Rasmussen v. Garret

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

VERNON RASMUSSEN, ERIC RANEY, Case No. 3:20-cv-00865-IM

JAYSON MEE, JULIO VILLEDA, 3:20-cv-00889-IM

AARON GILLIHAN, 3:20-cv-00899-IM

3:20-cv-00901-IM

Petitioners, 3:20-cv-00912-IM

v. OPINION AND ORDER

PAT GARRETT,

Respondent.

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

1 The Court granted Petitioners’ Motion to Consolidate on June 16, 2020 (ECF No. 13).

2 The Court takes judicial notice of the Oregon Circuit Court docket in State of Oregon v.

Aaron Michael Gillihan, 19CR67114, which indicates that Gillihan entered a plea of guilty in the

underlying criminal case on August 13, 2020, and was sentenced to thirty-two months in custody.

Accordingly, Gillihan’s petition is denied as moot. See Burnett v. Lampert, 432 F.3d 996, 1000–

01 (9th Cir. 2005) (holding that where a petitioner “seeks relief [that] cannot be redressed by a

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 (2019) (citing Priest v. Pearce, 314 Or. 411, 417 (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.

favorable decision of the court issuing a writ of habeas corpus,” the petition is moot (internal

citations and quotation marks omitted)).

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; 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 (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; 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.

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 (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. 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 (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 (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 provisions of a conditional release, the presiding magistrate must set security. O.R.S.

135.265(1). A defendant then must post ten percent of the security amount to secure his release.

O.R.S. 135.265(2).

Generally, “the amount of bail is committed to the sound discretion of the court and its

decision will not be disturbed except in a clear case of abuse of discretion.” Delaney v. Shobe, 218

Or. 626, 628 (1959). That is not to say that the court may intentionally set security in an amount

“so as to make it impossible, as a practical matter, for a prisoner to secure release.” Gillmore, 302

Or. at 580 (noting that preventative detention is not authorized by the statutory release scheme).

Rather, “the total amount of security to be posted must be no more than is necessary to reasonably

assure the attendance of the person charged at trial.” Id.; see also O.R.S. 135.265(1) (instructing

that a presiding magistrate must set a security amount “that will reasonably assure the defendant’s

appearance”). In determining the amount necessary to reasonably ensure a defendant’s appearance,

the presiding magistrate must “take into consideration such matters as the nature of the defendant,

the nature of the offense and the possible penalties which could be imposed if the defendant were

convicted.” Gillmore, 302 Or. at 580. The Oregon Supreme Court described these considerations

in explicit detail in Delaney v. Shobe, concluding that the following factors should inform the

decision to set bail in a specific amount: “(1) ability of the accused to give bail, (2) nature of the

offense, (3) penalty for the offense charged, (4) character and reputation of the accused, (5) health

of the accused, (6) character and strength of the evidence, (7) probability of accused appearing at

trial, (8) forfeiture of other bonds, (9) whether the accused was under bond in other cases, and (10)

whether the accused was a fugitive from justice when arrested.” 218 Or. at 628. It is well

established, however, that the defendant’s inability to afford a security amount set in accordance

with the appropriate factors is not evidence that the amount necessarily is excessive. See Gillmore,

302 Or. at 581 (holding that while “on the high side,” a $203,000 security amount the defendant

could not afford was not excessive because “a trial judge would be entitled to conclude that a

criminal defendant faced with [a thirty-year prison sentence] would be under enormous pressure

to flee and, therefore, a significant security amount needed to be set”).

“Notwithstanding any other provision of law,” if a defendant is charged with a “Measure

11” offense,3 the presiding magistrate “shall set a security amount of not less than $50,000,” unless

she determines that such amount is unconstitutionally excessive. O.R.S. 135.240(5)(a); see also

State v. Sutherland, 329 Or. 359 (1999) (en banc) (holding O.R.S. 135.240(5) “is not facially

3 Measure 11 offenses are those that, under a ballot measure approved by Oregon voters in

1994, carry lengthy mandatory prison sentences. Ballot Measure 11 (1994). Measure 11 is codified

at O.R.S. 137.700 and O.R.S. 137.707.

unconstitutional under the Oregon or United States Constitutions,” because “Measure 11

defendants may challenge the constitutionality of the minimum security release amount . . . on an

as-applied basis and may request a hearing before the trial court for the purpose of challenging the

propriety of imposing that or a higher amount”). For Measure 11 offenses, many of which also

constitute “violent felonies” under Oregon’s statutory release scheme, a presiding magistrate “may

not release the defendant on any form of release other than a security release.” Id. In addition to

the required security condition, the presiding magistrate also may impose “any supervisory

condition deemed necessary for the protection of the victim and the community.” O.R.S.

135.240(4)(e).

II. The Individual Release Determinations

A. Rasmussen

On February 25, 2020, a Washington County grand jury returned an indictment charging

Rasmussen with two counts of Rape in the First Degree; two counts of Unlawful Sexual

Penetration in the First Degree; and four counts of Sexual Abuse in the First Degree. Case No.

3:20-cv-00865, Pet. (ECF No. 1) (“Rasmussen Pet.”), App’x at 1–2. All charges in the indictment

are felonies arising from Rasmussen’s alleged sexual abuse of a child under the age of twelve, and

all are Measure 11 offenses requiring the imposition of mandatory minimum sentences if he is

convicted. Id. Each count of Rape and Unlawful Sexual Penetration carries a mandatory minimum

custodial sentence of 300 months. O.R.S. 137.700(2)(b)(D), (F). The remaining charges, four

counts of Sexual Abuse, carry a mandatory minimum custodial sentence of 75 months each upon

conviction. O.R.S. 137.700(2)(a)(P). Based on these charges, the arrest warrant listed an initial

security amount of $2,000,000 to secure Rasmussen’s release. Rasmussen Pet., App’x at 3.

With the assistance of counsel, Rasmussen filed a motion in the Washington County Circuit

Court (the “trial court”) seeking release on his own recognizance, or in the alternative, a reduction

of the security amount. Rasmussen Pet., App’x at 6–12. In the motion, Rasmussen argued that the

statutorily required $50,000 minimum security amount should not apply in his case because it was

unconstitutionally excessive. Id. at 8–9. Further, Rasmussen asserted that any bail amount that he

could not afford was unconstitutional, absent a showing by clear and convincing evidence that

withholding release was necessary, because setting an unattainable bail amount had the practical

effect of functioning as a detention order. Id. at 9. Rasmussen thus argued that in order to set bail

in excess of an amount he could afford to pay, the trial court must find by clear and convincing

evidence that he poses a danger to the community or a risk of flight. Id. at 11.

On March 18, 2020, the trial court4 held a hearing on the motion. Rasmussen called no

witnesses, but submitted an affidavit detailing his criminal history, ties to the community, and

indigency. Id. at 14. Through counsel, Rasmussen argued that the charges against him, though

serious, detailed alleged conduct that was decades old. Rasmussen, Decl. of Elmer M. Dickens

(ECF No. 18) (“Dickens, Decl”), Ex. 3 at 6. Rasmussen further explained that he had not been in

contact with the victim since that time — save a single chance encounter — and that he had neither

the means nor desire to contact the victim moving forward. Dickens Decl., Ex. 3 at 5–6; Rasmussen

Pet., App’x at 14–15.

Rasmussen acknowledged, however, that his criminal history included numerous

convictions for felony or misdemeanor drug and property offenses between 1997 and 2010, but

argued that at least a decade had elapsed since his most recent conviction, and that the nature of

4 Oregon Circuit Court Judge Rebecca Guptill presided over each Petitioner’s respective

release hearing.

his crimes did not suggest future violence. Dickens Decl., Ex. 3 at 5–6; Rasmussen Pet., App’x at

14. Rasmussen also conceded that he had a history of failure-to-appear offenses, failing to appear

as ordered eight times between 1997 and 2012. Dickens Decl., Ex. 3 at 5; Rasmussen Pet., App’x

at 14. This history notwithstanding, Rasmussen argued that several factors mitigated his risk of

flight, including his status as a long-term Oregon resident; a five-year stable housing history with

his wife, who consented to serve as a responsible supervising party upon Rasmussen’s release; the

recent birth of his child; and immediate family living in Forest Grove, Oregon. Dickens Decl., Ex.

3 at 7; Rasmussen Pet., App’x at 15. Notably, Rasmussen explained that he had no income and

limited assets, and claimed he could not “honestly afford any bail amount” to secure his release.

Dickens Decl., Ex. 3 at 7; Rasmussen Pet., App’x at 15. Rasmussen thus urged the trial court to

reduce the security amount to an amount he could afford — zero — and to impose whatever

conditions the trial court deemed necessary given the allegations and the evidence in the record.

Dickens Decl, Ex. 3 at 7.

In opposition, the State argued that while the case involved historical allegations of abuse,

Rasmussen admitted to touching the victim multiple times when she was between the ages of eight

and twelve years old, and admitted to writing down sexual fantasies involving the victim in his

journal. Id. at 9. In addition to the numerous failure-to-appear offenses, the State noted that

Rasmussen had “many, many instances of probation violations,” suggesting that he “is not

somebody who is particularly inclined to follow Court orders[.]” Id. The alleged victim did not

appear at the hearing to oppose release, but the State relayed that she had been contacted, that she

had expressed deep concern about Rasmussen’s potential release, and that she was “still extremely

traumatized by the abuse.” Id. at 10. Based on Rasmussen’s criminal history, particularly his

demonstrated failure to comply with court orders, the State argued that the trial court should be

concerned about whether Rasmussen would appear for trial or follow the conditions of his release,

and that the security amount was appropriate given the seriousness of the charges. Id. The State

submitted no additional evidence to supplement the evidence in the record.

In rebuttal, Rasmussen did not deny making admissions concerning the charges leveled

against him, but instead argued that such admissions were the product of coercive interview tactics.

Id. at 11–12. He reiterated that if the State wished to hold him ineligible for release, it must “put

forward actual evidence from which the Court [could] find by clear and convincing evidence that

it is inappropriate to release him,” and that requesting an unaffordable security amount was akin

to requesting a “detention order through the back door.” Id. at 11. Rasmussen thus argued that

absent the State’s demonstration by clear and convincing evidence that release would be

inappropriate, the imposition of a security amount that he could not afford was unconstitutional.

Id.

The trial court considered the evidence in the record and imposed conditions on

Rasmussen’s release as follows:

In terms of the . . . things that I’m considering, [Rasmussen] has a

significant history of failure to appear and reasonably significant

criminal history. The allegations in this case are serious. I do find

that he does not have significant assets. Certainly[,] his security is

incredibly high at this point in time, and he does have ties to the

community, having a wife and a newborn at home. It sounds as

though the wife is going to be a responsible party [if he is

released].

What I’m going to order is that security is reduced to 250,000, post

10 percent. I’m adding the requirement of responsible party

approved by the release office. There can be no contact with the

victim, family members of the victim, or any witnesses to this.

He’ll have to sign by -- sign a no-contact-with-minors addendum,

with the one exception being his newborn baby. Other conditions

the release office would recommend. Oh, yeah, no alcohol, no

marijuana, no drugs, no possession of any pornography.

Yeah, so you will be under house arrest. You can leave the house

specifically for legal, medical, court, and treatment matters, and

I’ll want you to be accompanied by the responsible party for any of

those purposes.

