[00:00:00] Speaker 06:
Good morning.

[00:00:03] Speaker 06:
I would like to reserve eight minutes.

[00:00:04] Speaker 00:
How long?

[00:00:05] Speaker 06:
Eight minutes, please.

[00:00:06] Speaker 00:
Eight minutes, okay.

[00:00:07] Speaker 00:
Well, that's aspirational, but we'll see how it goes.

[00:00:11] Speaker 00:
Thank you.

[00:00:12] Speaker 00:
We'll give you something.

[00:00:14] Speaker 06:
May it please the court?

[00:00:16] Speaker 06:
Council?

[00:00:17] Speaker 06:
Kelly Rudd along with Erin Olson here today on behalf of EJT.

[00:00:23] Speaker 06:
Like every other state in the nation, Oregon has laws mandating the report of child abuse.

[00:00:29] Speaker 06:
Oregon laws go further and require both cross-reporting and investigation into the nature and the cause of the abuse.

[00:00:38] Speaker 06:
Sheriff's Deputy Anderson took neither of those steps required by Oregon law.

[00:00:43] Speaker 06:
No cross-report, no investigation.

[00:00:46] Speaker 06:
Based on a brief glance at EJT and a third-hand conjecture from Mom, he left the hospital and told dispatch to give the call to tribal police.

[00:00:59] Speaker 06:
Tribal police officer Arne Fard was the second police officer dispatched to St.

[00:01:04] Speaker 06:
Charles Madras Hospital to investigate abuse of EJT.

[00:01:10] Speaker 06:
Officer Arne Fard was certified under Senate Bill 412 and had full state law enforcement authority.

[00:01:17] Speaker 04:
Once somebody's certified under Senate Bill 412, does that mean that a tribal police officer has an obligation to investigate non-tribal crimes?

[00:01:27] Speaker 06:
I believe he does, Your Honor.

[00:01:29] Speaker 04:
Every time.

[00:01:31] Speaker 06:
As a mandatory child abuse reporter in Oregon, I believe he does.

[00:01:36] Speaker 04:
So you believe that any time that a tribal police officer receives a report of child abuse, that tribal police officer has an obligation to pursue it to the end, regardless of whether or not the perpetrator is a reservation member or lives on the reservation.

[00:01:54] Speaker 06:
I believe he's like other mandatory child abuse reporters

[00:01:59] Speaker 06:
under Oregon law and he has a 24-7-365 obligation to report child abuse.

[00:02:05] Speaker 04:
Would that mean that in this respect at least the tribe is governed by Oregon law?

[00:02:10] Speaker 06:
No, I don't believe so.

[00:02:12] Speaker 04:
And what would be the practical distinction?

[00:02:15] Speaker 06:
Well, the individual officer, Officer Arendt Ford, is governed by Oregon law and

[00:02:23] Speaker 04:
Well, the individual officer is acting as a tribal law enforcement officer, isn't he or she?

[00:02:29] Speaker 06:
I believe he's acting as both.

[00:02:31] Speaker 04:
And I say that with Bressi v. Ford in mind, which is a case where the Ninth Circuit... We conclude that a roadblock on a public right of way within tribal territory established on tribal authority is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time and the nature of the inquiry.

[00:02:53] Speaker 06:
I think that's an accurate quote, Your Honor.

[00:02:55] Speaker 04:
And it's from Bressie.

[00:02:57] Speaker 04:
Yes.

[00:02:57] Speaker 04:
So wouldn't that suggest that there are limitations on what a tribal police officer should do or is required to do?

[00:03:05] Speaker 06:
I believe what it says next to that in Bressie is we look to the function that the cross-authorized tribal police officer was undertaking.

[00:03:17] Speaker 04:
And so you look at what they actually did.

[00:03:21] Speaker 06:
You look at what they actually did.

[00:03:23] Speaker 04:
What did Officer Aryanfar do here that suggests that this was more than an investigation of a tribal crime?

[00:03:32] Speaker 06:
He reacted to EJT presenting off reservation at St.

[00:03:41] Speaker 06:
Charles Madras.

[00:03:43] Speaker 06:
EJT, a non-enrolled person who resides off reservation,

[00:03:50] Speaker 04:
He didn't do anything until EJT arrived on the reservation, did he?

[00:03:54] Speaker 06:
No.

[00:03:56] Speaker 06:
In our view, it is premised on what happened when Arnfard responded to dispatch and EJT was held based on Arnfard's direction off reservation at St.

[00:04:12] Speaker 04:
Charles.

[00:04:13] Speaker 04:
Where can you show me that in the record?

[00:04:14] Speaker 04:
I can see that the hospital, from the record, I can see that the hospital didn't let him go.

[00:04:19] Speaker 04:
until they told hospital personnel that they would take him to Warm Springs.

[00:04:24] Speaker 04:
But I can't see anywhere in the record where it says that EJT directed the hospital not to let him go.

[00:04:32] Speaker 06:
I just want to make sure I follow you, Your Honor.

[00:04:34] Speaker 06:
You can't see in the record where Arendt Ford told

[00:04:42] Speaker 06:
the hospital not to let them go?

[00:04:43] Speaker 04:
Correct.

[00:04:45] Speaker 04:
And even if he did, how does that result in an off-tribal investigation?

[00:04:51] Speaker 06:
Well, he's authorized as a cross-certified officer under Oregon law.

[00:04:59] Speaker 06:
He carries Senate 412 authority, and he is directing

[00:05:09] Speaker 06:
In something like investigative detention, what happens to the child?

[00:05:15] Speaker 05:
But see, that's going to his question, though.

[00:05:18] Speaker 05:
Where in the record does it say, or does it show, that he was directing them, ordering them to not release until he went to Cleveland?

[00:05:30] Speaker 06:
I believe what we have in the record is statements from mom and grandma.

[00:05:36] Speaker 04:
And I believe we have... Those wouldn't be admissible though, would they?

[00:05:41] Speaker 04:
I haven't... I've looked in the record.

[00:05:45] Speaker 04:
And so if it's in the record, I would be glad to have you tell me.

[00:05:47] Speaker 04:
But I have.

[00:05:49] Speaker 04:
Nurse Miller advised mother and grandmother that if they promised to take EJT down to the Tribal Police Department to speak with Officer Arjenvard, they could leave the hospital.

[00:05:59] Speaker 06:
Well, in the record, and I will find it when I sit down, I believe there is

[00:06:07] Speaker 06:
Officer Arnfart under oath acknowledging that EJT was held at the hospital based on his direction.

[00:06:16] Speaker 06:
We also have statements in the record from mom and grandmother that when they did check with the sheriff and asked do we have to go down to the reservation and the sheriff said you better.

