JAMES STEINLE, individually and as heir to Kathryn Steinle, deceased; ELIZABETH SULLIVAN, individually and as heir to Kathryn Steinle, deceased v. CITY AND COUNTY OF SAN FRANCISCO, a government entity; JUAN FRANCISCO LOPEZ-SANCHEZ; ROSS MIRKARIMI; UNITED STATES OF AMERICA
No. 17-16283
United States Court of Appeals, Ninth Circuit
March 25, 2019
D.C. No. 3:16-cv-02859-JCS
Appeal from the United States District Court for the Northern District of California Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted November 15, 2018 San Francisco, California
Filed March 25, 2019
Before: Susan P. Graber, Stephanie Dawn Thacker,* and Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett; Concurrence by Judge Graber
SUMMARY**
California Law / Immunity
The panel affirmed the district court‘s dismissal of the general negligence claim brought by the parents of Kathryn Steinle against the City and County of San Francisco after Kathryn was shot and killed by an undocumented alien with a criminal record, who was released from custody by the San Francisco‘s Sheriff‘s Department.
On March 13, 2015, the San Francisco Sheriff issued a Memo establishing protocols and parameters for communications between Sheriff‘s Department employees and Immigration and Customs Enforcement (“ICE“) representatives. On March 27, 2015, ICE sent a detainer request asking the Sheriff‘s Department to notify ICE before releasing undocumented alien, Juan Francisco Lopez-Sanchez, and to hold him until ICE could take custody of him. The Sheriff‘s Department released Lopez-Sanchez on April 15, 2015, without notification to ICE. On July 1, 2015, Lopez-Sanchez shot and killed Steinle near Pier 41 of the San Francisco Embarcadero.
The Panel held that the Sheriff‘s issuance of the Memo was a discretionary act that was entitled to immunity under
The panel rejected plaintiffs’ argument that the district court improperly took judicial notice of the Memo‘s contents. The panel held that the district court properly considered the Memo under the incorporation by reference doctrine, where the Memo formed the very basis of plaintiffs’ claims and plaintiffs referred extensively to the Memo throughout district court proceedings.
The panel rejected plaintiffs’ arguments that the Sheriff lacked discretionary authority to issue the Memo, and therefore, was not entitled to immunity. Specifically, the panel held that although
Judge Graber concurred in the opinion which relied on the general discretionary-immunity statute,
COUNSEL
Alison E. Cordova (argued) and Frank M. Pitre, Cotchett Pitre & McCarthy LLP, Burlingame, California, for Plaintiffs-Appellants.
Margaret W. Baumgartner (argued), Deputy City Attorney; Cheryl Adams, Chief Trial Deputy; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Defendants-Appellees.
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 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.”
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
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
In applying
unit thereby attains the status of non-liability under
[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, 897 P.2d 1320, 1325–26 (Cal. 1995) (citations, brackets, and alterations omitted) (quoting Johnson, 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. at 1327 (brackets omitted) (quoting Johnson, 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, 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.”
The Memo shows that Sheriff Mirkarimi considered applicable laws and regulations, determined what information should and should not be provided to ICE, and established a process for providing information to ICE when required by law. The allegations in the complaint also demonstrate that Sheriff Mirkarimi actually exercised discretion because, by issuing the Memo, according to Plaintiffs, he consciously changed the “longstanding policy and procedure . . . to freely provide information to ICE.”