Id. at 13. The trial court thus required Rasmussen to post $25,000 to secure his release. Id.

Rasmussen subsequently petitioned the Oregon Supreme Court5 for a writ of mandamus or

habeas corpus, raising the same constitutional arguments asserted in the trial court. Rasmussen

Pet., App’x at 64–122. The Oregon Supreme Court summarily denied the petition on May 21,

2020. Id. at 63. Unable to post bail, Rasmussen remains in custody awaiting trial.

B. Raney

On December 4, 2019, a Washington County grand jury returned an indictment charging

Raney with two counts of Assault in the Second Degree constituting Domestic Violence; two

counts of Assault in the Fourth Degree constituting Domestic Violence; and one count of Unlawful

Use of a Weapon. Case No. 3:20-cv-0089-IM, Pet. (ECF No. 1) (“Raney Pet.”), App’x, at 2. The

charges in the indictment arose from Raney’s alleged assault of his wife in front of a minor child.

Id. Assault in the Second Degree is a Measure 11 offense, and each count carries a mandatory

minimum custodial sentence of 90 months upon conviction. O.R.S. 137.700(2)(a)(F). On

December 5, 2019, a warrant issued for Raney’s arrest, which set a security amount of $275,000

based on the charges in the indictment. Raney Pet., App’x, at 1. On February 18, 2020, law

enforcement took Raney into custody. Id.

With the assistance of counsel, Raney filed a motion in the trial court seeking release on

his own recognizance, or in the alternative, a reduction of the security amount. Id. at 6. Like

5 Although there is no limit to seeking reconsideration of bail determinations in the Oregon

Circuit Court, there is no mechanism to appeal bail determinations to a higher court, apart from

seeking a writ of mandamus or habeas corpus to the Oregon Supreme Court.

Rasmussen, Raney argued that the $50,000 minimum security amount statutorily required for

Measure 11 offenses should not apply in his case because it was unconstitutionally excessive. Id.

at 7–8. Raney also asserted that any bail amount that he could not afford was unconstitutional,

absent a showing by clear and convincing evidence that withholding release was necessary,

because an unattainable bail amount functioned as a detention order. Id. at 8–10. Raney thus argued

that in order to set bail in excess of an amount he could afford to pay, the trial court had to find by

clear and convincing evidence that he poses a danger to the community or a risk of flight. Id. at

10.

On March 17, 2020, the trial court held a hearing on the motion. Raney called no witnesses,

but submitted a declaration detailing his criminal history, his ties to the community, his indigency,

and his inability to pay bail in the amount set. Id. at 12–13. The declaration also confirmed Raney’s

willingness to abide by any reasonable conditions of release, and named a responsible party with

whom he would reside if released. Id. at 12. Through counsel, Raney argued that his prior criminal

history was limited, consisting of only two convictions for driving while under the influence in

2012 and 2017, and three convictions for driving while suspended in 2013, 2018, and 2019. Id. at

38. Raney also acknowledged a previous history of failing to appear on two separate occasions,

but argued that he turned himself in to police in both instances. Id. Raney requested release without

a monetary bail condition, explaining that he was unemployed, had negative funds in his bank

accounts, and had no “access to any money whatsoever himself.” Id. at 37. In the alternative, Raney

requested release to seek treatment for alcohol dependence through the Department of Veterans

Affairs, and stated that he could not do so if he remained in custody. Id. at 39–40.

In response, the State detailed the reported facts of the case before reading into the record

a statement from the alleged victim. Id. at 40–42. In the statement, the victim emphasized that

despite his assurances to law enforcement that he would turn himself in, “[Raney] avoided arrest

and the consequences for his actions for over three months.” Id. at 42. The victim also stated that

Raney lacked resources and ties to Oregon. Id. at 43. Noting that Raney had family out of state,

the victim believed that he might flee to avoid prosecution. Id. at 43. Additionally, the victim

expressed “fear[] for [her] safety and for the safety of [her] two children and extended family,”

and ultimately urged the trial court to deny release:

[Raney] has shown no remorse for his actions, and has indicated on

multiple occasions via text message that he is a danger to himself.

He is a violent and manipulative individual, particularly when

abusing alcohol, who has previously shown blatant disregard for

the law and the punishments imposed by the Court. He has also

shown a disregard for the consequences of his actions or the

turmoil he has caused in the lives of those around him. Please do

not grant him the privilege of release from custody prior to trial.

Id. 43–44.

In rebuttal, Raney argued that any safety concerns would be appropriately addressed by

imposing conditions on his release, not by setting a bail amount which he could not afford. Id. at

45. The trial court then invited Raney to share anything else he wished to be considered. Id. at 47.

Raney acknowledged his struggles with alcoholism and expressed his commitment to treatment

for alcohol dependence if released. Id.

The trial court then ruled on the record:

So at this point in time, I am going to reduce security. I’m not

going to go below the 50,000 [statutory minimum], however.

Prior to this incident, you were working full time making $27 an

hour. I do understand that you’re indigent and that you certainly

cannot afford to pay 275,000, the 10 percent of that, but I am going

to reduce it to 50,000, post 10 percent, plus a SCRAM monitoring

bracelet. That’s an alcohol monitoring bracelet that you’ll have to

wear.

I am going to require a responsible party approved by the release

office . . . . I’m going to require that you reside with him whenever

you’re not in an inpatient treatment facility. I’m not specifically

going to order that he enter into the VA inpatient because I

understand that there might not be a bed available immediately

depending on circumstances, and it could be that a bed at a

different facility is more appropriate.

It also could be that you don’t qualify for the inpatient bed for

whatever reason, at which point I would want you to immediately

get into an intensive outpatient treatment program, and provide

proof to the release office and sign any releases necessary.

You’ll be on house arrest when you’re not in treatment. You’ll

have to obey all house rules. You may only leave the residence for

work, legal, medical treatment, or counseling matters. You may

not leave the residence unless you’re with that responsible party

except to go to and from work, so that responsible party has to be

with you at all other times, including at court.

You may not possess or consume alcohol, marijuana, illegal drugs

or dangerous weapons, and you may not have contact with the

victim, victim’s family, or any witnesses. In addition, you also

have to abide by any terms in . . . the protective order proceeding.

Id. at 48–50. Unable to post the reduced bail amount, Raney remained in custody.

Raney subsequently filed a motion to reconsider the reduced security amount upon the

emergence of the COVID-19 pandemic. Id. at 19–27. In the motion, Raney argued that he faced a

heightened risk of contracting COVID-19 while in custody, and renewed his constitutional

arguments concerning the imposition of a bail amount that he could not afford. Id. At a hearing on

the motion on April 2, 2020, Raney, through counsel, informed the trial court that he suffers from

Chronic Obstructive Pulmonary Disease, a lung condition that increases his risk of complications

if he contracts COVID-19, and reiterated that he could not pay the amount required for his release.

Id. at 60–62. Raney again asked the trial court to reduce his bail amount to zero. Id. at 61.

The State repeated the factual allegations underlying the charges, and recounted the

substance of the victim’s previous statement opposing release. Id. at 63–65. “[R]est[ing] on the

record” from the prior hearing, the State argued that the statutory minimum bail amount was

“completely appropriate given [Raney’s] history, [and] given the danger posed to the victim in this

case.” Id. at 65. The victim then addressed the court by phone, and opposed further reduction of

the security amount in light of “the severity of the situation.” Id. at 66.

Raney refuted the State’s arguments, insisting that he did not pose a flight risk. Id. at 70.

Raney also expressed a desire to volunteer in the fight against COVID-19, work he could not do

if incarcerated. Id. at 63, 70. In closing, Raney urged the trial court to find the statutory minimum

bail amount unconstitutional as applied, and argued that he “has the right to release, [that] he has

the right to bail that he can afford, and [that] the $50,000 currently set is tantamount to no bail

based on his financial circumstances.” Id. at 68.

The trial court ruled on the record, in relevant part:

So at this point in time, I am not compelled, that this -- that my

original release order needs to be modified. It was a significant

reduction from the 250,000, post 10 percent, down to 50,000, post

10 percent, and I don’t believe that the conditions currently in the

jail, combined with [Raney’s] high-risk condition, are poor enough

or concerning enough at this time to require a finding of the

50,000, post 10 percent, to be unconstitutional.

That being said, I appreciate the comments that have been made,

and the one change that I am going to make to my previous order

is, I am going to allow the defendant, if he is able to arrange his

release based on those conditions, I will allow specifically

volunteer work, in addition to paid work, as something that you

can participate in, if you are in fact released.

I will note, part of me wants to say release to an inpatient treatment

situation, there would be logistical difficulties with that, but that

type of a situation is arguably not necessarily any safer for

someone with an underlying health condition at this time. So I did

consider that as a possibility, in terms of my thought process, but I

don’t find that that would be a safer alternative at this time.

So again, I appreciate the concerns here and I appreciate certainly

the health concerns that you have, and your comments, sir, but at

this point in time I am going to maintain the previous order without

[sic] one change.

Id. at 71–72.

Raney subsequently petitioned the Oregon Supreme Court for a writ of mandamus or

habeas corpus, raising the same constitutional arguments asserted in the trial court. Raney Pet.,

App’x at 81–139. The Oregon Supreme Court summarily denied the petition on May 21, 2020. Id.

at 140. Unable to post the $5,000 bail amount required to secure his release, Raney remains in

custody awaiting trial.

C. Mee

On May 15, 2019, a Washington County grand jury returned an indictment charging Mee

with two counts of Sodomy in the First Degree; two counts of Using Child in Display of Sexually

Explicit Conduct; and one count of Sexual Abuse in the First Degree. Case No. 3:20-cv-00899-

IM, Pet. (ECF No. 1) (“Mee Pet.”), App’x at 1–2. All charges in the indictment arose from Mee’s

alleged sexual abuse of a child under the age of twelve, and all are Measure 11 offenses that carry

mandatory minimum custodial sentences upon conviction: 300 months for each count of Sodomy,

70 months for each count of Using Child in Display of Sexually Explicit Conduct, and 75 months

for the single count of Sexual Abuse. Id.; O.R.S. 137.700(2)(a)(P); (2)(b)(B), (E). On May 16,

2019, a warrant issued for Mee’s arrest, setting an initial security amount of $1,250,000 based on

the charges in the indictment. Mee Pet., App’x at 4. Law enforcement took Mee into custody the

next day. Id. at 5.

With the assistance of counsel, Mee filed a motion in the trial court seeking release on his

own recognizance, or in the alternative, a reduction of the security amount required to secure his

release. Id. at 8. In the motion, Mee argued that the initial bail amount was unconstitutional as

applied, and that any bail amount in excess of what he could afford was unconstitutional. Id. at 8–

12.

