Courtesy of James R. Touchstone, Esq.
In an opinion issued on March 25, 2019, in the case entitled Steinle v. City & Cnty. of S.F., the Ninth Circuitdetermined that the question of discretionary immunity raised was controlled by California law, and concluded that Government Code section 820.2 barred plaintiffs’ negligence claim. The Sheriff’s issuance of the memorandum at issue, the Court found, was a discretionary act entitled to immunity.
In February 2015, San Francisco Sheriff Mirkarimi informed the federal government 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. In a March 13, 2015 memorandum (the “Memo”) to all Sheriff’s Department employees, the Sheriff established protocols and parameters for communications between Sheriff’s Department employees and ICE. The Memo changed the “longstanding policy and procedure” of the Sheriff’s Department “to freely provide information to ICE regarding undocumented immigrant felons in custody.” The Memo stated that employees “shall not provide” “non-public” information to ICE, including “release dates or times,” but that employees were authorized to provide certain “public” information to ICE. Disclosure of any information beyond the public information explicitly authorized by the Memo would require consultation with the Sheriff’s Department’s legal counsel, confirmation by counsel that disclosure was required by court order or law, and authorization by Sheriff Mirkarimi.
The Memo referenced Chapter 12H of the San Francisco Administrative Code, otherwise known as the “Sanctuary City Law.” The Sanctuary City Law limits information that San Francisco and its officers and employees may share with federal immigration officials, but it includes an exception for cooperation as required by state or federal law. The Court noted, “[i]t 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.”
Juan Francisco Lopez-Sanchez was an undocumented alien with a criminal record consisting of at least seven felony convictions from 1993 to 2011 related to controlled substances and illegal reentry after deportation. He was removed to Mexico at least five times during this period. After a 46-month sentence in federal prison, Lopez-Sanchez was released to Sheriff’s Department custody 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 ignored the detainer request, releasing Lopez-Sanchez without notifying ICE on April 15, 2015. After his release, Lopez-Sanchez acquired a stolen government-issued handgun and approximately two and one-half months after he had been released by the Sheriff’s Department, he shot and killed 32-year-old Kathryn Steinle in San Francisco. Lopez-Sanchez did not apparently know Steinle. After the shooting, ICE stated that local authorities could have prevented the killing by “merely notify[ing]” ICE.
Steinle’s parents, James Steinle and Elizabeth Sullivan (“Plaintiffs”) filed a complaint against the City and County of San Francisco and Sheriff Ross Mirkarimi (collectively, “City Defendants”), alleging general negligence. The District Court granted City Defendants’ subsequent motion to dismiss all claims pursuant to Government Code sections 815.2(b) and 820.2 without leave to amend. The District Court concluded that the issuance of the Memo was an immune discretionary act. The Plaintiffs appealed, challenging only the dismissal of Plaintiffs’ general negligence claim against City Defendants.
California Government Code section 820.2 provides: “[A] public employee is not liable for an injury resulting from his act . . . where the act . . . was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” The Ninth Circuit held that the issuance of the Memo was a discretionary act that was entitled to immunity under Section 820.2, and that City Defendants were immune from liability. In reaching its decision, the Court explained that it made “no judgment as to whether or not the policy established by the Memo was wise or prudent. That is not our job. ‘A federal court applying California law must apply the law as it believes the California Supreme Court would apply it.’ Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003).”
Citing California Supreme Court cases, the Court initially explained that the “[i]mmunity 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,quoting Johnson v. State of California.) The Court also explained that an actual use of discretion must be involved for immunity to attach to the public employee.
Here, the Ninth Circuit found that the Memo, on its face, reflected a “basic policy decision” that had been expressly committed to a coordinate branch of government. The Sheriff chose to issue the Memo, and he had “sole and exclusive authority to keep the county jail and the prisoners in it” under Cal. Gov’t Code section 26605. The Court also found an actual use of discretion by the Sheriff because he considered relevant laws and regulations, decided what information should and should not be shared with ICE, and consciously changed longstanding policy and procedure to freely provide information to ICE. The Court added that the debate over policies that limited cooperation with immigration authorities suggested that the issue was “sufficiently sensitive” such that judicial interference into the matter would be “unseemly.”
The Court then turned to Plaintiffs’ other arguments. Plaintiffs argued that the District Court improperly took judicial notice of the Memo’s contents, though plaintiffs’ claim was based upon the Memo and the plaintiffs referred “extensively” to the Memo throughout earlier proceedings. The Ninth Circuit found that the District Court properly considered the Memo under the incorporation by reference doctrine, which permits a court to consider a document “if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
The Court rejected plaintiffs’ arguments that the Sheriff did not have discretionary authority to issue the Memo, and therefore, was not entitled to immunity. The Court held that although 8 U.S.C. sections 1373(a) and 1644 prohibit restrictions on providing certain types of information to ICE, they “plainly and unambiguously” did not prohibit the restriction of release-date information; the sections’ use of the statutory term “immigration status” could not encompass release-date information.
Plaintiffs also contended that the Sheriff’s actions hampered ICE’s ability to assert its functions and so “invaded” federal governmental immigration authority. However, the Court held that, even assuming ICE was indeed hampered by the Memo’s issuance, plaintiffs did not show any authority that required the Sheriff to provide ICE with the release date.
Nor was the issuance of the Memo, a legislative act which the plaintiffs argued would negate the Sheriff’s immunity for exceeding his authority. The Court explained that an action by a government official that involves some weighing of policy is not the equivalent of a legislative act. The Court also found that the plaintiffs’ claim of a California Public Records Act (“CPRA”) violation lacked merit because ICE’s detainer request to the Sheriff was not a request for a copy of records under the CPRA. The Court explained that the CPRA does not require public agencies to create records, and there was no allegation that the Sheriff’s Department had withheld an existing record with release-date information at the time of the detainer request.
The Court also held that the District Court correctly held that California Health and Safety Code section 11369 was inapplicable because the Sheriff’s Department was not the “arresting agency,” and Section 11369 did not require transmission of an inmate’s release date to ICE. Finally, the Court rejected plaintiffs’ claim that other local laws prohibited the Sheriff from limiting cooperation with ICE because none contained text that could be construed as prohibiting the issuance of the Memo or requiring that the Sheriff provide release-date information to ICE.
The Court thus concluded the issuance of the Memo was a discretionary act entitling City Defendants to Section 820.2 immunity. Accordingly, the Ninth Circuit Court of Appeals affirmed the decision of the District Court.
HOW THIS AFFECTS YOUR AGENCY
The Court acknowledged that Steinle’s death was “tragic and unnecessary” and that her death might “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.” However, the Court in this case emphasized that such policy arguments could be acted upon “only by California’s state and municipal political branches of government, or perhaps by Congress—but not by federal judges applying California law as determined by the California Supreme Court.”
Agencies should take note of the reluctance of the Ninth Circuit to judicially intervene in areas deemed to be the terrain of other branches of government, or else risk establishing a standard that would “swallow an immunity designed to protect against claims of carelessness, malice, bad judgment, or abuse of discretion in the formulation of policy.” The Court was unwilling to engage in attempting to override policy decisions left to another branch of government.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 2019 U.S. App. LEXIS 8784 (9th Cir. Mar. 25, 2019)
 The Court later explained, “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 felon—it simply makes clear that the Chapter does not prohibit the same. As the Chapter does not bar the Memo, it cannot have the effect of stripping the Sheriff of his discretionary authority.”
 Section 815.2(b): “Except as otherwise provided by statute, 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.”
 10 Cal. 4th 972 (1995).
 69 Cal. 2d 782, 793-4 (1968).