
relationship.9 We therefore vacate the judgment of the district court with directions to

      8
        The Supreme Court also observed in Faragher: “In the instances in which there
is a genuine question about the employer’s responsibility for harmful conduct he did not
in fact authorize, a holding that the conduct falls within the scope of employment
ultimately expresses a conclusion not of fact but of law.” 66 U.S.L.W. at 4649.
      9
        As set forth, the district court observed “his overriding presence accompanied
by an apparent power of execution” allowed him to carry out his assault. On the basis
of this finding, Judge Wollman observed in his original dissent that Ms. Primeaux
submitted to Scott’s demands out of fear and intimidation arising from Scott’s
“apparent position of authority as a police officer and as one who appeared to have the
power to carry out his commands.” Primeaux, 102 F.3d at 1463-64 (Wollman J.,
dissenting) (emphasis added).

                                           -8-
enter judgment as to liability for the plaintiff; the cause is remanded to the district court
for a determination of damages.10


       10
         We need pause only briefly in response to the dissent. It should be noted that
the government has never asserted before the trial court or this court the new theories
presented in the dissent. First, the dissent overlooks that South Dakota law (the place
of the wrong) defines the standards by which “scope of employment” is to be
measured. As Judge Loken earlier observed in writing this court’s opinion in Brown
v. Armstrong: “Under the FTCA, the law of the place of the alleged tort governs the
scope of employment question.” 949 F.2d 1007, 1012 n.7 (8th Cir. 1991). See
Williams v. United States, 350 U.S. 857, 76 S. Ct. 100, 100 L.Ed. 761 (1955); see also
28 U.S.C. § 2674 (1996) (“The United States shall be liable, respecting the provisions
of this title relating to tort claims, in the same manner and to the same extent as a
private individual under like circumstances, . . . .”).

       South Dakota cases have adopted the Restatement which defines scope of
employment to include both actual and apparent authority. See Restatement §§
219(2)(d) and 265(1); see also Leafgreen, 393 N.W.2d at 277; McKinney v. Pioneer
Life. Ins. Co., 465 N.W.2d at 194. It has been early and universally recognized that
although actual authority and apparent authority exist as two different theories of
vicarious liability, they both may serve to define scope of employment. See William
L. Prosser, Handbook of the Law of Torts 473 (3rd Ed. 1964); see also Faragher, 66
U.S.L.W. at 4649 (citing Seavey, Speculations as to “Respondeat Superior,” in Studies
in Agency 129, 155 (1949) (“The liability of a master to a third person for the torts of
a servant has been widely extended by aid of the elastic phrase ‘scope of the
employment’ which may be used to include all which the court wishes to put into it.”)).

       The dissent also overlooks that South Dakota law has recognized that the
distinction between actual authority and apparent authority simply pertains to the
manner in which an agent obtains authority. See Federal Land Bank of Omaha v.
Sullivan, 430 N.W.2d 700, 701 (S.D. 1988). “Actual authority is created by
manifestations from the principal to the agent, . . . while ostensible [or apparent]
authority is created when the principal allows a third person to believe the agent has
authority to act on the principal’s behalf.” Id. (citations omitted).

      “[I]n the measurement of its effects, authority is authority and the operation of
apparent authority is of no lesser degree of effectiveness than is the operation of real

                                            -9-
LOKEN, Circuit Judge, dissenting.

      I respectfully dissent for two independent reasons.

      1. The Federal Tort Claims Act (FTCA) allows claims:

      [1] against the United States, [2] for money damages, . . . [3] for injury or
      loss of property, or personal injury or death [4] caused by the negligent
      or wrongful act or omission of any employee of the Government [5] while
      acting within the scope of his office or employment, [6] under
      circumstances where the United States, if a private person, would be
      liable to the claimant in accordance with the law of the place where the
      act or omission occurred.

