Cruz v. Multnomah Cnty.

• Decision Date: 22 June 2016
• Docket Number: A155157
• Citation: 279 Or.App. 1,381 P.3d 856
• Parties: Miguel Cabrera Cruz, Plaintiff–Appellant, v. Multnomah County and Multnomah County Sheriff's Office, Defendants–Respondents.
• Court: Oregon Court of Appeals

279 Or.App. 1

381 P.3d 856

Miguel Cabrera Cruz, Plaintiff–Appellant,

v.Multnomah County and Multnomah County Sheriff's Office, Defendants–Respondents.

A155157

Court of Appeals of Oregon.

Argued and submitted November 7, 2014.

June 22, 2016

Jennifer J. Middleton argued the cause for appellant. With her on the opening brief were Kevin Diaz and Johnson, Johnson, Larson & Schaller, PC. With her on the reply brief were Kevin Diaz, Stephen William Manning, and Johnson, Johnson & Schaller, PC.

Carlos J. Calandriello argued the cause for respondents. With him on the brief was Jenny M. Madkour.

Anna Ciesielski filed the brief amici curiae for American Immigration Lawyers Association Oregon Chapter and National Lawyers Guild Portland Chapter.

Erin L. McKee filed the brief amici curiae for Oregon Justice Resource Center, Center for Intercultural Organizing, Oregon Dream Activist, and Causa.

Before Armstrong, Presiding Judge, and Egan, Judge, and Wollheim, Senior Judge.

ARMSTRONG

, P.J.

Plaintiff brought two claims for damages against defendants Multnomah County and Multnomah County Sheriff's Office (MCSO) based on his detention in the Multnomah County Jail under a federal immigration detainer. He alleged a claim for false imprisonment and a claim based on violation of ORS 181A.820(1)

.¹ On cross-motions for summary judgment, the trial court ruled in favor of defendants, concluding that they were immune under the Oregon Tort Claims Act (OTCA), ORS 30.265(6)(f),² from liability to plaintiff for false imprisonment and that there is no private right of action for violations of ORS 181A.820(1)

. Plaintiff appeals. We conclude that the trial court did not err, and affirm.

“On review of cross-motions for summary judgment, we examine whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law.” Vision Realty, Inc. v. Kohler , 214 Or.App. 220, 222, 164 P.3d 330 (2007)

. Here, the parties agreed to a joint statement of stipulated facts; therefore, the relevant facts before us—as they were before the trial court—are undisputed.

The following facts are drawn from the parties' joint statement of stipulated facts, supplemented by undisputed facts in the record. Plaintiff was arrested on October 14, 2011, for disorderly conduct and booked into the Multnomah County Jail, which is operated by defendants.

That same evening, October 14, defendants received a fax from Immigration and Customs Enforcement (ICE) with the heading, “Immigration Detainer—Notice of Action.” The detainer included a statement that the United States Department of Homeland Security (DHS or the Department) had initiated an investigation to determine whether plaintiff was subject to removal from the United States. It also stated: “Under Federal regulation 8 CFR § 287.7

, DHS requests that you maintain custody of this individual for a period not to exceed 48 hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for DHS to assume custody of the alien.”³ The detainer was not accompanied by a warrant, an affidavit of probable cause, or a removal order.

Defendants continued to hold plaintiff on the disorderly conduct charge and another misdemeanor until his arraignment on October 17, 2011. At the arraignment, the charges against plaintiff were reduced to violations and the court issued an order stating “release def this case only.” At that point, plaintiff was no longer subject to detention on any pending state or local charge, but defendants continued to hold him pursuant to the immigration detainer. Defendants held plaintiff for approximately 38 hours beyond the time that they otherwise would have released him, but for the detainer. ICE took plaintiff into custody on October 19, 2011. The federal government did not reimburse defendants for the cost of plaintiff's detention for the time that he was held beyond the time that he would otherwise have been released.

Plaintiff subsequently filed this action, alleging (1) that defendants had falsely imprisoned him during the 38 hours that he was held after his arraignment and (2) that defendants were liable for violating ORS 181A.820(1)

. Defendants' answer asserted that defendants had detained plaintiff under the authority of a federal regulation and that, even if that regulation were invalid, unconstitutional, or inapplicable, they were immune from liability under the apparent-authority immunity provision of the OTCA. Defendants also argued that ORS 181A.820 did not apply to their detention of plaintiff and, in any event, does not provide for a private right of action.

