Rasmussen v. Garrett, Case No. 3:20-cv-00865-IM

• Citation: 489 F.Supp.3d 1131
• Decision Date: 27 September 2020
• Docket Number: 3:20-cv-00901-IM,3:20-cv-00889-IM,Case No. 3:20-cv-00865-IM,3:20-cv-00912-IM,3:20-cv-00899-IM
• Parties: Vernon RASMUSSEN, Eric Raney, Jayson Mee, Julio Villeda, Aaron Gillihan, Petitioners, v. Pat GARRETT, Respondent.
• Court: U.S. District Court — District of Oregon

489 F.Supp.3d 1131

Vernon RASMUSSEN, Eric Raney, Jayson Mee, Julio Villeda, Aaron Gillihan, Petitioners,

v.Pat GARRETT, Respondent.

Case No. 3:20-cv-00865-IM

3:20-cv-00889-IM

3:20-cv-00899-IM

3:20-cv-00901-IM

3:20-cv-00912-IM

United States District Court, D. Oregon.

Signed September 27, 2020

Charles Gerstein, Pro Hac Vice, Tara Mikkilineni, Pro Hac Vice, Civil Rights Corps, Washington, DC, Jesse A. Merrithew, Viktoria Safarian, Levi Merrithew Horst PC, Portland, OR, for Petitioners.

Elmer Manuel Dickens, Jr., Kimberly Stuart, Washington County Counsel, Hillsboro, OR, for Respondent.

OPINION AND ORDER

IMMERGUT, District Judge.

Petitioners Vernon Rasmussen ("Rasmussen"), Eric Raney ("Raney"), Jayson Mee ("Mee"), Julio Villeda ("Villeda"), and Aaron Gillihan ("Gillihan") (collectively, "Petitioners"), pretrial detainees in custody at the Washington County Jail, bring this consolidated¹ habeas corpus action pursuant to 28 U.S.C. § 2241 (" Section 2241").² Petitioners allege they are in custody in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment because the state trial court set bail in an amount they cannot afford without properly finding that they present a flight risk or pose a danger to the community. Petitioners seek a conditional writ of habeas corpus ordering their release unless the state trial court provides new bail hearings and makes constitutionally valid findings that their detention is required. Respondent opposes the petitions, and moves to join the State of Oregon as a necessary party. For the reasons that follow, the Court DENIES Respondent's motion to join the State of Oregon as a necessary party to this action, DENIES the Petitions for Writ of Habeas Corpus, and DISMISSES this action with prejudice.

Background

I. Pretrial Release in Oregon

The Oregon Constitution contains two sections pertaining to pretrial release: sections 14 and 43 of article I ("section 14" and "section 43", respectively). Section 14, which dates from the adoption of the state constitution, provides that all offenses "shall be bailable by sufficient sureties," except murder and treason. Or. Const. art. I, s. 14. Section 14 thus "establishe[s] pretrial release as a right in Oregon, distinct from the federal system." State v. Slight , 301 Or. App. 237, 245, 456 P.3d 366 (2019) (citing Priest v. Pearce , 314 Or. 411, 417, 840 P.2d 65 (1992) ). The Oregon Constitution further guarantees that for offenses deemed bailable under section 14, the surety required to secure an individual's release shall not be "excessive." Or. Const. art. I, s. 16.

Section 43, which Oregon voters adopted in 1999, confers to designated crime victims "[t]he right to have decisions of the court regarding the pretrial release of a criminal defendant based upon the principle of reasonable protection of the victim and the public, as well as the likelihood that the criminal defendant will appear for trial." Or. Const. art. I, s. 43 (1)(b). Notably, Section 43 provides that "violent felonies shall not be bailable" if the court determines "there is probable cause to believe the criminal defendant committed the crime, and the court finds, by clear and convincing evidence, that there is a danger of physical injury or sexual victimization to the victim or members of the public by the criminal defendant while on release." Id. As defined by section 43, a "violent felony" is one in which "there was actual or threatened serious physical injury to a victim or a felony sexual offense." Id.

"Oregon's statutory scheme for pretrial release— ORS 135.230 through ORS 135.290 —was created in furtherance of [sections 14 and 43]," and provides for three types of pretrial release for bailable offenses: personal recognizance, conditional release, and security release. Slight , 301 Or. App at 246–47, 456 P.3d 366 ; O.R.S. 135.230(2), (6), (12) ; O.R.S. 135.260 ; O.R.S. 135.265. An individual released on personal recognizance is not required to meet any conditions, financial or otherwise, to secure his or her release, but must "promise ... to appear in court at all appropriate times." O.R.S. 135.230(6). In contrast, conditional release allows for release with "regulations on the activities and associations of the defendant," and security release conditions a defendant's release "on a promise to appear in court at all appropriate times which is secured by cash, stocks, bonds or real property." O.R.S. 135.230(2), (12).