FDIC v. Meyer, 510 U.S. 471, 477 (1994) (emphasis added). The Act does not make
the government liable to the full extent of a private employer’s vicarious liability under
state law. Rather, the United States is liable only if its employee was acting “within
the scope of his office or employment.” 28 U.S.C. §§ 1346(b)(1), 2672; see Piper v.
United States, 887 F.2d 861, 863 (8th Cir. 1989). As the Supreme Court has said,
“‘Scope of employment’ sets the line.” Gutierrez de Martinez v. Lamagno, 515 U.S.




authority.” See Harold Gill Reuschlein & William A. Gregory, Handbook on the Law
of Agency and Partnership 58 (1979). Where apparent authority exists, the third person
has the same rights with reference to the principal as where actual authority exists. See
Restatement § 8 cmt. a.

       The idea that a law enforcement officer’s actions were intentional and thereby
outside the scope of employment has been previously rejected by this court, see Red
Elk, 62 F.3d 1102 (applying South Dakota law under the FTCA), and other courts.
See, e.g., Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 216-221, 814 P.2d 1341,
1349-1352 (Cal. 1991).

                                          -10-
417, 423 (1995).11 The FTCA is a limited waiver of the government’s sovereign
immunity. We have no jurisdiction to impose FTCA liability for the acts of government
employees outside the scope of their employment. Meyer, 510 U.S. at 475.

       In our prior decision, we remanded “for reconsideration of [the district court’s]
factual findings with application of South Dakota law relating to apparent authority.”
Primeaux v. United States, 102 F.3d 1458, 1463 (8th Cir. 1996). Our opinion noted
that Leafgreen v. American Family Mut. Ins. Co., 393 N.W.2d 275 (S.D. 1986), had
discussed apparent authority as it relates to agent frauds, and we quoted Restatement
(Second) of Agency § 219(2)(d), which relates more generally to agent wrongdoing:

      (2) A master is not subject to liability for the torts of his servants acting
      outside the scope of their employment, unless:

        (d) the servant purported to act or to speak on behalf of the principal
      and there was reliance upon apparent authority, or he was aided in
      accomplishing the tort by the existence of the agency relation.

102 F.3d at 1462 (emphasis added). In other words, we invoked that portion of South
Dakota law which authorizes the imposition of vicarious liability on private employers
for acts of their agents that are within their apparent authority but outside the scope of
their employment. Now, the case has returned, once again with a district court finding
that Tribal Officer Scott was acting outside the scope of his employment. The court
again reverses, declaring that the United States is liable because, from Primeaux’s
perspective, Scott was acting within his apparent authority as defined in the
Restatement. This ruling goes beyond the government’s waiver of sovereign immunity.




      11
       Because Primeaux did not assert claims against Scott personally, the Attorney
General made no determination under 28 U.S.C. § 2679(d)(1) regarding the scope of
employment issue.

                                          -11-
        Scope of employment and apparent authority are two different theories of
vicarious liability. See Commerford v. Olson, 794 F.2d 1319, 1321 (8th Cir. 1986).
Neither Leafgreen nor McKinney v. Pioneer Life Ins. Co., 465 N.W.2d 192, 194 (S.D.
1991), supports the court’s assertion that all acts done with apparent authority are
within an employee’s scope of employment under South Dakota law. The
foreseeability of the employee’s misconduct from the employer’s perspective is critical
to the scope of employment issue under South Dakota law, whereas apparent authority
focuses on the employee’s misconduct from the victim’s perspective. As § 219(2)(d)
of the Restatement expressly recognizes, apparent authority is a doctrine under which
an employer may become liable for torts committed by employees acting outside the
scope of their employment.

