Steinle v. CITY AND COUNTY OF SAN FRANCISCO

• Decision Date: 25 March 2019
• Docket Number: No. 17-16283,17-16283
• Citation: 919 F.3d 1154
• Parties: James STEINLE, individually and as heir to Kathryn Steinle, deceased; Elizabeth Sullivan, individually and as heir to Kathryn Steinle, deceased, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a government entity ; Juan Francisco Lopez-Sanchez; Ross Mirkarimi; United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

919 F.3d 1154

James STEINLE, individually and as heir to Kathryn Steinle, deceased; Elizabeth Sullivan, individually and as heir to Kathryn Steinle, deceased, Plaintiffs-Appellants,

v.CITY AND COUNTY OF SAN FRANCISCO, a government entity ; Juan Francisco Lopez-Sanchez; Ross Mirkarimi; United States of America, Defendants-Appellees.

No. 17-16283

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2018 San Francisco, California

Filed March 25, 2019

OPINION

BENNETT, Circuit Judge:

The facts of this case are undeniably tragic. Kathryn Steinle ("Steinle"), a 32-year-old woman, was shot and killed by Juan Francisco Lopez-Sanchez, an undocumented alien with a criminal record, after he was released from custody by the San Francisco Sheriff’s Department. In this appeal, Steinle’s parents, James Steinle and Elizabeth Sullivan ("Plaintiffs"), challenge the district court’s dismissal of their general negligence claim against the City and County of San Francisco and Sheriff Ross Mirkarimi (collectively, "City Defendants"). While we deeply sympathize with Steinle’s family, the question of discretionary immunity raised in this case is controlled by California law. After careful deliberation, we conclude that California law bars Plaintiffs’ negligence claim. Accordingly, we affirm the decision of the district court.

FACTS AND PROCEDURAL HISTORY¹

In February 2015, then San Francisco Sheriff Mirkarimi, through a meeting with the U.S. Department of Homeland Security Deputy Director, informed the United States that the Sheriff’s Department would not honor Immigration and Customs Enforcement ("ICE") detainer requests or notify ICE of the pending release of any undocumented alien unless a judicial order or warrant was issued for the alien’s removal. Shortly thereafter, Sheriff Mirkarimi issued a memorandum, dated March 13, 2015 (the "Memo") to all Sheriff’s Department employees.

The Memo established protocols and parameters for communications between Sheriff’s Department employees and ICE representatives. It stated that employees "shall not provide" "non-public" information to ICE, including "release dates or times," but that employees were authorized to provide certain "public" information to ICE. Disclosure of any information beyond the public information explicitly authorized by the Memo would require consultation with the Sheriff’s Department’s legal counsel, confirmation by counsel that disclosure was required by court order or law, and authorization by Sheriff Mirkarimi.² The Memo changed the "longstanding policy and procedure" of the Sheriff’s Department "to freely provide information to ICE regarding undocumented immigrant felons in custody."

The Memo referenced Chapter 12H of the San Francisco Administrative Code, which is commonly referred to as the "Sanctuary City Law," and other relevant laws and regulations, including the California Public Records Act and the San Francisco Sunshine Ordinance of 1999. While the Sanctuary City Law limits information that San Francisco and its officers and employees share with federal immigration officials, it includes an exception for cooperation as required by state or federal law. It also allows, but does not require, communication and cooperation with federal authorities regarding individuals previously convicted of felonies. The Memo, however, contained no exception regarding individuals previously convicted of felonies.

From 1993 to 2011, Lopez-Sanchez was convicted of "at least seven felonies" related either to controlled substances or to illegal reentry after deportation. He also was removed to Mexico at least five times during that time period. After completing a 46-month sentence in federal prison, Lopez-Sanchez was released to the custody of the Sheriff’s Department on March 26, 2015, to face felony charges for selling marijuana. The charges against him were dropped on March 27, 2015, and on that same day, ICE sent a detainer request asking the Sheriff’s Department to notify ICE 48 hours before releasing Lopez-Sanchez and to hold him until ICE could take custody of him. The Sheriff’s Department did not respond to the detainer request or otherwise communicate with ICE, and Lopez-Sanchez was released on April 15, 2015, without notification to ICE. After his release, Lopez-Sanchez acquired a government-issued handgun belonging to a U.S. Bureau of Land Management ranger. The handgun had been stolen from a vehicle on June 27, 2015.

On July 1, 2015, four days after the handgun had been stolen and approximately two and one-half months after Lopez-Sanchez had been released by the Sheriff’s Department, he shot and killed Steinle near Pier 14 of the San Francisco Embarcadero. Steinle was shot "in the chest, piercing her aorta." There is no allegation that Lopez-Sanchez knew Steinle. After the shooting, ICE stated: "If the local authorities had merely notified [U.S. Immigration and Customs Enforcement] that they were about to release this individual into the community, ICE could have taken custody of him and had him removed from the country—thus preventing this terrible tragedy."

Plaintiffs filed a complaint against the United States, City Defendants, and Lopez-Sanchez,³ alleging claims for negligence per se, general negligence, and deprivation of civil rights under 42 U.S.C. § 1983. City Defendants and the United States moved to dismiss all claims against them under Federal Rule of Civil Procedure 12(b)(6). The district court granted City Defendants’ motion and granted in part and denied in part the United States’s motion.⁴ The claims against City Defendants were dismissed without leave to amend, based on futility.

Final judgment on the dismissed claims was entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, and Plaintiffs timely appealed. On appeal, Plaintiffs challenge only the dismissal of their general negligence claim against City Defendants. The district court dismissed that claim pursuant to California Government Code sections 820.2 and 815.2(b) because it concluded that the alleged negligent act—the issuance of the Memo—was an immune discretionary act.

Plaintiffs argue that dismissal of their general negligence claim was improper because 1) the district court erred in finding immunity on a motion to dismiss, 2) the district court erred by taking judicial notice of the contents of the Memo, and 3) the Sheriff’s act of withholding Lopez-Sanchez’s release date from ICE was ministerial and thus not entitled to discretionary immunity even if entitlement to immunity could be determined on a motion to dismiss. Plaintiffs also make various arguments in support of their contention that Sheriff Mirkarimi lacked discretionary authority to issue the Memo and, therefore, is not entitled to immunity.

STANDARD OF REVIEW

"We review de novo a dismissal under Rule 12(b)(6), and we can affirm on any ground supported by the record." Thompson v. Paul , 547 F.3d 1055, 1058–59 (9th Cir. 2008). Further, on a motion to dismiss, "[w]e take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party." Parks Sch. of Bus. , 51 F.3d at 1484.

DISCUSSION

I. Discretionary Immunity

We agree with the district court that the issuance of the Memo was a discretionary act that is entitled to immunity under section 820.2 of the California Government Code. Section 820.2 provides, in pertinent part: "[A] public employee is not liable for an injury resulting from his act ... where the act ... was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."

In applying section 820.2, the California Supreme Court has stated that "the existence of some ... alternatives ... does not perforce lead to a holding that the governmental unit thereby attains the status of non-liability under section 820.2." Johnson v. State , 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, 358 (1968). Thus, instead of interpreting "discretionary" literally, the focus should be on the policy considerations underlying the governmental entity’s claim of immunity. Id. , 73 Cal.Rptr. 240, 447 P.2d at 356–58.

[A] "workable definition" of immune discretionary acts draws the line between "planning" and "operational" functions of government. Immunity is reserved for those "basic policy decisions which have been expressly committed to coordinate branches of government," and as to which judicial interference would thus be "unseemly." Such "areas of quasi-legislative policy-making are sufficiently sensitive" to call for judicial abstention from interference that "might even in the first instance affect the coordinate body’s decision-making process[.]"

Caldwell v. Montoya , 10 Cal.4th 972, 42 Cal.Rptr.2d 842, 897 P.2d 1320, 1325–26 (1995) (citations, brackets, and alterations omitted) (quoting Johnson , 73 Cal.Rptr. 240, 447 P.2d at 360–61 ). Further, a finding of immunity "requires a showing that ‘the specific conduct giving rise to the suit’ involved an actual exercise of discretion, i.e., a ‘conscious balancing of risks and advantages.’ " Id. , 42 Cal.Rptr.2d 842, 897 P.2d at 1327 (brackets omitted) (quoting Johnson , 73 Cal.Rptr. 240, 447 P.2d at 361 n.8 ).

Applying the principles established by the California Supreme Court, the Memo, on its face, reflects a basic policy decision that "has been committed to [a] coordinate branch[ ] of government." Johnson , 73 Cal.Rptr. 240, 447 P.2d at 360. The Memo was issued by Sheriff Mirkarimi, who had the "sole and exclusive authority to keep the county jail and the prisoners in it." Cal. Gov’t Code § 26605. And, as discussed below, no federal, state, or municipal statute or ordinance prohibited him from issuing the Memo. Thus, Sheriff Mirkarimi was vested with the authority to establish a departmental-wide policy setting forth the parameters and protocols regarding his employees’ communications with ICE.

The Memo shows that Sheriff Mirkarimi considered applicable laws and regulations, determined...