[00:06:31] Speaker 04:
The Jefferson County Sheriff.

[00:06:32] Speaker 06:
The Jefferson County Sheriff.

[00:06:34] Speaker 06:
That when they presented at the

[00:06:37] Speaker 06:
Tribal Police Station, they were told by somebody in the waiting room that you're not free to leave.

[00:06:45] Speaker 06:
They said, we want to leave, and they said, you better not.

[00:06:48] Speaker 04:
And so you're attributing that to Officer Arjen Vard?

[00:06:51] Speaker 06:
I am attributing it to Officer Arjen Vard, and I think it's something like investigative detention that we see in a DV context.

[00:06:59] Speaker 04:
Let me ask you this.

[00:07:01] Speaker 04:
Is it possible for a Tribal Police Officer

[00:07:04] Speaker 04:
to investigate a non-tribal abuse off the reservation?

[00:07:11] Speaker 06:
Yes, particularly if they're cross-authorized, and I think Breast-CV Ford speaks to that.

[00:07:15] Speaker 04:
Well, do they have to be cross-authorized to investigate a tribal crime off the reservation?

[00:07:23] Speaker 06:
I'm not sure I could...

[00:07:25] Speaker 06:
speak to that definitively, generally, Your Honor.

[00:07:29] Speaker 04:
Well, generally, give me your best bet then on this case.

[00:07:33] Speaker 04:
In the confines of this case, would it have been possible for Officer Arjenfar to investigate an on-reservation abuse off the reservation?

[00:07:45] Speaker 06:
Within the confines of this case, yes, and I'm saying that for two reasons.

[00:07:49] Speaker 06:
One, I believe in Officer Arjenfar's deposition,

[00:07:53] Speaker 06:
which is in the record, he says he regularly goes to St.

[00:07:57] Speaker 06:
Charles' Madras to respond to reports.

[00:08:01] Speaker 06:
And he also speaks about his two hats and his law enforcement authority in the state of Oregon, which extends beyond the reservation.

[00:08:11] Speaker 06:
Am I addressing your question?

[00:08:12] Speaker 04:
No, I just want to be mindful of the amount of reservation time you asked, and I'm dominating this, and it won't give my colleagues a chance, but I want to ask one more question.

[00:08:23] Speaker 04:
Yes.

[00:08:24] Speaker 04:
Assume for a second, and I'm not saying this is so, but assume the panel determines that Officer Arjen Fard was acting at all times, affirms the district court in its determination that Officer Arjen Fard was acting at all times as a tribal, investigating a tribal crime.

[00:08:42] Speaker 04:
If then we were to find also that as to Officer Anderson, you do not state a discrimination claim, should we answer anything, should we answer any of the rest of the questions posed by this appeal?

[00:09:02] Speaker 04:
You're asking me to assume... One, that Officer Arjen Fard was acting as a tribal police officer and not enforcing Oregon law.

[00:09:11] Speaker 04:
And number two, that Officer Anderson, that you haven't stated a claim that the district court was correct when it dismissed your discrimination claim against Officer Anderson.

[00:09:23] Speaker 04:
If that's true, all the remaining state law claims we exercise only through supplemental jurisdiction, don't we?

[00:09:30] Speaker 06:
Yes, and our position would be that the district court still has the same supplemental jurisdiction

[00:09:39] Speaker 06:
that it had and was exercising when Judge Hernandez... Sure, sure.

[00:09:46] Speaker 04:
...didn't respond to a dismissal.

[00:09:47] Speaker 04:
And I'm not arguing that there is supplemental jurisdiction, but the question is, as it pertains to the remaining Oregon law, isn't that a question that hasn't yet been decided by Oregon courts, despite the fact that a separate question has already been certified in this action?

[00:10:04] Speaker 06:
And the remaining question is whether there's a negligence claim?

[00:10:10] Speaker 04:
Well, it isn't whether there's a negligence claim.

[00:10:12] Speaker 04:
That remains, but it is a state law question, as is the question of whether or not we should consider a young child of two and a half years old as being incapacitated for purposes of the protective statute.

[00:10:32] Speaker 06:
The abuse of a vulnerable person statute.

[00:10:36] Speaker 06:
Our position is that the abuse of a vulnerable person claim that was dismissed.

[00:10:46] Speaker 00:
Well, you have no state law that says that's a kid, that's a little child, that the little child is impaired.

[00:10:54] Speaker 00:
is impaired under this statute.

[00:10:56] Speaker 00:
You have no case law to support your theory that it's a violation of that statute, right?

[00:11:03] Speaker 00:
You're asking us to interpret the statute to say that a small child would be impaired, correct?

[00:11:10] Speaker 06:
We're asking you to interpret the plain language of the statute to... Right, but you have no organ case law that has interpreted it that way.

[00:11:18] Speaker 06:
We've got the references in the statute that incorporate crimes against children.

[00:11:23] Speaker 00:
But you also have other things in the statute where they specifically deal with abusive children.

[00:11:29] Speaker 00:
And obviously, your friends on the other side are arguing that we're talking about a completely different situation in this.

[00:11:36] Speaker 00:
So that's not a question that was answered.

[00:11:39] Speaker 00:
We can answer that question.

[00:11:42] Speaker 00:
We can interpret the statute.

[00:11:43] Speaker 00:
And it would apply to this case if we didn't publish.

[00:11:48] Speaker 00:
But by the same token, that's not binding on Oregon state case law.

[00:11:53] Speaker 00:
anyway, right?

[00:11:56] Speaker 06:
I take the point that there hasn't been

[00:12:02] Speaker 06:
Perfect clarity from the Oregon Supreme Court.

[00:12:05] Speaker 06:
Yes, so far on that point.

[00:12:08] Speaker 00:
There is herring.

[00:12:10] Speaker 00:
I have a couple of questions.

[00:12:12] Speaker 00:
This is a tragic case, no doubt, and that we see the tragedy of this particular case.

[00:12:21] Speaker 00:
This child now, after this incident, six weeks later, got beat within an ounce of his life.

[00:12:29] Speaker 00:
And is really pretty... What's the condition of the child right now?

[00:12:36] Speaker 06:
Catastrophically brain injured.

[00:12:38] Speaker 06:
The last time I had a report, he accomplished a milestone nobody thought he would, which was being able to roll over.

[00:12:46] Speaker 00:
So he's basically just in terrible shape.

[00:12:49] Speaker 00:
And my understanding is the perpetrator of these crimes was the boyfriend that was living with the mother and the grandmother, correct?

[00:12:57] Speaker 06:
Yes, Your Honor.