Under the statutory release scheme, the court first must determine whether the defendant is eligible for release. A defendant's release eligibility is governed by O.R.S. 135.240. See also Slight , 301 Or. App. at 249, 456 P.3d 366 (noting that Oregon's statutory release scheme provides "a mechanism by which [any type of] release for a certain category of charged crimes ... can be denied based upon an evidentiary determination"). The statute directs that if the defendant is charged with a violent felony — "a felony offense in which there was an actual or threatened serious physical injury to the victim, or a felony sexual offense" — the presiding magistrate must deny release if she finds: (1) that probable cause exists to believe that the defendant committed the crime, which can be demonstrated by an indictment; and (2) clear and convincing evidence indicates that the defendant presents a danger of physical injury or sexual victimization to the victim or members of the public if released. O.R.S. 135.240(4)(a).

A determination that an individual defendant is releasable under O.R.S. 135.240(4) "can occur entirely on paper, or, at a defendant's request, can occur following a hearing." Slight , 301 Or. App. at 248, 456 P.3d 366 ; see also O.R.S. 135.240(4)(b) (instructing that an individual charged with a violent felony is entitled to a hearing on the issue of release if he so requests). If a hearing is requested, the burden is on the state to produce evidence that release should be denied, but the defendant has the right to present evidence "on any relevant issue." O.R.S. 135.240(4)(c), (d). The defendant also may be represented by counsel. O.R.S. 135.240(4)(d). Absent a proper finding pursuant to the inquiry above, a presiding magistrate lacks authority to deny release, and must make a release decision using the primary release criteria. Slight , 301 Or. App. at 249, 456 P.3d 366. Recognizance release, however, may not be granted to those charged with violent felonies. Instead, the court must "set security or other appropriate conditions of release." O.R.S. 135.240(4)(e).

If the defendant is eligible for release, the presiding magistrate then must make a "release decision" — "a determination ... using primary and secondary release criteria [to] establish[ ] the form of the release most likely to ensure the safety of the public and the victim, the defendant's court appearance and that the defendant does not engage in domestic violence while on release." O.R.S. 135.230(10) ; See also Slight , 301 Or. App. at 247, 456 P.3d 366 (noting that statutory release criteria "guide the magistrate's decision making as to what form of release — recognizance, security, or conditional — is most appropriate, and if conditional release, what conditions are best suited" under the circumstances). Personal recognizance is "the default presumptive form of release" for all bailable offenses except violent felonies. Slight , 301 Or. App. at 247, 456 P.3d 366. An individual thus "shall be released upon personal recognizance unless ... [the statutory] [r]elease criteria show to the satisfaction of the [court] that such release is unwarranted[.]" O.R.S. 135.245(3)(a) ; see also Gillmore v. Pearce , 302 Or. 572, 589, 731 P.2d 1039 (1987) (noting that in determining the appropriate form of release, "the first decision for the judge to make was whether to release plaintiff on his own recognizance"). The presiding magistrate therefore must decide whether recognizance release is appropriate for a given defendant by considering the primary release criteria:

(1) the reasonable protection of the victim or public;

(2) the nature of the current charge;

(3) the defendant's prior criminal record, if any, and, if the defendant previously has been released pending trial, whether the defendant appeared as required;

(4) any facts indicting the possibility of violations of law if the defendant is released without regulations; and

(5) any other facts tending to indicate that the defendant is likely to appear.

O.R.S. 135.230(7)(a)–(e). The presiding magistrate also may consider any of the secondary release criteria:

(1) the defendant's employment status and history and financial condition;

(2) the nature and extent of the family relationships of the defendant;

(3) the past and present residences of the defendant;

(4) names of persons who agree to assist the defendant in attending court at the proper time; and

(5) any facts tending to indicate that the defendant has strong ties to the community

O.R.S. 135.230(11)(a)–(e).

If, upon consideration of the statutory release criteria, the presiding magistrate determines personal recognizance is not appropriate, she must impose either conditional release or security release. O.R.S. 135.245(4). In selecting an alternative to recognizance release, however, the presiding magistrate must impose "the least onerous condition reasonably likely to ensure the safety of the public and the victim and the person's later appearance and, if the person is charged with an offense involving domestic violence, ensure that the person does not engage in domestic violence while on release." O.R.S. 135.245(3) ; see also Cooper v. Burks , 299 Or. 449, 451, 702 P.2d 1107 (1985) (en banc) (noting that "the ascending degrees of onerous conditions begin with release upon personal recognizance, move to conditional release, and, finally, end with a security release"). Thus, if she determines conditional release also is not appropriate, or if the individual fails to agree to the...