Wednesday, March 21, 2018

Steven Bearcrane-Cole’s parents Cletus and Earline Cole (left) and grandparents Rosie and Earl Bearcrane (right) stand by his picture in February 2014 at his grandparents’ house near Billings. This clip from a U.S. Court of Appeals for the Ninth Circuit in Seattle video shows appellee attorney Kelly Heidrich (left) speaking to a panel of judges as the Bearcrane family’s attorney Patricia Bangert looks on.

Pryor family’s legal battle with FBI returns to Ninth Circuit

A Pryor family’s nearly eight-year legal battle has halted as they face the FBI over an allegedly faulty investigation into the death of their son on the Crow Reservation. Now, three judges in Seattle decide whether proceedings continue. 
Standing before the panel last Wednesday at U.S. Court of Appeals for the Ninth Circuit, family attorney Patricia Bangert and appellee attorney Kelly Heidrich laid out their arguments.
Shooting incident
Steven Bearcrane-Cole, 23, died Feb. 2, 2005 at the former Leachman Home Place Ranch, where he worked, when he was shot by fellow ranch hand Bob Holcomb.
Holcomb told investigating Agent Matthew Oravec that he fired in self-defense after Steven attacked him with a knife in a dispute over a horse. Oravec closed the case and the U.S. Attorney’s Office declined to prosecute.
Steven’s family states several issues were ignored when closing the case. These included the fact that the coroner had ruled Steven’s death a homicide, and the knife Holcomb claimed to be used by Steven was found under his body and in its sheath. A sworn affidavit by another co-worker stated Holcomb claimed to have planted the knife, and had bragged about being able to kill someone and make it appear to be self-defense.
Earline also said Holcomb had once allegedly been fired from the ranch after pulling a gun on the former foreman. A new foreman, she added, hired him back.
“I would add the complaint alleges that defendant Oravec actually interfered with the plaintiffs getting any kind of assistance,” Bangert said. “Specifically, that he told the Office for Victim Assistance, ‘Don’t talk to them.’ Any sort of victims’ assistance had to come through him.”
An appellee’s’ brief from 2011 states, “There was no evidence that the FBI via Oravec performed or used common investigative tests in investigating the death of Steven Bearcrane.”
Blocked benefits?
Bangert believes the Bearcrane family has been effectively blocked from the chance to receive benefits via the Crime Victims’ Rights Act through a lawsuit regarding Oravec’s investigation. Among other benefits, the Victims’ Rights Act guarantees the “right to be treated with fairness and with respect for the victim’s dignity and privacy.”
The reason they can’t currently sue, Bangert stated, is due to an August 2014 ruling in Billings District Court giving Oravec qualified immunity. This immunity shields government officials from legal action as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Also, as stated by the Ninth Circuit, the definition of a “person,” when used in a legal context, “excludes…a human being who has died.” Thus, Steven can’t legally be the one wronged by the FBI under the Victims’ Rights Act.
In a 2010 decision, former U.S. District Judge Richard Cebull of Billings dismissed all of the Bearcrane family’s claims involving the FBI investigation except for their equal representation claim against Oravec. Steven’s mother Earline is a member of the Crow Tribe and his father Cletus is of the Gros Ventre Tribe. Holcomb and Oravec are non-Indians.
Looking through court records in May 2006, Earline said, she began to suspect a racial element in Oravec’s investigation, or alleged lack thereof. In a February 2014 interview, she stated, “It started coming about to us later on that it was because [Oravec] was prejudiced. That’s why he didn’t care.”
It’s worth noting the Billings District Court decision states that any prejudice shown by Oravec in the case has been “minimal considering the number and scope of other issues both parties raised and addressed.”
‘Clearly-established’ case?
Since his death, Steven’s family has traveled from the Billings District Court, to the Ninth Circuit Court in Seattle, to the Supreme Court in Washington, D.C. – then back again.
Addressing the Seattle panel, Bangert said, “We are here today, primarily, to ask the court to reverse the District Court’s finding that the appellants do not have personal standing or individual standing to sue the FBI and Agent Oravec.”
U.S. Magistrate Judge Carolyn Ostby, in the 2014 decision, denied Oravec’s motion to dismiss the family’s equal protection claim against him. She also, however, agreed with Oravec’s belief that “his particular actions violated no clearly-established right.” This, in effect, would prevent the family from having a “clearly-established” case.
Heidrich agreed with Ostby, saying it has “not been clearly established” that the family members of a crime victim can have their rights violated by questionable law enforcement services “to the direct victim.” Heidrich continued before the panel, stating, “No reasonable officer could know that their actions during an investigation could amount to an equal protection violation to some other third party.”
The Bearcrane family, she said, has not specified what type of benefits they would like to receive via the Victims’ Rights Act. Many of the benefits, she added, would only apply to the deceased.
“It is purely speculative that they ever would have had any right to access any particular benefits under the statute,” Heidrich said. “This would be an expansion of the right to sue to essentially an entirely new platform.”
According to Heidrich, to prove “discriminatory intent” by the FBI on the Crow Reservation, one must provide multiple cases of such bias and present them to the court. Taking a larger scope to the lawsuit, according to these specifications, would require more than one instance of alleged discrimination.
If the Ninth Circuit panel doesn’t agree with the Bearcrane family, Bangert said, she will petition to take the case to the Supreme Court.
“There is nothing left,” she added.
Judges set to deliberate the case are Raymond Fisher, Richard Paez and Consuelo Callahan.