The decision concerning what information Sheriff‘s Department employees would provide to federal immigration officials (beyond the information required by law to be provided) is an important policy decision that is “sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action.” Johnson, 447 P.2d at 361. Indeed, the debate over policies that severely limit cooperation with immigration officials, like those embodied in the Memo, underscores the nature of Sheriff Mirkarimi‘s decision,5 and further supports a conclusion that judicial intervention “would place the court in the unseemly position
of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” Id. at 360. The tragic and unnecessary death of Steinle may well underscore the policy argument against Sheriff Mirkarimi‘s decision to bar his employees from providing the release date of a many-times convicted felon to ICE. But
The cases on which Plaintiffs rely are inapposite because, unlike here, they involved lower level “operational” acts that were performed after a basic policy decision had already been made. See Johnson, 447 P.2d at 361-62 (holding that, while a decision to parole is a basic policy decision, a parole officer‘s subsequent decision as to what warnings to give to foster parents was “a determination at the lowest, ministerial rung of official action” and not entitled to immunity); Barner v. Leeds, 13 P.3d 704, 709, 712 (Cal. 2000) (noting that “there is no basis for immunizing lower level decisions that merely implement a basic policy already formulated,” and holding that acts of a deputy public defender in representing a client are not entitled to discretionary immunity because a deputy public defender‘s “services consist of operational duties that merely implement the initial decision to provide representation and are incident to the normal functions of the office of the public defender“); McCorkle v. City of Los Angeles, 449 P.2d 453, 460 (Cal. 1969) (holding that, even if a police officer made a discretionary decision to undertake an investigation, the officer‘s subsequent negligent acts in performing the investigation were not protected by discretionary immunity).
The Memo is plainly an example of decision-making at the “planning” level, as that term is used by the California Supreme Court. Thus, the issuance of the Memo was a discretionary act insulated from liability under
We also conclude that the district court did not err in determining immunity on a motion to dismiss—the issue before the court was a legal one, not dependent on disputed facts, and courts routinely answer questions of immunity on a motion to dismiss. See, e.g., Gonzalez v. United States, 814 F.3d 1022, 1025 (9th Cir. 2016) (holding, on an appeal from a motion to dismiss, that discretionary immunity barred plaintiffs’ claims); Caldwell, 897 P.2d at 1323 (holding, on an appeal from a sustained demurrer by the trial court, that discretionary immunity applied).
We now turn to Plaintiffs’ remaining arguments.
II. Incorporation by Reference Doctrine
Plaintiffs argue that the district court improperly took judicial notice of the Memo‘s contents. We disagree. The district court expressly stated that it considered the Memo
under the incorporation by reference doctrine. This doctrine permits a court to consider a document “if the plaintiff
Here, the Memo forms the very basis of Plaintiffs’ claims, and Plaintiffs referred extensively to it throughout the district court proceedings. On appeal, Plaintiffs state that they “dispute the accuracy of the contents of the memorandum,” but their substantial reliance on the Memo and their failure to question its accuracy below directly belies their position. Indeed, Plaintiffs’ own legal counsel, by declaration, submitted a copy of the Memo in support of their motion for judgment below. Additionally, they did not oppose City Defendants’ request for judicial notice of the Memo below7 and, in their opposition to City Defendants’ motion to dismiss, they actually cited and relied upon the Memo that was attached to City Defendants’ request for judicial notice. Moreover, Plaintiffs fail to identify any specific part of the Memo that they claim is inaccurate, i.e., not part of the actual Memo.
In short, the district court appropriately considered the Memo under the incorporation by reference doctrine. See In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999) (rejecting party‘s claim questioning the veracity of SEC filings that were considered under the incorporation by reference doctrine because the party‘s “ongoing and substantial reliance” on the filings undermined her position),
abrogated on other grounds by S. Ferry LP, No. 2 ν. Killinger, 542 F.3d 776, 784 (9th Cir. 2008).
III. The Sheriff‘s Discretionary Authority
Finally, Plaintiffs argue that Sheriff Mirkarimi lacked discretionary authority to issue the Memo and, therefore, is not entitled to immunity. As set forth below, we reject that position and the various arguments offered in support.
A. 8 U.S.C. §§ 1373(a) and 1644
Plaintiffs claim that Sheriff Mirkarimi lacked discretion to issue the Memo because
Plaintiffs argue, relying on text found in different statutory sections, that “immigration status” includes whether an individual is lawfully present in the United States, and “the release date of an undocumented inmate is the date upon which he goes from lawful to unlawful presence in the United States.”9 Therefore, according to
Plaintiffs, release date information is “information regarding” “immigration status.” Plaintiffs also point to legislative history and contend that congressional reports relating to §§ 1373(a) and 1644 demonstrate that those sections were intended to eliminate any restrictions on the flow of immigration information between state and local entities and federal immigration officials.
