Plaintiff brought two claims for damages against defendants Multnomah County and Multnomah County Sheriffs 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.820C1).
“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,
The following facts are drawn from the parties’joint statement of stiрulated 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.”
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 plaintiffs 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
The parties filed cross-motions for summary judgment. The only issues in dispute on summary judgment for the false-imprisonment claim were whether plaintiffs detention was unlawful
Plaintiff appeals, raising three assignments of error. He first assigns error to the trial сourt’s failure to expressly rule that defendants’ detention of plaintiff was unlawful.
I. APPARENT-AUTHORITY IMMUNITY
We first consider plaintiffs 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,
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 plaintiffs 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,
Defendants asserted in their motion for summary judgment that plaintiffs 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 plaintiffs 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 plaintiffs 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.
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 plaintiffs 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 сonstitutional and statutory law, because a detainer issued under the regulation is merely a request to law enforcement agencies to hold a person, and defendants were prohibited under state law from complying with such a request.
Plaintiff made a number of arguments in support of his construction of 8 CFR section 287.7(d) as embodying a request rather than a command. He examined the text of the detainer, noting that the relevant portion is worded in terms of requests:
“It is requested that you:
“Please accept this notice as a detainer. This is for notification purposes only and does not limit your discretion in any decision affecting the offender’s classification, work, and quarters assignments, or any other treatment which he or she would otherwise receive.
“[checked box] 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.”
(Boldface in original.) He also analyzed the text of 8 CFR section 287.7, pointing out that subsection (a) states that a detainer is “a request”; contending that, if subsection (d) were interpreted as mandatory, it would violate anti-commandeering principles of the Tenth Amendment to the United States Constitution and would exceed the Department’s
Plaintiff advanced a harmonizing construction of 8 CFR section 287.7(d) “that comports with the rest of the regulation, the authorizing statute, and the commands of the Constitution,” which construed the regulation as a whole as authorizing the making of requests to law enforcement agencies. Under plaintiffs construction, the word “shall” operates to “placet] an outer limit on the length of time that a local law enforcement agency may hold an individual pursuant to a detainer.” In support of that interpretation, he quoted thе Supreme Court’s statement in Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council,
In their answer, and as part of their arguments on the cross-motions for summary judgment, defendants raised a defense of apparent-authority immunity under ORS 30.265(6)(f). That assertion countered plaintiffs arguments that his detention was not, and could not be, authorized or mandated by 8 CFR section 287.7(d) as defendants had asserted. Defendants pointed out in response to plaintiffs arguments that, even if construing 8 CFR section 287.7(d) as mandatory — as they had — would cause the regulation to be “unconstitutional, *** invalid, or inapplicable ***, [defendants are still immune from liability and entitled to summary judgment as a matter of law” because they “acted in accordance with and pursuant to the plain language of’ the regulation.
Plaintiff responded to defendants’ defense of apparent-authority immunity by arguing that the regulation did not provide apparent authority because it is merely a request, and defendants could lawfully choose not to comply. Plaintiff also argued that defendants’ assertion of the defense should be rejected in light of the fact that, in April 2013 (plaintiffs detention was in 2011), defendants had changed their practice of complying with all immigration detainers, which, plaintiff asserted, meant that defendants “believe [] [MCSO] has the leeway not to follow the regulation.” He argued that defendants’ assertion of apparent-authority immunity under those circumstances “suggests bad faith.”
B. The Trial Court’s Ruling
The trial court ruled in defendants’ favor. In its letter opinion, the court, quoting Arizona v. United States,
The trial court reasoned that, if apparent-authority immunity applied to defendants’ act of detaining plaintiff, then it would be unnecessary for the court to construe 8 CFR section 287.7. The court then examined the application of ORS 30.265(6)(f) to this case. It concluded that defendants were immune from liability because it was undisputed that defendants’ act of detaining plaintiff after his arraignment was pursuant to the detainer and 8 CFR section 287.7, the detention was under the “apparent authority” of the regulation, and plaintiff had not contended that defendants had acted in bad faith or with malice.
On appeal, plaintiff rеnews the arguments that he made to the trial court, with some additions and refinements that respond to the trial court’s expressed reasoning.
1. Reasonableness of interpretation of law
Plaintiff argues that a requirement of apparent-authority immunity under ORS 30.265(6)(f) is that the defendants’ interpretation of the law be objectively reasonable, which he equates with “apparent.” In support of that contention, he cites Eads v. Borman,
Plaintiff does not explain why the principal/agent doctrine that he identifies would provide relevant context in determining the meaning of ORS 30.265(6)(f), and we are not persuaded that it does. Moreover, although we agree that the word “apparent” in ORS 30.265(6)(f) does aid in determining the boundaries of apparent-authority immunity, we do not conclude that the legislature intended for its application to be limited as strictly as plaintiff posits. Rather, as we explain below, the legislature intended to provide immunity to public actors who act without bad faith or malice under a law’s “apparent authority” — that is, in accordance with a plausible construction of the law — but the law on which the public actors relied is unconstitutional, invalid, оr inapplicable.
To determine what the legislature intended the boundaries of apparent-authority immunity to be, we examine the words of the statute itself and the relevant context. See State v. Gaines,
The legislature’s word choice does not suggest that reliance on apparent authority may occur only after an investigation into the validity of the relied-upon law. Rather, the text of ORS 30.265(6)(f) indicates that the legislature intended that public actors acting without bad faith or malice could rely on their plausible interpretation of laws without facing liability for failing to investigate, harmonize, or adopt constructions that hedge against possible future invalidation. Accordingly, ORS 30.265(6)(f) applies to public actors who, acting without bad faith or malice, rely on their plausible interpretation of laws that turn out to be unconstitutional, invalid, or inapplicable.
The legislative history of ORS 30.265(6)(f) supports that construction of the text. In 1967, when the OTCA as a whole was enacted, it contained a provision that stated that the OTCA waiver of immunity did not apply to “[a]ny claim based upon an act or omission of an officer, employe [e] or agent, exercising due care, in the execution of a valid or invalid statute, charter, ordinance, resolution or regulation.” ORS 30.265(2)(d) (1967).
Higgins v. Redding,
However, we observed in Higgins that Utley involved “an original warrant of arrest rather than the continuing supervision of a probationer by a court.” Higgins,
Notably, the Higgins court did not undertake an analysis of whether the judge’s reliance on the statute was reasonable. Rather, it pointed out that the judge had broad authority in the probation context and that the statute on which the judge had relied granted “apparent authority” for the judge’s act. That we expressly declined to determine whether constitutional provisions might nevertheless impose an oath or affirmation requirement confirms that a person invoking apparent-authority immunity is not required to analyze the validity of a statute before relying on it, or to adopt a construction that would avoid constitutional infirmities.
2. Defendants acted under the apparent authority of 8 CFR section 287.7(d).
In the context of this case, then, defendants acted under the “apparent authority” of 8 CFR section 287.7(6)(f) if that regulation at least plausibly required them to detain plaintiff, as they believed that it did. Accordingly, we turn to whether defendants’ construction of the regulation was plausible. Because the regulation has been the subject of much recent litigation, it is important to note that the relevant temporal context is whether defendants’ construction was plausible at the time that they detained plaintiff in October 2011. That defendants have since changed their policy on complying with immigration detainers, or that a number of judicial decisions have since construed the regulation in the way that plaintiff advocates, has no bearing on that question.
Plaintiff argues to the contrary that, in light of the other provisions of the regulation, which are framed as requests, and in light of the “clear and obvious” constitutional and statutory “infirmities,” it was unreasonable for defendants to construe a single instance of the word “shall” as a mandatory command. Instead, the regulation should be construed, according to plaintiff, as expressing only requests, with subsection (d) merely setting a limit on the length of time that law enforcement agencies in receipt of detainers are asked to voluntarily hold the people named in the detainers, once they are no longer being held for any other reason. But we need not determine whether plaintiffs suggested construction of the regulation is correct, or more plausible than defendants’ construction, because the question before us concerns solely whether defendants’ construction was plausible.
We conclude that defendants’ construction of 8 CFR section 287.7(d) was based on the text of the regulation, relied on an ordinary meaning of the word “shall,” and was part of а coherent construction of the regulation as a whole. Because defendants’ construction of 8 CFR section 287.7(d) was plausible, they acted under the apparent authority of that regulation.
3. Apparent-authority immunity applies to misinterpretations of otherwise valid laws.
Plaintiff also contends that ORS 30.265(6)(f) provides “no immunity * * * for a sheriffs misinterpretation of a valid regulation,” because “apparent authority immunity does not apply” when the law in question “is not unconstitutional, invalid or inapplicable.” Plaintiff argues that, properly construed, 8 CFR section 287.7(d) is not inapplicable to his detention and that defendants merely misinterpreted the regulation as requiring them to detain him. According to plaintiff, if the correctly construed regulation is not, in fact, unconstitutional, invalid, or inapplicable, then apparent-authority immunity does not apply to defendants’ reliance on the regulation as authority to detain him.
Plaintiff simply misconceives the nature of an inapplicable law for purposes of apparent-authority immunity. A valid law that is misconstrued by a public actor to authorize or require the public actor to take a particular action is an inapplicable law — for purposes of apparent-authority immunity — if the law, properly construed, would not authorize or require the action. That is what occurred here, and our cases that have applied apparent-authority immunity confirm that a misconstrued law can constitute an inapplicable law under the statute.
Similarly, inBurke v. Children’s Services Division,
In sum, the trial court correctly concluded that defendants had acted under the apparent authority of 8 CFR section 287.7(d) in detaining plaintiff and were therefore immune from liability to plaintiff for his detention. We therefore affirm the trial court’s summary judgment rulings on plaintiff’s false-imprisonment claim.
II. STATUTORY TORT UNDER ORS 181 A.820(1)
We turn to plaintiff’s statutory tort claim.
Our standard of review on this claim is the same as on the previous claim, and the facts here are those to which the parties stipulated for purposes of summary judgment. See Vision Realty,
Plaintiff assigns error to the trial court’s summary judgment rulings, arguing
The Supreme Court has explained that, “[w]hen a party asserts a right of action to enforce a duty created by a statute, the first question is whethеr the statute expressly or impliedly indicates that the legislature intended to create or to deny such a right of action. That is a matter of statutory construction.” Doyle v. City of Medford,
ORS 181A.820(1) prohibits Oregon law enforcement agencies from using funds, equipment, or personnel on certain activities. It appears to be in the nature of a policy directive from the state to law enforcement agencies and the public bodies overseeing them on how public funds, equipment, and personnel are to be used. Even if ORS 181A.820(1) imposes a duty on law enforcement agencies not to engage in the listed activities, that alone is not enough to conclude that the legislature intended to create a statutory tort for violation of that duty. Deckard,
Doyle explains that, “[i]n determining whether the legislature impliedly intended to create a private right of action for violation of a statutory duty, this court has generally focused on two factors.”
Although the statutes in Chartrand and Nearing did not expressly create liability, the text or context of the Chartrand and Nearing statutes referred to limitations on civil liability in a way that implied to those courts a legislative intention to create statutory liаbility. Doyle,
The legislative history of ORS 181A.820(1) indicates that among the concerns that led the legislature to enact the statute were problems with “increased litigation and insurance costs against cities and counties for false arrests by local police” and “questions of infringements [оf] civil rights just because a person looks like an alien” when “local police try to enforce federal immigration law.” Exhibit E, Senate Judiciary Committee, HB 2314, May 20, 1987 (accompanying statement of Rep Rocky Barilla). One representative expressly stated that, “[i]n these times of higher insurance costs, we do not need to broaden the potential liability issue.” Exhibit B, House Judiciary Committee, HB 2314, Feb 6,1987 (accompanying statement of Rep Rocky Barilla). In addition, a staff measure analysis indicated that “[l]ocal and state law enforcement agencies have no authority under federal law to enforce immigration laws, and have been successfully challenged when they have tried,” and noted that “law enforcement personnel in certain communities” nevertheless sometimes “stop and interrogate people using immigration law as the basis for the stop.” Staff Measure Analysis, Senate Judiciary Committee, HB 2314, June 3, 1987 (underscore omitted). The same analysis described the “function and purpose” of the bill as to “codify existing practice.” Id. (capitalization omitted). We are persuaded that the legislature’s intention was to reduce the potential liability of law enforcement agencies under existing law by expressly prohibiting problematic activities, and not to create additional liability through creation of a new statutory tort. See Deckard,
We turn to the second factor that the Doyle court identified as a “focus” in “determining whether the legislature impliedly intended to create a private right of action.”
Because consideration of the text, context, legislative history, and availability of alternative mechanisms of enforcement leads to the conclusion that the legislature’s intention was not to create new statutory liability of the kind that plaintiff asserted — a statutory tort — that ends the inquiry. Id.
