United States District Court, D. South Dakota, Western Division
For Justin Janis, Defendant: Stephen D. Demik, LEAD ATTORNEY, Federal Public Defender's Office, Rapid City, SD.
For USA, Plaintiff: Kathryn Rich, LEAD ATTORNEY, U.S. Attorney's Office (Rapid City, SD), Rapid City Office, Rapid City, SD.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
JEFFREY L. VIKEN, CHIEF UNITED STATES DISTRICT JUDGE.
Defendant Justin Janis was indicted for the offense of assaulting a federal officer
in violation of 18 U.S.C. § 111. (Docket 1). Mr. Janis filed a motion to dismiss the indictment asserting that at the time of the alleged offense Oglala Sioux Tribal Officer Mousseau was not a federal officer under § 111. (Docket 27). Specifically, Mr. Janis argues Officer Mousseau " was not acting as a federal officer at the time of the assault; she was there acting as a tribal officer enforcing tribal law." Id. at pp. 3-4. The government resists the motion. (Docket 30). For the reasons stated below, the defendant's motion to dismiss is denied.
The indictment in pertinent part charges:
On or about November 27, 2013, near Kyle, in the District of South Dakota, the defendant, Justin Janis, willfully did forcibly assault, resist, oppose, impede, intimidate, and interfere with Officer Ann Mousseau, a law enforcement officer employed by the Oglala Sioux Tribe Department of Public Safety, pursuant to 25 U.S.C. § 2804, and engaged in acts involving physical contact with Officer Mousseau, while Officer Mousseau was engaged in the performance of her official duties, all in violation of 18 U.S.C. § 111.
" Whether [a tribal law enforcement officer] was a federal officer within the meaning of § 111 [is] a question of law for the court." United States v. Drapeau, 644 F.3d 646, 653 (8th Cir. 2011). " Whether [a tribal law enforcement officer] was acting as a federal officer and whether he was performing federal 'investigative, inspection, or law enforcement functions' at the time of the assault or acting outside the scope of his employment, [are] fact questions for the jury." Id.
The Secretary of the Department of the Interior " acting through the Bureau [of Indian Affairs], shall be responsible for providing, or for assisting in the provision of, law enforcement services in Indian country . . . ." 25 U.S.C. § 2802(a). " [T]he Secretary shall establish procedures to enter into memoranda of agreement for the use (with or without reimbursement) of the personnel or facilities of a . . . tribal . . . agency to aid in the enforcement or carrying out in Indian country of a law of either the United States or an Indian tribe that has authorized the Secretary to enforce tribal laws." 25 U.S.C. § 2804(a)(1).
The Secretary is charged with " develop[ing] minimum requirements to be included in special law enforcement commission agreements . . . ." 25 U.S.C. § 2804(a)(3)(B)(i). " Each agreement . . . shall reflect the status of the applicable certified individual as a Federal law enforcement officer . . . acting within the scope of the duties described in section 2802(c) . . . ." 25 U.S.C. § 2804(a)(3)(B)(ii). " While acting under authority granted by the Secretary under subsection (a) . . . a person who is not otherwise a Federal employee shall be considered to be . . . an employee of the Department of the Interior only for purposes of . . . section 111 . . . of Title 18 . . . ." 25 U.S.C. § 2804(f). This type of law enforcement agreement is commonly referred ...