230 F. Supp. 3d 994
N.D. Cal.2017Background
- Kathryn Steinle was shot and killed in San Francisco on July 1, 2015. Plaintiffs are her heirs and estate.
- Non‑party Juan Francisco Lopez‑Sanchez, an alien with multiple felony convictions and prior deportations, had been held in federal custody, transferred to the San Francisco Sheriff’s Department, and released April 15, 2015 after local charges were dropped; ICE had issued a detainer request that the Sheriff’s Department did not honor.
- Sheriff Ross Mirkarimi issued a March 13, 2015 memorandum restricting what Sheriffs Department employees could tell ICE (e.g., prohibiting release dates without counsel review/authorization); Chapter 12H of the SF Administrative Code (as then written) carved out certain cooperation for previously convicted felons but did not itself require the Sheriff to permit communications.
- Four days before the homicide a BLM ranger left a loaded handgun unsecured in an unattended vehicle; the firearm was stolen and later used to kill Steinle (complaint alleges Lopez‑Sanchez possessed the gun when he shot her).
- Plaintiffs sued the City and Mirkarimi (state law negligence, negligence per se, and 42 U.S.C. § 1983) and the United States under the FTCA (negligence for ICE’s failure to detain and for the BLM ranger’s firearm storage). The City and U.S. moved to dismiss; court held a hearing and issued this order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs stated negligence‑per‑se/public‑entity claims based on federal/state/local statutes or SF Ch.12H | Statutes (8 U.S.C. §1373, Cal. Gov’t Code §7282.5, Cal. Health & Safety §11369) and Ch.12H barred restrictions on communications with ICE and thus created mandatory duties; Mirkarimi violated them by the March memo | Statutes do not require sharing release dates; §1373 only covers immigration status information; §7282.5 grants discretion; Ch.12H only limits that chapter’s scope and does not create a duty; Bologna held these statutes not aimed at preventing violent crime | Dismissed: complaint fails to plead violation of any mandatory statutory duty supporting negligence per se or public‑entity liability; amendment futile |
| Whether plaintiffs stated general negligence (duty/breach) against Mirkarimi/City for policy that limited cooperation with ICE | March memo foreseeably increased risk of violent crime by allowing felons to avoid removal; Rowland factors support duty | Sheriff’s policy decisions are discretionary; public‑employee immunity (Cal. Gov’t Code §820.2) shields policymaking decisions; no special relationship with victim | Dismissed: Mirkarimi’s memo was a discretionary policy decision protected by §820.2; City immune under §815.2(b); claims dismissed with prejudice |
| Whether plaintiffs stated a §1983 due‑process claim (substantive and procedural) | Substantive: state‑created‑danger exception applies because the memo affirmatively put Steinle in danger; Procedural: issuance without hearing deprived life/liberty | Substantive: state‑created‑danger requires a particularized, identifiable victim or group and deliberate indifference; Procedural: no constitutional requirement of a hearing before internal policy decisions that affect public safety | Dismissed: substantive due process fails because no particularized danger was created; procedural due process fails because no protected right to a hearing before such policy changes; amendment futile |
| Whether the FTCA bars claims against the U.S. for ICE’s failure to detain and for BLM ranger’s unsecured firearm | ICE: §1226(c) creates a mandatory duty to take qualifying aliens into custody; BLM: ranger violated DOI/BLM firearm policies, creating state‑law negligence and negligence‑per‑se under Cal. Evid. Code §669 | U.S.: discretionary‑function exception (28 U.S.C. §2680) shields ICE decisions (resource/prioritization/policy); FTCA does not waive liability for violations of federal duties or for discretionary decisions; firearm: no duty to public for stolen‑gun misuse or manuals are not regs under Evid. Code §669.1 | ICE claims dismissed for lack of jurisdiction under the FTCA discretionary‑function exception; BLM firearm common‑law negligence claim against U.S. survives (plausible duty, breach, causation pled); negligence‑per‑se claim based on manuals dismissed with leave to amend if a qualifying statute/regulation is identified |
Key Cases Cited
- Zelig v. County of Los Angeles, 27 Cal.4th 1112 (Cal. 2002) (limitations on governmental duty to protect absent special relationship)
- Bologna v. City & County of San Francisco, 192 Cal.App.4th 429 (Cal. Ct. App. 2011) (statutes at issue interpreted as not aimed at preventing violent crime)
- DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (U.S. 1989) (no general constitutional duty to protect from private violence absent special relationship)
- Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) (state‑created‑danger doctrine requires affirmative act that places a particularized plaintiff in worse position)
- Demore v. Kim, 538 U.S. 510 (U.S. 2003) (interpretation of mandatory detention provisions in immigration law)
- Berkovitz v. United States, 486 U.S. 531 (U.S. 1988) (two‑part test for FTCA discretionary‑function exception)
- Gaubert v. United States, 499 U.S. 315 (U.S. 1991) (discretionary‑function exception protects policy‑based decisions)
- Rowland v. Christian, 69 Cal.2d 108 (Cal. 1968) (factors for recognizing common‑law duty of care)
- Twombly v. Bell Atlantic, 550 U.S. 544 (U.S. 2007) (pleading plausibility standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (legal conclusions not presumed true on a motion to dismiss)