The statutory text at issue clearly does not include release-date information. It includes only “information regarding” “immigration status,” and nothing in §§ 1373(a) or 1644 addresses information concerning an inmate‘s release date. As the district court correctly found, no plausible reading of “information regarding” “immigration status” encompasses the state or local release date of an inmate who is an alien. See also United States v. California, 314 F. Supp. 3d 1077, 1102 (E.D. Cal. 2018) (holding that § 1373(a) does not encompass release-date information). Congress certainly could have added explicit “release date” wording to the statutes, but it did not. Accordingly, we hold that, although §§ 1373(a) and 1644 prohibit restrictions on
providing certain types of information to ICE, they plainly and unambiguously do not prohibit the restriction at issue in this case regarding release-date information.10 Thus, our inquiry is at an end, irrespective of legislative history.11
B. Immigration Policy
Plaintiffs claim that Sheriff Mirkarimi did not have discretionary authority to issue the Memo because the Memo “invaded” the federal government‘s authority over immigration law and frustrated ICE‘s ability to detain and deport Lopez-Sanchez. We accept as true, as we must at this stage of the proceedings, that the issuance of the Memo interfered with ICE‘s ability to detain and deport Lopez-Sanchez, and that ICE would have detained Lopez-Sanchez
C. Legislative Act
Plaintiffs argue that the Memo was an “act of legislating” and that Sheriff Mirkarimi did not have authority to legislate. Consequently, according to Plaintiffs, the Sheriff is not entitled to immunity because he exceeded his discretionary authority in issuing the Memo.
Plaintiffs appear to believe that the Memo was a legislative act because it involved policymaking by the Sheriff. But action by a government official that involves some weighing of policy is not the equivalent of a legislative act. “‘Policy’ is a broad term that is not synonymous with legislation.” Worthington v. City Council of Rohnert Park, 31 Cal. Rptr. 3d 59, 66 (Ct. App. 2005). To the extent that Plaintiffs intended a more specific argument, they have not
provided an adequate explanation to preserve it. See Fed. R. App. P. 28(a)(8)(A) (“The appellant‘s brief must contain . . . the argument, which must contain . . . appellant‘s contentions and the reasons for them, with citations to the authorities[.]” (emphasis added)); Indep. Towers of Wash. v. Washington, 350 F.3d 925, 930 (9th Cir. 2003) (“We require contentions to be accompanied by reasons.“).
D. California Public Records Act
Plaintiffs claim that the failure to provide ICE with Lopez-Sanchez‘s release date violated the California Public Records Act (“CPRA“) and that the Sheriff lacked discretion to contravene the CPRA.12 The CPRA concerns “a request for a copy of records.”13 As alleged, though, ICE‘s detainer request was not a request for a copy of records under the CPRA. Plaintiffs assert that “ICE sent a detainer request to [the Sheriff‘s Department] asking to be informed of Mr.
Sanchez‘s release date.” The complaint states that a “detainer request asks the receiving agency to perform two tasks in regard to an undocumented immigrant in custody: (1) to notify ICE forty-eight (48) hours prior to the release of the undocumented immigrant so that ICE can assume custody; and (2) to detain the individual until” ICE can assume custody.
E. California Health and Safety Code Section 11369
Plaintiffs argue that the Memo violated California Health and Safety Code section 11369, which provides: “When there is reason to believe that any person arrested for a violation of [certain laws regarding controlled substances], may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters.”14 Contrary to Plaintiffs’ argument, nothing in section 11369 requires the
transmission of an inmate‘s release date to ICE and, as noted above, the complaint affirmatively asserts that ICE already knew that Lopez-Sanchez was not a citizen of the United States.
Further, Plaintiffs allege that the federal government transferred Lopez-Sanchez to the custody of the Sheriff‘s Department after he completed a federal prison sentence. Accordingly, as the district court correctly ruled, section 11369 is inapplicable here because the Sheriff‘s Department was not the “arresting agency.” Plaintiffs’ allegations fail to demonstrate any violation of section 11369.