We conclude that there is no statutory tort based on ORS 181A.820(1). Accordingly, we affirm the trial court’s summary judgment rulings on plaintiffs ORS 181 A.820(1) statutory tort claim.
Affirmed.
Notes
Plaintiff alleged his claim under former ORS 181.850 (2011), renumbered as ORS 181A.820 (2015). The statute has not changed; we refer to the renumbered statute throughout this opinion. ORS 181A.820(1) provides:
“No law enforcement agency of the State of Oregon or of any political subdivision of the state shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws.”
In 2011, the provision was numbered as ORS 30.265(3)(f) (2011), but it is now numbered as ORS 30.265(6)(f). Or Laws 2011, ch 270, § 1. We use the current numbering throughout this opinion. ORS 30.265(6) provides, as relevant here, that “[e]very public body and its officers, employees and agents acting within the scope of their employment or duties, * * * are immune from liability for:
“(f) Any claim arising out of an act done or omitted under apparent authority of a law, resolution, rule or regulation that is unconstitutional, invalid or inapplicable except to the extent that they would have been liable had the law, resolution, rule or regulation been constitutional, valid and applicable, unless such act was done or omitted in bad faith or with malice.”
For brevity, where the context allows, we refer to “[e]very public body and its officers, employees and agents” as “public actors,” and we refer to “a law, resolution, rule or regulation” as a “law,” or, collectively, as “laws.”
8 CFR section 287.7 provides, in part:
“(a) Detainers in general. * * * Any authorized immigration officer may at any time issue a Form 1-247, Immigration Detainer-Notice of Action, to any other Federal, Stаte, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.
«* * ⅜ * ‡
“(c) Availability of records. In order for the Department to accurately determine the propriety of issuing a detainer, serving a notice to appear, or taking custody of an alien in accordance with this section, the criminal justice agency requesting such action or informing the Department of a conviction or act that renders an alien inadmissible or removable under any provision of law shall providе the Department with all documentary records and information available from the agency that reasonably relates to the alien’s status in the United States, or that may have an impact on conditions of release.
“(d) 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.
“(e) Financial responsibility for detention. No detainer issued as a result of a determination made under this chapter I shall incur any fiscal obligation on the part of the Department, until actual assumption of custody by the Department, except as provided in paragraph (d) of this section.”
(Italics omitted.)
False imprisonment has four elements: (1) the defendant confined the plаintiff; (2) the defendant intended the act of confinement; (3) the plaintiff was aware of being confined; and (4) the confinement was unlawful. Fossen v. Clackamas County,
Although plaintiff did not allege a claim for declaratory relief, plaintiff requested in his prayer for relief a declaration that his detention was unlawful. We note that plaintiff would not be entitled to any of the relief in his prayer for relief unless and until defendants were found liable on one of plaintiff’s claims. In light of our disposition of the second and third assignments of error, we reject plaintiffs first assignment of error without further discussion.
Although his assignments of error are not in the form prescribed by ORAP 5.45(3) (requiring that assignments of error “identify precisely the *** ruling that is being challenged”), we understand plaintiff to assign error to the trial court’s rulings granting defendants’ motion for summary judgment and denying plaintiff’s motion for partial summary judgment, on each of the identified grounds, and we describe the assignments consistently with that understanding.
A federal regulation, like a federal statute, can preempt state law in thе event of a conflict between the laws. Hillsborough County, Fla. v. Automated Medical Laboratories, Inc.,
Although, as noted, plaintiff did state that defendants’ assertion of apparent-authority immunity based on a mandatory reading of 8 CFR section 287.7(d) “suggests bad faith” in light of defendants’ later decision not to comply with some detainers, that did not amount to a contention that defendants had acted in bad faith when they detained plaintiff. Plaintiff did not argue below, and does not argue to us, that defendants acted in bad faith or with malice when they detained plaintiff.