The parties filed cross-motions for summary judgment. The only issues in dispute on summary judgment for the false-imprisonment claim were whether plaintiff's detention was unlawful⁴ and whether defendants were immune under the OTCA. Among the issues on summary judgment on plaintiff's statutory tort claim was whether ORS 181A.820(1)

created a private right of action. The trial court concluded that defendants were immune under the OTCA and that there was no legislatively created statutory tort for violations of ORS 181A.820

. Accordingly, the trial court granted summary judgment for defendants, denied summary judgment for plaintiff, and entered a judgment in favor of defendants.

Plaintiff appeals, raising three assignments of error. He first assigns error to the trial court's failure to expressly rule that defendants' detention of plaintiff was unlawful.⁵ He next assigns error to the trial court's grant of summary judgment on plaintiff's false-imprisonment claim on the ground that defendants were immune under the OTCA. In his last assignment, he contends that the trial court erred in granting summary judgment on plaintiff's claim under ORS 181A.820

on the ground that the statute does not provide for a private right of action.⁶ We write to address only the second and third assignments of error; as explained in footnote 5, we reject plaintiff's first assignment of error without extended discussion.

I. APPARENT–AUTHORITY IMMUNITY

We first consider plaintiff's claim that the trial court erred in concluding that defendants were immune from liability under ORS 30.265(6)(f)

, the apparent-authority immunity provision of the OTCA. The OTCA partially waives the state's sovereign immunity, and it provides for indemnification and immunity for public actors in certain circumstances. ORS 30.260 –30.300 ; see

Horton v. OHSU , 359 Or. 168, 221–25, 376 P.3d 998, 1028–30 (2016) (discussing history, function, and purposes of OTCA). ORS 30.265(6)(f) provides that public actors are immune from liability if they act without bad faith or malice under the “apparent authority” of a law, but the law is “unconstitutional, invalid or inapplicable.”

A. The Parties' Arguments Below

The parties agree that, when defendants detained plaintiff beyond the time that they would otherwise have released him, they did so based on the immigration detainer and the federal regulation that it invoked, 8 CFR section 287.7(d)

. Although we resolve plaintiff's second assignment of error as the trial court did—by concluding that defendants are immune under ORS 30.265(6)(f) —the parties' arguments to the trial court about 8 CFR section 287.7(d) are relevant to both the framing and resolution of that issue. Consequently, we set out the parties' arguments in some detail.

Defendants asserted in their motion for summary judgment that plaintiff's detention was lawful, and therefore did not constitute false imprisonment, because it was mandated by 8 CFR section 287.7(d)

. Plaintiff argued to the contrary that 8 CFR section 287.7(d) embodies merely a request, not a mandate; it could not, therefore, authorize plaintiff's detention, because defendants were prohibited by constitutional and statutory provisions from complying with the request.

8 CFR section 287.7(d)

provides:

“Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.”

(Italics omitted.) At the time of plaintiff's detention, defendants understood 8 CFR section 287.7(d)

to require the detention: The Department had made a “determination” to issue an immigration detainer, and plaintiff was “not otherwise detained by” defendants; defendants, therefore, “shall maintain custody of” plaintiff “for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit” the Department to take plaintiff into custody. 8 CFR section 287.7(d). Defendants specifically pointed to the wording of 8 CFR section 287.7(d)

—viz. , “shall maintain custody”—as establishing that the regulation commanded defendants to detain plaintiff, notwithstanding any state law to the contrary.⁷

Plaintiff argued in his motion for summary judgment, and in response to defendants' motion that, notwithstanding the detainer and 8 CFR section 287.7(d)

, defendants' detention of plaintiff was unlawful. He asserted that his detention was unlawful under Article I, section 9, of the Oregon Constitution and under the Fourth Amendment to the United States Constitution because defendants lacked probable cause to believe that he had committed a crime for which he could be detained, and, he argued, the detainer did not provide defendants with probable cause. Plaintiff also asserted that his detention was prohibited under state law by ORS 181A.820(1). Moreover, he contended, contrary to defendants' assertion, 8 CFR section 287.7(d) could not render plaintiff's detention lawful because, even if the regulation purported to authorize or require such a detention, that would violate the federal constitution. He argued further that the regulation could not provide authority for a detention that was contrary to state constitutional and...