F. Other Local Laws
Plaintiffs claim that other local laws prohibited Sheriff Mirkarimi from limiting cooperation with ICE. They cite
Plaintiffs also assert that San Francisco Administrative Code section 12H.2-1 prohibited Sheriff Mirkarimi from limiting cooperation with ICE.15 Section 12H.2-1 at all relevant times provided, in pertinent part:
Nothing in this Chapter shall preclude any City and County department, agency, commission, officer or employee from (a) reporting information to the Federal agency charged with enforcement of the Federal immigration law regarding an individual who has been booked at any county jail facility, and who has previously been convicted of a felony ... [; or] (b) cooperating with a request from the Federal agency charged with enforcement of the Federal immigration law for information regarding an individual who has been convicted of a felony . . . .
However, this section does not, by express provision or implication, mandate that the Sheriff (or any other officer) provide information to ICE regarding a convicted
Plaintiffs also argue that, when read together, section 6.105 of the San Francisco Charter (the “Charter“) and
Plaintiffs appear to reason that these sections require the Sheriff to cooperate with ICE because, when receiving and caring for prisoners from other jurisdictions, the Sheriff necessarily must cooperate with other law enforcement agencies. While it is necessary for the Sheriff to cooperate with other law enforcement authorities in performing his duties, there is no text in these sections that can be construed as prohibiting the issuance of the Memo.
In summary, Plaintiffs’ arguments fail to show that Sheriff Mirkarimi lacked discretionary authority to issue the Memo. We therefore hold that the issuance of the Memo was a protected discretionary act under
IV. Leave to Amend
During oral argument, Plaintiffs requested leave to amend the complaint to remove all references to the Memo. However, this issue is waived because Plaintiffs failed to raise it in their opening brief.16 See Balser v. Dep‘t of Justice, Office of U.S. Tr., 327 F.3d 903, 911 (9th Cir. 2003). Even if the request had been properly raised on appeal (which would have been difficult, as Plaintiffs never made this argument below), the district court‘s denial of leave to amend was proper because Plaintiffs’ claims would not be
saved by any amendment; the Memo, on its face, reflects a basic policy decision entitled to discretionary immunity.17 See Carrico v. City & Cty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011) (“[Leave to amend] is properly denied . . . if amendment would be futile.“).
CONCLUSION
Our holding today makes no judgment as to whether or not the policy established
AFFIRMED.
GRABER, Circuit Judge, concurring:
I join the opinion, which relies on the general discretionary-immunity statute,
As recognized by the California courts, the legislature intended those grants of immunity to be specific applications of the general discretionary-immunity statute. E.g., Whitcombe v. County of Yolo, 141 Cal. Rptr. 189, 195 & n.10 (Ct. App. 1977). Moreover, when those specific immunity statutes apply, we need not determine whether the underlying acts were “discretionary” or “ministerial” because the legislature “has already concluded that all conduct within [the statutes‘] terms is entitled to immunity.” Id. at 197 & n.15. “[A] specific legislative mandate of immunity effectively places beyond the pale of liability both discretionary decisions themselves and their ministerial implementations.” Id. at 198. Here, as in Whitcombe, “we need not resort to th[e] general discretionary immunity section,” because Defendants are immune under the specific immunity statutes. Id. at 197; see also Carmack v. Reynolds, 391 P.3d 625, 632 (Cal. 2017) (“A specific provision relating to a particular subject will govern in respect to that subject,
as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.” (quoting Miller v. Superior Court, 986 P.2d 170, 177 (Cal. 1999))).
The specific immunity statutes apply here because Plaintiffs’ entire claim rests on the manner in which a prisoner was released (he was released without notifying federal authorities). Even adopting Plaintiffs’ view that the Memo, and not the release, caused the harm, the California courts have construed sections 845.8(a) and 846 broadly to encompass all “policy decisions . . . made prior to and as an integral part of the ultimate basic decision to release.” County of Santa Barbara v. Superior Court, 93 Cal. Rptr. 406, 410 (Cal. Ct. App. 1971).
As the main opinion properly acknowledges, the events underlying this case are tragic. And some of Plaintiffs’ claims remain to be litigated in the district court.
Notes
H.R. Conf. Rep. No. 104-725, at 383 (1996), reprinted in 1996 U.S.C.C.A.N. 2649, 2771. However, the plain and unambiguous statutory text simply does not accomplish what the Conference Report says it was designed to accomplish.The conferees intend to give State and local officials the authority to communicate with the INS regarding the presence, whereabouts, or activities of illegal aliens. This provision is designed to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or decision of any Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS.