ORDER REGARDING MOTIONS TO DISMISS
Re: Dkt. Nos. 21, 36
I. INTRODUCTION
This action arises from the tragic death . of Kathryn Steinle (“Steinle”) on July 1, 2015. Plaintiffs James Steinle and Elizabeth Sullivan—individually, as heirs to Steinle, and as representatives of Steinle’s estate—bring several claims against Defendants Ross Mirkarimi, the City and County of San Francisco (“San Francisco” or the “City”), and the United States of America, alleging that but for Defendants’ actions and inactions, non-party Juan Francisco Lopez-Sanchez
II. BACKGROUND
A. Allegations of the Complaint
A plaintiffs factual allegations are generally assumed to be true at the pleading stage. This section therefore summarizes the allegations of Plaintiffs’ complaint. Nothing in this Order, including the following summary of Plaintiffs’ allegations, should be interpreted as deciding that Plaintiffs’ allegations are true or as resolving any issue of fact.
1. Sanctuary City Ordinance and March 13, 2015 Memorandum
Chapter 12H of the San Francisco Administrative Code limits the information that San Francisco and its officers and employees share with federal immigration officials. Compl. (dkt. 1) ¶ 24; see also Pis.’ Req. for Judicial Notice in Supp. of Pis.’ Opp’n to City Defs.’ Mot. to Dismiss (“RJN re Opp’n to City,” dkt. 30) Ex. A (Chapter 12H).
On March 13, 2015, then-Sheriff Mir-karimi issued a memorandum to all San Francisco Sheriffs Department personnel regarding protocols for communication with federal Immigration and Customs Enforcement (“ICE”) representatives. Compl. ¶ 30; City Defs.’ Req. for Judicial Notice in Supp. of Mot. to Dismiss (“City RJN”) Ex. A.
The memorandum included no exception for individuals convicted of a felony. City RJN Ex. A. Before Mirkarimi issued the March 13 memorandum, the Sheriffs Department had freely “provide[d] information to ICE regarding undocumented immigrant felons in custody.” Compl. ¶32. Mirkarimi had previously met with a Department of Homeland Security official and informed him that the San Francisco Sheriffs Department would not honor ICE detainer requests or inform ICE when undocumented immigrants. were being released except as required by a court order or warrant. Id. ¶ 38.
2. Release of Lopez-Sanchez
Lopez-Sanchez has been convicted of “at least seven felonies,” including several related to controlled substances and others related to supervised release violations or criminal reentry after deportation. Id. ¶¶ 21-21. He has been deported to Mexico at least five times. Id. After completing a 46-month sentence at a federal prison on March 26, 2015, Lopez-Sanchez was released to the custody of the San Francisco Sheriffs Department to face additional felony charges for selling marijuana. Id. ¶¶22, 33. The charges against him were dropped on March 27, 2015. Id. ¶ 22. That same day, ICE sent a detainer request asking that the Sheriffs Department notify ICE forty-eight hours before releasing Lopez-Sanchez and continue to hold him until ICE could take custody of him. Id. ¶¶ 34-35. The Sheriffs Department did not respond to the detainer request or otherwise communicate with ICE, and released Lopez-Sanchez on April 15, 2015, nineteen days after the charges' against him had been dropped. Id. ¶¶ 22, 36. ICE took no further action to detain or deport Lopez-Sanchez other than issuing the detainer request. Id. ¶ 39.
3. Death of Steinle
At some point after his release, Lopez-Sanchez acquired a government-issued handgun. See id. ¶¶ 1, 44^15. Despite training and policies requiring rangers to ensure the security of their firearms and to leave them “in a secure place, out of sight, under lock and key” and unloaded when not in use, on June 27, 2015 a U.S. Bureau of Land Management (“BLM”) ranger left his handgun loaded and unlocked in a backpack in an unattended vehicle in downtown San Francisco, “in plain sight of passersby’s [sic] and within reach of someone smashing the window of the vehicle.” Id. ¶¶ 40-44. The handgun was stolen from the vehicle. Id. ¶ 44. The Complaint does not specify whether Lopez-Sanchez himself stole the handgun or acquired it later.
The evening of July 1, 2015, four days after the handgun was stolen and approximately two and a half months after Lopez-Sanchez was released by the Sheriffs Department, Lopez-Sanchez was under the influence of narcotics and “acting bizarrely” near Pier 14 of the San Francisco Embarcadero. Id. ¶ 17, 20. Steinle was walking in the area with her father. Id. ¶ 17. Lopez-Sanchez shot and killed Steinle Id. ¶ 19.
Plaintiffs contend that Defendants should have been aware of the risk that Lopez-Sanchez would engage in violence based on: (1) a 2008 incident in which an undocumented immigrant with a history of violent felonies killed three people after he was released from custody in San Francisco, leading to a lawsuit against the. City; and (2) studies demonstrating recidivism
4. Claims
Plaintiffs’ first claim is for “general negligence” against all Defendants, citing sections 815.2(a) and 820(a) of the California Government Code. See id. ¶¶ 46-64. Plaintiffs contend that the City Defendants acted negligently by issuing the March 18 memorandum, failing .to share information with ICE and forbidding employees from doing so, and ignoring the detainer request from ICE regarding Lopez-Sanchez. Id. ¶ 47. According to Plaintiffs, such actions were outside the scope of the City Defendants’ discretion because they violated state and federal law, specifically 8 U.S.C. § 1373(a), section 11369 of the California Health and Safety Code, and section 7282.5 of the California Government Code. Compl. ¶ 48. Plaintiffs also contend that the United States is responsible for the BLM ranger’s negligence in leaving a loaded firearm where it could easily be stolen, and for ICE’s negligence in failing to detain and deport Lopez-Sanchez. Id. ¶¶ 55-64.
Plaintiffs’ second claim is for “public entity negligence” against all Defendants, citing section 669 of the California Evidence Code, which sets forth the standard for negligence per se. See id. ¶¶ 68-89. Plaintiffs contend that the City Defendants were negligent under that standard because they restricted Sheriffs Department employees’ discretion to cooperate with ICE in violation of state and federal law. Id. ¶¶ 69-72. Plaintiffs also argue that agents of the United States were negligent under that standard because the BLM agent did not follow certain provisions of BLM and Department of the Interior manuals regarding firearm security and storage, id. ¶¶ 75-82, and because ICE did not take custody of Lopez-Sanchez despite federal laws requiring the Attorney General of the United States to take custody of certain aliens, id. ¶¶ 83-86.
Plaintiffs’ third claim, brought by Plaintiffs in their capacity as representatives of Steinle’s estate, is for basic negligence against all Defendants. Id. ¶¶ 90-94. Plaintiffs’ fourth and final claim is under 42 U.S.C. § 1983 against the City Defendants, alleging that the March 13 memorandum “deprived [Steinle] of life and liberty without due process” by prohibiting Sheriffs Department employees from notifying ICE when Lopez-Sanchez was released. Id. ¶¶ 95-101.
B. Arguments
1. The City Defendants’ Motion to Dismiss
The City Defendants move to dismiss all claims against them. See generally City Mot. (dkt. 21). First, they contend that Plaintiffs’ negligence claims rest on a supposed duty to protect.Steinle from Lopez-Sanchez’s criminal act, and that California law does not recognize such a duty except where “the government had a direct relationship with the victim and placed the victim in a position of danger.” Id. at 5-7 (citing, e.g., Zelig v. County of Los Angeles,
The City Defendants also argue that the statutes regarding communication with federal immigration authorities cited in Plaintiffs’ complaint—specifically, 8 U.S.C. § 1373 and section 7282.5(a)(2) of the California Government Code—do not create the sort of mandatory duty actionable under California law, and that those statutes
Next, the City Defendants contend that sections 845.8(a) and 846 of the Government Code, which immunize public employees and entities from liability for harm resulting from decisions regarding the release of prisoners, as well as section 820.2 of the Government Code, which immunizes public employees from liability for harm resulting from exercises of discretion vested in them, apply here to bar Plaintiffs’ claims. Id. at 10-11.