       State law may of course extend a private employer’s vicarious liability to include
acts within an employee’s apparent authority but not within the scope of employment.
But FTCA liability requires proof that Scott’s actions were within the scope of his
employment as a tribal officer. Under South Dakota law, scope of employment is an
issue of fact. See Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177, 181-82 (S.D.
1987). The district court found that Scott was not acting within the scope of his
employment. That finding is not clearly erroneous. Scott was off duty, not in uniform,
and outside his jurisdiction. Primeaux was out of her car, “walking toward the nearest
town of Martin,” when Scott “stopped to ask her if she wanted a ride.” Primeaux, 102
F.3d at 1460. He offered her a ride, the kind of assistance any citizen might offer late
on a cold November night. Primeaux accepted the offer because she wanted a ride.
Scott’s subsequent sexual assault was by no stretch of the imagination a foreseeable
event within the scope of his employment. See Bates v. United States, 701 F.2d 737,
742 (8th Cir. 1983) (military policeman’s on-duty murder and rape of four civilians
following purported stop not within scope of government employment); Leafgreen, 393
N.W.2d at 281 (judgment for employer affirmed because “there was not such a
connection between [the agent’s] employment . . . and the burglary which actually
caused the harm . . . as to make the harm foreseeable”).


                                          -12-
       2. The FTCA does not apply to “[a]ny claim arising out of assault, battery,” and
other enumerated intentional torts. 28 U.S.C. § 2680(h). Rape and other sexual
assaults are within the classes of intentional torts excepted from the FTCA by
§ 2680(h). See Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985); Doe v.
United States, 838 F.2d 220, 226 (7th Cir. 1988) (Manion, J., dissenting, and cases
cited). Thus, the intentional tort committed by Tribal Officer Scott is not within the
customary parameters of the FTCA.

      The exception in § 2680(h) is subject to a proviso:

      Provided, That, with regard to acts or omissions of investigative or law
      enforcement officers of the United States Government, the provisions of
      this chapter and section 1346(b) of this title shall apply to any claim
      arising . . . out of assault, battery, false imprisonment, false arrest, abuse
      of process, or malicious prosecution. For the purpose of this subsection,
      “investigative or law enforcement officer” means any officer of the United
      States who is empowered by law to execute searches, to seize evidence,
      or to make arrests for violations of Federal law.

Though Tribal Officer Scott is no doubt a law enforcement officer for purposes of
§ 2680(h), the proviso only applies to intentional torts committed by such officers
“while executing a search, seizing evidence, or making an arrest.” Pooler v. United
States, 787 F.2d 868, 872 (3d Cir.), cert. denied, 479 U.S. 849 (1986); accord Cole v.
United States, 874 F. Supp. 1011, 1046 (D. Neb. 1995); Employers Ins. v. United
States, 815 F. Supp. 255, 258 (N.D. Ill. 1993); Beran v. United States, 759 F. Supp.
886, 892 (D.D.C. 1991); Rourke v. United States, 744 F. Supp. 100, 103 (E.D. Pa.
1988), aff’d, 909 F.2d 1477 (3d Cir. 1990). Contra Harris v. United States, 677 F.
Supp. 403, 406 (W.D.N.C. 1988); Crow v. United States, 659 F. Supp. 556, 570 (D.
Kan. 1987). Scott was not engaged in those kinds of activities at the time in question,
so the proviso to § 2680(h) is inapplicable.




                                          -13-
       Most cases construing § 2680(h) have involved the question whether the United
States may be liable for negligent acts that somehow facilitated or contributed to
intentionally tortious wrongdoing that otherwise falls within the exception. See, e.g.,
Sheridan v. United States, 487 U.S. 392 (1988). In this case, only intentional tort
claims are asserted. Accordingly, those claims are barred by § 2680(h). Red Elk v.
United States, 62 F.3d 1102 (8th Cir. 1995), is not precedent for ignoring the limit on
the government’s waiver of sovereign immunity set forth in § 2680(h). Our opinion in
Red Elk never mentions § 2680(h), no doubt because the tribal officers in Red Elk
raped the victim after arresting her for a curfew violation, which likely made the
proviso to § 2680(h) applicable. Indeed, it is not clear from that opinion whether the
government was held liable for its agents’ intentional torts or the government’s
negligent failure to train and supervise those agents.

      For both of the foregoing reasons, I would affirm.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -14-
