United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
This case involves the detention of plaintiff, Maria Miranda-Olivares ("Miranda-Olivares"), in the Clackamas County Jail ("Jail") based solely on a federal immigration detainer (Form I-247) issued by the United States Immigration and Customs Enforcement ("ICE"), an agency of the Department of Homeland Security ("DHS"). The detainer indicated that ICE had initiated an investigation to determine whether Miranda-Olivares was subject to removal from the United States. Miranda-Olivares alleges that by keeping her in custody based on that ICE detainer, Clackamas County ("County") violated 42 USC § 1983 by depriving her of liberty with due process under the Fourteenth Amendment (First Claim) and her right to be free from unreasonable seizure under the Fourth Amendment (Second Claim), and also falsely imprisoned her in violation of Oregon law (Third Claim).
This court has jurisdiction pursuant to 28 USC § 1331. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #10).
Because the material facts are undisputed, the County has filed a Motion for Summary Judgment (docket #17) on liability for all claims, and Miranda-Olivares has filed a cross Motion for Partial Summary Judgment (docket #23) on her § 1983 claims. For the reasons set forth below, summary judgment is granted to Miranda-Olivares as to liability on the Second Claim and granted to the County on the First and Third Claims.
On March 14, 2012, Miranda-Olivares was arrested for violating a domestic violence restraining order and booked into the Jail. Eby Decl. (docket #19), ¶ 2 & Ex. 101. Miranda-Olivares does not challenge the lawfulness of that arrest.
The County generally does not know a person's immigration status and did not know Miranda-Olivares's immigration status any at time during her incarceration. Henretty Decl. (docket #27), Ex. 6 ("Eby Depo."), pp. 41-42, & Ex. 8, p. 2. However, it has a policy of notifying ICE when a foreign-born person is brought to the Jail on a warrant or probable cause charge. Id., Ex. 3, p. 2, & Ex. 5, p. 2. The County does not request that ICE issue an immigration detainer against a person. Id., Ex. 4, p. 6.
Early the next morning on March 15, 2012, the Jail received an immigration detainer (Form I-247) issued by ICE for Miranda-Olivares. Id., Ex. 2; Eby Decl., ¶¶ 4-5. The top of that ICE detainer contains the following caption: "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS." Eby Decl., Ex. 102. After naming and describing Miranda-Olivares, it states that DHS "has taken the following action related to" her with an "X" marked in the first of four boxes indicating that DHS had "initiated an investigation to determine whether [Miranda-Olivares] is subject to removal from the United States." Id. It states no basis for the investigation and was not accompanied by an arrest warrant or any other charging document. Henretty Decl., Ex. 8, p. 2. The middle of that ICE detainer states "IT IS REQUESTED THAT YOU, " followed by six boxes with an "X" marked in the two following boxes:
Maintain custody of the subject for a period NOT TO EXCEED 48 HOURS, excluding Saturdays, Sundays, and holidays, beyond the time when the subject would have otherwise been released from your custody to allow DHS to take custody of the subject. This request flows from federal regulation 8 C.F.R. § 287.7, which provides that a law enforcement agency "shall maintain custody of an alien" once a detainer has been issued by DHS. You are not authorized to hold the subject beyond these 48 hours. As early as possible prior to the time you otherwise would release the subject, please notify the Department....
Provide a copy to the subject of this detainer....
Eby Decl., Ex. 102 (emphasis in original).
When the Jail receives an ICE detainer, it holds the person subject to the detainer for up to 48 hours, not including Saturdays, Sundays, and holidays, beyond the time when the person would otherwise be released, even if the person posts bail. Henretty Decl., Ex. 7 ("Roberts Depo."), p. 10; Eby Depo., pp. 22-23. The Jail's practice is the same whether or not the ICE detainer is accompanied by an arrest warrant, statement of probable cause, or removal or deportation order. Eby Depo., pp. 17-18.
Although Miranda-Olivares became aware of the ICE detainer the day it was issued, she was not provided a copy of it while she was incarcerated. Miranda-Olivares Decl. (docket #25), ¶ 8; Ceicko Decl. (docket #20), Ex. 105 ("Miranda-Olivares Depo."), pp. 25, 29.
That same day, Miranda-Olivares was arraigned and charged with two counts of contempt of court (ORS 33.065),  and the judge set bail at $5, 000.00. Answer (docket #7), ¶ 10; Eby Decl., ¶ 7; Henretty Decl., Ex. 9. In order to post bail, Miranda-Olivares was required to pay $500.00. Henretty Decl., Ex. 8, p. 5. However, the Jail holds an individual who is subject to an ICE detainer in custody, even if the underlying state criminal charges are resolved or bail is posted. Eby Depo., pp. 22-23, 41. Between March 16 and March 30, 2012, the Jail told Miranda-Olivares's sister, Laura Miranda, approximately four or five times that even if bail was posted, Miranda-Olivares would not be released due to the ICE detainer. Laura Miranda Decl. (docket #26), ¶¶ 4, 6; Henretty Decl., Ex. 8, p. 4. On March 16, 2012, Laura Miranda informed Miranda-Olivares by telephone that she would not be released if she posted bail because of the ICE detainer. Miranda-Olivares Decl., ¶¶ 5-6; Laura Miranda Decl., ¶¶ 3, 5; Henretty Decl., Ex. 10 (Progress Notes, March 16, 2012). On or about March 28, 2012, a sheriff's deputy told Miranda-Olivares directly that she would not be released if she posted bail because of the Jail policy relating to ICE detainers. Miranda-Olivares Decl., ¶ 7; Henretty Decl., Ex. 4, p. 3 & Ex. 10, p. 2. Miranda-Olivares's family was willing and able to pay the $500.00 bail, but did not do so because of the statements by Jail officials. Laura Miranda Decl., ¶ 8.
Miranda-Olivares remained in custody at the Jail on the state charges until March 29, 2012, when she pled guilty to one of the charges and was sentenced to 48 hours in jail with credit for time served and probation. Eby Decl. ¶¶ 8, 10 & Ex. 103. Consequently, at about 1:30 pm on March 29, 2012, Miranda-Olivares would have been released from the Jail but for the ICE detainer. Id., ¶ 12. Instead, the County held Miranda-Olivares in custody for another 19 hours until about 8:30 am on March 30, 2012, when she was released from the Jail to the custody of DHS agents. Id., ¶ 13.
While in custody at the Jail, Miranda-Olivares did not file a petition for writ of habeas corpus, file a Jail administrative grievance, or contact DHS regarding the issuance of the ICE detainer. Id., ¶ 16; Miranda-Olivares Depo., pp. 29-30.
Miranda-Olivares challenges her confinement by the County from March 15 through March 30, 2012, and specifically the County's custom and practice of incarcerating persons who are subject to ICE detainers after the lawful custody on state charges has ended. The County responds that federal law requires this custom and practice because ICE detainers (Form I-247) are issued pursuant to 28 CFR § 287.7 which, it its view, mandates the detention of a suspected alien by a local law enforcement agency for up to 48 hours. That regulation contains the following two relevant subsections:
(a) Detainers in general. Detainers are issued pursuant to sections 236 and 287 of the Act and this chapter 1. Any authorized immigration officer may at any time issue a Form I-247, Immigration Detainer-Notice of Action, to any other Federal, State, 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 ...