Finally, the City Defendants argue that “the chain of causation is too attenuated and speculative to establish proximate cause,” because “several other entities and persons (including Lopez-Sanchez himself) would have had to take actions outside of [the City Defendants’] control to effect Lopez-Sanchez’s removal.” Id. at 12-13.
2. Plaintiffs’ Opposition to the City Defendants’ Motion
According to Plaintiffs, their claims against the City Defendants should be allowed to proceed based on Mirkarimi’s “blatant disregard for the mandate imposed by San Francisco Administrative Code Section 12[H].2-1,” which Plaintiffs contend “created a mandatory duty not to prohibit employees from communicating with ICE.” Opp’n to City Mot. (dkt. 29) at 1-2. Plaintiffs make clear that their claims against the City Defendants are not based on “failure to warn or making the decision to release Lopez-Sanchez,” but instead rest on “Mirkarimi’s decisions [sic] to issue the March Memo, which forbid employees from contacting ICE, ignored ICE’s de-tainer request, and failed to notify ICE regarding Lopez-Sanchez’s release on April 15.” Id. at 1, 5 (capitalization altered).
Plaintiffs argue that a mandatory duty sufficient to support a claim can arise from prohibitory language in statutes—if a statute forbids a certain action, then public officials have a mandatory duty not to take that action. See id. at 6-9. Plaintiffs focus their argument on section 12H.2-1 of the San Francisco Administrative Code, which at the time of the events at issue provided that “[n]othing in this Chapter shall preclude any City and County department, agency, commission, officer or employee from” reporting information about or cooperating with a federal request for information regarding individuals convicted of felonies. Id. at 9; see also RJN re Opp’n to City Ex. A § 12H.2-1. According to Plaintiffs, that language was intended to “prohibit all restrictions on the use of [San Francisco] resources to assist ICE in the apprehension of undocumented felons.” Opp’n to City Mot. at 10; see also id. at 12 (noting the use of the word “shall” in section 12H.2-1). Plaintiffs also contend that section 12H.2-1 is consistent with 8 U.S.C. § 1373(a), California Government Code section 7282.5, and California Health and Safety Code section 11369, all of which, according to Plaintiffs, “prohibit all restrictions on voluntary communications with ICE regarding undocumented felons.” Id. Plaintiffs cite Bologna v. City & County of San Francisco,
Plaintiffs next turn to the question of whether the duty at issue was designed to protect against the injury suffered. Id. at 13-14. Acknowledging the Bologna court’s holding that 8 U.S.C. § 1373 and Health and Safety Code section 11369 were not intended to protect members of the public from violence, Plaintiffs instead rely on Chapter 12H, the purpose of which was not addressed in Bologna, arguing that the exemption of felons from San Francisco’s general sanctuary city policy “clearly demonstrates the purpose behind this amendment was to protect the safety of the community.” Id.
Plaintiffs also argue that their claim for general negligence should proceed, even absent a statutory duty, because the harm to Steinle was a reasonably foreseeable result of both the March 13 memorandum, which established a policy of not providing certain information to ICE, and Mirkari-mi’s own failure to contact ICE himself regarding Lopez-Sanchez’s release. Id. at 14. Citing the test of Rowland v. Christian,
Plaintiffs contend that the City Defendants cannot claim immunity under sections 845.8(a) and 846 of the Government Code because Plaintiffs are not challenging a decision to release Lopez-Sanchez, but rather the decision to issue the March 13 memorandum prohibiting Sheriffs Department employees from providing certain information to ICE, including release dates. Id. at 18-19. Plaintiffs also argue that the City Defendants cannot claim immunity for discretionary acts under section 820.2 of the Government Code because “the acts were mandatory not discretionary,” and the City Defendants “are not vested with authority to contravene the law.” Id. at 19.
Finally, Plaintiffs argue that their § 1983 claim should proceed based on theories of both procedural and substantive due process violations. Id. at 19-23. With respect to procedural due process, Plaintiffs contend that “the Constitution requires some kind of a hearing before the State deprives a person of life or liberty,” and the March 13 memorandum'—which Mirkarimi implemented without a hearing or public notice—deprived Steinle of her “right to life and liberty.” Id. at 20-21. With respect to substantive due process, Plaintiffs acknowledge that the Constitution does not generally create an affirmative duty to protect, but argue that they should be allowed to proceed on this claim based on decisions recognizing an exception to that rule where affirmative state
3. The City Defendants’ Reply
The City Defendants’ reply brief reiterates their position that the City cannot be held liable for negligent failure to protect Steinle absent a breach of some statutory duty. City Reply (dkt. 32) at 2-3 (citing, e.g., Zelig, 27 Cal.4th 1112,
The City Defendants next address Plaintiffs’ argument that Chapter 12H of the San Francisco Administrative Code created a mandatory duty and civil liability for breach of that duty. Id. at 6-8. According to the City Defendants, Plaintiffs rely on the word “shall” in that ordinance without context, and the language of the statute, i.e., “Nothing in this Chapter shall preclude ...,” “does not require that an employee act in a specific or mandatory way—it simply means that in certain situations an employee would not violate the particular ordinance by providing information.” Id. at 7; see RJN re Opp’n to City Ex. A § 12H.2-1. The City Defendants also argue that Plaintiffs have not demonstrated that any part of Chapter 12H was intended to protect the public from criminal acts, and note that section 12H.5 states that Chapter 12H is not intended to create civil liability. City Reply at 8.
The City Defendants contend that Plaintiffs’ allegations regarding causation are too speculative to be taken as true under the Twombly pleading standard, and that even if the steps leading to Steinle’s death can be traced back to the City Defendants’ decisions, the connection is too attenuated to establish proximate causation under California law. Id. at 8-9. They also argue that discretionary immunity under Government Code section 820.2 applies “[i]f any part of the acts plaintiffs claim creates [sic] liability includes discretionary decisions,” and therefore applies here. Id. at 9.
As for Plaintiffs’ § 1983 claim, the City Defendants argue that the cases Plaintiffs cite for substantive due process violations based on creating a risk of harm all involve actions that “placed a specific, identifiable persons [sic] in a greater position of danger than without the affirmative actions of law enforcement.” Id. at 9-10. The City Defendants also contend that Plaintiffs have not stated a procedural due process claim because no law required a public hearing before Mirkarimi issued a directive to his staff such as the March 13 memorandum. Id. at 10.
4. The United States’ Motion to Dismiss
The United States structures its motion to address separately Plaintiffs’ claims regarding ICE’s failure to detain Lopez-Sanchez and Plaintiffs’ claims regarding the gun stolen from the BLM ranger’s vehicle. To the extent that the United States’ motion is based on sovereign immunity, it is a motion to dismiss for lack of jurisdiction rather than for failure to state a claim. See U.S. Mot. (dkt. 36) at 1.
With respect to claims regarding ICE, the United States first argues that it is protected by sovereign immunity under the discretionary function exception, a
The United States also argues that even if the discretionary function exception does not apply, the FTCA does not waive sovereign immunity for violations of federal law, and Plaintiffs therefore .cannot pursue a claim for breach of duties set by federal law even where such a claim is framed as negligence per se under California law. Id. at 13-14. In a footnote, the United States suggests that Plaintiffs’ claims for “public entity negligence” by ICE may not proceed under the FTCA because that statute only waives sovereign immunity for claims “where the United States, if a private person, would be liable,” 28 U.S.C. § 1346(b)(1) (emphasis added), not for circumstances where local law would impose liability on a public entity, and because “it is not clear that there are any private analogs under California state law applicable to ICE’s conduct at issue here, which involved decisions regarding detention and deportation.” U.S. Mot. at 13-14 n.5 (citing United States v. Olson,
Turning to the claims based on the stolen gun, the United States again argues that it has not waived sovereign immunity for claims based on federal law, and that Plaintiffs therefore cannot base a claim on the BLM ranger’s failure to follow firearm storage procedures set forth in a BLM handbook. Id. at 19. The United States also contends that although California recognizes liability in some circumstances for negligent storage of firearms and requires “a high degree of care” from gun owners, id. at 19-20 (citing Reida v. Lund,
5. Plaintiffs’ Opposition to the United States’ Motion
Plaintiffs begin their opposition brief with the argument that the Court should not consider Shanahan’s declaration, citing the rule that motions under Rule 12(b)(6) are based only on the allegations of the complaint and certain exceptions such as documents subject to judicial notice. Opp’n to U.S. Mot. (dkt. 38) at 5.
Next, Plaintiffs argue that ICE is not immune to suit based on an exercise of discretion, although Plaintiffs focus on California Government Code section 820.2 and California court decisions interpreting that statute, rather than on the discretionary function exception to the FTCA’s waiver of sovereign immunity on which the United States relies in its motion. See id. at 5-6, 8-10. According to Plaintiffs, 8 U.S.C. § 1226(c) imposes a mandatory, not discretionary, duty on ICE to detain certain aliens. Id. at 6-8 (citing, e.g., Demore v. Kim,
Plaintiffs also argue that the United States is subject to a negligence claim under California law because it was reasonably foreseeable that Lopez-Sanchez would engage in crime if ICE failed to detain him, and that proximate causation is a question of fact inappropriate for resolution at this stage of the case. Id. at 11-13, 15-17. According to Plaintiffs, their claim that ICE failed to carry out a mandatory duty to detain Lopez-Sanchez is not a claim that ICE failed to provide police protection, which would be barred by California Government Code section 845. Id. at 13-15.
As for their claims based on the BLM ranger’s failure to secure his firearm, Plaintiffs argue that general negligence principles apply because it was foreseeable that the gun could be stolen and used in a manner that would lead to harm. Id. at 17-19. Plaintiffs cite a California Supreme Court decision holding summary judgment inappropriate where the defendant’s employees left the key in the ignition of a truck and the plaintiff was injured by a thief who stole the truck, and an administrative decision holding that a BLM agent acted negligently in leaving a gun accessible in his home when he hosted a gathering of friends after drinking at a bar. Id. at 17-19 (citing Palma v. U.S. Indus. Fasteners,
Finally, Plaintiffs argue that the United States’ motion to dismiss for lack of jurisdiction must be denied because the FTCA
6. The United States’ Reply
The United States argues in its reply that the Court may consider Shanahan’s declaration in resolving the question of sovereign immunity, because sovereign immunity is a jurisdictional question and extrinsic evidence is appropriate on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, as opposed to a motion to dismiss for failure to state a claim under Rule 12(b)(6). U.S. Reply (dkt. 39) at 1-2.
The United States also contends that the discretionary function exception to the FTCA’s waiver of sovereign immunity is a question of federal law, and that the authorities Plaintiffs cite interpreting section 820.2 of the California Government Code are therefore irrelevant. Id. at 3. The United States notes that, contrary to a rule that Plaintiffs cite under California law, analysis of the FTCA discretionary function exception depends not on “ ‘ “the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and whether they are susceptible to policy analysis.” ’ ” Id. (quoting U.S. Mot. at 6-7 (quoting United States v. Gaubert,
The United States notes that Plaintiffs’ opposition does not respond to the United States’ argument that the FTCA does not allow claims based on a duty imposed by federal law, or to its argument that the FTCA does not allow claims based on theories of liability specific to public entities rather than applicable to private persons. Id. at 5-6. The United States also reiterates its argument that the discretionary function exception applies. Id. at 6. According to the United States, Plaintiffs fail to identify any applicable source of liability under state law, because-—despite Plaintiffs’ assertions to the contrary—their claims are best viewed as alleging a failure to prevent crime, and California law only recognizes such claims where the defendant has a “special relationship” with either the perpetrator or the victim. Id. (citing Vu v. Singer Co.,
As for the BLM ranger’s failure to secure his handgun, the United States again contends that the sequence of events was too attenuated to impose liability on the United States for Steinle’s death, id. at 9, and argues that the manual on which Plaintiffs rely cannot serve as a basis for negligence per se because it was not adopted pursuant to the Administrative Procedure Act as required by Evidence Code section 669.1 (although the United States offers no evidence or authority to support this assertion), and because the FTCA does not waive sovereign immunity for claims based on a duty imposed by federal law, including a duty set by a federal agency manual. Id at 9-10.
III. ANALYSIS
A. Legal Standard
A complaint may be dismissed for failure to state a claim on which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n,
In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and takes “all allegations of material fact as true and construe[s] them in the light most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington,
When a defendant moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff, as the party seeking to invoke the court’s jurisdiction by filing the complaint, bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am.,
B. Claims Against the City Defendants
As noted above, Plaintiffs’ complaint asserts four claims against the City Defendants: “General Negligence— Wrongful Death,” citing California Government Code sections 815.2(a) and 820(a), “Public Entity Negligence—Wrongful Death,” citing California Evidence Code section 669, “Negligence—Survivor Cause of Action,” citing no specific statutory provision, and “Deprivation of Federal Civil Rights,” citing “48 [sic] U.S.C. § 1983” (presumably referring to 42 U.S.C. § 1983). See Compl. ¶¶ 46-101. The parties’ arguments generally group the first three claims into two theories of liability: negligence per se, which depends on the violation of a specific duty imposed by statute, and general negligence, which depends on a duty of care under the common law. The analysis is therefore addresses three theories of liability: (1) negligence per se; (2) general negligence; and (3) deprivation of civil rights under § 1983.
1. Negligence Per Se
Plaintiffs’ negligence per se claims against the City Defendants depend on the theory that the March 13 memorandum violated a specific duty imposed by federal, state, or local law. Section 669 of the California Evidence Code, which Plaintiffs cite as the basis of their second claim, see Compl. ¶¶ 68-89, provides that failure to exercise due care is presumed where “(1) [a defendant] violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately cause death or injury to a person or property; (3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or injury ... was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Cal. Evid. Code § 669(a).
“Except as provided by statute ... [a] public entity is not liable for any injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Cal. Gov’t Code § 815. In order to proceed on claims against the City, Plaintiffs must therefore identify a statute specifically authorizing public entity liability as an exception to section 815 of the Government Code. One such statute parallels the negligence per se standard: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is hable for an injury of that kind proximately caused by its failure to discharge the duty” unless it reasonably attempted to do so. Id. § 815.6. As discussed in more detail in the context of Plaintiffs’ .general negligence claims, public entities can also.be vicariously liable for injuries caused by their employees. Id. § 815.2; see also Zelig,
Before the Court addresses the statutes and ordinance that Plaintiffs invoke, one principle that is not at issue here warrants a brief explanation. Plaintiffs do not claim that any federal law requires state or local law enforcement to assist with the administration of federal immigration law. Rather, Plaintiffs argue that the state and federal statutes at issue here limit government entities’ ability to restrict cooperation with federal immigration authorities. According to Plaintiffs, all of these statutes “prohibit all restrictions on voluntary
a. 8 U.S.C. § 1373(a)
The only federal statute at issue, 8 U.S.C. § 1373(a), reads as follows:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service7 information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
8 U.S.C. § 1373(a).
The question at issue here is whether § 1373(a) prohibits a local law enforcement official from significantly restricting the circumstances in which his subordinates can share an undocumented inmate’s release date with ICE. Although the March 13 memorandum also restricted providing the “citizenship/immigration status of any inmate” to ICE, see City RJN Ex. A, Plaintiffs’ theory of liability relies on Sheriffs Department employees’ inability to communicate Lopez-Sanchez’s release date to ICE, not his citizenship status, see Compl. ¶37. Given that ICE issued a detainer request for Lopez-Sanchez well before his release, there is no question that ICE was aware of Lopez-Sanchez’s immigration status. Id. ¶ 34.
Plaintiffs rely on Bologna, a California state appellate decision, which characterized § 1373(a) as “invalidating] all restrictions on the voluntary exchange of immigration information between federal, state and local government entities and officials and federal immigration authorities.” Bologna,
This Court is not bound by the state court’s interpretation of federal law,
The principle that committee report language has no binding legal effect is grounded in the text of the Constitution and in the structure of separated powers the Constitution created. Article I, section 7, clause 2 of the Constitution is explicit about the manner in which Congress can take legally binding action. Members of Congress cannot use committee report language to make an end run around the requirements of Article I. If Congress wishes to alter the legal duties of persons outside the legislative branch, including administrative agencies, it must use the process outlined in Article I. See INS v. Chadha,462 U.S. 919 , 952,103 S.Ct. 2764 ,77 L.Ed.2d 317 (1983); see also Clinton v. City of New York,524 U.S. 417 , 439-40,118 S.Ct. 2091 ,141 L.Ed.2d 393 (1998) (holding that “the power to enact statutes may only be exercised in accord with a single, finely wrought and exhaustively considered, procedure” outlined in Article I (internal quotation omitted))....
Treating legislative reports as binding law also undermines our constitutional structure of separated powers, because .legislative reports do not-come with the traditional and constitutionally-mandated political safeguards of legislation. As noted above, legislative reports are not acts of law satisfying the precise requirements of Article I, which were devised by the Framers to ensure separation of powers and a careful legislative process. By contrast, legislative reports may in some cases be written by an individual legislator, congressional staffers, or even lobbyists. Giving binding effect to passages in legislative reports may thus give binding legal effect to the unchecked will of a lone person, and that is not what our Constitution envisions.
Nw. Envtl. Def. Ctr. v. Bonneville Power Admin.,
Nothing in 8 U.S.C. § 1373(a) addresses information concerning an inmate’s release date. The statute, by its terms, governs only “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). If the Congress that enacted the Omnibus Consolidated Appropriations Act of 1997 (which included § 1373(a)) had intended to bar all restriction of communication between local law enforcement and federal immigration authorities, or specifically to bar restrictions of sharing inmates’ release dates, it could have included such language in the statute. It did not, and no plausible reading of “information regarding ... citizenship or immigration status” encompasses the release date of an undocumented inmate. Because the plain language of the statute is clear on this point, the Court has no occasion to consult legislative history.
In light of the Court’s holding regarding the scope of § 1373(a), the March 13 memorandum violated that statute only, if at all,
Moreover, Plaintiffs do not meaningfully dispute the Bologna court’s holding that § 1373(a) was not intended to prevent harm caused by violent crime.
b. California Health & Safety Code Section 11369
Section 11369 of the California Health and Safety Codereads as follows:
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.
Cal. Health & Safety Code § 11369. As with § 1373(a), this law does not, by its terms, govern the transmission of an inmate’s release date to ICE. The plain language of the statute requires only that
Based on the allegations of the complaint, it is clear that the San Francisco Sheriff’s Department was not the “arresting agency” under section 11369 with respect to Lopez-Sanchez. Plaintiffs allege that the federal government transferred Lopez-Sanchez to the custody of the Sheriffs Department after he completed a federal prison sentence. Compl. ¶ 22. The complaint therefore does not allege any violation of section 11369. Further, even if the Sheriffs Department had arrested Lopez-Sanchez, notifying ICE of his arrest would not have altered the course of events, because—as demonstrated by the detainer request that ICE issued the day after the Sheriffs Department took custody of him—ICE already knew that Lopez-Sanchez was undocumented and that the Sheriffs Department was holding him. See id. ¶ 34. Finally, Plaintiffs again present no significant argument to rebut the Bologna court’s holding, based on a detailed review of precedent and legislative history, that section 11369 was not intended to prevent violent crime. See Bologna,
c. California Government Code Section 7282.5(a)
Plaintiffs’ opposition brief suggests that section 7282.5(a) of the California Government Code, in conjunction with the statutes discussed above, “prohibits] all restrictions on voluntary communication with ICE regarding undocumented felons.” Opp’n to City Mot. at 10; see also Compl. ¶¶ 26, 48, 70. That statute reads as follows:
A law enforcement official shall have discretion to cooperate with federal immigration officials by detaining an individual on the basis of an immigration hold after that individual becomes eligible for release from custody only if the continued detention of the individual on the basis of the immigration hold would not violate any federal, state, or local law, or any local policy, and only under any of the following circumstances: [listing certain conditions, including conviction of felonies related to controlled substances.]
Cal. Gov’t Code § 7282.5(a).
According to Plaintiffs, section 7282.5(a) creates “a mandatory duty ... to allow law enforcement officials the discretion to cooperate with federal immigration officials’ if the individual in question has previously been convicted of a felony.” Compl. ¶ 70. The only cooperation specifically discussed in the statute is “detaining an individual on the basis of an immigration hold,” see Cal. Gov’t Code § 7282.5(a), while the crux of Plaintiffs’ claim is restrictions on communication, not detention, see Opp’n to City Mot. at 8 (“The mandatory duty here is prohibitory—that restrictions on communication with ICE regarding undocumented felons are strictly prohibited.”). In any event, even if “cooperation” in this statute could be construed more broadly, the Court is not persuaded that section 7282.5(a) creates any mandatory duty.
As noted above, Plaintiffs do not claim that section 7282.5(a) creates a duty to actually cooperate with ICE. In describing officials’ “discretion” to cooperate, the statute makes clear that such cooperation is not mandatory. Instead, Plaintiffs argue that by establishing that law enforcement officials—which Plaintiffs interpret to in-
d. San Francisco Administrative Code Chapter 12H
Although Plaintiffs’ complaint does not identify Chapter 12H as a source of any duty, see Compl. ¶¶ 48, 69-70, their opposition brief rests largely on the argument that Mirkarimi violated that ordinance by issuing the March 18 memorandum, see Opp’n to City Mot. at 9-10, 12-14. Specifically, Plaintiffs focus on section 12H.2-1, which at relevant times included the following language:
Nothing in this Chapter shall prohibit, or be construed as prohibiting, a Law Enforcement Officer from identifying and reporting any adult pursuant to State or Federal law or regulation who is in custody after being booked for the alleged commission of a felony and is suspected of violating the civil provisions of the immigration laws....
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 committed in violation of the laws of the State of California, which is still considered a felony under State law; (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 committed in violation of the laws of the State of California, which is still considered a felony under State law; or (c) reporting information as required by Federal or State statute, regulation or court decision, regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under State law....
RJN re Opp’n to City Ex. A § 12H.2-1.
According to Plaintiffs, this section of the ordinance imposed a mandatory duty on Mirkarimi to allow officers to share information with ICE based on its use of the word “shall,” based on “the federal government’s pervasive regulation over immigration policy coupled with the necessity of cooperation by state and local governments,” and based on legislative intent, specifically language in the implementing ordinance stating that section 12H.2-1 was added “ ‘to clarify that Chapter 12H does not apply to individuals who have been convicted of certain crimes.’ ” Opp’n to City Mot. at 10, 12 (quoting RJN re Opp’n to City Ex. B (S.F. Ordinance No. 282-92, File No. 97-92-46 (approved Sept. 4, 1992))).
The language of section 12H.2-1 is not consistent with Plaintiffs’ view that this
* * *
The Court concludes that Plaintiffs’ complaint does not plausibly allege that Steinle’s death resulted from a violation of any of the sources of law that Plaintiffs cite: 8 U.S.C. § 1373(a), Section 11369 of the California Health and Safety Code, section 7282.5(a) of the California Government Code, or Chapter 12H of the San Francisco Administrative Code. The complaint therefore does not state a claim against the City Defendants for negligence per se under Evidence Code section 669 or for public entity liability under Government Code sections 815 and 815.6, and such claims must be DISMISSED under Rule 12(b)(6). The Court further concludes that the defects of these claims could not be cured by amending the complaint.
2. General Negligence
Plaintiffs also argue that they have stated a claim under general negligence principles because the “foreseeable result of allowing felons with serious documented drug histories to avoid deportation is that they will act erratically and dangerously in a manner that compromises the safety of the rest of the San Francisco community.” See Opp’n to City Mot. at 14-19; see also Compl. ¶¶ 46-54, 90-94. “The elements of a negligence action are duty, breach of duty, causation, and damages.” Carrera v. Maurice J. Sopp & Son,
Although California law does not generally permit a public entity to be held liable for its own negligence, see Cal. Gov’t Code § 815, a public entity may be held vicariously liable for actions of its employees, within the scope of those employees’ duties, if an employee’s conduct would give rise to a cause of action against the employee himself or herself, id. § 815.2(a). Public employees are generally liable for their actions to the same extent as private
Without reaching the City Defendants’ other arguments, including whether the March 81 memorandum was a legally sufficient proximate cause of Steinle’s death and whether immunity under Government Code sections 845.8(a) or 846 applies, the Court concludes that Mirkarimi is immune under section 820.2 of the Government Code and that the City is therefore also immune under section 815.2(b) of the Government Code.
“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Cal. Gov’t Code § 820.2.
A discretionary act requires a conscious balancing of risks and advantages when making basic policy decisions, see Bell v. State of California,63 Cal.App.4th 919 , 929,74 Cal.Rptr.2d 541 (1998); it does not protect operational or ministerial decisions that implement policies. Martinez v. City of Los Angeles,141 F.3d 1373 , 1379 (9th Cir. 1998) (citing Johnson v. State of California,69 Cal.2d 782 , 796,73 Cal.Rptr. 240 ,447 P.2d 352 (1968)). A ministerial act is an act pursuant to an order, or an act where a person had no choice. McCorkle v. City of Los Angeles,70 Cal.2d 252 , 261,74 Cal.Rptr. 389 ,449 P.2d 453 (1969). An operational act is one in which the person who made the decision, implemented the decision. See id.
Trujillo v. City of Ontario,
The parties do not address whether Mirkarimi’s issuance of the March 13 memorandum qualifies as a discretionary act for the purpose of section 820.2. The Court concludes that it does. The memorandum on its face indicates that Mirkari-mi issued it after consulting with the Sheriffs Department’s legal counsel to determine how best to implement section 12H.2 of the San Francisco Administrative Code. See City RJN Ex. A. The memorandum delineated categories of information that Sheriffs Department employees could presumptively provide to ICE, as well as categories (such as release dates) that employees could not share with ICE absent a court order or warrant, consultation with the legal department, and authorization by Mirkarimi. Id. The Court is therefore satisfied that the memorandum was a policy decision resulting from “a conscious balancing of risks and advantages,” and not a mere “operational or ministerial” act. See Trujillo,
Plaintiffs’ only argument against the application of section 820.2 here is that “the acts were mandatory not discretionary,” or in other words, that the City Defendants “are not vested with authority to contravene the law.” Opp’n to City Mot. at 19. As discussed above in the context of negligence per se, no law required the Sheriffs Department to share Lopez-Sanchez’s release date with ICE, nor did any law forbid Mirkarimi establishing a policy against such cooperation. Plaintiffs’ argument here is therefore unavailing. Section 820.2 bars liability against Mirkarimi for the decision to issue the March 13 memorandum, and 815.2(b) of the Government Code, which provides that “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability,” therefore bars liability against the City. Plaintiffs’ negligence claims against the City Defendants must therefore be DISMISSED. The Court finds that leave to amend these claims would be futile.
3. 42 U.S.C. § 1983
Plaintiffs’ claim under § 1983 alleges that the City Defendants deprived Steinle of her life and liberty without due process of law. Compl. ¶¶ 95-101. Section 1983 provides “a method for vindicating federal rights elsewhere conferred.” Graham v. Connor,
a. Substantive Due Process
The substantive component of the Due Process Clause “forbids the government from depriving a person of life, liberty, or property in such a way that shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” Nunez v. City of Los Angeles,
Substantive due process does not, however, create a “constitutional right to be protected by the state from attack by private third parties, absent some special relationship between the state and the victim or the criminal and the victim that distinguishes the victim from the general public.” Ketchum v. County of Alameda,
Here, Plaintiffs rely on a line of cases recognizing that harm caused by third parties can support a substantive due process claim where the defendant state actor’s “conduct ‘affirmatively placed the plaintiff in a position of danger.’ ” Wood v. Ostrander,
“Under the state-created danger doctrine, a state actor can be held liable for failing to protect a person’s interest in his personal security or bodily integrity when the state actor affirmatively and with deliberate indifference placed that person in danger.” Pauluk v. Savage,
To prevail on a state-created danger due process claim, a plaintiff must show more than merely a failure to create or maintain a safe work environment. First, a plaintiff must show that the state engaged in “affirmative conduct” that placed him or her in danger. [Patel v. Kent Sch. Dist.,648 F.3d 965 , 974 (9th Cir. 2011).] This “affirmative conduct” requirement has several components. A plaintiff must show not only that the defendant acted “affirmatively,” but also that the affirmative conduct placed him in a “worse position than that in which he would have been had [the state] not acted at all.” [Johnson v. City of Seattle,474 F.3d 634 , 641 (9th Cir. 2007)] (quoting DeShaney,489 U.S. at 201 ,109 S.Ct. 998 ); accord [Kennedy v. City of Ridgefield,439 F.3d 1055 , 1063 (9th Cir. 2006)]. The affirmative act must have exposed the plaintiff to “an actual, particularized danger,” Kennedy,439 F.3d at 1063 , and the resulting harm must have been foreseeable, see [Lawrence v. United States,340 F.3d 952 , 957 (9th Cir. 2003) ]. Second, the state actor must have acted with “deliberate indifference” to a “known or obvious danger.” Patel,648 F.3d at 974 (quoting L.W. v. Grubbs (Grubbs II),92 F.3d 894 , 900 (9th Cir. 1996)). “Deliberate indifference” requires a “culpable mental state” more than “gross negligence.” Id; see Grubbs II,92 F.3d at 898 .
Id. at 1124-25 (second alteration in original).
In the Ninth Circuit, the state-created danger doctrine originated in Wood, a case where a state trooper arrested an intoxicated driver and impounded the vehicle, but, according to the plaintiffs testimony, left the plaintiff (who had been a passenger in the vehicle) to walk home late at night in a high-crime area, ignoring her request for assistance getting home. Wood,
One aspect of the Ninth Circuit’s reasoning, not specifically discussed by either party here, is significant: “The fact that [the state trooper] arrested [the driver], impounded his car, and apparently stranded [the plaintiff] in a high-crime area at 2:30 a.m. distinguishes [the plaintiff] from the general public and triggers a duty of the police to afford her some measure of peace and safety.” Id. at 590 (emphasis added). It follows that the state-created doctrine does not encompass claims that policy decisions increased danger to the public as a whole, rather than to specific individuals or groups. See also Paulak,
Subsequent Ninth Circuit decisions imposing liability under the state-created danger doctrine comport with that view of the rule. In Kennedy, for example, a police officer informed the family of a teenager with a known history of violence that a neighbor had accused the teenager of sexually assaulting her daughter, without warning the accuser that he had done so despite previously assuring her that he would provide such a warning, and without providing police patrols in the neighborhood despite promising that as well. Kennedy,
Plaintiffs here do not cite any authority, from the Ninth Circuit or elsewhere, holding that a policy decision that increases danger to the public as a whole can give rise to a due process claim based on the state-created danger doctrine. Such a rule, which is not supported by the reasoning of Wood, would represent a significant expansion of the doctrine and would subject virtually any decision by policymakers in the field of public safety, who often must weigh known risks to public safety on either side of a decision, to post-hoc second guessing. Because nothing in this case distinguished Steinle from the general public at the time of the City Defendants’ alleged wrongful conduct— i.e., when Mirkarimi issued the March 13 memorandum—the City Defendants cannot be held liable for a due process violation on a theory of state-created danger. Plaintiffs’ substantive due process claim must therefore be DISMISSED. The Court finds that leave to amend this claim would be futile.
b. Procedural Due Process
The procedural guarantee of the Due Process Clause “is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill,
Plaintiffs allege that a hearing, or some other procedural safeguard, should have been required before Mirkarimi issued the March 13 memorandum because it “affected ... [Steinle’s] right to life and liberty.” See Opp’n to City Mot. at 20-21.
To hold otherwise would have far reaching implications. Under Plaintiffs’ proposed framework—that the right to procedural due process requires a hearing or other safeguards before any decision that could foreseeably increase the risk of death to members of the public at large— police commanders could not alter shift schedules without a hearing, fire chiefs could not decrease readiness levels without a hearing, and parole boards would be required to solicit public input before authorizing the release of prisoners, among other consequences. In the absence of any authority so holding, the Court declines to so expand the scope of constitutional due process. Plaintiffs’ procedural due process claim is therefore DISMISSED. The Court finds that leave to amend this claim would be futile.
C. Claims Against the United States
Under the doctrine of sovereign immunity, the United States “ ‘is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’ ” United States v. Testan,
Here, Plaintiffs’ complaint invokes the Federal Tort Claims Act (“FTCA”). See Compl. ¶ 1. “The FTCA, a limited waiver of the United States’ sovereign immunity, provides that the United States shall be liable ‘in the same manner and to the same extent as a private individual under like circumstances’ under applicable state law.” Dugard v. United States,
1. Claims Based on ICE’s Conduct
Plaintiffs claim that ICE acted negligently in failing to detain Lopez-Sanchez pursuant to 8 U.S.C. § 1226(c), which provides that the “Attorney General shall take into custody” aliens meeting certain criteria. No party disputes that Lopez-Sanchez met those criteria. The United States contends that ICE exercises discretion in apprehending aliens, even those who meet the criteria of § 1226(c), and that the dis
The FTCA does “not apply to ... [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680. Because the discretionary function exception negates the FTCA’s waiver of sovereign immunity, “federal courts do not have subject matter jurisdiction over tort actions based on federal defendants’ performance of discretionary functions.” Lesoeur v. United States,
The Supreme Court has established a two-part test for analyzing the discretionary function exception. Gonzalez,
The second prong of the test is to determine “whether that judgment is of the kind that the discretionary function exception was designed to shield,” i.e., “governmental actions and decisions based on considerations of public policy.” Berkovitz,
In Xue Lu, for example, the Ninth Circuit held that the discretionary function exception encompassed claims based on
Here, the application of the discretionary function exception turns on whether 8 U.S.C. § 1226(c) mandates that ICE apprehend and detain all immigrants who meet the criteria of the statute, or whether ICE retains discretion to determine which immigrants to apprehend and the means of doing so. Plaintiffs contend that the statute’s language is mandatory—providing that the “Attorney General shall take into custody” qualifying aliens “when the alien is released,” 8 U.S.C. § 1226(c) (emphasis added)—and that the Supreme Court recognized congressional intent for mandatory detention in Demore v. Kim,
The precise issue of whether § 1226(c) imposes a mandatory duty such that failure to apprehend and detain an alien falls outside the discretionary function exception appears to be one of first impression, although some courts have considered related issues.
In a case where an immigrant challenged ICE’s purportedly negligent investigation of his citizenship status, the Middle District of Florida concluded that, “[ojperating with limited resources, ICE must weigh various policy considerations in deciding which suspected aliens to detain, how to detain them, and how to investigate claims of citizenship by detained aliens,” and therefore held that the discretionary function exception applied to bar the plaintiffs claim. Douglas v. United States,
Several courts have also considered the separate issue of whether § 1226(c)’s requirement that the Attorney General take custody “when the alien is released” limits mandatory detention under the statute to circumstances where an alien is taken into ICE custody immediately upon release from state custody, and thus whether aliens who are instead apprehended by ICE some time after their release by state authorities may apply for bail while their removal proceedings are pending. See, e.g., Preap v. Johnson,
As Plaintiffs note in their opposition, the Supreme Court addressed the purpose of § 1226(c) in Demore v. Kim,
While the existence of a mandatory duty to apprehend all aliens subject to the statute seems unlikely, the Court need not decide that issue: Plaintiffs’ claims depend on the assertion that such aliens must be apprehended immediately on release from state custody, using whatever methods and resources • are necessary to accomplish that detention. In other words, the issue before the Court is whether the language of § 1226(c) mandates how and when that apprehension occurs, and whether it requires (1) that all such aliens be taken into custody immediately, i.e., at the state or local detention location, as opposed to allowing ICE to arrest such aliens at a later time; and (2) that ICE use specific methods to detain an alien, e.g., seeking a court order, stationing an agent at the state or local detention facility before release, etc. The district court in Douglas recognized that ICE exercises discretion “in deciding which suspected aliens to detain, how to detain them, and how to investigate claims of citizenship by detained aliens.”
Undisputed evidence in the record indicates, and other courts have recognized, that resource constraints and other practical considerations prevent ICE from apprehending all aliens subject to § 1226(c) at the time they are released by state authorities. See Shanahan Deck ¶ 9 (stating that one factor affecting ICE’s enforce
The Court therefore concludes that ICE must necessarily exercise discretion in determining what resources it is willing to devote to apprehending a particular alien, even among those aliens subject to § 1226(c). The question of whether to devote resources—to use an example proposed by Plaintiffs—to send ICE agents to the Sheriffs Department while Lopez-Sanchez was still in custody on the chance that the Sheriffs Department would surrender him to them, see Opp’n to U.S. Mot. at 13, necessarily implicates policy questions of whether those resources would be better spent pursuing other criminal aliens who might pose a greater known risk to the public or whom ICE might have a greater chance of successfully apprehending than someone like Lopez-Sanchez, whose release date was unknown.
Accordingly, both prongs of the discretionary function exception are met here: ICE had discretion to determine what methods it would use to pursue Lopez-Sanchez, and the decisions involved in exercising that discretion implicate policy considerations. The FTCA does not waive the United States’ sovereign immunity for claims, such as Plaintiffs’ claims here, based on the exercise of that discretion, “whether or not the discretion involved be abused.” 28 U.S.C. § 2680. Plaintiffs’ claims against ICE therefore fall outside the jurisdiction of this Court and must be DISMISSED without leave to amend.
2. Claims Based on the BLM Ranger’s Conduct
Unlike the claims discussed above, which for the purposes of this Order turn on issues of immunity under state and federal law, the parties’ arguments regarding Plaintiffs’ claims based on the BLM ranger’s failure to secure his handgun largely relate to the basic elements of negligence
a. Common Law Duty of Care
The California Supreme Court has identified several “major” factors relevant to the existence and scope of a common law duty of care:
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.
Rowland v. Christian,
California law generally imposes a stringent duty of care for dealing with guns. In light of the “risk incident to dealing with ... firearms” and other instru-mentalities with similar capacity to do harm, “the standard of care required of the reasonable person when dealing with such dangerous articles is so great that a slight deviation therefrom will constitute negligence.” Warner v. Santa Catalina Island Co.,
In perhaps the closest case, an appellate court held that summary judgment was improper on a negligence claim against the parents of a teenager who used his father’s rifle to kill himself and other children. See generally Reida,
The United States is correct that many courts outside California have held that the owner of a stolen firearm is not liable for criminal use of such a weapon by the thief. See U.S. Mot. at 20. The majority of the cases cited in the United States’ brief, however, were decided on a motion for summary judgment or other procedural posture involving a factual record, not on the pleadings. See Jones v. Secord,
At least one case, not cited by either party and again from outside California, has held that a negligence claim could proceed against the operators of a gun show from which minors had stolen firearms later used in a shooting. Pavlides v. Niles Gun Show, Inc.,
Although California courts do not appear to have addressed gun owners’ liability for harm caused by stolen firearms, a number of California cases have considered negligence claims against owners of stolen vehicles. The general rule is that “owners ... of automobiles or ordinary pickup trucks, who leave the key in the ignition of an unattended vehicle [do not have a duty] to prevent harm to third parties caused by a thief,” and thus are not
The “special circumstances” doctrine, an exception to the general rule that vehicle owners are not liable for harm caused by thieves’ use of their vehicles, is essentially “nothing more than a test of foreseeability of harm.” Palma,
The cases finding the special circumstances doctrine applicable generally involve particularly dangerous vehicles left with the keys in the ignition or otherwise ready to operate. In Richardson, the first case to recognize an owner’s liability for harm caused by a stolen vehicle, the defendants had failed to equip one of their 26-ton bulldozers with an effective ignition lock, and a group of drunk young men started one of them in the night and, unable to stop it, let it drive itself unattended for about a mile, causing severe injuries and property damage. Richardson,
(1) the vehicle was left in a neighborhood which was frequented by persons who had little respect for the law and the rights of others; (2) the neighborhood was heavily populated by drunks and near drunks; (3) the vehicle was intended to be left there for a relatively long period of time—from midafternoon to the following morning—and, of particular importance, it was intended that it would be left for the entire night; and (4) the vehicle was a partially loaded two-ton truck, the safe and proper operation of which was not a matter of common experience, and which was capable of inflicting more serious injury and damage than an ordinary vehicle when not properly controlled.
Id. at 445,
The principles underlying California’s special circumstances exception for stolen vehicles weigh against dismissing, at the pleading stage, Plaintiffs’ claim here for liability based on a stolen firearm. The California Court of Appeal in Reida noted a case decided under that doctrine in reaching its conclusion that a father could be held liable for his son’s use of the father’s rifle. Reida,
A handgun is indisputably capable of inflicting serious injury and damage—as a deadly weapon, that is its very purpose. See Reida,
The causation element of a negligence claim “has two aspects”: (1) whether the defendant’s action or inaction was a “cause in fact” of the plaintiffs injury, also known as “but for” causation; and (2) whether, based on “the degree of connection between the conduct” and considerations of public policy, it would be “unjust to hold [the defendant] legally responsible,” often referred to as “proximate” causation. State Dep’t of State Hosps. v. Superior Court,
The parties’ arguments focus primarily on proximate cause rather than cause in fact, and specifically the extent to which the harm to Steinle was a foreseeable result of the BLM ranger’s failure to secure the handgun. Although intervening criminal conduct of a third party can in some circumstances cut off legal causation, a defendant “ ‘is not relieved of liability because of the intervening act of a third person if [the] act was reasonably foreseeable at the time of the original negligent conduct.... The foreseeability required is of the risk of harm, not of the particular intervening act.’ ” Rosencrans v. Dover Images, Ltd.,
The situation here is somewhat less straightforward, however, because Plaintiffs’ complaint does not allege that Lopez-Sanchez stole the handgun. Plaintiffs allege only that the “firearm was stolen from the [BLM ranger’s] vehicle, and less than five (5) days later it was used to kill [Steinle],” and that Lopez-Sanchez “was in possession of’ the BLM handgun when he shot Steinle. Compl. ¶ 1, 44. As far as the Court is aware, all of the stolen vehicle cases that California courts have allowed to proceed under the special circumstances doctrine involved harm caused by the people who stole the vehicles at issue. It is not clear whether California courts would apply that doctrine where the person causing harm did not steal the vehicle—for example, if a stolen truck had been sold by the thief to a buyer who later negligently caused a serious traffic accident. Here, it is conceivable that the ranger’s failure to secure the gun was not even a “but for” cause of Steinle’s death: if Lopez-Sanchez had set out to purchase a handgun and chosen the gun at issue from among several comparable handguns sold on the black or grey market, the same outcome might have resulted even if the BLM ranger’s gun had never been stolen.
In this case, resolution of these issues at the pleading stage is premature. The Court must construe the allegations of the complaint in the light most favorable to Plaintiffs and draw all reasonable inferences in Plaintiffs’ favor to determine whether the complaint plausibly states a claim for relief. See, e.g., Schueneman v.
Accordingly, Plaintiffs’ complaint adequately states a claim under California common law that the BLM ranger had a duty to properly secure the handgun, that the ranger breached that duty by leaving the loaded gun in an unattended vehicle, that the failure to secure the handgun proximately caused Steinle’s death, and that Plaintiffs suffered damages as a result. Plaintiffs may therefore proceed on their negligence claim against the United States under the FTCA.
c. Per Se Duty of Care
In addition to a duty under the common law principles discussed above, Plaintiffs also argue that BLM manuals and similar guidance regarding proper storage, transportation, and security of firearms impose a duty of care applicable here under section 669 of the California Evidence Code, which codifies the standard for negligence per se. See Compl. ¶¶ 75-82; Opp’n to U.S. Mot. at 18-21. Plaintiffs argue that the manuals qualify as a source of duty under section 669.1 of the Evidence Code because they were adopted as regulations pursuant to the Administrative Procedure Act. Opp’n to U.S. Mot. at 20-21. The United States contends that the manuals were not in fact adopted under the Administrative Procedure Act and therefore do not create a duty actionable under section 669. U.S. Reply at 10.
Section 669 of the California Evidence Code provides that violation of a “statute, ordinance, or regulation of a public entity” satisfies the duty and breach elements of a negligence claim. See Cal. Evid. Code § 669(a)(1). Section 669.1 clarifies that a “rule, policy, manual, or guideline” does not qualify as a source of law under section 669 unless it has been formally adopted as a statute, ordinance, or regulation. Id. § 669.1. To be considered a regulation, the rule must have been adopted pursuant to either the state or federal Administrative Procedure Act. Id.
The complaint does not allege that either of the manuals it cites—the “Department of the Interior Departmental Manual” or “BLM’s Manual Handbook 1112-2 on Safety and Health for Field Operations”-—was adopted as a regulation under the Administrative Procedure Act. See Compl. ¶¶ 75-82. Plaintiffs contend that the Department of the Interior manual, an excerpt of which they submit for judicial notice, qualifies based on language therein stating that “[t]hese directives and standards implement statutory provisions, Public Law, and regulations relating to Federal law enforcement.” Opp’n to U.S. Mot. at 20-21; Req. for Judicial Not. in Supp. of Pis.’ Opp’n to U.S. Mot. (dkt. 38-1) Ex. D.
The United States also argues that federal agency rules cannot serve as a basis for this claim because “ ‘[flailure of a duty to perform mandatory federal functions does not itself give rise to a FTCA claim; rather, the source of substantive liability, under the FTCA, is the law the state in which the cause of action accrued.’ ” U.S. Mot. at 14, 19 (quoting Dugard v. United States, No. 11-cv-4718-CTB,
IV. CONCLUSION
For the reasons stated above, the City Defendants’ motion to dismiss is GRANTED, and the United States’ motion to dismiss is GRANTED in part and DENIED in part. Plaintiffs’ claims are DISMISSED without leave to amend, except for: (1) Plaintiffs’ FTCA claim against the United •"States for general negligence under California common law based on the BLM ranger’s conduct, which may proceed; and (2) Plaintiffs’ FTCA claim against the United States for negligence per se as codified at section 669 of the California Evidence Code based on the BLM ranger’s conduct, which is DISMISSED with leave to amend if Plaintiffs can identify a statute, ordinance, or regulation that establishes a relevant duty. If Plaintiffs wish to amend their complaint to pursue the latter claim, they may do so no later than January 27, 2017.
IT IS SO ORDERED.
Notes
. Plaintiffs originally included Lopez-Sanchez as a defendant, but have since voluntarily dismissed all claims against him without prejudice. See Notice of Voluntary Dismissal (dkt. 31).
. The parties have consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c).
. To the extent that it'is required—as opposed to merely treating Chapter 12H as a source of law—the Court takes judicial notice of Chapter 12H both as a public record not reasonably subject to dispute and also as explicitly relied on and thus incorporated by reference by Plaintiffs’ complaint. See Knievel v. ESPN,
. The Court notes that Chapter 12H has since been amended to alter the circumstances under which San Francisco resources may be used to assist with enforcement of federal immigration law. See S.F. Ordinance No. 96-16, File No. 160022 (approved June 17, 2016), available at http://www.sfbos.org/ftp/ uploadedfiles/bdsupvrs/ordinancesl6/o0096-16.pdf. This Order addresses Chapter 12H as it appeared at the time of the events at issue, before the 2016 amendments.
.The Court considers the March 13 memorandum under the incorporation by reference doctrine, as a document " 'whose contents are alleged in a complaint and whose authenticity no party questions, but which [is] not physically attached to the [plaintiffs'] pleading.’ ” Knievel,
. Although. Plaintiffs note the California Attorney General’s position in passing, neither their complaint nor their opposition brief argues that the March 13 memorandum or any portion of Chapter 12H violates the Supremacy Clause of the United States Constitution. Nor does any defendant attack the constitutional validity of § 1373 or any other statute at issue.
. Since the enactment of § 1373, ICE is among the agencies that have succeeded the role of the former Immigration and Naturalization Service, commonly known as the INS.
. Although not relevant to the outcome here, this Court is also not strictly bound by a state intermediate appellate court's interpretation of state law. Federal district courts confronted with questions of state law must follow precedent set by the state’s highest court or, where no such precedent exists, predict how that court would decide the issue. Ticknor v. Choice Hotels Int’l, Inc.,
. The Court need not and does not reach, for example, the City Defendants' argument that "[n]ot all government employees are 'offi-ciáis,’ " and that § 1373(a) and the other statutes at issue therefore do not limit a sheriffs authority to set "policies regarding the man
. In their discussion of legislative intent, Plaintiffs note that the "Bologna plaintiffs challenged the [Chapter 12H] sanctuary policy itself, rather than the MIRKARIMI March Memo.” Opp’n to City Mot. at 13. It is not entirely clear whether Plaintiffs seek to distinguish the holding of Bologna on that basis. To the extent that they do, the Court finds that argument unpersuasive. The specific policy being challenged does not alter the conclusion that Congress intended § 1373(a) “to facilitate the enforcement of federal immigration law,” not "to protect the public from violent crimes.” See Bologna,
. Applying section 12H.2-1 to the allegations of Plaintiffs’ complaint, Lopez-Sanchez qualified as "an individual who has been booked at any county jail facility, and who has previously been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under State law.” See RJN re Opp’n to City Ex. A § 12H.2-1; Compl. ¶¶ 21-22. As such, “Chapter 12H d[id] not apply” to him. See RJN re Opp’n to City Ex. B. Because Chapter 12H did not apply, it did not create any duty.
. Plaintiffs also characterize the option of making a telephone call to inform ICE of Lopez-Sanchez’s release date as an alternative "adequate procedural safeguard” available to the City Defendants. Opp'n to City Mot. at 21. As discussed above, procedural due process generally addresses whether the state must provide a hearing or some other process by which the person whose rights are affected may be heard. The Court is aware of no authority requiring coordination between local and federal law enforcement as a component of procedural due process. The lack of such coordination is more appropriately addressed as a failure to protect in the context of substantive due process, discussed above.
. Plaintiffs' opposition brief does not meaningfully address the discretionary function exception to the FTCA. The authorities that Plaintiffs cite applying California’s discretionary immunity statute, see Opp’n to U.S. Mot. at 6-10 (discussing Cal. Gov't Code § 820.2), have no bearing on the application of the federal doctrine at issue.
. It is perhaps worth clarifying that, while the United States argues that federal law cannot form the basis for a duty in the context of a California negligence claim brought under the FTCA, see U.S. Mot. at 13-14, that is a separate inquiry from the threshold question of whether an act falls within the discretionary function exception. The United States does not dispute that a mandatory duty under federal law would negate the exception. See id. at 6.
. Despite Plaintiffs' arguments to the contrary, which focus exclusively on motions brought under Rule 12(b)(6), the Court may appropriately consider extrinsic evidence such as Shanahan’s declaration in resolving the United States’ motion to dismiss for lack of subject matter jurisdiction—more specifically, contending that this Court lacks jurisdiction because of the United States' sovereign immunity—under Rule 12(b)(1). See White,
. Plaintiffs contend that the detainer request itself demonstrates that "ICE had decided to commit resources to the detainment and deportation of Mr. Lopez-Sanchez,” and that its failure to actually detain him therefore results not from a policy decision regarding whether to devote resources, but rather from ineffective execution of that decision. See Opp’n to U.S. Mot. at 1, 9. The Court is not persuaded that sending the detainer request evinces a decision to detain Lopez-Sanchez immediately upon release regardless of whether the Sheriff cooperated, and regardless of what resources would be required.
. Conversely, at least one of the out-of-state stolen gun decisions cited by the United States reached its conclusion that the gun owner was not liable in part based on the “overwhelming weight of authority’’ under Missouri law “that the owner of an automobile who parks the car in a public area with the keys in the ignition is not liable to a motorist or a pedestrian injured by the negligent driving of a thief." See Finocchio,
. The parties dispute how the Court should interpret the allegations of the complaint as to these issues. See U.S. Mot. at 22-23, Opp’n to U.S. Mot. at 4; U.S. Reply at 8 n.3. The Court need not resolve that dispute. Even assuming for the sake of argument that the United States is correct, the Court finds the allegations sufficient at the pleading stage to allege a duty of care under the special circumstances doctrine.
. This exhibit is subject to judicial notice both as a public record and as a document referenced and relied on by the complaint.