[00:12:58] Speaker 00:
And it's also my understanding that the mother and the grandmother never said to anyone at the hospital or any of the officers that there was a boyfriend that was taking care of this child too.

[00:13:13] Speaker 06:
there was no investigation undertaken by Anderson that would have allowed them to require that information.

[00:13:18] Speaker 00:
Well, but the mother said she was having problems with the father on the reservation, and so she said, well, he must have done it.

[00:13:24] Speaker 00:
But no one says, hey, there's another person that's taking care of this kid who's the boyfriend, who in fact, my understanding now, he's pled not only to the incident of the genital bruising and everything that we have here, he's also pled guilty to a second incident of when he beat the child with

[00:13:43] Speaker 00:
You know, I like to think that it's fortunate that he survived, but it sounds like he survived in a terrible condition.

[00:13:50] Speaker 00:
So that's undisputed at this point.

[00:13:52] Speaker 00:
He's doing, what, 144 months for all of that?

[00:13:57] Speaker 06:
The perpetrator, the abuser, is in jail.

[00:14:01] Speaker 00:
Yes.

[00:14:01] Speaker 00:
So let me just mention the elephant in the room.

[00:14:06] Speaker 00:
The mother and the grandmother are taking care of this child on a daily basis.

[00:14:11] Speaker 00:
It's a little tiny child who we know was wearing diapers and any of us that have had children or anything along these lines know that you regularly see children's bodies when you're caring for them at that particular age.

[00:14:24] Speaker 00:
The mother and the grandmother mention nothing about this boyfriend who we now know was in fact

[00:14:31] Speaker 00:
having access to the child, they continue to leave the child.

[00:14:34] Speaker 00:
Why isn't all of this, all these legal theories that we're questioning and just an effort to the mother and the grandmother did not protect this child?

[00:14:46] Speaker 00:
Undisputed.

[00:14:46] Speaker 00:
This child, this no one protected this child is what you're saying and the boyfriend certainly

[00:14:53] Speaker 00:
abuse the child.

[00:14:55] Speaker 00:
But now you're asking that the officers, the tribal officer, the other officer, and that the county somehow had animus and didn't, of a discriminatory nature, that they should be responsible for what happened to this child.

[00:15:09] Speaker 00:
Is that right?

[00:15:11] Speaker 00:
Is that the elephant in the room here?

[00:15:13] Speaker 06:
I believe you've told me it is, Your Honor, so I have to do my best to speak to it.

[00:15:18] Speaker 00:
It would seem that I've identified three people that are significantly more responsible here than the people that you're trying to hold responsible.

[00:15:28] Speaker 06:
Is there a question there to me, Your Honor, or should I?

[00:15:31] Speaker 00:
Well, it's just like we're saying.

[00:15:33] Speaker 00:
If the tribal officer was only acting as a tribal officer, then other issues fall aside.

[00:15:39] Speaker 00:
The vulnerable, well, it was certified to the Supreme Court whether you could bring a private action on the mandatory reporting.

[00:15:48] Speaker 00:
They said no.

[00:15:49] Speaker 00:
But you still are arguing that as part of your negligence claim, correct?

[00:15:55] Speaker 06:
Yes, what I would say primarily in response to that is Oregon law requires investigation and cross-reporting, and a methodology of investigation that was never undertaken.

[00:16:07] Speaker 06:
And if it had been, we believe you can see on this record that this abuse would have never happened.

[00:16:14] Speaker 06:
And I would direct the court.

[00:16:15] Speaker 00:
Well, the abuse never would have happened if the mother and the grandmother had protected this child and the boyfriend had not beat the child.

[00:16:24] Speaker 00:
almost to death.

[00:16:25] Speaker 00:
That never would have happened.

[00:16:27] Speaker 00:
Yes, and if in fact someone knew that, but you have to establish that somehow what they did, it falls short.

[00:16:36] Speaker 06:
Well, what we are saying, what I am saying, Your Honor, is that neither officer

[00:16:41] Speaker 06:
did the investigation required under Oregon law or made the cross report under Oregon law.

[00:16:47] Speaker 06:
And if you look at the deposition of Faith Decides, which is in the record, you can see the causal connection about the failure to cross report.

[00:16:59] Speaker 04:
Does that lead us back to the statute which imposes a reasonable person standard?

[00:17:03] Speaker 04:
Do we impose a reasonable law enforcement officer standard when the statute says a reasonable person standard?

[00:17:09] Speaker 04:
Do you know what I'm talking about, Section 5?

[00:17:12] Speaker 06:
I am basing it primarily on the text of the child abuse reporting laws, Your Honor, and I should reserve my time.

[00:17:20] Speaker 00:
Let me find out if... My panel doesn't have additional questions right now, so you can reserve the balance of your time.

[00:17:26] Speaker 00:
Thank you.

[00:17:27] Speaker 00:
All right, so who are we hearing from first?

[00:17:29] Speaker 00:
Please state your appearance at the podium.

[00:17:31] Speaker 00:
Good morning.

[00:17:32] Speaker 01:
Jonathan Henderson for Appellee Arjang Arianfard.

[00:17:38] Speaker 01:
I've got seven minutes.

[00:17:39] Speaker 01:
I'm going to skip around a little bit.

[00:17:42] Speaker 01:
I want to give you an update first.

[00:17:43] Speaker 01:
This matter is in the tribal court.

[00:17:45] Speaker 01:
The tribal court has started moving this case along about two weeks ago, and there was a hearing in a month on the- So it's not completely exhausted, but it is doing it.

[00:17:56] Speaker 01:
Yes, it's moving along in the tribal court now.

[00:18:02] Speaker 01:
Nobody has ever really disputed in this case that Oregon law would not apply to a tribal officer investigating a tribal crime on a reservation.

[00:18:11] Speaker 01:
That would be an intrusion into tribal sovereignty by the state.

[00:18:14] Speaker 01:
There's no dispute about that.

[00:18:16] Speaker 01:
The jurisdictional hook here was always this Senate Bill 412.

[00:18:21] Speaker 01:
And below,

[00:18:23] Speaker 01:
what plaintiff argued was once you're certified, you're always certified and you're always on and it doesn't matter where you're at or what you're doing, you're acting as a state officer and therefore jurisdiction against you would be proper in state court and under supplemental jurisdiction in the federal court.

[00:18:40] Speaker 01:
That argument was rejected by the district court in a case called Weaver versus Gregory that this court affirmed

[00:18:46] Speaker 01:
in 2022 or 23.

[00:18:49] Speaker 01:
So plaintiff has changed their theory on appeal and now says there's various reasons why you should infer that Officer Arienvard put on his Senate bill 412 hat, even though he says, I never did that, I never had any reason to do that.

