Unpublished Disposition, 875 F.2d 318 (9th Cir. 1989)

MEMORANDUM^* 

Adrian Beasley appeals the district court's order granting summary judgment in this 42 U.S.C. § 1983 action against Portland police officers and the City of Portland. He contends that he was deprived of a liberty interest without due process of law, when after his arrest for drunken driving, he was released from custody rather than being sent to a treatment facility as allegedly required by Oregon statute.

The statute in question provides:

Any person who is intoxicated or under the influence of controlled substances in a public place may be taken or sent home or to a treatment facility by the police. However, if the person is incapacitated, the health of the person appears to be in immediate danger, or the police have reasonable cause to believe the person is dangerous to self or to any other person, the person shall be taken by the police to an appropriate treatment facility. A person shall be deemed incapacitated when in the opinion of the police officer or director of the treatment facility the person is unable to make a rational decision as to acceptance of assistance.

Or.Rev.Stat. Sec. 426.460(1) (1987).

Appellant's argument rests upon the questionable premise that this statute applies to arrests for driving of a vehicle while under the influence, as opposed to simple public drunkenness. Assuming arguendo that the statute does require police to place in a treatment facility any person in the position of the appellant at the time of his initial arrest, the appellant's claim of denial of due process is without merit. The appellant was not deprived of his liberty when the officers decided to send him home in a cab rather than commit him to a treatment facility. He was, if anything, granted more liberty than that to which he was entitled under the statute. The cases upon which the appellant relies are all cases in which the mandatory duty violated was a duty to place the plaintiff in a less restrictive environment, not a more restrictive one. See, e.g., Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (alleging that prisoner's due process rights were violated when false statements in his prison file resulted in his being classified as a violent offender).

AFFIRMED.