dissenting in part.
Although I agree with the majority’s general analysis of the problem and with its holding that discretionary immunity under OTCA presents a fact question, I disagree that defendants are absolutely immune from liability under 42 USC § 1983.
In short, I think that the functions of CSD workers are closer to those of police officers (who have qualified immunity) than they are to prosecutors (who have absolute immunity). The majority’s holding that “the power of CSD workers to file a petition makes them the functional equivalent of prosecutors for immunity purposes,” 93 Or App at 374 is not persuasive. ORS 419.482(1)1 permits any person to file a petition with the same legal consequences. Is everyone who files a petition entitled to absolute immunity? Furthermore, ORS 418.7502 requires any public or private official having reasonable cause to believe that a child has suffered abuse to report that fact to CSD or to a law enforcement agency. Anyone participating in good faith in the making of such a report has only qualified immunity. ORS 418.762;3 see Franson v. Radich, 84 Or App 715, 735 P2d 632 (1987).
*383Even if the majority were correct that CSD workers are the equivalent of prosecutors, I do not agree that policy considerations require granting them absolute immunity. I believe that the qualified immunity applicable in § 1983 cases, as enunciated by the United States Supreme Court, affords them adequate protection:
“Under the Harlow standard, on the other hand, an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner. The Harlow standard is specifically designed to ‘avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment,’ and we believe it sufficiently serves this goal. Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized. ” Malley v. Briggs, 475 US 335, 341, 106 S Ct 1092, 89 L Ed 2d 271 (1986). (Emphasis supplied.)
To conclude, as the majority does, that absolute immunity under § 1983 is necessary to permit CSD workers to perform their duties effectively, even though they do not have absolute immunity under OTCA, does not make sense. If defendant’s actions meet the reasonableness standard under ORS 419.569(1), they would also meet the standard for qualified immunity as applied under § 1983. If CSD workers will be gun-shy if they are not accorded absolute immunity under § .1983, their lack of immunity under OTCA will make them gun-shy.
Accordingly, I dissent from that part of the majority decision.
ORS 419.482(1) provides:
“Any person may file a petition in the juvenile court alleging that a child named therein is within the jurisdiction of the court as provided in ORS 419.476(1).”
ORS 418.750 provides:
“Any public or private official having reasonable cause to believe that any child with whom the official comes in contact in an official capacity has suffered abuse, or that any person with whom the official comes in contact in an official capacity has abused a child shall report or cause a report to be made in the manner required in ORS 418.755. Nothing contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by this section, except that a psychiatrist, psychologist, clergyman or attorney shall not be required to report such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295.”
ORS 418.762 provides:
“Anyone participating in good faith in the making of a report pursuant to ORS 418.750 to 418.760 and who has reasonable grounds for the making thereof, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed with respect to the making or content of such report. Any such participant shall have the same immunity with respect to participating in any judicial proceeding resulting from such report.”