[00:19:03] Speaker 01:
I was told, and this is undisputed, I was told only that I was investigating a potential crime committed by a member of the tribe on the reservation.

[00:19:13] Speaker 01:
I had no reason to do anything else.

[00:19:15] Speaker 01:
And so those arguments are first this coercion argument where plaintiff says now that officer are inferred somehow coerced EJT and his family to come.

[00:19:26] Speaker 05:
Well, he says he's going to pull the record.

[00:19:29] Speaker 05:
Do you know anything about the record?

[00:19:31] Speaker 01:
It's not there.

[00:19:31] Speaker 01:
Okay.

[00:19:31] Speaker 01:
So what happened is Nurse Miller says look there's injuries we need to report these and

[00:19:38] Speaker 01:
contacts Deputy Anderson.

[00:19:40] Speaker 01:
Deputy Anderson asks, where did this happen?

[00:19:43] Speaker 01:
And the answer was, it happened on the reservation by dad.

[00:19:46] Speaker 05:
It turns out that's wrong.

[00:19:47] Speaker 01:
It turns out that's wrong.

[00:19:49] Speaker 01:
There's evidence in the record to suggest that they knew that was wrong.

[00:19:53] Speaker 01:
And then she contacts Arienvart, Officer Arienvart.

[00:19:57] Speaker 01:
Arienvart says, look, I am busy.

[00:19:59] Speaker 01:
I'm the only one here right now.

[00:20:01] Speaker 01:
I can't make it to the hospital yet.

[00:20:02] Speaker 01:
It's going to be a long time.

[00:20:04] Speaker 01:
And the evidence shows that mom and grandma are with EJT, and he's getting restless, and they want to leave.

[00:20:09] Speaker 01:
And so they say, we want to leave.

[00:20:10] Speaker 01:
And Nurse Miller says, well, not unless you agree to go make a report with Arianfard.

[00:20:15] Speaker 01:
And they do that.

[00:20:17] Speaker 01:
That's not Arianfard coercing anybody to do anything.

[00:20:19] Speaker 05:
He just indicated that there was something in the record that Arianfard apparently directed in some way.

[00:20:25] Speaker 01:
I don't think that there is anything in there, not to my memory.

[00:20:29] Speaker 01:
Moreover, it's not as if Arianfard can somehow

[00:20:32] Speaker 01:
That does not indicate an invocation of state law enforcement authority, even if you did say, hey, can you hold them there until I get a chance to come down?

[00:20:40] Speaker 01:
Because to answer Judge Snow's question, yes, they can go off reservation to investigate an on-reservation crime.

[00:20:48] Speaker 01:
They do that all the time.

[00:20:49] Speaker 01:
They did it long before Senate Bill 412.

[00:20:52] Speaker 01:
They did it specifically at this hospital because victims of crimes on the reservation go to that hospital.

[00:20:58] Speaker 01:
There is no hospital on the reservation.

[00:21:00] Speaker 01:
And so it's common for law enforcement to travel from the reservation to the hospital to make reports regarding crimes.

[00:21:05] Speaker 01:
They do that all the time.

[00:21:07] Speaker 01:
He couldn't do that here because he was understaffed.

[00:21:10] Speaker 01:
So the issue below was solely whether or not he ever put on his 412 hat.

[00:21:16] Speaker 01:
And that is a jurisdictional issue

[00:21:19] Speaker 01:
And it's subject to a deferential clear error standard and the trial court found After asking the party specifically lifting a stay on discovery and asking the party specifically for questions regarding this issue Namely, what did officer are in fart?

[00:21:35] Speaker 01:
No, or what was he told and the parties went out and conducted extensive discovery and

[00:21:40] Speaker 01:
It took a year for this briefing and the discovery and to submit voluminous amounts of evidence back into the trial court.

[00:21:46] Speaker 01:
This is the evidence that was omitted from the excerpt of record in the opening brief, where we put in and said, look, here's the testimony, and it's undisputed that he at all times thought he was investigating whether Thomas, a member of the tribe, had abused

[00:22:02] Speaker 01:
the child while he was at dad's house on the reservation.

[00:22:05] Speaker 01:
And what he learned was that Thomas said, no, I think he was injured when he was playing on a table.

[00:22:10] Speaker 01:
I don't know.

[00:22:10] Speaker 01:
I didn't abuse him, but he was playing on a table and he took a tumble.

[00:22:14] Speaker 01:
And Arienfar concluded Thomas did not abuse him.

[00:22:19] Speaker 00:
So did the mother had taken the child

[00:22:26] Speaker 00:
for injuries previously.

[00:22:28] Speaker 01:
That's right.

[00:22:29] Speaker 00:
Were the arm, an elbow situation then?

[00:22:32] Speaker 00:
Yes.

[00:22:33] Speaker 00:
And did any of the officers know any of that or do they?

[00:22:40] Speaker 00:
No.

[00:22:40] Speaker 00:
Is that undisputed?

[00:22:42] Speaker 01:
I think that's undisputed.

[00:22:43] Speaker 01:
They did not know that.

[00:22:44] Speaker 01:
And like I said, what the record shows is, kid goes to Thomas's house, comes back, no injuries, looks fine.

[00:22:53] Speaker 01:
The next morning, he's left the full day with Mendoza.

[00:22:57] Speaker 01:
And then the next day, mom brings him to the babysitter.

[00:23:00] Speaker 01:
And babysitter says, he's got scratches on his face.

[00:23:02] Speaker 01:
He's got bruises all over.

[00:23:04] Speaker 01:
It was clear where this happened.

[00:23:06] Speaker 00:
But they never told any of the officers about the boyfriend that was living in the house and had had access to the child prior to going to the hospital.

[00:23:16] Speaker 01:
Never said that.

[00:23:16] Speaker 01:
And that is undisputed.

[00:23:20] Speaker 01:
had no reason to think he was investigating anything else other than Thomas for an on-reservation crime.

[00:23:25] Speaker 01:
And he never put on his hat.

[00:23:27] Speaker 01:
Now, that Senate Bill 412 hat is a discretionary authority to exercise state law enforcement powers.

[00:23:35] Speaker 01:
It's not a mandate that a tribal officer begin carrying out state law enforcement

[00:23:41] Speaker 01:
obligations at the tribe's expense, the whole purpose of that was to allow tribes to become a little bit more safe under the facts similar to what happened in the Kurtz case.

[00:23:52] Speaker 00:
Let me ask you this.