Defendants contend that plaintiff’s arguments are not preserved. We agree that plaintiffs arguments have shifted somewhat on appeal. However, the question whether apparent-authority immunity applied to plaintiff’s false-imprisonment claim was squarely presented to and addressed by the trial court, and the reason for the shift in argument is that the trial court framed and analyzed the issues slightly differently from the way in which defendants had done that. Under those circumstances, plaintiff’s arguments on appeal are sufficiently preserved. See State v. Coburn,
In a related vein, as part of his arguments on appeal, plaintiff asserts that defendants conceded during a colloquy with the trial court that, if 8 CFR section 287.7(d) is not mandatory, then they would “lose this case.” We note that, even if defense counsel’s statements during that colloquy amounted to a legal concession — a proposition that we find to be doubtful—it would be immaterial to our task of reviewing plaintiff’s claims of error on appeal. The trial court recognized in its letter opinion that the relevant question in applying ORS 30.265(6)(f) was not the correct construction of 8 CFR section 287.7(d), but, rather, whether, when defendants detained plaintiff, they had acted under the apparent authority of that regulation. Our task is to determine whether the trial court’s ruling was erroneous as plaintiff asserts; defendants are not precluded on appeal from arguing that the trial court’s ruling, and reasoning, are correct. State v. Bailey,
ORS 30.265 (1967) has been amended and its subsections renumbered multiple times. See Or Laws 1969, ch 429, § 1; Or Laws 1975, ch 609, § 12; Or Laws 1977, ch 823, § 2; Or Laws 1981, ch 490, § 4; Or Laws 1985, ch 73Í, § 31; Or Laws 1987, ch 705, § 7; Or Laws 1991, ch 861, § 1; Or Laws 2005, ch 22, § 19; Or Laws 2007, ch 803, § 4; Or Laws 2011, ch 270, § 1. The apparent-authority immunity provision is now in ORS 30.265(6)(f).
Exhibits that were submitted to the House Judiciary Committee, Exhibits H and I, House Judiciary Committee, HB 1515, Mar 10, 1969 (accompanying statement of Bureau of Gоvernmental Research and Service attorney Joseph T. Henke), by an attorney identified in the committee minutes as a principal drafter of the bill, Minutes, House Committee on Judiciary, Mar 10, 1969, 2, reinforce that conclusion. Exhibit H, an explanation of the bill, states that the new provision “makes clear that public employe [e]s are immune from liability for enforcing a law in good faith without knowledge that it is invalid or inapplicable.” Exhibit I, containing comments on the bill by section, explains that the apparent-authority immunity section of the bill was adapted from a California Code provision, Cal Gov’t Code § 820.6, and that the new immunity provision “abrogates the Oregon rule [that] made a public employe [e] liable for enforcing an invalid statute even though done in good faith without knowledge of its invalidity.” Exhibit I at 4. A California Senate Legislative Committee comment on the California provision notes that it “provides immunity to an employee who acts in good faith, without malice, and undеr the apparent authority of an unconstitutional, invalid or inapplicable enactment, even though the employee may have been negligent in his good faith belief that the enactment was constitutional, valid and applicable.” See Cal Gov’t Code § 820.6 (West 2016) (Senate Legislative Committee Comment following section 820.6).
Plaintiff cites numerous cases as authority in support of his contention that defendants’ construction of the rule is incorrect and unreasonable. Plaintiff cites only two cases, however, that are relatively on point on the issue at hand and were decided before plaintiff’s detention, Buquer v. City of Indianapolis, 797 P Supp 2d 905, 911 (SD Ind 2011) (describingimmigration detainer and 8 CFR section 287.7(d) as merely a request to hold a person), and Committee for Immigrant Rights of Sonoma County v. County of Sonoma,
Even including the more recent cases that the parties cite, instead of establishing that there is only one reasonable way to construe 8 CFR section 287.7(d), as plaintiff contends, those cases show that, when presented with the same question defendants faced — whether detainers that invoke 8 CFR section 287.7(d) are mandatory or mere requests—courts have arrived at different conclusions. See Galarza v. Szalczyk,
The trial court resolved the statutory tort claim on the basis that there is no private right of action sounding in tort for violations of ORS 181A.820. Defendants do not argue on appeal that we should affirm the trial court’s summary judgment rulings on that claim on the alternative ground that, even if such a claim exists, defendants would be immune under ORS 30.265(6)(f) from liability on it, and we express no opinion on that issue.
Briefing in this case was completed before the Supreme Court decided Doyle v. City of Medford,
As did the trial court, we assume without deciding that ORS 181A.820(1) applied to defendants’ unreimbursed detention of plaintiff after the criminal charges against him were reduced to violations. We pause also to clarify terminology. As the Supreme Court explained in Doyle,