The trial court held a hearing on the motion on March 18, 2020. At the hearing, Mee

presented no witnesses, but submitted into evidence a declaration that set forth his indigency, lack

of criminal history or failure-to-appear offenses, ties to the community, and medical history. Id. at

16–17. Mee also submitted documentation concerning the COVID-19 health crisis, its impacts in

Oregon, and the various protocols implemented in the Washington County Jail to prevent the

spread of the disease. Through counsel, Mee informed the trial court that he suffers from numerous

health problems, such as HIV and multiple neurological diseases, that have left him confined to a

wheelchair, and have rendered him particularly vulnerable to severe infection if he contracts

COVID-19. Dickens Decl., Ex. 5 at 13. Mee argued that due to his health, he was “not in a position

to . . . flee . . . [or] to pose a danger to anyone” if released, and noted that he had no criminal history

and no history of failing to appear. Id. at 16. Mee also emphasized that he had no income, no

appreciable assets, and had been living in a care facility for four months prior to his arrest and

incarceration. Id. Mee thus urged the trial court to reduce the security amount to zero, and proposed

alternative, non-monetary conditions of release. Id. at 15–16.

In response, the State presented the testimony of the alleged victim’s father, who read a

prepared statement to the court. Id. at 18. He described Mee’s position of trust within the victim’s

family, and how Mee allegedly used that position to “groom” the victim. Id. at 19. He also

described the trauma inflicted on the victim by the abuse, and his fear that the psychological

damage could have long-lasting effects. Id. at 20. The victim’s father warned that Mee’s release

would inflict “psychological terror” on the family, and that such terror would be “dire.” Id. He also

speculated that Mee would attempt to take his own life if released, noting Mee’s previous online

fundraising efforts to obtain payment for assisted suicide. Id. at 21. The victim’s father urged the

court to deny any reduction in the bail amount to ensure Mee would be tried for his crimes. Id.

The State thus argued that Mee had been, “in some sense,” a stepfather to the victim, and

had taken advantage of that position of trust to sexually abuse a child. Id. at 22. The State also

pointed to several evaluations of Mee’s ability to aid and assist his defense, one of which allegedly

“demonstrate[d] a significant degree of manipulation and disingenuousness” on Mee’s part. Id. at

22–23. Given Mee’s propensity for manipulation and the severity of the charges, the State argued

that “the Court should have very grave concerns about releasing this individual into . . . the

community.” Id. at 23.

In rebuttal, Mee admitted the State’s concerns were “fair game for the Court to determine

. . . the appropriate conditions under which [he could] be safely in the community,” but that they

did not constitute evidence from which he could be found ineligible for release. Id. at 25. Mee thus

asserted that setting an unattainable bail amount in the absence of clear and convincing evidence

that release should be withheld constituted “a backdoor” detention order, and argued that the trial

court “must not deny him the opportunity to be released on these conditions in the same way that

somebody who is wealthy would have the opportunity.” Id.

The trial court made extensive findings on the record concerning COVID-19, noting that

the Washington County Jail was likely safer for Mee than the assisted-living facility he would need

if released. Id. 25–29. The trial court then addressed the various concerns raised by the State, and

issued a ruling:

In terms of the public safety concerns in this particular case. The

allegations here demonstrate or provide concern for the safety of

community members, in particular, the allegations that this

defendant took advantage of a close relationship in these

circumstances and the severity of the crimes that are alleged are

also extremely concerning to me.

That being said, I don’t necessarily think that he is a flight risk,

and I don’t necessarily -- I don’t believe that he’s someone who

has significant means to impose the security of what would be

$125,000.

Knowing all of that and, specifically, because of just simply how

high the security is currently set, I will reduce security. I will

reduce security to 250,000, post 10 percent, but I am adding

conditions to that. For Mr. Mee to be released, I want to know that

he has a bed at a care facility. I’m not going to release him without

a plan of where he is going. He’s going to then have to obey the

routine conditions . . . order[ed] in a case such as this one.

He’s going to have to have no contact with the victim, family of

the victim, and any witnesses. He’ll have to sign a no-contact with

minors addendum, and he’ll also need to be on house arrest at that

care facility. So he will not be able to leave that residence, other

than for counseling, treatment, medical and legal purposes, period.

Id. at 29–30.

Mee subsequently petitioned the Oregon Supreme Court for a writ of mandamus or habeas

corpus, raising the same constitutional arguments asserted in the trial court. Mee Pet., App’x at

64–120. The Oregon Supreme Court summarily denied the petition on May 21, 2020. Id. at 121.

Unable to post the $25,000 bail amount required to secure his release, Mee remains in custody

while awaiting trial.

D. Villeda

On February 14, 2020, a Washington Country grand jury returned an indictment charging

Villeda with one count of Rape in the First Degree constituting Domestic Violence; one count of

Sodomy in the First Degree constituting Domestic Violence; two counts of Sexual Abuse in the

First Degree constituting Domestic Violence; one count of Endangering a Person Protected by a

Family Abuse Prevention Act Restraining Order; one count of Tampering with a Witness; and

three counts of Assault in the Fourth Degree constituting Domestic Violence. Case No. 3:20-cv-

00901, Pet. (ECF No. 1) (“Villeda Pet.”), App’x at 2–4. He stands accused of sexually assaulting

his ex-wife. Id. Rape, Sodomy, and Sexual Abuse are Measure 11 offenses that each carry a

mandatory minimum custodial sentence: 100 months for each count of Rape, 100 months for each

count of Sodomy, and 75 months for each count of Sexual Abuse. O.R.S. 137.700(2)(a)(J),

(2)(a)(L), (2)(a)(P). On February 14, 2020, a warrant issued for Villeda’s arrest setting an initial

security amount of $260,000. Law enforcement took Villeda into custody two weeks later on

February 28, 2020. Villeda Pet., App’x at 4–5.

With the assistance of counsel, Villeda filed a motion seeking a reduction of the security

amount required to secure his release. Id. at 8–13. In the motion, Villeda argued that the initial bail

amount was unconstitutional as applied, and that any bail amount in excess of what he could afford

was unconstitutional absent a showing by clear and convincing evidence that withholding release

was necessary. Id. at 9–11.

On March 27, 2020, the trial court held a hearing on the motion. Villeda presented no

witnesses, but submitted into evidence a declaration that set forth his indigency, criminal history

and failure-to-appear offenses, and his willingness to abide by any reasonable conditions of

release. Id. at 14–15. Through counsel, Villeda acknowledged that his detention arose from two

cases — the alleged assault of his ex-wife and a probation violation. Id. at 21–22. Villeda conceded

that his ex-wife had a no-contact order in place against him at the time of the alleged assault, but

noted that they had “voluntarily been maintaining contact despite the no-contact order.” Id. 23–

24. Villeda also acknowledged that he was on probation for a previous harassment conviction at

the time of the alleged assault, but argued that his criminal history otherwise was limited to five

misdemeanor convictions. Id. at 22. Despite these issues, Villeda stressed his indigence, and

argued that “the appropriate way to address victim and public safety is through conditions of

release, not through preventative detention achieved by an unaffordable money bail.” Id. at 24. In

light of the current charges, the pending probation violation, and the emerging COVID-19 health

crisis, Villeda urged the trial court to reduce the security amount to the statutory minimum,

$50,000, and argued that “[a]nything above and beyond that would be tantamount to no bail” at

all. Id.

In response, the State detailed the “egregious” factual allegations underlying the new

charges, stressing that the assault had occurred in violation of a restraining order. Id. at 30–32. The

State also read into the record a statement from the victim, in relevant part:

I’m writing this e-mail to express my fears of Mr. Villeda’s release

on bail. Mr. Villeda is [a] very smart, intelligent, yet manipulative

individual. He’s an absolute flight risk. He . . . ran and evaded

police in this case and prior cases as well. He . . . made contact

with me after the incident to persuade me to lie to the police and to

cover for him.

Mr. Villeda has no regard for anyone but himself.

Mr. Villeda has no permanent residence or employment. Even if

he’s released on bail to a responsible party, it is my fear that they

will not take the stipulations of release seriously.

I fear for my safety. Mr. Villeda is a very vengeful person. And I

fear retaliation as it has happened before. Mr. Villeda always

seems to know my whereabouts, what I’m doing, and who I’m

with. Regardless of no-contact orders, Mr. Villeda has no respect

for the law or the rules of the release agreement. Mr. Villeda’s

release on bail would put myself at risk.

Id. at 31–32. Given Villeda’s disregard of the no-contact order, a criminal history that included

convictions for menacing, harassment, and violation of a release agreement, and a prior failure to

appear, the State urged the trial court to forego any reduction to the security amount. Id. at 33, 36.

In rebuttal, Villeda suggested safety concerns regarding his release could be mitigated “by

the imposition of an ankle monitor.” Id. at 34. Villeda also stated that as an “agency-certified

medical interpreter,” he would make himself available to aid the COVID-19 response if released.

Id. at 36.

The trial court then ruled on the record:

Okay. So I am going to find that this particular defendant does not

have any high-risk factors [for COVID-19]. He is not of an age

where that would be a concern either. He does have at least a

history of some failure to appear. I understand your explanation for

that, sir.

And these are very serious allegations. They are still at this point

allegations. However, I certainly do have to consider the safety of

the victim, and the public safety in general as part of my orders.

I am concerned about any history of violating court orders. I do

understand that there are other protective orders in place, or a

protective order in place.

I am going to reduce security in the [assault] case to 100,000, post

10 percent and add conditions. And I’m going to reduce security in

the [probation] case to just be conditional release with special

conditions. The conditions are going to be the same on both cases.

I’m reducing the security amount specifically in light of the

defendant’s indigent status and combining that with the overall

concerns that I have about maintaining safe conditions in the jail. I

have already previously today found that the current conditions in

the jail are safe.

. . . .

I will require a responsible person. I am going to require that to be

approved by the jail. Reside with a responsible person. Obey all

house rules. You will be on 24/7 house arrest. May not leave the

residence unless you are with the responsible person. You may not

leave the residence except for counseling, legal, medical, and

treatment purposes. You can work, but you have to be working

from home. You may not possess or consume alcohol, illegal

drugs, dangerous or deadly weapons, or marijuana.

You are not to have any contact with the victim, the family

members of the victim or any witnesses.

You must follow all protective orders and court orders.

And I am going to require GPS monitor via Vigilnet within 72

hours of your release. I’m only going to say it in that fashion so

that it can be managed in terms of the current Vigilnet rules. I’m

hopeful that with those conditions and that amount of security, that

you will be both appearing for your court appearances and that the

victim and community will be safe as part of that release plan.

Id. at 36–38

Villeda subsequently petitioned the Oregon Supreme Court for a writ of mandamus or

habeas corpus, raising the same constitutional arguments asserted in the trial court. Villeda Pet.,

App’x at 43–98. The Oregon Supreme Court summarily denied the petition on May 21, 2020 Id.

at 99. Unable to post the $10,000 bail amount required for his release, Villeda remains in custody

awaiting trial.

Standard of Review

Pursuant to section 2241, a district court is authorized to entertain the habeas petition of

any individual who is “in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). Thus, “the general grant of habeas authority in [section 2241] is

available for challenges by a state prisoner who is not in custody pursuant to a state court judgment

[such as] a defendant in pre-trial detention[.].” Stow v. Murashige, 389 F.3d 880, 886 (9th Cir.

2004) (quoting White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004)); accord Hoyle v. Ada Cty.,

501 F.3d 1053, 1058 (9th Cir. 2007) (holding that section 2241 is an appropriate means by which

a pretrial detainee may challenge his or her detention). Where a habeas petition challenges pretrial

detention under section 2241, the stringent standards required on review of challenges to the

validity of a state court judgment under 28 U.S.C. § 2254 do not apply. See Stow, 389 F.3d at 888

(holding that a petitioner who is not in custody pursuant to a state judgment of conviction “is not

required to satisfy the demanding standards of [the Antiterrorism and Effective Death Penalty Act]

embodied in § 2254 to obtain habeas relief”). Instead, the Court reviews the state court’s factual

findings with a presumption of correctness and reviews legal conclusions de novo. Hoyle, 501 F.3d

at 1058–59.