[00:23:53] Speaker 00:
If the district court found that Officer Ahrensvaard was not exercising state enforcement authority,

[00:23:59] Speaker 00:
If we agreed with that, I'm talking hypothetically because we don't conference on these cases till after oral argument, could we resolve all issues concerning Officer Arnfart on the basis, on that basis?

[00:24:13] Speaker 00:
And if not, why not?

[00:24:15] Speaker 01:
You could, because even on the assignments regarding the denials of the motions to amend, those claims would be subject to the same arguments.

[00:24:25] Speaker 01:
It doesn't matter if it's a statutory claim or a common law claim.

[00:24:28] Speaker 01:
If he was not operating under state law enforcement authority, there's no jurisdiction, there's no way to hold him liable under state law.

[00:24:36] Speaker 01:
Judge Snow, did you have a question?

[00:24:38] Speaker 04:
Yeah, and I'm sorry, it's not going to be a very precise one.

[00:24:40] Speaker 04:
I don't have, and I thought I did, the precise Oregon statute number that cross-authorizes statutes or tribal officers.

[00:24:49] Speaker 04:
But is Section 2 of that statute, which recognizes or does not seek to affect the liability of officers operating in their tribal capacity, did that exist at the time in 2017?

[00:25:04] Speaker 01:
I believe so.

[00:25:05] Speaker 01:
I believe so.

[00:25:07] Speaker 01:
So I think that those, certainly Senate Bill 412 had been passed and I think that those were.

[00:25:12] Speaker 04:
I guess my question is this, has it been amended since it was passed to add in Section 2?

[00:25:18] Speaker 01:
I don't know the answer to that standing here, and I might defer to my colleague if they know.

[00:25:22] Speaker 01:
I don't want to put them on the spot, though.

[00:25:25] Speaker 00:
You don't know?

[00:25:26] Speaker 00:
I do not know.

[00:25:27] Speaker 00:
So, okay.

[00:25:29] Speaker 00:
Do either of my colleagues have additional questions?

[00:25:31] Speaker 00:
No.

[00:25:31] Speaker 00:
All right, we've gone over your time.

[00:25:33] Speaker 00:
Thank you, Judge.

[00:25:35] Speaker 00:
All right, so we're moving now to, would that be Mr. Newton?

[00:25:40] Speaker 00:
Correct, Your Honor.

[00:25:40] Speaker 00:
You have seven minutes, and you are your amicus representing the tribes.

[00:25:45] Speaker 00:
Is that correct?

[00:25:46] Speaker 02:
Correct, Your Honor.

[00:25:48] Speaker 00:
Please proceed.

[00:25:49] Speaker 02:
Thank you.

[00:25:50] Speaker 02:
Good morning, Your Honors, Council, and may it please the Court.

[00:25:53] Speaker 02:
My name is Josh Newton.

[00:25:55] Speaker 02:
I represent the Confederated Tribes of the Warm Springs Reservation of Oregon and Amicus Party to this appeal.

[00:26:01] Speaker 02:
The Tribe appreciates the opportunity to participate in oral argument, to assist the Court and the parties understand the potential impacts of an appellate decision on the Tribe and its inherent sovereign authority to provide vital public safety and justice services on the Warm Springs Reservation.

[00:26:17] Speaker 02:
Specific to your question judge snow is there been any amendment to the statute.

[00:26:22] Speaker 02:
I am not certain But even if there were I don't think it could constitutionally affect The try the immunity and impact of a tribal law enforcement officer Serving as a tribal law enforcement officer on the Warm Springs reservation so you're going to tell us what the parade of horribles are if we were to decide that

[00:26:43] Speaker 00:
He was not exercising that he had the two hats on.

[00:26:50] Speaker 02:
Correct.

[00:26:52] Speaker 02:
We fully agree that the record supports the notion he was acting solely as a tribal law enforcement officer for all the reasons the district court concluded and for the reasons that Mr. Henderson just explained to you.

[00:27:03] Speaker 02:
But we did want to take you down the path of what if he was wearing a Senate Bill 412, law enforcement had her exercising that authority, what does that look like?

[00:27:12] Speaker 02:
And we think that requires a bit of a historical march through the tribe sovereignty from treaty time to present and help the panel understand that the Warm Springs sovereignty is unique to itself and it's unique within the state and it's very unique on the Warm Springs reservation because in the 1950s,

[00:27:29] Speaker 02:
It is the only Indian territory in the state of Oregon that is exempt from Public Law 280, both for criminal and civil jurisdictional purposes.

[00:27:38] Speaker 02:
There is no civil authority that the state of Oregon can exercise on the Warm Springs Reservation to this day.

[00:27:45] Speaker 02:
Senate Bill 412 can't affect that, even if the Oregon legislature tried to, and it didn't, and I'll explain why.

[00:27:50] Speaker 02:
So the Confederated Tribes of Warm Springs is a federally recognized, self-governing, sovereign Indian tribe.

[00:27:56] Speaker 02:
It's a legal successor in interest to the Indian signatories of the Treaty of June 25th, 1855 with the tribes of Middle Oregon.

[00:28:04] Speaker 02:
Pursuant to the treaty, the tribe has reserved approximately 1,000 square miles, 640,000 acres of land for the exclusive use and occupation by the tribe and its members as a permanent homeland.

[00:28:15] Speaker 02:
Quite simply, Warm Springs is a large land-based tribe.

[00:28:19] Speaker 02:
Plaintiff EJT's late father, Andre Thomas, was an enrolled member of the tribe.

[00:28:23] Speaker 02:
You all know that.

[00:28:25] Speaker 02:
EJT himself is eligible for enrollment.

[00:28:27] Speaker 02:
That's in the record.

[00:28:29] Speaker 02:
There's one entity that did act to try to protect EJT well before this lawsuit was filed, and that's the tribe itself when it intervened in the state-equipped proceedings to assert its interest in him as an Indian child eligible for enrollment in the tribe.

[00:28:44] Speaker 04:
What legal effect does it have that EJT

[00:28:48] Speaker 04:
is potentially an eligible member of the tribe, but hasn't applied for or received tribal membership.

[00:28:55] Speaker 02:
In our view, for purposes of this appeal, none.

[00:28:59] Speaker 02:
But there's some confusion around whether EJT actually is authorized to commence a tort action in tribal court.

[00:29:06] Speaker 02:
The Tribe's position is he's absolutely authorized under Chapter 390 of the Tribal Code, which I'll explain in a moment.

[00:29:12] Speaker 02:
But there's been a lot of ink spilled about EJT's status.

[00:29:16] Speaker 02:
And we think for Tribal Court jurisdictional purposes, it's irrelevant.

[00:29:21] Speaker 02:
Because really, the issue is whose conduct is to be adjudicated in Tribal Court.

[00:29:26] Speaker 02:
It's not EJT's conduct.

[00:29:28] Speaker 02:
It's Officer Arjen Fard's conduct.

[00:29:30] Speaker 02:
And Officer Arjen Fard does not dispute that he's subject

[00:29:34] Speaker 02:
to tribal court jurisdiction.

[00:29:35] Speaker 04:
Do you have a different view than your colleague that if we were to decide that Officer Arjen Fard was acting uniquely as a tribal court officer, then the exhaustion question isn't even one we should dwell on?

[00:29:47] Speaker 02:
I would agree that if he's acting solely as a tribal officer, the only place that his conduct can be adjudicated is tribal court.

[00:29:55] Speaker 02:
I believe that's true with Senate Bill 412 as well, because that's what the Oregon legislature, that was the choice the Oregon legislature gave tribes, right?

[00:30:03] Speaker 02:
All the Oregon legislature could do is create an opportunity for a tribe to opt in to have its officers be authorized to enforce state laws.

[00:30:11] Speaker 02:
If the tribe chose to opt in, there were certain things that they had to choose.

[00:30:15] Speaker 02:
There was a bargain, a sovereign bargain.

[00:30:17] Speaker 02:
That bargain included having deadly force plan, you had to have some public record reporting obligations, some evidentiary obligations.

[00:30:27] Speaker 02:
But when it came to sovereign immunity and liability,

[00:30:30] Speaker 02:
The legislature allowed the tribes to use their own courts as the forum to adjudicate torts arising out of their officers' conduct while wearing a Senate Bill 412 hat.

[00:30:41] Speaker 04:
But doesn't the Warm Springs Code allow such suits to be brought not only in Warm Springs Court?

[00:30:47] Speaker 02:
No.

[00:30:47] Speaker 02:
The only court of competent jurisdiction is the Warm Springs Court for those claims.

[00:30:54] Speaker 04:
Okay.

[00:30:56] Speaker 02:
And so, and the reason for that, Your Honor, the code itself, you may say, is a little unclear on that point, but it actually... What about if I think it's explicitly clear but runs contrary to what you said?

[00:31:08] Speaker 02:
It says another court of competent jurisdiction, but there is no other court of competent jurisdiction because of Public Law 280.

[00:31:16] Speaker 02:
Public Law 280 makes it such that the Oregon state courts are not courts of competent jurisdiction.

[00:31:22] Speaker 04:
So you'd have us interpret that phrase to be absolutely meaningless.

[00:31:26] Speaker 02:
In this context for this case, that doesn't mean there aren't other tort, that tort provision applies to other torts, right?

[00:31:34] Speaker 02:
Not just Senate Bill 412 related torts.

[00:31:37] Speaker 02:
For purposes of other torts, there might be a court of competent jurisdiction.

[00:31:42] Speaker 02:
It might depend where on the reservation as well.

[00:31:45] Speaker 02:
If you're on a public highway that's under State of Oregon jurisdiction and you're still within the exterior boundaries of the reservation, it's possible that there is a different jurisdictional basis.

[00:31:54] Speaker 02:
It's not the case here.

[00:31:55] Speaker 02:
You're at the Warm Springs Police Department, which is tribal land within the exterior boundaries of the Warm Springs Reservation.

[00:32:01] Speaker 02:
The only place that Officer Arjen Fard's conduct can be adjudicated if there's an alleged tort is the Warm Springs Tribal Court, and that's where the case is pending now.

[00:32:15] Speaker 02:
You have 35 seconds.

[00:32:17] Speaker 00:
Do we have any additional questions?

[00:32:19] Speaker 00:
We don't.

[00:32:20] Speaker 00:
Okay, thank you.

[00:32:21] Speaker 00:
Thank you.

[00:32:32] Speaker 03:
Good morning.

[00:32:34] Speaker 03:
Robert Frans for Jefferson County.

[00:32:38] Speaker 03:
And Anderson, I have six minutes.

[00:32:40] Speaker 03:
Everybody else got seven.

[00:32:41] Speaker 00:
I got six.

[00:32:42] Speaker 00:
Well, don't go the unfair thing with me.

[00:32:44] Speaker 00:
You guys divided your time.

[00:32:47] Speaker 00:
OK, you lost that battle before you came to me.

[00:32:50] Speaker 00:
So waste no more time on that.

[00:32:52] Speaker 00:
It's not if you want sympathy, hit the dictionary.

[00:32:56] Speaker 03:
But I was voted this way because I speak the fastest.

[00:33:01] Speaker 03:
All right.

[00:33:02] Speaker 03:
Congress may, for a position in Deputy Anderson's position, Congress may, Deputy Anderson, use race as a factor to decide his jurisdictional limits.

[00:33:13] Speaker 03:
And as you know, police officers only act within their jurisdictional limits.

[00:33:17] Speaker 04:
Well, wholly independent of that, what about Appellant's argument that Deputy Anderson had an obligation to cross-certify his report, or to cross-report?

[00:33:29] Speaker 03:
He didn't handle the investigation.

[00:33:32] Speaker 04:
Well, he became aware.

[00:33:34] Speaker 03:
He became aware that Mae Gesting gave it to another law enforcement agency, and that law enforcement agency is a law enforcement agency.

[00:33:42] Speaker 04:
But it is a law enforcement agency which potentially is not at all bound by Oregon law.

[00:33:48] Speaker 04:
The statute isn't distinguished between law enforcement agencies.

[00:33:52] Speaker 03:
He did not have the jurisdiction.

[00:33:53] Speaker 04:
It doesn't matter if the statute doesn't apply, does it?

[00:33:58] Speaker 03:
I'm talking about which statute you're talking about, the mandatory reporting?

[00:34:04] Speaker 04:
Yes.

[00:34:04] Speaker 03:
Yeah.

[00:34:05] Speaker 03:
The mandatory reporting statute would apply to him for an investigation he did on a child abuse complaint he has within his jurisdiction.

[00:34:18] Speaker 03:
So he had no jurisdiction.

[00:34:20] Speaker 03:
He only had reasonable suspicion to believe there's one suspect.

[00:34:25] Speaker 03:
Once he found out,

[00:34:26] Speaker 03:
where Congress says what you do is, take a look.

[00:34:29] Speaker 04:
I'm not sure that appellants are arguing that, but they do argue that he had an obligation to do more than to report to the Warm Springs Tribal Police Department.

[00:34:41] Speaker 04:
And I disagree.

[00:34:43] Speaker 04:
Okay.

[00:34:44] Speaker 03:
For the simple reason he didn't have jurisdiction over the case in the first place.

[00:34:48] Speaker 04:
Does the reporting statute depend upon jurisdiction?

[00:34:52] Speaker 03:
It depends on your agency that does the investigation.

[00:34:58] Speaker 03:
So that, and that's it.

[00:35:00] Speaker 04:
I'm sorry, and this I may, I'm sorry, I just don't know.

[00:35:03] Speaker 04:
Does the reporting statute create an obligation in anyone who has a responsibility to care for children to report?

[00:35:13] Speaker 04:
Or any one period, or does it create a reporting obligation only in police agencies that investigate?

[00:35:22] Speaker 03:
No, it has a whole list of people, attorneys, doctors,

[00:35:26] Speaker 03:
School teachers.

[00:35:28] Speaker 03:
And do you say that Officer Anderson falls outside of that list?

[00:35:31] Speaker 03:
He's within the list for something that would be within his jurisdiction to investigate.

[00:35:36] Speaker 04:
So if a doctor finds out that another doctor's patient is being abused, that doctor has no obligation to report the child abuse?

[00:35:46] Speaker 03:
The doctor has an obligation.

[00:35:47] Speaker 04:
Whether or not the patient is the doctor's patient?

[00:35:53] Speaker 03:
It doesn't matter whether it be the doctor's patient.

[00:35:56] Speaker 03:
If the doctor had knowledge of a child abuse, he'd be a mandatory reporter.

[00:36:01] Speaker 04:
So how is that distinct from Officer Anderson?

[00:36:04] Speaker 03:
The doctor and Officer Anderson don't have to report child abuse that took place in Germany, that took place in France, that took place on a sovereign nation.

[00:36:16] Speaker 04:
Separate question for you.

[00:36:18] Speaker 04:
Should we certify to the Oregon Supreme Court what it means to be incapacitated?

[00:36:23] Speaker 03:
The plaintiff asked for that at the lower court to answer your last question many minutes ago.

[00:36:34] Speaker 03:
What if we found that there's no violation of Section 1983 by Anderson, and we find that the District Court correctly decided the tribal issue?

[00:36:45] Speaker 03:
Can we dismiss the case?

[00:36:47] Speaker 03:
Yes.

[00:36:49] Speaker 03:
Because you're accepting a jurisdiction, and in fact, you know, you can dismiss it.

[00:36:54] Speaker 00:
Well, let's say hypothetically that Officer Anderson just did nothing, that he didn't even refer it to someone to do.

[00:37:05] Speaker 00:
Hypothetically, if he said he's called and he says he did nothing and didn't refer it to the tribes, didn't do anything like that, could he be liable then?

[00:37:20] Speaker 03:
No, because it's still not within his jurisdiction.

[00:37:25] Speaker 00:
Well, but wouldn't it be his job at that point, at least to put it in someone's jurisdiction, if as an officer he became aware?

[00:37:33] Speaker 00:
It's not a satisfactory answer, really, to think that this poor little human being that had all of this going on.

[00:37:42] Speaker 00:
And I think one thing we can hopefully all agree on is this poor little human being had nothing to do with what happened to him.

[00:37:50] Speaker 00:
He was not protected.

[00:37:53] Speaker 00:
That being said, if Officer Anderson becomes aware of it, he knows he doesn't have jurisdiction, but he doesn't even notify who would have jurisdiction, could that create some liability?

[00:38:06] Speaker 00:
I know those are not the facts here, but I'm just saying hypothetically.

[00:38:09] Speaker 03:
And I say hypothetically no.

[00:38:12] Speaker 03:
And to answer your last question, you certified the Supreme Court, you can certify the Supreme Court the issue on vulnerable person, if that's what you're asking to.

[00:38:22] Speaker 03:
You asked me prior to that, should we certify this?

[00:38:24] Speaker 00:
Well, I think if an officer is notified of abuse, I don't think they can just do nothing.

[00:38:31] Speaker 00:
He doesn't have jurisdiction to investigate.

[00:38:37] Speaker 00:
But if it just stops there and did nothing, that's not a real satisfactory answer.

[00:38:43] Speaker 05:
In other words, is there a requirement to report?

[00:38:45] Speaker 05:
Just report.

[00:38:47] Speaker 05:
Is there a requirement to report?

[00:38:48] Speaker 05:
Again, not your jurisdiction, but is there a requirement under this statute to report?

[00:38:54] Speaker 03:
Not when you refer it to another agency.

[00:38:56] Speaker 03:
Other agencies do this all the time out of county.

[00:38:58] Speaker 03:
You refer it to the agency with jurisdiction.

[00:39:00] Speaker 03:
This is a common practice.

[00:39:02] Speaker 00:
Well, I don't think the question is what... You're saying that was his job, but let's say he didn't refer it to another agency.

[00:39:08] Speaker 00:
Just let it said, you know, I'm going to just go home.

[00:39:11] Speaker 00:
I'm just going to let it lie.

[00:39:13] Speaker 03:
I'm not going to... But with all due respect, that's not the facts of this case.

[00:39:17] Speaker 00:
I know it's... I'm just asking, hypothetically, not... When everyone says, with all due respect, we know that's not going to go well.

[00:39:24] Speaker 00:
Okay?

[00:39:25] Speaker 00:
Hypothetically, if those were the facts, I know they're not.

[00:39:30] Speaker 00:
Would that be, would he have to do something?

[00:39:34] Speaker 03:
And I say no, because it's out of his jurisdiction.

[00:39:37] Speaker 04:
Where in the statute does it make such a statement?

[00:39:42] Speaker 03:
It doesn't, that hypothetical is not in the statute.

[00:39:45] Speaker 03:
It does make such a statement.

[00:39:47] Speaker 03:
There's no case, I don't know of any officer that did it, I don't know of any hypothetical, I don't know how to answer that.

[00:39:53] Speaker 03:
We just are disagreeing on a hypothetical question that did not happen.

[00:39:57] Speaker 04:
Okay, so does the statute require more than what I believe we know the facts of this case to be, which is that Officer Anderson made sure that the complaint was transferred to the Warm Springs Tribal Court.

[00:40:11] Speaker 04:
Does the statute require more than a report to the applicable law enforcement agency?

[00:40:16] Speaker 03:
And I don't think so because if you look at the statute, the statute says causes an investigation to be made.

[00:40:23] Speaker 03:
It doesn't say investigation.

[00:40:25] Speaker 03:
The officer

[00:40:25] Speaker 03:
causes an investigation to be made.

[00:40:28] Speaker 03:
Anderson caused an investigation to be made.

[00:40:31] Speaker 03:
The investigation had been made.

[00:40:32] Speaker 03:
It was unfounded.

[00:40:34] Speaker 03:
And E.J.'

[00:40:35] Speaker 03:
's father, the suspect, was found innocent.

[00:40:38] Speaker 03:
And it's undisputed he was innocent.

[00:40:40] Speaker 03:
So the system worked as far as the information we had, the system worked.

[00:40:46] Speaker 00:
Well, the facts that you have, I understand your argument.

[00:40:50] Speaker 00:
I just don't understand how you would say,

[00:40:54] Speaker 00:
he wouldn't if that he would have to at least pass it off to someone that doesn't I I find that that just that that's a bridge to for I don't have to decide that but okay just think about it.

[00:41:09] Speaker 03:
Here's my final statement.

[00:41:10] Speaker 03:
I changed my mind.

[00:41:12] Speaker 03:
Yes, he would be liable.

[00:41:13] Speaker 03:
And now I agree with you.

[00:41:16] Speaker 00:
Well your credibility is in question at this point but let's let's I think we have no further questions I don't think

[00:41:23] Speaker 00:
All right, thank you for your argument.

[00:41:25] Speaker 00:
Rebuttal?

[00:41:29] Speaker 06:
Yes, a couple of things I'd like to follow up on and make sure I'm as clear as I can be about on the record.

[00:41:34] Speaker 06:
Anderson did have jurisdiction as a non-enrolled child, domiciled off reservation with mom who presents at the emergency room at St.

[00:41:43] Speaker 06:
Charles' Madras.

[00:41:44] Speaker 06:
He derived a misimpression based on

[00:41:49] Speaker 06:
glib information that the child had crossed through the reservation with dad last weekend.

[00:41:54] Speaker 04:
Does he have an obligation to do more than report to the Warm Springs Police Department?

[00:42:01] Speaker 06:
Yes, he's got an obligation to investigate

[00:42:04] Speaker 06:
until he determines the nature and cause of the abuse and to cross-report.

[00:42:09] Speaker 04:
Let me be more specific.

[00:42:10] Speaker 04:
Does he have an obligation under the statute to report to anybody other than the Warm Springs Police Department?

[00:42:15] Speaker 06:
Yes.

[00:42:16] Speaker 06:
He's got an obligation to cross-report to Child Protective Services.

[00:42:20] Speaker 06:
And you can see what would have happened if he did if you look at the deposition of faith sides.

[00:42:24] Speaker 06:
And you can see what the investigation he never undertook would have looked like by looking at the deposition of Steve Webb, who does that investigation after the November 2017 abuse to EJT.

[00:42:37] Speaker 05:
Council, I'm still waiting for the AR site that you are going to give us.

[00:42:41] Speaker 06:
Yes.

[00:42:42] Speaker 06:
I'm at 4ER918.

[00:42:45] Speaker 06:
This is the deposition of Officer Arenfard.

[00:42:48] Speaker 06:
The question from Ms.

[00:42:49] Speaker 06:
Olson is,

[00:42:50] Speaker 06:
Do you remember about the second call with Nurse Meller, the nurse at St.

[00:42:56] Speaker 06:
Charles Madras?

[00:42:57] Speaker 06:
That would have been that I told her that I couldn't break away and come up to the hospital and ask if they could come down to Warm Springs in order to take the report.

[00:43:04] Speaker 06:
Question from Ms.

[00:43:05] Speaker 06:
Olson, did you understand that the hospital was holding EJT and his mother and wouldn't release them until you were able to follow up with them?

[00:43:13] Speaker 06:
Answer, well, I asked them if they could come down to Warm Springs.

[00:43:16] Speaker 06:
Question, did you understand it?

[00:43:18] Speaker 06:
And that I understood that they were safe.

[00:43:20] Speaker 06:
I apologize for interrupting.

[00:43:22] Speaker 06:
No, it's all right.

[00:43:23] Speaker 06:
Let me, I interrupted you too.

[00:43:25] Speaker 06:
Let me try again.

[00:43:26] Speaker 06:
Did you understand that the hospital was holding EJT and Cateland wouldn't allow EJT to be released until you followed up with them?

[00:43:36] Speaker 06:
Answer from Officer Arne Ford.

[00:43:39] Speaker 06:
I guess the answer to that would be yes, I understood that.

[00:43:42] Speaker 04:
But that doesn't say that Officer Arjen Fard was holding him.

[00:43:46] Speaker 04:
It says the hospital was holding him.

[00:43:47] Speaker 06:
It says that in our view, our position, Your Honor, is he is under color of state law at that point directing these people that they can't leave.

[00:43:57] Speaker 06:
It's a kind of investigatory detention, I believe.

[00:44:02] Speaker 06:
And they're following his direction.

[00:44:04] Speaker 06:
And the record's clear that they don't want to.

[00:44:06] Speaker 06:
They don't want to go down to the reservation because of

[00:44:10] Speaker 06:
personal reasons, and family background.

[00:44:12] Speaker 06:
But that's reasonably clear on the record.

[00:44:15] Speaker 06:
The other thing I'd like to speak to was a question earlier about what in the abusive of the vulnerable person statute would allow the court to acknowledge the claim and to reverse and to disagree with Judge Hernandez's determination.

[00:44:37] Speaker 06:
And I would direct the court to ORS 124.100 subpart five, which says, an action may be brought under this section against a person for permitting another person to engage in physical and financial abuse if the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse.

[00:45:02] Speaker 04:
And I asked you a question about that earlier.

[00:45:04] Speaker 04:
It imposes a statute, imposes a reasonable person standard, does it not?

[00:45:09] Speaker 06:
Well, it says reasonable person, but I think in the circumstances of this case, where we're talking about police officers, it has to be measured against what the police officers are trained at the police academy and the methodology they're supposed to engage in.

[00:45:24] Speaker 06:
And in that methodology, it's clear that parents and boys... I understand the argument.

[00:45:28] Speaker 04:
The statute does say reasonable person, though.

[00:45:30] Speaker 04:
Do you want us to refer this to the Oregon Supreme Court?

[00:45:33] Speaker 04:
Do you want us to certify it?

[00:45:34] Speaker 06:
I would rather be certified to the Oregon Supreme Court than thrown out with no case on behalf of EJT, Your Honor.

[00:45:44] Speaker 00:
I think your time is up.

[00:45:47] Speaker 00:
We don't appear to have additional questions.

[00:45:48] Speaker 00:
Thank you both sides for your argument in this matter.

[00:45:52] Speaker 00:
This will stand submitted.

[00:45:55] Speaker 00:
This court is in recess until tomorrow at 9 a.m.

[00:46:00] Speaker 00:
Thank you.