Discussion

I. Respondent’s Motion to Join the State as a Necessary Party

Respondent moves to join the State of Oregon (the “State”) as a necessary party to this

action. The Rules Governing Section 2254 Cases, which also apply to cases arising under section

2241, do not contain a joinder provision. See Rules Governing Section 2254 Cases (“Rules”) 1(b)

(instructing that “any or all of these rules” may be applied to a habeas petition not covered by Rule

1(a),” including a habeas petition brought under section 2241). The Court therefore must look to

the Federal Rules of Civil Procedure (“FRCP”) to determine whether the State should be joined as

a respondent in this case. See Rule 12 (directing that the Federal Rules of Civil Procedure may be

applied to a habeas proceeding “to the extent that they are not inconsistent with any statutory

provisions or these rules”); see also Fed. R. Civ. P. 81(a)(4) (noting that the Federal Rules of Civil

Procedure “apply to proceedings for habeas corpus . . . to the extent that the practice in those

proceedings . . . . is not specified in a federal statute [or] the Rule Governing Section 2254 Cases”).

Whether Petitioners have named the proper respondent implicates the Court’s jurisdiction in these

proceedings, and therefore the Court addresses this issue before turning to the substance of

Petitioners’ claims.

A. Legal Standards

FRCP 19 provides for mandatory joinder of parties necessary to the litigation at hand. A

party is “necessary” in two narrow circumstances: (1) when complete relief cannot be afforded

without the absent party’s participation, or (2) when the absent party claims a legally protected

interest in the proceedings. Fed. R. Civ. P. 19(a)(1)(A), (B); see also United States v. Bowen, 172

F.3d 682, 688 (9th Cir. 1999) (acknowledging that a party is necessary under FRCP 19 only where

complete relief is unavailable without the party’s presence, or where the party claims a legally

protected interest in the proceedings). If the court finds that an absent party is “necessary,” it then

must determine whether joinder is “feasible,” that is, whether joinder would deprive the court of

subject-matter jurisdiction. Fed. R. Civ. P. 19(a), (b).

If joinder is feasible, the court must order the necessary individual to be made party to the

action. Fed. R. Civ. P. 19(b). If joinder is not feasible, the court must determine “whether in equity

and good conscience, the action should proceed among the existing parties or should be

dismissed.” Id. To make this determination, the Court considers: (1) the extent to which any party

would be prejudiced by a judgment rendered in the person’s absence; (2) the extent to which such

prejudice could be mitigated by including protective provisions in the judgment, shaping the relief,

or taking other measures; (3) whether a judgment rendered in the person’s absence would be

adequate; and (4) whether an adequate remedy is available to the plaintiff if the action were

dismissed for nonjoinder. Fed. R. Civ. P. 19(b)(1) –(4).

B. Analysis

Respondent contends that the State is a necessary party to this action because only the State

has the requisite authority to “conduct[] a thorough adversarial hearing that complies with the

requirements for preventative detention by the United States Supreme Court.” Resp’t Resp. (ECF

No. 17), at 28. Additionally, Respondent argues that “the State has a concrete, real and

particularized interest in defending the release hearings and orders of the State trial court,” and

that disposition of these proceedings in the State’s absence “will impair and foreclose the State’s

interests and create a precedent that may adversely affect all state trial courts and state

prosecutors.” Id. at 29. Respondent thus argues that the State “is a necessary and vital party” to the

cases at bar. Id. at 30. Petitioners respond that they do not request an order requiring the State to

conduct a thorough adversarial proceeding, but rather seek an order requiring their release if such

hearings are not conducted. Rasmussen, Pet’rs’ Reply (ECF No. 19) (“Pet’rs’ Reply”), at 19–20

n.5.6 Petitioners thus argue that an order requiring their release is properly directed to Respondent

as their immediate custodian. Id. at 19–20.

The federal habeas statute instructs that a petitioner must name as respondent “the person

having custody over [him].” 28 U.S.C.§ 2242; see also 28 U.S.C. § 2243 (instructing that “[t]he

writ . . . shall be directed to the person having custody of the person detained”); Rumsfeld v.

Padilla, 542 U.S. 426, 434 (2004) (observing that “[t]he federal habeas statute straightforwardly

provides that the proper respondent to a habeas petition” is the petitioner’s custodian); Brittingham

v. U.S., 982 F.2d 378, 379 (9th Cir. 1992) (noting that “[t]he proper respondent in a federal habeas

corpus petition is the petitioner’s ‘immediate custodian’”) (quoting Demjanjuk v. Meese, 784 F.2d

1114, 1115 (D.C. Cir. 1986)). A petitioner therefore must direct his habeas petition to his

custodian—the individual having “‘immediate custody of the party detained, with the power to

produce the body of such party before the court or judge[.]’” Padilla, 542 U.S. at 435 (quoting

Wales v. Whitney, 114 U.S. 564, 574 (1885)) (emphasis in original); see also Brittingham, 982

F.2d at 379 (noting that a custodian “‘is the person having a day-to-day control over the

prisoner . . . the only one who can produce the body of the petitioner’”).

Failure to name the proper respondent “deprives federal courts of personal jurisdiction.”

Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997) (citing Stanley v. Cal. S. Ct., 21 F.3d

359, 360 (9th Cir. 1994)). The Supreme Court has observed that the language of the federal habeas

statute generally contemplates “only one proper respondent to a given prisoner’s habeas petition.”

Padilla, 542 U.S. at 434. Thus, in a habeas proceeding challenging a petitioner’s current physical

6 Because the page numbers affixed to Petitioners’ Reply do not align with the ECF page

numbers, the Court cites to the ECF page numbers to avoid confusion.

confinement, the default rule is that “the proper respondent is the warden of the facility where the

[petitioner] is being held[.]” Padilla, 542 U.S. at 435; see also Braden v. 30th Judicial Cir. Ct. of

Ky., 410 U.S. 410 U.S. 484, 494–95 (1973) (noting that a writ of habeas corpus “is directed to . . .

[the] jailer”); Stanley, 21 F.3d at 360 (stating that the proper respondent “typically is the warden

of the facility in which the petitioner is incarcerated”).

Petitioners properly have directed their habeas petitions to Respondent who, as the Sheriff

of Washington County, administers the Washington County Jail and serves as Petitioners’

immediate custodian. Respondent nevertheless urges the Court to join the State, arguing that

Petitioners’ cases fall within both circumstances requiring joinder under Rule 19. Relying on Smith

v. Idaho, 392 F.3d 350 (9th Cir. 2004), Respondent first argues that he lacks authority to order the

trial court to conduct a new release hearing, and therefore Petitioners cannot be afforded complete

relief unless the State is party to these proceedings. Resp’t Resp., at 24–25. In Smith, the petitioner

named as respondent the State of Idaho rather than his immediate custodian, depriving the district

court of personal jurisdiction. Smith, 392 F.3d at 355. In a footnote, the Ninth Circuit explained

that under those circumstances, sua sponte consideration of a separate issue — whether the named

respondent had the power to provide the desired relief — was required. Id.at 355 n.3 (citing

Belgarde, 123 F.3d at 1212). The Ninth Circuit reasoned that if the named respondent did not have

the power to release the petitioner as requested, “the court may not grant effective relief, and thus

should not hear the case unless the petition is amended to name a respondent who can grant the

desired relief.” Id.

Respondent contends that the reasoning of Smith is analogous to the analysis under Rule

19, and should be applied here. Smith, however, concerned wholly distinguishable factual

circumstances in which the petitioner named the State of Idaho as respondent, rather than the

individual having day-to day control of his person. The Ninth Circuit thus considered whether the

State, as the named party lacking immediate custody of the petitioner, nevertheless had the

requisite authority to grant the requested relief — the petitioner’s release from custody. In doing

so, the Smith court acknowledged the well-established rule that a habeas petitioner must name the

individual “‘having custody of him or her as the respondent to the petition.’” Id. at 355 (quoting

Stanley, 21 F.3d at 360). Indeed, the footnote upon which Respondent relies notes that the

petitioner’s release could be ordered by “the petitioner’s custodian or a superior of that custodian”

having authority to act in his stead. Smith, 392 F.3d at 355 n.3 (emphasis in original).

Here, Petitioners seek a conditional writ of habeas corpus ordering their release unless,

after a hearing satisfying heightened constitutional standards, the trial court finds release is

inappropriate. Unlike the petitioner in Smith, Petitioners direct their petitions to the proper

respondent. As the individual having immediate control of Petitioners, Respondent possesses the

requisite authority to order their release if such hearings do not occur. Petitioners therefore may

be afforded complete relief if the Court determines Petitioners’ claims have merit, and the issuance

of a conditional writ does not foreclose the State’s ability to prevent Petitioners’ release by

providing for constitutionally adequate hearings if it so chooses.

Alternatively, Respondent argues that the State “is best suited” to protect its interest in

state-court criminal proceedings. Resp’t Resp., at 24–25. However, “[j]oinder is ‘contingent . . .

upon an initial requirement that the absent party claim a legally protected interest relating to the

subject matter of the action.’” Bowen, 172 F.3d at 689 (quoting Northrop Corp. v. McDonnell

Douglas Corp., 705 F.2d 1030, 1043 (9th Cir. 1983)) (emphasis in original). The record indicates

that Petitioners provided the State with notice of their claims prior to filing their habeas petitions

in this Court, and the State declined to claim an interest in this action. See Pet’rs’ Reply, Attach. 2

(ECF No. 19-2) (email stating that the Oregon Department of Justice does not represent county

sheriffs in these types of habeas actions). Moreover, Respondent informed the Court during oral

argument that the State expressly declined his request to intervene in this matter. Respondent’s

insistence that the State has an interest in the outcome of these proceedings, without more, is not

enough to find that the State is a “necessary” party within the meaning of FRCP 19. See Northrop

Corp., 705 F.2d at 1043–44 (holding the government was not a necessary party under FRCP 19

because it “never asserted a formal interest in either the subject matter of this action or the action

itself. On the contrary, the record reflects that the [g]overnment has meticulously observed a

neutral and disinterested posture”).

In sum, Respondent is situated to provide the relief requested without interference from the

State, and the State has not claimed that it has a legally protected interest in the subject matter or

outcome of these proceedings. The State therefore is not a necessary party to this action within the

meaning of FRCP 19. Accordingly, Respondent’s motion to join the State as a necessary party is

DENIED.

III. Abstention

A. Legal Standards

Despite the grant of authority that flows from section 2241, courts have “long recognized

that in some circumstances considerations of comity and concerns for the orderly administration

of criminal justice require a federal court to forego the exercise of its habeas corpus power.”

Francis v. Henderson, 425 U.S. 536, 539 (1976). The Younger abstention doctrine addresses such

concerns by forbidding federal courts from enjoining pending state criminal proceedings. Younger

v. Harris, 401 U.S. 37, 53–54 (1971); see also San Jose Silicon Valley Chamber of Commerce

Political Action Comm. v. City of San Jose, 546 F.3d 1089, 1091 (9th Cir. 2008) (noting that

Younger abstention is a “jurisprudential doctrine rooted in overlapping principles of equity,

comity, and federalism”); Middlesex Cty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423,

431 (1982) (stating that Younger “and its progeny espouse a strong federal policy against federal-

court interference with pending state judicial proceedings absent extraordinary circumstances”).

The Ninth Circuit has held that abstention is appropriate when: (1) the state judicial proceedings

are ongoing; (2) the proceedings implicate important state interests; (3) the state proceedings

provide an adequate opportunity to raise constitutional challenges; and (4) the relief requested

“seek[s] to enjoin” or has “the practical effect of enjoining” the ongoing state judicial proceedings.

Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (citing ReadyLink Healthcare, Inc. v. State

Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014)). “Even where the first three elements are

satisfied, federal courts should not abstain absent a reason to abstain — ‘i.e., if the court’s action

would [interfere in ways proscribed by Younger].’” Cook v. Harding, 190 F. Supp. 3d 921, 935

(C.D. Cal. 2016); see also Edwards v. Leaders in Cmty. Alternatives, Inc., No. C 18-04609 WHA,

2018 WL 6591449, at *3 (N.D. Cal. Dec. 14, 2018) (stating that “[a]ll four elements of Younger

must be present in order for abstention to be appropriate”). Where all elements are met, a district

court must abstain from hearing the case and dismiss the action. See Beltran v. State of Cal., 871

F.2d 777, 782 (9th Cir. 1988) (stating that “[w]here Younger abstention is appropriate, a district

court cannot refuse to abstain, retain jurisdiction over the action, and render a decision on the

merits after the state proceedings have ended . . . [because] Younger abstention requires dismissal

of the federal action” (emphasis in original)).

Younger abstention, however, “remains an extraordinary and narrow exception to the

general rule” that federal courts have a “‘virtually unflagging’” obligation to hear and decide the

cases before them. Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (first quoting Cook v.

Harding, 879 F.3d 1035, 1038 (9th Cir. 2018), then quoting Sprint Commc’ns, Inc. v. Jacobs, 571

U.S. 69, 77 (2013)) (internal quotation marks omitted); see also Kugler v. Helfant, 421 U.S. 117,

124 (1975) (“[o]nly if ‘extraordinary circumstances’ render the state court incapable of fairly and

fully adjudicating the federal issues before it, can there be any relaxation of the deference to be

accorded to the state criminal process”). Indeed, even where Younger abstention is appropriate,

“federal courts do not invoke it if there is a ‘showing of bad faith, harassment, or some other

extraordinary circumstance that would make abstention inappropriate.’” Arevalo, 882 F.3d at 765–

66 (citing Middlesex Cty. Ethics Comm’n, 457 U.S. at 435). “[C]ircumstances must be

‘extraordinary’ in the sense of creating an extraordinarily pressing need for immediate federal

equitable relief, not merely in the sense of presenting a highly unusual factual situation.” Kugler,

421 U.S. at 125. A petitioner hoping to escape Younger’s proscription on federal intervention

therefore must demonstrate that: “(1) he would suffer irreparable harm that is ‘both great and

immediate’ if the federal court declines jurisdiction; (2) there is bad faith or harassment, on the

part of the state, in prosecuting him; or (3) the state court system is biased against Petitioner’s

federal claim.” Bibbs v. United States, Case No. CV 20-4222-JVS-KK, 2020 WL 2521755, at *2

(C.D. Cal. May 18, 2020) (citing Middlesex Cty. Ethics Comm’n, 457 U.S. at 432; Kugler, 421

U.S. at 124–25. “Minimal respect for the state processes . . . precludes any presumption that the

state courts will not safeguard federal constitutional rights.” Middlesex Cty. Ethics Comm’n, 457

U.S. at 431 (emphasis in original).

B. Analysis

Respondent argues that Younger applies “to preclude unconditional release or any other

remedy” in this case. Resp’t Resp., at 30. Specifically, Respondent asserts that the first three prongs

of the Ninth Circuit’s test for Younger abstention “are all easily met,” but urges the Court to

disregard the fourth — whether the relief sought seeks to enjoin ongoing state criminal

proceedings. Id. at 31. Respondent claims that relief, if granted, “would cause an upheaval in the

entire Oregon criminal justice system, and would effectively eviscerate the security release scheme

adopted by Oregon voters in Ballot Measure 11[.]” Id. at 32. Respondent thus contends that even

if disposition of Petitioners’ claims would not necessarily impede the underlying state criminal

prosecutions, “the relief requested will significantly interfere with the operation of all ongoing

state criminal prosecutions.” Id.

As an initial matter, there is no dispute that the first three prongs of the Ninth Circuit’s

Younger test are met here. State criminal charges are currently pending against each Petitioner,

and all are in custody while awaiting trial. Each Petitioner thus is subject to ongoing criminal

proceedings in state court. Furthermore, the State’s interests in ensuring Petitioners’ appearance at

trial and preventing crimes by criminal defendants while on pretrial release are substantial. See

United States v. Salerno, 481 U.S. 739, 750 (1987) (noting that “[t]he government’s interest in

preventing crime by arrestees is both legitimate and compelling”); Bell v. Wolfish, 441 U.S. 520,

534 (1979) (observing that “the Government has a substantial interest in ensuring that persons

accused of crimes are available for trials”). Finally, the Petitioners all have had ample opportunity

to litigate the constitutional claims raised here in the state courts, at the trial level and before the

Oregon Supreme Court. The parties disagree, however, as to whether the fourth prong is met under

the circumstances of this case.

Petitioners argue that the Ninth Circuit’s decision in Arevalo v. Hennessy is controlling,

and requires the Court to decline abstention. Rasmussen, Pet’rs’ Reply (ECF No. 19), at 22–25.7

7 The page number affixed to Petitioners’ Reply do not align with the pagination assigned

in ECF. The Court thus cites the ECF page numbers to avoid confusion.

In that case, the petitioner, who was in custody awaiting trial on charges arising from a domestic

dispute, moved for a reduction of the $1.5 million bail amount initially set by the trial court. The

petitioner argued that the bail amount was excessive, and that financial conditions of release are

unconstitutional if imposed without certain procedural protections and a specific finding that the

State’s interest could not reasonably be served by less-onerous, non-financial conditions. Arevalo,

882 F.3d at 764. After a hearing on the motion, the trial court lowered the bail amount to $1 million.

Id. at 765.

The petitioner subsequently filed habeas petitions with the California Court of Appeals and

the California Supreme Court, raising the same constitutional arguments without success. Id. The

petitioner then filed an emergency petition for the writ of habeas corpus in federal district court.

Id. In its answer, the State of California acknowledged that the petitioner had received

constitutionally inadequate process, and agreed that the petition should be granted. Id. Despite

California’s concession that the petition had merit, the district court declined to hear the

petitioner’s constitutional claims, holding sua sponte that Younger compelled abstention. Id.

The Ninth Circuit disagreed, explaining that the circumstances of the case counseled

against Younger abstention for two reasons. First, the Ninth Circuit noted that in Gerstein v. Pugh,

420 U.S. 103 (1975), the Supreme Court confirmed that Younger abstention did not bar federal

intervention where the injunctive relief sought “‘was not directed at the [plaintiff’s] state

prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an

issue that could not be raised in defense of the criminal prosecution.’” Arevalo, 882 F.3d at 766

(quoting Gerstein, 420 U.S. at 107 n.9). As in Gerstein, the Ninth Circuit determined that “the

issues raised in the bail appeal are distinct from the underlying criminal prosecution and would not

interfere with it,” and that the issue of “whether the petitioner is entitled to a constitutional hearing

is separate from the state prosecution.” The Ninth Circuit thus concluded Younger abstention was

not appropriate. Id. Second, the court observed that deprivations of constitutional rights and

physical liberty by detention constitute irreparable injury, and noted that it had previously applied

the irreparable harm exception where “full vindication of [a constitutional] right necessarily

requires intervention before trial.” Arevalo, 882 F.3d at 766–767 (first citing Hernandez v.

Sessions, 872 F.3d 976, 994 (9th Cir. 2017), then citing Mannes v. Gillespie, 967 F.2d 1310, 1312

(9th Cir. 1992)) (internal quotation marks omitted). Accordingly, the court determined that the

petitioner’s six-month detention without having received a constitutionally adequate bail hearing

“easily” fell within the irreparable harm exception to the Younger abstention doctrine. Arevalo,

882 F.3d at 767. Finding Younger abstention did not bar consideration of the petitioner’s claims,

the Ninth Circuit reversed the judgment and remanded to the district court. Id. at 767–768.

Here, as in Arevalo, Petitioners all are in custody awaiting trial for serious offenses, and

allege they have been deprived of a constitutionally adequate bail hearing. Petitioners have

exhausted their claims in the state courts, and no other remedy exists with respect to the

constitutional claims they raise here. Petitioners’ underlying criminal prosecutions are wholly

separate from issues concerning the constitutional adequacy of the bail hearings they were

provided, and addressing Petitioners’ claims would not impede Petitioners’ criminal cases.

Furthermore, Petitioners allege that their continued pretrial detention is depriving them of their

physical liberty in violation of their constitutional rights, circumstances that, if true, constitute

irreparable injury. Accordingly, under Arevalo, abstention is inappropriate.

Respondent’s efforts to distinguish Arevalo are unavailing. Although Respondent places

great weight on Arevalo’s unusual posture, particularly the State’s concessions as to the merits of

the petitioner’s claims, the Ninth Circuit did not expressly limit its holding in Arevalo, nor is an

implicit intention to limit the reach of its holding readily apparent in the Arevalo analysis. Indeed,

the Ninth Circuit began its opinion in Arevalo by stating that the issue under consideration was

“whether [Younger] requires a district court to abstain from hearing a habeas petition that

challenges the conditions of pretrial detention in state court.” Arevalo, 882 F.3d at 764. The Ninth

Circuit’s framing of the issue in generally applicable terms without reference to the unique

circumstances of the case suggests it did not intend to limit its holding only to the case before it or

to cases presented in an identical posture. Moreover, the Ninth Circuit subsequently relied on

Arevalo to decline abstention in Page v. King, 932 F.3d 898 (9th Cir. 2019), a case in which the

merits of the petitioner’s claims were contested, and the court’s analysis relied squarely on a more

generalized formulation of Arevalo’s holding. See Page, 932 F.3d at 903 (noting that Arevalo held

“that Younger does not ‘require[] a district court to abstain from hearing a petition for a writ of

habeas corpus challenging the conditions of pretrial detention in state court’ where (1) the

procedure challenged in the petition is distinct from the underlying criminal prosecution and the

challenge would not interfere with the prosecution, or (2) full vindication of the petitioner’s pretrial

rights require intervention before trial” (emphasis omitted)).

Respondent urges the Court to abstain pursuant to the Supreme Court’s decision in O’Shea

v. Littleton, 414 U.S. 488 (1974), arguing O’Shea, rather than Arevalo is controlling. In O’Shea,

nineteen plaintiffs brought a class action lawsuit challenging a variety of discriminatory practices

utilized in the trial courts of Alexander County, Illinois. O’Shea, 414 U.S. at 490. The plaintiffs

alleged, among other things, that a county magistrate and associate judge set bail according to an

unofficial bail schedule without considering the individual facts of each case, and requested a court

order enjoining all practices of which they complained. Id. at 492. Upon review, the Supreme

Court relied on Younger, observing that the plaintiffs sought an injunction “aimed at controlling

or preventing the occurrence of specific events that might take place in the course of future state

criminal trials.” Id. at 500. Such relief, the Court noted, would “indirectly accomplish the [same]

kind of interference” proscribed by Younger by instituting “an ongoing federal audit of state

criminal proceedings.” Id. The Supreme Court thus held that the principles of equity, comity, and

federalism precluded federal intervention. Id. at 499.

The Ninth Circuit has since interpreted O’Shea “as standing for the more general

proposition that [federal courts] ‘should be very reluctant to grant relief that would entail heavy

federal interference in such sensitive state activities as administration of the judicial system.’”

Courthouse News Serv. v. Planet, 750 F.3d 776, 789–90 (9th Cir. 2014) (quoting L.A. Cty. Bar

Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir. 1992)). In short, “O’Shea compels abstention where the

plaintiff seeks an ‘ongoing federal audit’ of the state judiciary, whether in criminal proceedings or

in other respects.” Courthouse News Serv., 750 F.3d at 790 (citing E.T. v. Cantil-Sakauye, 682

F.3d 1121, 1124 (9th Cir. 2011) (per curiam)). In keeping with this interpretation, courts in this

circuit have invoked O’Shea abstention when granting relief would require ongoing federal

intrusion in the administration of state judicial systems. See, e.g., Alaska Pretrial Detainees for

End of Unwarranted Courtroom Shackling v. Johnson, Case No. 3:17-cv-00226-SLG, 2018 WL

2144345, at *2 (D. Alaska May 9, 2018) (holding O’Shea compelled abstention where plaintiffs

sought injunction requiring the state court to forego shackling pretrial detainees absent an

individual judicial determination that shackling is necessary, finding such relief would require the

court “to step into the role of ongoing compliance monitor and enforcer of the injunction”); Barnett

v. Becerra, Case No. 17-cv-05514-SI, 2018 WL 1070820, at *4 (N.D. Cal. Apr. 30, 2018) (noting

abstention would be appropriate under O’Shea where a pro se complaint was partially construed

as a request for “federal oversight over state court decisions of whether to appoint counsel for

disabled individuals in their Family Court cases” because doing so would require ongoing federal

monitoring of state court system).

O’Shea, however, is distinguishable from the case at bar and does not detract from

precedential force of Arevalo. Unlike the plaintiffs in O’Shea, Petitioners here allegedly do not

seek an injunction requiring blanket changes to the manner in which the state courts administer

the bail system. Such a decision undoubtedly would require this Court to monitor the state courts

for compliance and enforcement of its order. Rather, Petitioners allegedly seek only individual

relief: a conditional writ of habeas corpus ordering release in the absence of a constitutionally

adequate hearing to determine whether continued detention is warranted in these particular cases.

Although resolution of Petitioners’ claims necessarily requires this Court to pass judgment on the

constitutionality of proceedings conducted by the state trial court, granting the individual relief

requested would not necessarily require long-term federal intervention or result in an ongoing audit

of the state court system. Indeed, in addressing claims substantially similar to those presented here,

the Arevalo court expressly rejected abstention under O’Shea because “the requested relief may

be achieved without an ongoing intrusion into the state’s administration of justice.” Arevalo, 882

F.3d at 766 n.2; cf. Walker v. City of Calhoun, 901 F.3d 1245, 1254–55 (11th Cir. 2018)

(concluding that Younger does not apply where the plaintiff challenged the imposition of bail

without individual inquiry as to the ability to pay or the efficacy of alternative release conditions,

and noting that unlike the “pervasive federal court supervision of State criminal proceedings”

requested in O’Shea, the plaintiff “merely asks for a prompt pre-trial determination of a distinct

issue, which will not interfere with subsequent prosecution”); ODonnell v. Harris Cty., 892 F.3d

147, 156 (5th Cir. 2018) (rejecting Younger abstention where plaintiffs alleged the county’s bail

practices resulted in the detention of indigent arrestees in violation of the Due Process Clause and

the Equal Protection Clause because the “non-discretionary procedural safeguards” requested

would “not require federal intrusion into pre-trial decisions on a case-by-case basis”). O’Shea thus

does not compel abstention in this case.

That is not to say, however, that Respondent’s concern about the scope of the relief

requested in this case holds no weight. Petitioners insist that they are not challenging the

constitutionality of Oregon’s pretrial release scheme, the validity of the statutory bail requirements

with respect to Measure 11 offenses, or otherwise requesting “a wholesale change” to the manner

in which security release is set in Oregon. Certainly, Petitioners make no claim that any of the

statutes governing pretrial release are unconstitutional. Yet in their supporting memorandum,

Petitioners include a footnote suggesting their challenges extend beyond the alleged individual

constitutional violations at issue in this case:

Notably, Oregon law specifically provides for a bail hearing that

comports with federal constitutional requirements. Under the

Oregon Constitution, the requirements of Article I, sections 16 and

43 allow for detention only under very narrow circumstances and

require all findings in support of detention to be made by clear and

convincing evidence. By routinely imposing unaffordable security

amounts that operate as detention orders issued without the

procedural and substantive safeguards enshrined in the Oregon

constitution, Oregon’s trial courts violate both the letter of the law

and the norm in favor of pretrial release that undergirds Oregon’s

system.

Pet’rs’ Memo. at 25 n.6.

Additionally, at oral argument, counsel for Petitioners revealed that numerous petitions

identical to those before this Court are presently pending in the state courts. Presumably, those

petitions will be filed in federal court if the state courts deny relief. Indeed, a substantially similar

petition has already been filed in this District and currently is pending before Judge Aiken. See

Eggleston v. Harrold, Case No. 6:20-cv-01336-AA. In light of the numerous petitions raising

identical issues that apparently are forthcoming, Petitioners’ insistence that they do not seek to

make a broader challenge to the Oregon bail system appears to ring somewhat hollow. A broad

challenge to the general manner in which the Oregon courts conduct bail hearings, if meritorious,

would result in ongoing federal interference with the state criminal process by requiring this Court

to continuously monitor the state courts’ procedures for compliance, and would provide any

pretrial detainee dissatisfied with the outcome of his constitutional bail reduction hearing grounds

on which seek further review in federal court. To be sure, the federal courts should not serve as a

means to audit the state courts’ bail determinations because such an arrangement would constitute

precisely the kind of ongoing federal intrusion O’Shea sought to avoid.

The Court finds that Arevalo precludes abstention to the extent Petitioners’ claims are

framed as individual constitutional violations. Respondent fails to provide facts or legal authority

sufficient to cast doubt on the applicability of Arevalo in that context, and other courts in this

circuit favorably have cited its holding. See, e.g., Page, 932 F.3d at 904–05 (relying on Arevalo to

hold that the district court erred by abstaining under Younger where the petitioner challenged the

state’s alleged failure to hold a constitutionally adequate probable cause hearing); Bibbs, 2020 WL

2521755, at *2 (citing Arevalo for the proposition that Younger abstention is not appropriate where

a petitioner challenges a constitutionally inadequate bail hearing in state court and had properly

exhausted his state remedies); Palafox-Lugo v. Lombardo, Case No. 2:18-cv-01294-GMN-VCF,

2018 WL 9986855, at * 2 (D. Nev. Sept. 17, 2018) (noting that Arevalo instructs that bail

challenges distinct from the criminal prosecution are not barred by the Younger abstention

doctrine, but dismissing petitioner’s section 2241 habeas petition for failure to exhaust his

remedies in state court). Indeed, Arevalo’s authority has been recognized in this district. See, e.g.,

Hirt v. Jackson Cty., Case No. 1:19-cv-00887-AC, 2020 WL 3104502, at *4 (D. Or. June 11, 2020)

(citing Arevalo to support the proposition that federal habeas corpus is an appropriate remedy when

a pretrial detainee challenges a bail determination and has exhausted his remedies in state court).

Accordingly, Younger abstention does not preclude this Court’s consideration of Petitioners’

claims insofar as they allege individual constitutional violations.8

IV. The Merits

Petitioners allege that their continued detention while awaiting trial violates their rights to

equal protection and due process. Petitioners’ claims rest on two contentions: (1) that they are in

custody because they cannot afford to pay a secured money-bail amount that was imposed without

constitutionally required procedural protections; and (2) that they are in custody because the trial

court entered “the functional equivalent of an order of detention” without making procedurally

valid findings that they present a danger to the community or pose a flight risk. Rasmussen, Mem.

in Supp. of Pet. (ECF No. 3), at 11. Petitioners thus claim their pretrial detention is constitutionally

impermissible because: (1) they are being held on account of their indigency, in violation of the

equal protection clause; (2) the trial court failed to consider whether setting unattainable bail

amounted to a de facto order of detention, which is constitutionally permissible only if narrowly

tailored to serve a compelling government interest, in violation of Petitioners’ substantive due

process rights; (3) and the trial court effectively detained them without making adequate findings

to justify a valid detention order, in violation of Petitioners’ procedural due process rights.

8 To the extent Petitioners seek to challenge Oregon’s bail system as a whole, or the

procedures utilized by the state courts in conducting bail hearings, O’Shea compels the Court to

abstain from issuing any ruling that will require Oregon courts to implement system-wide changes

to the statutory bail scheme, or will result in ongoing federal oversight of Oregon’s judicial system.

See Courthouse News Serv., 750 F.3d at 790 (noting that O’Shea compels abstention where the

plaintiff seeks an “ongoing federal audit” of the state judiciary). Accordingly, to the extent any

future petitions demonstrate that the challenges raised in the collective cases are indeed broader,

abstention may be appropriate.

Petitioners also argue that to comport with due process, the “clear and convincing evidence”

standard must govern the trial court’s analysis as to whether detention is warranted.

Respondent asserts Petitioners received significant reductions to the bail amount after a

hearing at which they were represented by counsel and given opportunity to submit evidence to

the trial court. Resp’t Resp., at 6–7. Respondent thus claims Petitioners’ continued custody does

not violate their constitutional rights.

A Due Process

1. Legal Standards

The Due Process Clause of the Fourteenth Amendment provides that the government may

not deprive “any person of life, liberty, or property without due process of law.” U.S. Const.

amend. XIV, § 1. Due process thus “provides heightened protection against government

interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521

U.S. 702, 720 (1997). Indeed, “[t]he touchstone of due process is protection of the individual

against arbitrary action of government, whether the fault lies in the denial of fundamental

procedural fairness, or in the exercise of power without any reasonable justification in the service

of a legitimate governmental objective.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998)

(internal citations and quotations omitted).

The Due Process Clause “confers both substantive and procedural rights.” Albright v.

Oliver, 510 U.S. 266, 272 (1994). Substantive due process “prohibits States from infringing

fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling

state interest.” Lawrence v. Texas, 539 U.S. 558, 593 (2003). Procedural due process “‘minimize[s]

substantively unfair or mistaken deprivations of’ life, liberty, or property” by guaranteeing all

persons fair procedures by which they may “contest the basis upon which a State proposes to

deprive them of protected interests.” Carey v. Piphus, 435 U.S. 247, 259–60 (1978) (quoting

Fuentes v. Shevin, 407 U.S. 67, 87 (1972)). Put simply, “[w]hen government action depriving a

person of life, liberty, or property survives substantive due process scrutiny, [procedural due

process requires that] it must still be implemented in a fair manner.” Salerno, 481 U.S. at 746

(citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

To invoke the protection of the Due Process Clause, a petitioner first must identify a

protected interest to which such protection extends, and demonstrate a governmental deprivation

of that interest. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (explaining that the Due Process

Clause “protects persons against deprivations of life, liberty, or property; and those who seek to

invoke its procedural protection must establish that one of these interests is at stake”); Nunez v.

City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (noting that a substantive due process claim

requires that a plaintiff, “as a threshold matter, show a government deprivation of life, liberty, or

property”); see also Ingraham v. Wright, 430 U.S. 651, 672 (1977) (noting that due process —

whether procedural or substantive — “is required only when a decision of the State implicates an

interest within the protection of the Fourteenth Amendment”). “A liberty interest may arise from

the Constitution itself, by reason of guarantees implicit in the word ‘liberty’ . . . or it may arise

from an expectation or interest created by state laws or policies.” Austin, 545 U.S. at 221; see also

Sandin v. Conner, 515 U.S. 472, 483–84 (1995) (noting that “States may under certain

circumstances create liberty interests which are protected by the Due Process Clause”).

If the liberty interest at stake is “fundamental,” substantive due process forbids government

infringement “‘at all, no matter what process is provided, unless the infringement is narrowly

tailored to serve a compelling state interest.’” Reno v. Flores, 507 U.S. 292, 302 (1993); cf.

Glucksberg, 521 U.S. at 720 (noting that substantive due process protects only certain

“fundamental” liberty interests); Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir. 2018) (explaining

that “[t]he range of liberty interests that substantive due process protects is narrow,” and therefore

“[o]nly those aspects of liberty that we as a society traditionally have protected as fundamental are

included within the substantive protection of the Due Process Clause”).

The procedural component of the Due Process Clause, on the other hand, “protects more

than just fundamental rights. It protects all liberty interests that are derived from state law or from

the Due Process Clause itself.” Mullins v. Oregon, 57 F.3d 789, 795 (9th Cir. 1995). “The

fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and

in a meaningful manner.’” Eldridge, 424 U.S. at 332. Due process, however, is “flexible and calls

for such procedural protections as the particular situation demands.’” Id. at 334 (quoting Morrissey

v. Brewer, 408 U.S. 471, 481 (1972)); see also Cafeteria Workers v. McElroy, 367 U.S. 886, 895

(1961) (noting that “[t]he very nature of due process negates any concept of inflexible procedures

universally applicable to every imaginable situation”). To determine if a particular procedure

satisfies due process, the court must weigh three factors: “[1] the private interest that will be

affected by the official action; [2] the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or substitute procedural safeguards;

and [3] the Government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entail.”

Eldridge, 424 U.S. at 335.

2. Analysis

Petitioners assert that they have been deprived of their liberty interest in pretrial release

without constitutionally adequate process. Specifically, Petitioners argue that the trial court set bail

at an unaffordable amount without considering their ability to pay, effectively ordering them

detained. Rasmussen Memo. at 20–21. Petitioners argue further that the trial court did so without

ensuring their detention was narrowly tailored to serve a compelling government interest by

finding that they presented a risk of flight or a danger to the community that alternatives to

detention could not reasonably mitigate. Id. at 21. Petitioners also argue that, procedurally, the trial

court failed to make such findings explicit on the record. Id. at 33–34. Rather, Petitioners allege

that the trial court “made no findings at all” to justify detention, and instead entered a de facto

detention order “based on speculation regarding the nature of the charge.” Id.

“Freedom from imprisonment — from government custody, detention, or other forms of

physical restraint — lies at the heart of the liberty” protected by the Due Process Clause. Zadvydas

v. Davis, 533 U.S. 678, 690 (2001); accord Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (noting

that “[f]reedom from bodily restraint has always been at the core of the liberty protected by the

Due Process Clause from arbitrary governmental action”); see also Turner v. Rogers, 564 U.S.

431, 445 (2011) (explaining that “loss of personal liberty through imprisonment” is sufficient to

trigger due process protections); Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017)

(recognizing that it is “beyond dispute” that liberty is a fundamental right). The right to be free

from government restraint is particularly compelling when an individual accused of a crime has

not been convicted at trial or entered a guilty plea. See Stack v. Boyle, 342 U.S. 1, 5 (1951)

(explaining that the “traditional right to freedom before conviction permits the unhampered

preparation of a defense, and serves to prevent the infliction of punishment prior to conviction,”

and that without it, “the presumption of innocence, secured only after centuries of struggle, would

lose its meaning”); see also Gerstein, 420 U.S. at 114 (explaining that “[p]retrial confinement may

imperil the suspect’s job, interrupt his source of income, . . . impair his family relationships” and

hinder his “ability to assist in preparation of his defense”); Lopez-Valenzuela v. Arpaio, 770 F.3d

772, 781 (observing that “the costs to the arrestee of pretrial detention are profound”).

That is not to say, however, that all instances of pretrial detention are unconstitutional.

Indeed, an individual’s “important[t] and fundamental” interest in his liberty “may . . . be

subordinated to the greater needs of society” where the government’s interests are “sufficiently

weighty.” Salerno, 481 U.S. at 750–51; see also Pugh v. Rainwater, 572 F.2d 1053 1056 (5th Cir.

1978) (noting that due process requires “a delicate balancing of the vital interests of the state with

those of the individual”). A criminal defendant therefore may be detained while awaiting trial if

his detention is necessary to further the government’s “substantial interest[s]” in ensuring his

appearance at trial and protecting the community. See Salerno, 481 U.S. at 749 (citing De Veau v.

Braisted, 363 U.S. 144, 155 (1960)) (finding “[t]he government’s interest in preventing crime by

arrestees is both legitimate and compelling”); Bell, 441 U.S. at 534 (noting that “confinement of

[persons accused of crimes] pending trial is a legitimate means of furthering” the government’s

interest in ensuring their appearance at trial); see also Knight v. Sheriff of Leon Cty., 369 F. Supp.

3d 1214, 1219 (N.D. Fla. 2019) (noting that “a state may detain a defendant when necessary to

reasonably assure the defendant’s appearance as required and the safety of the community”). Put

simply, a defendant’s interest in freedom before trial is fundamental, but that interest must yield

where pretrial detention is “narrowly tailored to serve a compelling state interest.” Coleman v.

Hennessy, Case No. 17-cv-06503-EMC, 2018 WL 541091, at *1 (N.D. Cal. Jan. 5, 2018) (citing

Lopez-Valenzuela, 770 F.3d at 780).

A state, therefore, cannot not imprison an individual awaiting trial solely on account of his

indigency because doing so serves no compelling state interest. See Bearden v. Georgia, 461 U.S.

660, 671 (1983) (acknowledging that the Fourteenth Amendment prohibits “punishing a person

for his poverty”). That does not mean, however, that there is a constitutional right to affordable

bail. See United States v. Mantecon-Zayas, 949 F.2d 548, 551 (1st Cir. 1991) (allowing for the

imposition of bail “that a defendant in good faith cannot fulfill” where it is “an indispensable

component of the conditions of release”); see also Gillmore, 302 Or. at 577 (upholding the trial

court’s imposition of a security amount the defendant could not afford because it was necessary to

reasonably assure the attendance of the defendant at trial). Indeed, the Constitution guarantees only

that bail will not be imposed in an amount that is “excessive.” See Salerno, 481 U.S. at 754–55

(noting that the Eighth Amendment does not create an absolute right to bail, but requires only that

“the Government’s proposed conditions of release or detention not be ‘excessive’ in light of the

perceived evil”). Detention resulting from an indigent defendant’s inability to post bail therefore

is not absolutely prohibited, but due process principles require that a trial court must consider the

defendant’s indigency and whether alternative, non-financial conditions of release could

adequately satisfy the purpose of bail before setting bail in an amount the defendant cannot afford.

See Pugh, 572 F.2d at 1057 (concluding that “incarceration of those who cannot [pay bail], without

meaningful consideration of other possible alternatives, infringes on . . . due process . . .

requirements”); see also, e.g., Jones v. City of Clanton, No. 215CV34-MHT, 2015 WL 5387219,

at *2 (M.D. Ala. Sept. 14, 2015) (holding that “the use of a secured bail schedule to detain a person

after arrest, without an individualized hearing regarding the person’s indigence and the need for

bail or alternatives to bail, violates the Due Process Clause of the Fourteenth Amendment”).

In the instant case, the record demonstrates that each Petitioner was afforded at least one,

if not multiple individualized hearings to challenge the security amount as initially set. During his

respective hearings, each Petitioner was represented by counsel and given opportunity to present

witnesses, evidence, and argument as he wished. All hearings were adversarial in nature and

conducted by an impartial decisionmaker. In each case, the trial court expressly considered the

appropriate statutory factors to determine conditions of release — such as criminal history, past

instances of failing to appear, and the defendant’s indigency, the nature of the alleged crimes and

the sentence that each defendant could receive if convicted, among other things — before then

setting a bail amount. In several cases, the victim submitted a statement to the trial court that

provided additional evidence relevant to the inquiry. See Slight, 301 Or. App. at 254 (holding that

a statement provided by the victim’s mother constituted admissible evidence properly considered

by the trial court in making a release decision). In each case, the trial court also considered the

argument that bail as originally set was excessive, as evidenced by the fact that she reduced the

amount in every instance. The trial court noted the individual considerations motivating the

decision to reduce the security amount and to impose additional conditions of release in each case.

Moreover, Petitioners each had the opportunity to request reconsideration of the trial court’s

determination as many times as they wished, which the trial court uniformly granted, and each was

permitted to appeal the trial court’s bail determination to the Oregon Supreme Court. This Court

thus cannot say that Petitioners’ due process rights were violated because the record indicates that

each received the process to which he was due.

Petitioners nevertheless contend that the trial court failed to make adequate findings that

their detention is narrowly tailored to serve the State’s compelling interest. Pet’r’s Reply at 10.

Specifically, Petitioners argue that the trial court could not have made the required substantive

findings because it was “explicitly not attempting to justify detention,” but rather considering

appropriate conditions of release under Oregon’s statutory scheme. Id. at 11–12. Petitioners also

argue that the procedures utilized by the trial court were constitutionally inadequate because in

each case, the trial court failed to make adequate findings concerning dangerousness or flight risk,

failed to inquire into less restrictive alternatives to further the State’s interests, and failed to make

such findings by clear and convincing evidence. Pet’rs’ Memo. at 28, 33.

As an initial matter, Petitioners’ argument that the trial court could not have made the

requisite substantive findings because it engaged in a separate inquiry under Oregon law is

unpersuasive. Oregon law requires state trial courts to first determine whether a defendant is

releasable under O.R.S. 135.240(4), and if so, it then must then consider the primary and secondary

release criteria to determine the least onerous conditions of release that will ensure the defendant’s

attendance at trial and protect the community from any danger the defendant might pose. See

O.R.S. 135.240(4)(a) (governing eligibility for release for defendants accused of violent felonies);

O.R.S. 135.245(3) (requiring that where recognizance relief is inappropriate, the trial court must

impose the least onerous type of release to ensure attendance and community safety). The primary

and secondary release criteria speak to factors that may increase or decrease a defendant’s potential

risk of flight or danger to the community, and thus inform the presiding judge’s determination as

to what condition, or combination of conditions, may be appropriate in a given case. In other

words, in determining the appropriate conditions of release pursuant to the statutory scheme, the

judge is considering the very issues that due process requires.

Furthermore, the release criteria address the appropriate form of release appropriate for a

given case. In all cases presently before the Court, Petitioners are all charged with at least one

extremely serious offense with mandatory minimum sentences under O.R.S. 137.700,9 which

forecloses the possibility of recognizance release and mandates the imposition of security release

in a minimum amount of $50,000. The security amount may be reduced if the court determines the

9 Gillihan was not charged with any Measure 11 offenses, but all charges against him

constituted violent felonies under Oregon’s statutory release scheme.

amount imposed is constitutionally excessive. See O.R.S. 135.240(5). 10 Bail is excessive if set in

an amount higher than necessary to further a compelling government interest — i.e., “a figure

higher than an amount reasonably calculated [to ensure the defendant’s presence at trial.]” Stack,

342 U.S. at 5. Accordingly, the trial court was not required to justify detention pursuant to O.R.S.

135.240(4)(a), but the court instead was required to consider whether the security amount set in

each case was necessary to further the State’s interests. The trial court evaluated the individual

circumstances in each case, including each defendant’s financial ability to pay bail, and based on

that analysis, determined that the circumstances warranted some reduction in the statutorily

provided security amounts.

This Court is not persuaded by Petitioners’ insistence that their continued detention is

unconstitutional because the trial court failed to make requisite findings concerning their ability to

pay the bail amount set, failed to consider alternatives to detention, and otherwise failed to make

10 O.R.S. 135.240(5) provides, in relevant part:

(a) Notwithstanding any other provision of law, the court shall set a security of

amount of not less than $50,000 for a defendant charged with an offense listed in

ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) .

. . unless the court determines that amount to be unconstitutionally excessive, and

may not release the defendant on any form of release other than a security release

if:

(A) The United States Constitution or the Oregon Constitution prohibits the denial

of release under [O.R.S. 135.240(4)];

(B) The court determines that the defendant is eligible for release under subsection

(4) of this section; or

(C) The court finds that the offense is not a violent felony.

(b) In addition to the security amount describe in paragraph (a) of this subsection, the court

may impose any supervisory conditions deemed necessary for the protection of the victim

and the community.

factual findings to justify their pretrial detention. In each case, the trial court expressly

acknowledged and considered the Petitioners’ indigency in reducing the initial security amount.

See Dickens Decl., Ex. 3 at 13 (expressly finding that “ [Rasmussen] does not have significant

assets,” and considering his indigence in lowering the security amount); Raney Pet., App’x at 48–

49 (considering Raney’s inability to pay security amount as set, acknowledging his indigence, and

reducing the security amount); Dickens Decl., Ex. 5 at 29–30 (finding that Mee is not “someone

who has significant means” to afford security as set, and “[k]nowing all of that,” reducing the

security amount); Villeda Pet., App’x at 36–37 (noting that the security amount was reduced

“specifically in light of the defendant’s indigent status”). Moreover, as explained above, the trial

court considered the appropriate factors in each case, implicitly concluded the initial security

amount was excessive, and reduced the security amount as necessary to ensure each Petitioners’

attendance at trial. See Delaney, 218 Or. at 628 (holding that the amount of bail imposed must be

determined based on a variety of factors, including nature of the offense, the likely punishment if

convicted, the character of the defendant, the defendant’s previous failures to appear as ordered,

and the likelihood that the defendant will show up for trial); see also Gillmore, 302 Or. 579 (noting

that only factors going to flight risk are considered in setting a security amount, but dangerousness

may also be considered to determine if conditions other than security are appropriate). That

Petitioners still could not afford the reduced amount does not in and of itself violate the

Constitution. See United States v. Jessup, 757 F.2d 378, 388-89 (1st Cir. 1985) (holding that a

judge is entitled to set bail at an amount necessary to mitigate risk of flight, and if such amount is

unaffordable and causes that defendant to be detained, such detention is “not because he cannot

raise the money, but because without the money the risk of flight is too great”). Although the trial

court’s findings could have been articulated more clearly, the record reflects the presiding judge

based her bail determinations on the proper criteria, and her determinations are entitled to

deference. See Delaney, 218 Or. at 628 (explaining that a bail decision will not be disturbed absent

“a clear abuse of discretion”).

Finally, Petitioners’ argument that constitutionally adequate process is afforded only if the

trial court makes findings on the record under a “clear and convincing” evidentiary standard is

unpersuasive. The Oregon Constitution and statutory release scheme requires a clear and

convincing evidentiary standard with respect to a defendant’s dangerousness to deny release

without bail. See Or. Const. art. I, s 43(1)(b); O.R.S. 135.240(4)(a). The release statute applicable

to offenses brought pursuant to O.R.S. 137.700, such as those at issue in this case, requires the

court to impose a $50,000 minimum security amount and consider whether additional conditions

of release are necessary. O.R.S. 135.240(5)(a). A defendant, however, may challenge the bail

amount as excessive. Id. Accordingly, the statutory scheme for offenses brought under O.R.S.

137.700 is not a mandatory detention statute which requires a clear and convincing finding.

In order to determine the appropriate conditions of release in any particular case under

O.R.S. 137.700, courts may consider whether a defendant poses a danger to the community and a

flight risk. See Gillmore, 302 Or. at 579 (holding that the court may consider factors going to risk

of flight and dangerousness to determine whether bail should be reduced or alternative conditions

of release should be imposed); O.R.S. 135.240(5) (instructing that security release is mandatory

for Measure 11 defendants, but the court may impose any additional conditions of release

necessary to protect the victim and the community). In determining the amount of bail that is

appropriate under the circumstances, the court considers only what amount will reasonably assure

the defendant’s appearance. O.R.S. 135.265(1). Oregon law is silent as to the appropriate

evidentiary standard for flight risk, but some federal courts that have considered the question have

found that a preponderance of the evidence standard does not offend due process. See Hill, 2019

WL 4928915, at *17 (noting that a preponderance of the evidence standard is appropriate in the

context of pretrial detention “where the government’s strong and compelling interests in protecting

the safety of the community and in ensuring the defendant’s appearance in court must be weighed

against the individual’s right to personal liberty pending trial”); Weatherspoon, 2018 WL 1053548,

at *8 (rejecting the petitioner’s argument that United States v. Salerno requires findings by clear

and convincing evidence, reasoning that Salerno applied a clear and convincing standard because

the Federal Bail Reform Act specifically called for it, and finding that the preponderance of the

evidence standard dictated by the Tennessee Bail Reform Act did not violate the constitution). To

the extent that Petitioners ask this Court to instruct the state courts as to the proper burden of proof

with respect to risk of flight, this Court declines to do so.

Whether the writ should issue in this case requires only a determination that the procedures

received by Petitioners were or were not constitutionally adequate. Indeed, the claims at issue here

are framed as individual constitutional violations that do not require this Court to weigh in on the

manner in which Oregon courts must conduct release hearings generally. This Court thus declines

to issue an advisory opinion as to the specific procedural framework that should govern bail

determinations in Oregon. See Coleman, 2018 WL 541091, at *2 (declining to issue guidance to

the state court as to the proper burden of proof because the petitioner’s request to do so “effectively

ask[ed] [the] Court to issue an advisory opinion”); Rodriguez-Ziese v. Hennessy, Case No. 17-cv-

06473-BLF, 2017 WL 6039705, at *3 (N.D. Cal. Dec. 6, 2017) (declining the petitioner’s

“invitation to issue an advisory opinion to the state trial court” to “expressly describe the

procedural safeguards required for a constitutionally permissible bail hearing”). Though this

Court’s analysis assuredly would benefit had the trial court clearly articulated the standard of proof

she applied with respect to flight risk, this Court is not of the opinion that a clear and convincing

evidentiary standard is necessary to avoid a constitutional violation. See Cafeteria Workers, 367

U.S. at 895 (recognizing that that due process is flexible, and does not require the imposition and

satisfaction of rigid, universally applicable procedural frameworks to satisfy its requirements). The

Court, therefore, is satisfied that even absent a specified standard of proof, Petitioners received all

the process to which they were entitled under the circumstances. There was ample evidence of

both risk of flight and dangerousness to satisfy a preponderance of the evidence and a clear and

convincing standard. Accordingly, this Court finds the conditions imposed and the bail amount

were supported under any standard.

In sum, Petitioners were afforded due process. They each had a meaningful opportunity to

be heard, they each received as many hearings as they requested, they each were represented by

counsel throughout, and they each were permitted to present any evidence they wished. The trial

court’s decision reducing the security amount in each case demonstrated that the presiding judge

had before her and considered appropriate statutory factors concerning Petitioners’ flight risk and

dangerousness to determine conditions of release and then set a security amount. The presiding

judge found the initial security amount excessive in every instance, but she was required only to

reduce it to an amount necessary to reasonably ensure Petitioners’ attendance at trial, not an

amount that Petitioners necessarily could afford. The Oregon Supreme Court has articulated the

manner in which release determinations must be made in Oregon, and those procedures comport

with due process. The trial court properly abided by those procedures and the individual bail

determinations at issue deserve deference. This Court thus concludes that Petitioners’ continued

detention does not violate due process. Accordingly, habeas relief is DENIED.

2. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment prohibits a state from

“deny[ing] to any person within its jurisdiction the equal protection of the laws.” In other words,

the Equal Protection Clause commands “that all persons similarly situated should be treated alike.”

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S.

202, 216 (1982)); see also Williams v. Illinois, 399 U.S. 235, 241 (1970) (acknowledging the

Court’s “allegiance to the basic command that justice be applied equally to all persons”). Under

the Equal Protection Clause, imprisonment “solely because of indigent status is invidious

discrimination and not constitutionally permissible.” Pugh, 572 F.2d at 1056 (citing Williams, 399

U.S. 235).

Petitioners argue that the trial court violated their rights to equal protection by setting bail

without considering their indigency. Specifically, Petitioners claim the trial court failed to make

“procedurally proper finding[s] that [they are each] able to pay” the bail amounts set in their

respective cases. Rasmussen Memo at 13–14. However, as explained above, the trial court

explicitly considered Petitioners’ indigence in each case, and nonetheless set a security amount it

determined to be necessary to further the State’s interests. Indeed, the trial court set security in

each case with respect to Petitioners’ individual circumstances. There is no indication from the

record before this Court that Petitioners were imprisoned solely on the basis of their indigent status,

or that the trial court subjected Petitioners to invidious discrimination on the basis of financial

status. Accordingly, Petitioners’ rights to equal protection were not violated, and habeas relief is

DENIED.

Conclusion

For the reasons stated, Petitioners’ habeas petitions pursuant to 28 U.S.C. § 2241 are

DENIED, and this proceeding is DISMISSED, with prejudice. Petitioners have not made a

substantial showing of the denial of a constitutional right, and therefore this Court DENIES a

Certificate of Appealability. See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

DATED this 27th day of September, 2020.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge