Steinle, et al v. United States of America, et al

Filing 48

ORDER by Chief Magistrate Judge Joseph C. Spero granting in part and denying in part 36 United States' Motion to Dismiss; granting 21 City Defendants' Motion to Dismiss. Plaintiffs may file an amended complaint as discussed herein no later than January 27, 2017. (jcslc2S, COURT STAFF) (Filed on 1/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES STEINLE, et al.,

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Case No. 16-cv-02859-JCS

Plaintiffs,
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v.

ORDER REGARDING MOTIONS TO
DISMISS

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CITY AND COUNTY OF SAN
FRANCISCO, et al.,

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Defendants.

United States District Court
Northern District of California

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Re: Dkt. Nos. 21, 36

I.

INTRODUCTION
This action arises from the tragic death of Kathryn Steinle (―Steinle‖) on July 1, 2015.

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Plaintiffs James Steinle and Elizabeth Sullivan—individually, as heirs to Steinle, and as

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representatives of Steinle‘s estate—bring several claims against Defendants Ross Mirkarimi, the

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City and County of San Francisco (―San Francisco‖ or the ―City‖), and the United States of

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America, alleging that but for Defendants‘ actions and inactions, non-party Juan Francisco Lopez-

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Sanchez1 would not have been in a position to obtain a handgun and shoot Steinle. Mirkarimi and

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the City (collectively, the ―City Defendants‖) and the United States each move to dismiss all

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claims against them. The Court held a hearing on December 2, 2016.

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The senseless killing of Ms. Steinle was preceded by a series of actions by various

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government actors that have been subject to much criticism. The job of the Court, however, is

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narrow: to determine whether the law permits Plaintiffs to proceed on the legal theories alleged.

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For the reasons discussed below, the City Defendants‘ motion is GRANTED, and the United

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States‘ motion is GRANTED in part and DENIED in part.2

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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).
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The parties have consented to the jurisdiction of the undersigned magistrate judge for all
purposes pursuant to 28 U.S.C. § 636(c).

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II.

BACKGROUND

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A.

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A plaintiff‘s factual allegations are generally assumed to be true at the pleading stage. This

Allegations of the Complaint

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section therefore summarizes the allegations of Plaintiffs‘ complaint. Nothing in this Order,

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including the following summary of Plaintiffs‘ allegations, should be interpreted as deciding that

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Plaintiffs‘ allegations are true or as resolving any issue of fact.

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1. Sanctuary City Ordinance and March 13, 2015 Memorandum
Chapter 12H of the San Francisco Administrative Code limits the information that San

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Francisco and its officers and employees share with federal immigration officials. Compl. (dkt. 1)

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¶ 24; see also Pls.‘ Req. for Judicial Notice in Supp. of Pls.‘ Opp‘n to City Defs.‘ Mot. to Dismiss

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United States District Court
Northern District of California

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(―RJN re Opp‘n to City,‖ dkt. 30) Ex. A (Chapter 12H).3 Chapter 12H includes an exception for

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cooperation as required by state or federal law, and it was amended in 1992 to add an exception

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allowing communication and cooperation with federal authorities regarding individuals previously

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convicted of felonies. Compl. ¶ 24; RJN re Opp‘n to City Ex. A § 12H.2-1.4
On March 13, 2015, then-Sheriff Mirkarimi issued a memorandum to all San Francisco

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Sheriff‘s Department personnel regarding protocols for communication with federal Immigration

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and Customs Enforcement (―ICE‖) representatives. Compl. ¶ 30; City Defs.‘ Req. for Judicial

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Notice in Supp. of Mot. to Dismiss (―City RJN‖) Ex. A.5 Citing Chapter 12H, the memorandum

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stated that Sheriff‘s Department employees ―shall not provide‖ several categories of information

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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, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d
668, 688−89 (9th Cir. 2001).
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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/ordinances16/o0096-16.pdf. This Order
addresses Chapter 12H as it appeared at the time of the events at issue, before the 2016
amendments.
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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, 393 F.3d
at 1076 (quoting In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999)).
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to ICE, including ―citizenship/immigration status of any inmate‖ and ―release dates or times.‖

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City RJN Ex. A; see also Compl. ¶ 30. The memorandum instructed employees to provide other

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categories of information in response to ICE requests pursuant to state and local law, including

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―current charges,‖ ―arrest date and location,‖ and ―location in custody.‖ City RJN Ex. A.

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Disclosure of any additional information beyond the categories explicitly authorized would require

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consultation with the Sheriff‘s Department‘s legal counsel, confirmation by counsel that

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disclosure was required by law or court order, and authorization by Mirkarimi. Id.; Compl. ¶ 31.

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Mirkarimi separately ―made it known to ICE that he would not contact them under any

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circumstances.‖ Compl. ¶ 31.
The memorandum included no exception for individuals convicted of a felony. City RJN

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United States District Court
Northern District of California

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Ex. A. Before Mirkarimi issued the March 13 memorandum, the Sheriff‘s Department had freely

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―provide[d] information to ICE regarding undocumented immigrant felons in custody.‖ Compl.

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¶ 32. Mirkarimi had previously met with a Department of Homeland Security official and

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informed him that the San Francisco Sheriff‘s Department would not honor ICE detainer requests

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or inform ICE when undocumented immigrants were being released except as required by a court

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order or warrant. Id. ¶ 38.

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2. Release of Lopez-Sanchez
Lopez-Sanchez has been convicted of ―at least seven felonies,‖ including several related to

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controlled substances and others related to supervised release violations or criminal reentry after

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deportation. Id. ¶¶ 21−21. He has been deported to Mexico at least five times. Id. After

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completing a 46-month sentence at a federal prison on March 26, 2015, Lopez-Sanchez was

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released to the custody of the San Francisco Sheriff‘s Department to face additional felony charges

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for selling marijuana. Id. ¶¶ 22, 33. The charges against him were dropped on March 27, 2015.

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Id. ¶ 22. That same day, ICE sent a detainer request asking that the Sheriff‘s Department notify

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ICE forty-eight hours before releasing Lopez-Sanchez and continue to hold him until ICE could

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take custody of him. Id. ¶¶ 34−35. The Sheriff‘s Department did not respond to the detainer

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request or otherwise communicate with ICE, and released Lopez-Sanchez on April 15, 2015,

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nineteen days after the charges against him had been dropped. Id. ¶¶ 22, 36. ICE took no further
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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.

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See id. ¶¶ 1, 44−45. Despite training and policies requiring rangers to ensure the security of their

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firearms and to leave them ―in a secure place, out of sight, under lock and key‖ and unloaded

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when not in use, on June 27, 2015 a U.S. Bureau of Land Management (―BLM‖) ranger left his

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handgun loaded and unlocked in a backpack in an unattended vehicle in downtown San Francisco,

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―in plain sight of passersby‘s [sic] and within reach of someone smashing the window of the

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vehicle.‖ Id. ¶¶ 40−44. The handgun was stolen from the vehicle. Id. ¶ 44. The Complaint does

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not specify whether Lopez-Sanchez himself stole the handgun or acquired it later.

United States District Court
Northern District of California

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The evening of July 1, 2015, four days after the handgun was stolen and approximately

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two and a half months after Lopez-Sanchez was released by the Sheriff‘s Department, Lopez-

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Sanchez was under the influence of narcotics and ―acting bizarrely‖ near Pier 14 of the San

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Francisco Embarcadero. Id. ¶ 17, 20. Steinle was walking in the area with her father. Id. ¶ 17.

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Lopez-Sanchez shot and killed Steinle Id. ¶ 19.

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Plaintiffs contend that Defendants should have been aware of the risk that Lopez-Sanchez

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would engage in violence based on: (1) a 2008 incident in which an undocumented immigrant

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with a history of violent felonies killed three people after he was released from custody in San

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Francisco, leading to a lawsuit against the City; and (2) studies demonstrating recidivism rates for

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undocumented immigrant criminals ranging from 16% to 28%. Id. ¶¶ 28−29.

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4. Claims
Plaintiffs‘ first claim is for ―general negligence‖ against all Defendants, citing sections

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815.2(a) and 820(a) of the California Government Code. See id. ¶¶ 46−64. Plaintiffs contend that

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the City Defendants acted negligently by issuing the March 13 memorandum, failing to share

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information with ICE and forbidding employees from doing so, and ignoring the detainer request

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from ICE regarding Lopez-Sanchez. Id. ¶ 47. According to Plaintiffs, such actions were outside

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the scope of the City Defendants‘ discretion because they violated state and federal law,

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specifically 8 U.S.C. § 1373(a), section 11369 of the California Health and Safety Code, and
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section 7282.5 of the California Government Code. Compl. ¶ 48. Plaintiffs also contend that the

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United States is responsible for the BLM ranger‘s negligence in leaving a loaded firearm where it

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could easily be stolen, and for ICE‘s negligence in failing to detain and deport Lopez-Sanchez. Id.

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¶¶ 55−64.

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Plaintiffs‘ second claim is for ―public entity negligence‖ against all Defendants, citing

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section 669 of the California Evidence Code, which sets forth the standard for negligence per se.

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See id. ¶¶ 68−89. Plaintiffs contend that the City Defendants were negligent under that standard

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because they restricted Sheriff‘s Department employees‘ discretion to cooperate with ICE in

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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

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United States District Court
Northern District of California

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of BLM and Department of the Interior manuals regarding firearm security and storage, id.

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¶¶ 75−82, and because ICE did not take custody of Lopez-Sanchez despite federal laws requiring

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the Attorney General of the United States to take custody of certain aliens, id. ¶¶ 83−86.

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Plaintiffs‘ third claim, brought by Plaintiffs in their capacity as representatives of Steinle‘s

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estate, is for basic negligence against all Defendants. Id. ¶¶ 90−94. Plaintiffs‘ fourth and final

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claim is under 42 U.S.C. § 1983 against the City Defendants, alleging that the March 13

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memorandum ―deprived [Steinle] of life and liberty without due process‖ by prohibiting Sheriff‘s

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Department employees from notifying ICE when Lopez-Sanchez was released. Id. ¶¶ 95−101.

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B.

Arguments
1. The City Defendants’ Motion to Dismiss

The City Defendants move to dismiss all claims against them. See generally City Mot.

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(dkt. 21). First, they contend that Plaintiffs‘ negligence claims rest on a supposed duty to protect

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Steinle from Lopez-Sanchez‘s criminal act, and that California law does not recognize such a duty

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except where ―the government had a direct relationship with the victim and placed the victim in a

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position of danger.‖ Id. at 5−7 (citing, e.g., Zelig v. County of Los Angeles, 27 Cal. 4th 1112

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(2002); Wallace v. City of Los Angeles, 12 Cal. App. 4th 1385 (1993)). According to the City

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Defendants, they had no such relationship with Steinle. Id.at 7. The City Defendants contend that

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similar principles bar Plaintiffs‘ § 1983 due process claim. Id. at 13−14.
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The City Defendants also argue that the statutes regarding communication with federal

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immigration authorities cited in Plaintiffs‘ complaint—specifically, 8 U.S.C. § 1373 and section

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7282.5(a)(2) of the California Government Code—do not create the sort of mandatory duty

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actionable under California law, and that those statutes do not by their terms require a county

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sheriff to permit his or her subordinates either to detain an individual based on a federal

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immigration hold or to inform ICE of a detainee‘s release date. Id. at 7−10. Moreover, according

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to the City Defendants, violating a statutory duty only gives rise to liability if the statute was

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intended to protect people in the position of the person injured, and a California appellate court

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has held that at least one of the statutes at issue here, § 1373, was not intended to protect members

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United States District Court
Northern District of California

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of the public from violence at the hands of released immigrants. Id. at 10.
Next, the City Defendants contend that sections 845.8(a) and 846 of the Government Code,

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which immunize public employees and entities from liability for harm resulting from decisions

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regarding the release of prisoners, as well as section 820.2 of the Government Code, which

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immunizes public employees from liability for harm resulting from exercises of discretion vested

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in them, apply here to bar Plaintiffs‘ claims. Id. at 10−11.

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Finally, the City Defendants argue that ―the chain of causation is too attenuated and

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speculative to establish proximate cause,‖ because ―several other entities and persons (including

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Lopez-Sanchez himself) would have had to take actions outside of [the City Defendants‘] control

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to effect Lopez-Sanchez‘s removal.‖ Id. at 12−13.

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2. Plaintiffs’ Opposition to the City Defendants’ Motion
According to Plaintiffs, their claims against the City Defendants should be allowed to

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proceed based on Mirkarimi‘s ―blatant disregard for the mandate imposed by San Francisco

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Administrative Code Section 12[H].2-1,‖ which Plaintiffs contend ―created a mandatory duty not

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to prohibit employees from communicating with ICE.‖ Opp‘n to City Mot. (dkt. 29) at 1−2.

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Plaintiffs make clear that their claims against the City Defendants are not based on ―failure to

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warn or making the decision to release Lopez-Sanchez,‖ but instead rest on ―Mirkarimi‘s decisions

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[sic] to issue the March Memo, which forbid employees from contacting ICE, ignored ICE‘s

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detainer request, and failed to notify ICE regarding Lopez-Sanchez‘s release on April 15.‖ Id. at
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1, 5 (capitalization altered).

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Plaintiffs argue that a mandatory duty sufficient to support a claim can arise from

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prohibitory language in statutes—if a statute forbids a certain action, then public officials have a

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mandatory duty not to take that action. See id. at 6−9. Plaintiffs focus their argument on section

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12H.2-1 of the San Francisco Administrative Code, which at the time of the events at issue

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provided that ―[n]othing in this Chapter shall preclude any City and County department, agency,

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commission, officer or employee from‖ reporting information about or cooperating with a federal

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request for information regarding individuals convicted of felonies. Id. at 9; see also RJN re

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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

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United States District Court
Northern District of California

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undocumented felons.‖ Opp‘n to City Mot. at 10; see also id. at 12 (noting the use of the word

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―shall‖ in section 12H.2-1). Plaintiffs also contend that section 12H.2-1 is consistent with

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8 U.S.C. § 1373(a), California Government Code section 7282.5, and California Health and Safety

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Code section 11369, all of which, according to Plaintiffs, ―prohibit all restrictions on voluntary

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communications with ICE regarding undocumented felons.‖ Id. Plaintiffs cite Bologna v. City &

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County of San Francisco, 192 Cal. App. 4th 429, 438 (2011), as support for this interpretation of

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§ 1373, and note that the California Attorney General issued an opinion in 1992 stating that local

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governments may not bar their employees from cooperating with federal immigration officials.

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Opp‘n to City Mot. at 11 (citing 75 Ops. Cal. Att‘y Gen. 270 (1992)).6
Plaintiffs next turn to the question of whether the duty at issue was designed to protect

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against the injury suffered. Id. at 13−14. Acknowledging the Bologna court‘s holding that

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8 U.S.C. § 1373 and Health and Safety Code section 11369 were not intended to protect members

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of the public from violence, Plaintiffs instead rely on Chapter 12H, the purpose of which was not

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addressed in Bologna, arguing that the exemption of felons from San Francisco‘s general

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sanctuary city policy ―clearly demonstrates the purpose behind this amendment was to protect the

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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.
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safety of the community.‖ Id.

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Plaintiffs also argue that their claim for general negligence should proceed, even absent a

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statutory duty, because the harm to Steinle was a reasonably foreseeable result of both the March

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13 memorandum, which established a policy of not providing certain information to ICE, and

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Mirkarimi‘s own failure to contact ICE himself regarding Lopez-Sanchez‘s release. Id. at 14.

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Citing the test of Rowland v. Christian, 69 Cal. 2d 108 (1968), Plaintiffs contend that basic

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principles of California negligence law support their claim. Opp‘n to City Mot. at 14−17.

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According to Plaintiffs, their claim is not based on ―failure to warn or failure to protect,‖ but rather

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on ―fail[ure] to use reasonable care to prevent harm to others.‖ Id. at 14. Plaintiffs also argue that
although several intervening steps would have had to take place after the Sheriff‘s Department

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United States District Court
Northern District of California

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contacted ICE before Lopez-Sanchez would have been removed from the country, their allegations

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that such steps would have occurred must be taken as true at the pleading stage, and the causal

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chain of this case is not so attenuated as in the cases cited by the City Defendants. Id. at 17−18.

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Plaintiffs contend that the City Defendants cannot claim immunity under sections 845.8(a)

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and 846 of the Government Code because Plaintiffs are not challenging a decision to release

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Lopez-Sanchez, but rather the decision to issue the March 13 memorandum prohibiting Sheriff‘s

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Department employees from providing certain information to ICE, including release dates. Id. at

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18−19. Plaintiffs also argue that the City Defendants cannot claim immunity for discretionary acts

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under section 820.2 of the Government Code because ―the acts were mandatory not discretionary,‖

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and the City Defendants ―are not vested with authority to contravene the law.‖ Id. at 19.

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Finally, Plaintiffs argue that their § 1983 claim should proceed based on theories of both

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procedural and substantive due process violations. Id. at 19−23. With respect to procedural due

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process, Plaintiffs contend that ―the Constitution requires some kind of a hearing before the State

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deprives a person of life or liberty,‖ and the March 13 memorandum—which Mirkarimi

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implemented without a hearing or public notice—deprived Steinle of her ―right to life and liberty.‖

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Id. at 20−21. With respect to substantive due process, Plaintiffs acknowledge that the Constitution

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does not generally create an affirmative duty to protect, but argue that they should be allowed to

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proceed on this claim based on decisions recognizing an exception to that rule where affirmative
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state actions created or increased danger to a plaintiff. Id. at 21−23.
3. The City Defendants’ Reply

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The City Defendants‘ reply brief reiterates their position that the City cannot be held liable

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for negligent failure to protect Steinle absent a breach of some statutory duty. City Reply (dkt. 32)

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at 2−3 (citing, e.g., Zelig, 27 Cal. 4th 1112). They also argue that they breached no actionable

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statutory duty, because 8 U.S.C. § 1373 and Health and Safety Code section 11369 were not

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intended to protect the public from criminal violence, id. at 3 (citing Bologna, 192 Cal. App. 4th

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429), and because neither those statutes nor Government Code section 7282.5 address sharing

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detainees‘ release dates with federal immigration officials, id. at 4. According to the City
Defendants, policies and practices regarding the Sheriff‘s Department‘s response to detainer

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United States District Court
Northern District of California

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requests from federal officials fall within the discretionary authority of the sheriff. Id. at 4−5.

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The City Defendants next address Plaintiffs‘ argument that Chapter 12H of the San

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Francisco Administrative Code created a mandatory duty and civil liability for breach of that duty.

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Id. at 6−8. According to the City Defendants, Plaintiffs rely on the word ―shall‖ in that ordinance

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without context, and the language of the statute, i.e., ―Nothing in this Chapter shall preclude . . . ,‖

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―does not require that an employee act in a specific or mandatory way—it simply means that in

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certain situations an employee would not violate the particular ordinance by providing

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information.‖ Id. at 7; see RJN re Opp‘n to City Ex. A § 12H.2-1. The City Defendants also

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argue that Plaintiffs have not demonstrated that any part of Chapter 12H was intended to protect

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the public from criminal acts, and note that section 12H.5 states that Chapter 12H is not intended

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to create civil liability. City Reply at 8.

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The City Defendants contend that Plaintiffs‘ allegations regarding causation are too

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speculative to be taken as true under the Twombly pleading standard, and that even if the steps

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leading to Steinle‘s death can be traced back to the City Defendants‘ decisions, the connection is

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too attenuated to establish proximate causation under California law. Id. at 8−9. They also argue

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that discretionary immunity under Government Code section 820.2 applies ―[i]f any part of the

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acts plaintiffs claim creates [sic] liability includes discretionary decisions,‖ and therefore applies

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here. Id. at 9.
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As for Plaintiffs‘ § 1983 claim, the City Defendants argue that the cases Plaintiffs cite for

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substantive due process violations based on creating a risk of harm all involve actions that ―placed

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a specific, identifiable persons [sic] in a greater position of danger than without the affirmative

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actions of law enforcement.‖ Id. at 9−10. The City Defendants also contend that Plaintiffs have

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not stated a procedural due process claim because no law required a public hearing before

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Mirkarimi issued a directive to his staff such as the March 13 memorandum. Id. at 10.

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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

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United States District Court
Northern District of California

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immunity, it is a motion to dismiss for lack of jurisdiction rather than for failure to state a claim.

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See U.S. Mot. (dkt. 36) at 1.

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With respect to claims regarding ICE, the United States first argues that it is protected by

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sovereign immunity under the discretionary function exception, a statutory rule providing that

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waiver of immunity under the Federal Tort Claims Act (―FTCA‖) does not apply to claims based

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on a federal employee or agency‘s ―‗exercise or performance or . . . failure to exercise or perform

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a discretionary function or duty . . . whether or not the discretion involved be abused.‘‖ Id. at 6

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(quoting 28 U.S.C. § 2680)). According to the United States, the decision to detain and deport

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aliens falls within ICE‘s prosecutorial discretion, even under the ostensibly mandatory language of

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8 U.S.C. § 1226(c). Id. at 7–10. The United States cites decisions by other courts acknowledging

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that ICE cannot detain every alien who is subject to removal. See, e.g., id. at 10 (citing Lora v.

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Shanahan, 804 F.3d 601, 612 (2d Cir. 2015)). The United States also argues that the decision of

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whether to detain and deport a given alien depends on ―the type of judgment that the [discretionary

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function] exception was intended to shield, i.e., . . . considerations of public policy.‖ Id. at 11.

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The United States relies in part on a declaration by Christopher Shanahan, Acting Assistant

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Director for Enforcement and Removal Operations at ICE, discussing ICE‘s resource constraints

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and decision making processes. Id.; Shanahan Decl. (dkt. 36-1).

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The United States also argues that even if the discretionary function exception does not
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apply, the FTCA does not waive sovereign immunity for violations of federal law, and Plaintiffs

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therefore cannot pursue a claim for breach of duties set by federal law even where such a claim is

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framed as negligence per se under California law. Id. at 13–14. In a footnote, the United States

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suggests that Plaintiffs‘ claims for ―public entity negligence‖ by ICE may not proceed under the

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FTCA because that statute only waives sovereign immunity for claims ―where the United States, if

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a private person, would be liable,‖ 28 U.S.C. § 1346(b)(1) (emphasis added), not for

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circumstances where local law would impose liability on a public entity, and because ―it is not

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clear that there are any private analogs under California state law applicable to ICE‘s conduct at

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issue here, which involved decisions regarding detention and deportation.‖ U.S. Mot. at 13–14 n.5
(citing United States v. Olson, 546 U.S. 43, 44 (2005)). The United States also contends that

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United States District Court
Northern District of California

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Plaintiffs cannot state a claim under California law because California does not recognize a duty to

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protect others absent a special relationship with the victim, which Plaintiffs do not allege here. Id.

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at 14–17. Finally, the United States argues that, based on Plaintiffs‘ allegations, ICE‘s failure to

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detain Lopez-Sanchez was not sufficiently connected to Steinle‘s death to be a proximate cause

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under California law. Id. at 17–18.

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Turning to the claims based on the stolen gun, the United States again argues that it has not

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waived sovereign immunity for claims based on federal law, and that Plaintiffs therefore cannot

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base a claim on the BLM ranger‘s failure to follow firearm storage procedures set forth in a BLM

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handbook. Id. at 19. The United States also contends that although California recognizes liability

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in some circumstances for negligent storage of firearms and requires ―a high degree of care‖ from

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gun owners, id. at 19–20 (citing Reida v. Lund, 18 Cal. App. 3d 698, 704 (1971); Warner v. Santa

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Catalina Island Co., 44 Cal. 2d 310, 317 (1955)), the circumstances for imposing liability are not

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present here, and the Court should follow numerous decisions from other jurisdictions declining to

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impose liability on gun owners for acts committed with stolen firearms, id. at 20–23. According

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to the United States, the BLM ranger did not owe a duty to persons such as Steinle who might be

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injured by his stolen gun, and the alleged failure to secure the gun was not a legal proximate cause

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of Steinle‘s death. Id.

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5. Plaintiffs’ Opposition to the United States’ Motion

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Plaintiffs begin their opposition brief with the argument that the Court should not consider

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Shanahan‘s declaration, citing the rule that motions under Rule 12(b)(6) are based only on the

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allegations of the complaint and certain exceptions such as documents subject to judicial notice.

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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,

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although Plaintiffs focus on California Government Code section 820.2 and California court

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decisions interpreting that statute, rather than on the discretionary function exception to the

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FTCA‘s waiver of sovereign immunity on which the United States relies in its motion. See id. at

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5–6, 8–10. According to Plaintiffs, 8 U.S.C. § 1226(c) imposes a mandatory, not discretionary,

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United States District Court
Northern District of California

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duty on ICE to detain certain aliens. Id. at 6–8 (citing, e.g., Demore v. Kim, 538 U.S. 510, 520–21

12

(2003)). Plaintiffs also contend that, under California law, whether a decision actually qualifies

13

for discretionary immunity is often, and is here, a question of fact inappropriate for resolution on

14

the pleadings. Id. at 8–10. Plaintiffs argue that even if the decision of whether to detain Lopez-

15

Sanchez was discretionary, ―the lower-level ‗ministerial‘ or ‗operational‘ decisions made to carry

16

out that detention were not immunized from liability.‖ Id. at 10. Plaintiffs contend that the

17

detainer request that ICE sent to the Sheriff‘s Department demonstrates that ICE had already made

18

the decision to detain Lopez-Sanchez, and that its failure to do so is therefore attributable to

19

shortcomings in the execution of that decision, not to a discretionary policy decision. Id. at 9–10.
Plaintiffs also argue that the United States is subject to a negligence claim under California

20
21

law because it was reasonably foreseeable that Lopez-Sanchez would engage in crime if ICE

22

failed to detain him, and that proximate causation is a question of fact inappropriate for resolution

23

at this stage of the case. Id. at 11–13, 15–17. According to Plaintiffs, their claim that ICE failed

24

to carry out a mandatory duty to detain Lopez-Sanchez is not a claim that ICE failed to provide

25

police protection, which would be barred by California Government Code section 845. Id. at 13–

26

15.

27
28

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
12

1

and used in a manner that would lead to harm. Id. at 17–19. Plaintiffs cite a California Supreme

2

Court decision holding summary judgment inappropriate where the defendant‘s employees left the

3

key in the ignition of a truck and the plaintiff was injured by a thief who stole the truck, and an

4

administrative decision holding that a BLM agent acted negligently in leaving a gun accessible in

5

his home when he hosted a gathering of friends after drinking at a bar. Id. at 17–19 (citing Palma

6

v. U.S. Indus. Fasteners, 26 Cal. 3d 171 (1984); In re Cain, 48 OHA 85 (2015) (included in the

7

record as Exhibit C to Plaintiffs‘ Request for Judicial Notice in Support of Plaintiffs‘ Opposition

8

to the United States‘ Motion, dkt. 38-1)). Plaintiffs also argue that proximate cause is a question

9

of fact, and that they have adequately alleged that the BLM ranger‘s failure to secure his firearm

10

was a substantial factor in causing Steinle‘s death. Id. at 19.

United States District Court
Northern District of California

11

Finally, Plaintiffs argue that the United States‘ motion to dismiss for lack of jurisdiction

12

must be denied because the FTCA waives sovereign immunity, and claims for negligence per se

13

under California law, as described in Evidence Code section 669, fall within the scope of that

14

waiver. Id. at 20–21. Plaintiffs note that Evidence Code section 669.1 provides that federal

15

agency manuals adopted pursuant to the Administrative Procedure Act can give rise to a duty

16

under section 669, and argue that noncompliance with the Department of the Interior manual

17

which governs proper storage of BLM firearms therefore supports a claim for negligence per se

18

under California law. Id. Plaintiffs do not address 28 U.S.C. § 2680, which creates an exception

19

for discretionary acts to the FTCA‘s waiver of sovereign immunity, or the United States‘ argument

20

that the FTCA does not waive sovereign immunity for state negligence claims premised on

21

violations of duties established by federal law. See id.; U.S. Mot. at 6, 13–14.

22
23

6. The United States’ Reply
The United States argues in its reply that the Court may consider Shanahan‘s declaration in

24

resolving the question of sovereign immunity, because sovereign immunity is a jurisdictional

25

question and extrinsic evidence is appropriate on a motion to dismiss for lack of jurisdiction under

26

Rule 12(b)(1) of the Federal Rules of Civil Procedure, as opposed to a motion to dismiss for

27

failure to state a claim under Rule 12(b)(6). U.S. Reply (dkt. 39) at 1–2.

28

The United States also contends that the discretionary function exception to the FTCA‘s
13

waiver of sovereign immunity is a question of federal law, and that the authorities Plaintiffs cite

2

interpreting section 820.2 of the California Government Code are therefore irrelevant. Id. at 3.

3

The United States notes that, contrary to a rule that Plaintiffs cite under California law, analysis of

4

the FTCA discretionary function exception depends not on ―‗―the agent‘s subjective intent in

5

exercising the discretion conferred by statute or regulation, but on the nature of the actions taken

6

and whether they are susceptible to policy analysis.‖‘‖ Id. (quoting U.S. Mot. at 6–7 (quoting

7

United States v. Gaubert, 499 U.S. 315, 325 (1991))). According to the United States, no statute

8

imposed a nondiscretionary duty on ICE to take the particular actions that Plaintiffs claim it

9

should have, because ―[e]ven assuming for the sake of argument that Section 1226(c) required ICE

10

to detain Mr. Lopez-Sanchez, plaintiffs have failed to identify any federal statute or regulation that

11
United States District Court
Northern District of California

1

mandated how ICE was supposed to do so.‖ Id. at 4.

12

The United States notes that Plaintiffs‘ opposition does not respond to the United States‘

13

argument that the FTCA does not allow claims based on a duty imposed by federal law, or to its

14

argument that the FTCA does not allow claims based on theories of liability specific to public

15

entities rather than applicable to private persons. Id. at 5−6. The United States also reiterates its

16

argument that the discretionary function exception applies. Id. at 6. According to the United

17

States, Plaintiffs fail to identify any applicable source of liability under state law, because—

18

despite Plaintiffs‘ assertions to the contrary—their claims are best viewed as alleging a failure to

19

prevent crime, and California law only recognizes such claims where the defendant has a ―special

20

relationship‖ with either the perpetrator or the victim. Id. (citing Vu v. Singer Co., 706 F.2d 1027,

21

1029 (9th Cir. 1983)). The United States again argues that the causal chain from ICE‘s failure to

22

detain Lopez-Sanchez to Steinle‘s death is too attenuated to constitute proximate cause, that

23

Lopez-Sanchez‘s criminal conduct serves as a superseding cause and bars liability, and that a case

24

on which Plaintiffs rely, Braman v. State of California, 28 Cal. App. 4th 344 (1994), is

25

distinguishable because the chain of causation was more direct and did not include criminal

26

conduct by a third party. U.S. Mot. at 7.

27
28

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
14

1

death, id. at 9, and argues that the manual on which Plaintiffs rely cannot serve as a basis for

2

negligence per se because it was not adopted pursuant to the Administrative Procedure Act as

3

required by Evidence Code section 669.1 (although the United States offers no evidence or

4

authority to support this assertion), and because the FTCA does not waive sovereign immunity for

5

claims based on a duty imposed by federal law, including a duty set by a federal agency manual.

6

Id. at 9–10.

7

III.

8
9

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

11
United States District Court
Northern District of California

10

under Rule 12(b)(6) is to test the legal sufficiency of the complaint.‖ N. Star Int’l v. Ariz. Corp.

12

Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff‘s burden at the pleading stage

13

is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that ―[a] pleading

14

which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim

15

showing that the pleader is entitled to relief.‖ Fed. R. Civ. P. 8(a).

16

In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and

17

takes ―all allegations of material fact as true and construe[s] them in the light most favorable to the

18

non-moving party.‖ Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

19

Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that

20

would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

21

1990). A complaint must ―contain either direct or inferential allegations respecting all the material

22

elements necessary to sustain recovery under some viable legal theory.‖ Bell Atl. Corp. v.

23

Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

24

1106 (7th Cir. 1984)). ―A pleading that offers ‗labels and conclusions‘ or ‗a formulaic recitation

25

of the elements of a cause of action will not do.‘‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

26

(quoting Twombly, 550 U.S. at 555). ―[C]ourts ‗are not bound to accept as true a legal conclusion

27

couched as a factual allegation.‘‖ Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S.

28

265, 286 (1986)). ―Nor does a complaint suffice if it tenders ‗naked assertion[s]‘ devoid of
15

1

‗further factual enhancement.‘‖ Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

2

Rather, the claim must be ―‗plausible on its face,‘‖ meaning that the plaintiff must plead sufficient

3

factual allegations to ―allow[] the court to draw the reasonable inference that the defendant is

4

liable for the misconduct alleged.‖ Id. (quoting Twombly, 550 U.S. at 570).

5

When a defendant moves to dismiss for lack of subject matter jurisdiction under Rule

6

12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff, as the party seeking to invoke the

7

court‘s jurisdiction by filing the complaint, bears the burden of establishing subject matter

8

jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A

9

defendant may attack the court‘s jurisdiction as it appears on the face of the complaint or by
presenting affidavits and other evidence. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

11
United States District Court
Northern District of California

10

A court considering a motion under Rule 12(b)(1) ―need not presume the truthfulness of the

12

plaintiffs‘ allegations‖ if a defendant submits extrinsic evidence. Id.

13

B.

14

As noted above, Plaintiffs‘ complaint asserts four claims against the City Defendants:

Claims Against the City Defendants

15

―General Negligence - Wrongful Death,‖ citing California Government Code sections 815.2(a)

16

and 820(a), ―Public Entity Negligence - Wrongful Death,‖ citing California Evidence Code section

17

669, ―Negligence - Survivor Cause of Action,‖ citing no specific statutory provision, and

18

―Deprivation of Federal Civil Rights,‖ citing ―48 [sic] U.S.C. § 1983‖ (presumably referring to 42

19

U.S.C. § 1983). See Compl. ¶¶ 46−101. The parties‘ arguments generally group the first three

20

claims into two theories of liability: negligence per se, which depends on the violation of a

21

specific duty imposed by statute, and general negligence, which depends on a duty of care under

22

the common law. The analysis is therefore addresses three theories of liability: (1) negligence per

23

se; (2) general negligence; and (3) deprivation of civil rights under § 1983.

24
25

1. Negligence Per Se
Plaintiffs‘ negligence per se claims against the City Defendants depend on the theory that

26

the March 13 memorandum violated a specific duty imposed by federal, state, or local law.

27

Section 669 of the California Evidence Code, which Plaintiffs cite as the basis of their second

28

claim, see Compl. ¶¶ 68−89, provides that failure to exercise due care is presumed where ―(1) [a
16

1

defendant] violated a statute, ordinance, or regulation of a public entity; (2) The violation

2

proximately cause death or injury to a person or property; (3) the death or injury resulted from an

3

occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

4

(4) the person suffering the death or injury . . . was one of the class of persons for whose

5

protection the statute, ordinance, or regulation was adopted.‖ Cal. Evid. Code § 669(a).

6

―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

8

person.‖ Cal. Gov‘t Code § 815. In order to proceed on claims against the City, Plaintiffs must

9

therefore identify a statute specifically authorizing public entity liability as an exception to section

10

815 of the Government Code. One such statute parallels the negligence per se standard: ―Where a

11
United States District Court
Northern District of California

7

public entity is under a mandatory duty imposed by an enactment that is designed to protect

12

against the risk of a particular kind of injury, the public entity is liable for an injury of that kind

13

proximately caused by its failure to discharge the duty‖ unless it reasonably attempted to do so.

14

Id. § 815.6. As discussed in more detail in the context of Plaintiffs‘ general negligence claims,

15

public entities can also be vicariously liable for injuries caused by their employees. Id. § 815.2;

16

see also Zelig, 27 Cal. 4th at 1127.

17

Before the Court addresses the statutes and ordinance that Plaintiffs invoke, one principle

18

that is not at issue here warrants a brief explanation. Plaintiffs do not claim that any federal law

19

requires state or local law enforcement to assist with the administration of federal immigration

20

law. Rather, Plaintiffs argue that the state and federal statutes at issue here limit government

21

entities‘ ability to restrict cooperation with federal immigration authorities. According to

22

Plaintiffs, all of these statutes ―prohibit all restrictions on voluntary communication with ICE

23

regarding undocumented felons,‖ and Mirkarimi‘s memorandum therefore violated the law by

24

instructing his subordinates not to share certain information with ICE except under specific

25

circumstances. Opp‘n to City Mot. at 10. The Court disagrees. As discussed below, none of the

26

statutes that Plaintiffs cite have so broad a scope—as is relevant here, none address restrictions on

27

informing ICE of a detainee‘s release date.

28
17

a. 8 U.S.C. § 1373(a)

1

The only federal statute at issue, 8 U.S.C. § 1373(a), reads as follows:
2
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 Service[7] information regarding the citizenship or
immigration status, lawful or unlawful, of any individual.

3
4
5
6

8 U.S.C. § 1373(a).
The question at issue here is whether § 1373(a) prohibits a local law enforcement official

7
8

from significantly restricting the circumstances in which his subordinates can share an

9

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.

11
United States District Court
Northern District of California

10

A, Plaintiffs‘ theory of liability relies on Sheriff‘s Department employees‘ inability to

12

communicate Lopez-Sanchez‘s release date to ICE, not his citizenship status, see Compl. ¶ 37.

13

Given that ICE issued a detainer request for Lopez-Sanchez well before his release, there is no

14

question that ICE was aware of Lopez-Sanchez‘s immigration status. Id. ¶ 34.

15

Plaintiffs rely on Bologna, a California state appellate decision, which characterized

16

§ 1373(a) as ―invalidat[ing] all restrictions on the voluntary exchange of immigration information

17

between federal, state and local government entities and officials and federal immigration

18

authorities.‖ Bologna, 192 Cal. App. 4th at 438. The court of appeal apparently reached that

19

conclusion based on the statute‘s legislative history, noting a House of Representatives conference

20

report that described the purpose of the statute as to ―‗prevent any State or local law . . . that

21

prohibits or in any way restricts any communication between State and local officials and the

22

INS,‘‖ and somewhat similar language in a Senate report. Id. at 439 (quoting without citation

23

H.R. Conf. Rep. No. 104-725, at 383 (1996), reprinted in 1996 U.S.C.C.A.N. 2649, 2771; also

24

discussing S. Rep. No. 104-249, at 19 (1996)) (ellipsis in original). The Bologna court ultimately

25

held that neither § 1373(a) nor Health and Safety Code section 11369 supported a cause of action

26

against the City because neither was intended to prevent violent crime. Id. at 437−40.

27
7

28

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.
18

This Court is not bound by the state court‘s interpretation of federal law,8 and respectfully

1
2

disagrees with the Bologna court‘s characterization of the scope of § 1373(a). ―As [the Supreme

3

Court has] repeatedly held, the authoritative statement is the statutory text, not the legislative

4

history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation

5

only to the extent they shed a reliable light on the enacting Legislature‘s understanding of

6

otherwise ambiguous terms.‖ Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568

7

(2005). The Ninth Circuit has explained in some detail why the Constitution does not permit

8

giving legislative effect to language found only in congressional reports that is not consistent with

9

the language of a statute itself:

10

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)). . . .

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

Treating legislative reports as binding law also undermines our
constitutional structure of separated powers, because legislative
reports do not come with the traditional and constitutionallymandated 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.

19
20
21

22
23
24
25
8

26
27
28

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., 265 F.3d 931, 939 (2001). Holdings of lower state courts are often persuasive authority in
conducting the latter inquiry.
19

1

Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 684−85 (9th Cir. 2007) (footnotes

2

omitted).
Nothing in 8 U.S.C. § 1373(a) addresses information concerning an inmate‘s release date.

3
4

The statute, by its terms, governs only ―information regarding the citizenship or immigration

5

status, lawful or unlawful, of any individual.‖ 8 U.S.C. § 1373(a). If the Congress that enacted

6

the Omnibus Consolidated Appropriations Act of 1997 (which included § 1373(a)) had intended to

7

bar all restriction of communication between local law enforcement and federal immigration

8

authorities, or specifically to bar restrictions of sharing inmates‘ release dates, it could have

9

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

11
United States District Court
Northern District of California

10

inmate. Because the plain language of the statute is clear on this point, the Court has no occasion

12

to consult legislative history.
In light of the Court‘s holding regarding the scope of § 1373(a), the March 13

13
14

memorandum violated that statute only, if at all,9 by restricting the provision of inmates‘

15

citizenship and immigration status to ICE, not by restricting the provision of release dates. Based

16

on the facts alleged, the former restriction did not cause Steinle‘s death, because ICE was already

17

aware of Lopez-Sanchez‘s immigration status. Plaintiffs therefore cannot state a claim for

18

negligence based on violation of a duty imposed by § 1373(a).
Moreover, Plaintiffs do not meaningfully dispute the Bologna court‘s holding that

19
20

§ 1373(a) was not intended to prevent harm caused by violent crime.10 See Bologna, 192 Cal.

21
9

22
23
24
25
26
27
28

The Court need not and does not reach, for example, the City Defendants‘ argument that ―[n]ot
all government employees are ‗officials,‘‖ and that § 1373(a) and the other statutes at issue
therefore do not limit a sheriff‘s authority to set ―policies regarding the manner in which his
employees speak on behalf of the Department in response to ICE‘s voluntary requests.‖ See City
Mot. at 9.
10
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, 192 Cal. App. 4th at 439. Plaintiffs‘ counsel also suggested at the hearing
that the Bologna court did not address the interplay between § 1373(a) and section 12H.2-1 of the
San Francisco Administrative Code. Plaintiffs have not suggested, however, that Congress looked
20

1

App. 4th at 439−40. That court examined the text of §1373(a), as well as the legislative history,

2

and concluded that the statute was designed to facilitate the enforcement of federal immigration

3

laws, not to prevent violent crimes against individuals. Id. This Court agrees. Accordingly, even

4

if § 1373(a) could be read to prevent Mirkarimi from restricting the circumstances in which

5

Sheriff‘s Department employees provided inmates‘ release dates to ICE, that statute still would

6

not support a claim by a plaintiff injured by someone who remained in the country as a result of

7

Mirkarimi‘s policy. See Cal. Evid. Code § 669(a)(3)−(4) (requiring that ―the death or injury

8

resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed

9

to prevent; and . . . 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. Gov‘t Code § 815.6

11
United States District Court
Northern District of California

10

(authorizing public entity liability for injuries caused by violations of ―a mandatory duty imposed

12

by an enactment that is designed to protect against the risk of [that] particular kind of injury‖).

13
14

b. California Health & Safety Code Section 11369
Section 11369 of the California Health and Safety Code reads as follows:

15

17

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.

18

Cal. Health & Safety Code § 11369. As with § 1373(a), this law does not, by its terms, govern the

19

transmission of an inmate‘s release date to ICE. The plain language of the statute requires only

20

that ―the arresting agency‖ must ―notify‖ ICE when a person who has been arrested might not be a

21

citizen. Id.

16

22
23

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.

24
25
26
27
28

to that section of San Francisco municipal law in crafting § 1373. As for the legislative purpose of
section 12H.2-1, the Court need not resolve the harm that the Board of Supervisors intended to
address by adding that section because—as discussed below—Chapter 12H creates no mandatory
duty relevant to this case. The Court can say with confidence, however, that § 1373 did not
influence the Board of Supervisors‘ deliberations when amending Chapter 12H to add section
12H.2-1 in 1992, approximately four years before Congress enacted § 1373. See Pub. L. No. 104228, § 642, 110 Stat. 3009 (1996) (enacting 8 U.S.C. § 1373).
21

1

Plaintiffs allege that the federal government transferred Lopez-Sanchez to the custody of the

2

Sheriff‘s Department after he completed a federal prison sentence. Compl. ¶ 22. The complaint

3

therefore does not allege any violation of section 11369. Further, even if the Sheriff‘s Department

4

had arrested Lopez-Sanchez, notifying ICE of his arrest would not have altered the course of

5

events, because—as demonstrated by the detainer request that ICE issued the day after the

6

Sheriff‘s Department took custody of him—ICE already knew that Lopez-Sanchez was

7

undocumented and that the Sheriff‘s Department was holding him. See id. ¶ 34. Finally, Plaintiffs

8

again present no significant argument to rebut the Bologna court‘s holding, based on a detailed

9

review of precedent and legislative history, that section 11369 was not intended to prevent violent
crime. See Bologna, 192 Cal. App. 4th at 436−38. Accordingly, even if Plaintiffs could allege

11
United States District Court
Northern District of California

10

that the City Defendants violated section 11369 and that such violation led to Lopez-Sanchez

12

remaining in San Francisco rather than being detained or deported by ICE, they nevertheless could

13

not base a negligence claim on such a violation because Steinle‘s death was not the sort of harm

14

that the statute was intended to prevent.

15

c. California Government Code Section 7282.5(a)

16

Plaintiffs‘ opposition brief suggests that section 7282.5(a) of the California Government

17

Code, in conjunction with the statutes discussed above, ―prohibit[s] all restrictions on voluntary

18

communication with ICE regarding undocumented felons.‖ Opp‘n to City Mot. at 10; see also

19

Compl. ¶¶ 26, 48, 70. That statute reads as follows:

20
21

22
23
24
25
26

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

27

enforcement officials the discretion to cooperate with federal immigration officials if the

28

individual in question has previously been convicted of a felony.‖ Compl. ¶ 70. The only
22

1

cooperation specifically discussed in the statute is ―detaining an individual on the basis of an

2

immigration hold,‖ see Cal. Gov‘t Code § 7282.5(a), while the crux of Plaintiffs‘ claim is

3

restrictions on communication, not detention, see Opp‘n to City Mot. at 8 (―The mandatory duty

4

here is prohibitory—that restrictions on communication with ICE regarding undocumented felons

5

are strictly prohibited.‖). In any event, even if ―cooperation‖ in this statute could be construed

6

more broadly, the Court is not persuaded that section 7282.5(a) creates any mandatory duty.

7

As noted above, Plaintiffs do not claim that section 7282.5(a) creates a duty to actually

8

cooperate with ICE. In describing officials‘ ―discretion‖ to cooperate, the statute makes clear that

9

such cooperation is not mandatory. Instead, Plaintiffs argue that by establishing that law
enforcement officials—which Plaintiffs interpret to include all Sheriff‘s Department employees—

11
United States District Court
Northern District of California

10

have discretion to detain individuals based on requests from ICE, the statute imposes a duty on

12

local policymakers, such as Mirkarimi, not to restrict such discretion. See Opp‘n to City Mot. at

13

8−13. This view of section 7282.5(a) would negate an explicit limitation of the statute: that law

14

enforcement officials may detain individuals ―only if the continued detention of the individual on

15

the basis of the immigration hold would not violate any . . . local law, or any local policy.‖ Cal.

16

Gov‘t Code § 7282.5(a). Reading the statute as a whole, it grants law enforcement officials

17

discretion to detain individuals based on immigration holds, but also grants local policymakers

18

authority to limit such discretion. In that context, Mirkarimi had no mandatory duty under

19

§ 7282.5(a) to refrain from setting limits on cooperation with ICE detainer requests, and Plaintiffs

20

therefore cannot base a claim on breach of such a duty.

21

d. San Francisco Administrative Code Chapter 12H

22

Although Plaintiffs‘ complaint does not identify Chapter 12H as a source of any duty, see

23

Compl. ¶¶ 48, 69−70, their opposition brief rests largely on the argument that Mirkarimi violated

24

that ordinance by issuing the March 13 memorandum, see Opp‘n to City Mot. at 9−10, 12−14.

25

Specifically, Plaintiffs focus on section 12H.2-1, which at relevant times included the following

26

language:

27
28

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
23

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12

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

13

Mirkarimi to allow officers to share information with ICE based on its use of the word ―shall,‖

14

based on ―the federal government‘s pervasive regulation over immigration policy coupled with the

15

necessity of cooperation by state and local governments,‖ and based on legislative intent,

16

specifically language in the implementing ordinance stating that section 12H.2-1 was added ―‗to

17

clarify that Chapter 12H does not apply to individuals who have been convicted of certain

18

crimes.‘‖ Opp‘n to City Mot. at 10, 12 (quoting RJN re Opp‘n to City Ex. B (S.F. Ordinance No.

19

282-92, File No. 97-92-46 (approved Sept. 4, 1992))).

20

The language of section 12H.2-1 is not consistent with Plaintiffs‘ view that this section

21

imposed a duty on Mirkarimi. A provision of an ordinance which clarifies that it does not apply in

22

certain circumstances does not create a mandatory duty. In providing that ―[n]othing in this

23

Chapter shall preclude‖ certain cooperation with ICE, section 12H.2-1 simply limited the scope of

24

the remainder of Chapter 12H. In other words, if an individual met the criteria of section

25

12H.2-1—e.g., someone held at a county jail and previously convicted of a felony under

26

California law—then Chapter 12H would have no bearing on whether City employees report

27

information about that person to ICE. Plaintiffs essentially ask the Court to skip over the words

28

―in this Chapter,‖ and hold that section 12H.2-1 prohibits any preclusion of cooperation for certain
24

1

individuals, whether imposed by Chapter 12H or otherwise. The Court declines to do so; the

2

language of section 12H.2-1 limits the scope of Chapter 12H, not the authority of the sheriff. This

3

is consistent with the statement of intent that Plaintiffs cite from the implementing ordinance,

4

clarifying ―that Chapter 12H does not apply to individuals who have been convicted of certain

5

crimes.‖ RJN re Opp‘n to City Ex. B (emphasis added). Because Chapter 12H did not create a

6

duty, Plaintiffs cannot base a claim on violation of such a duty.11
***

7

The Court concludes that Plaintiffs‘ complaint does not plausibly allege that Steinle‘s

8
9

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

11
United States District Court
Northern District of California

10

Government Code, or Chapter 12H of the San Francisco Administrative Code. The complaint

12

therefore does not state a claim against the City Defendants for negligence per se under Evidence

13

Code section 669 or for public entity liability under Government Code sections 815 and 815.6, and

14

such claims must be DISMISSED under Rule 12(b)(6). The Court further concludes that the

15

defects of these claims could not be cured by amending the complaint.

16

2. General Negligence
Plaintiffs also argue that they have stated a claim under general negligence principles

17
18

because the ―foreseeable result of allowing felons with serious documented drug histories to avoid

19

deportation is that they will act erratically and dangerously in a manner that compromises the

20

safety of the rest of the San Francisco community.‖ See Opp‘n to City Mot. at 14–19; see also

21

Compl. ¶¶ 46−54, 90−94. ―The elements of a negligence action are duty, breach of duty,

22

causation, and damages.‖ Carrera v. Maurice J. Sopp & Son, 177 Cal. App. 4th 366, 377 (2009)

23

(citing, e.g., Paz v. California, 22 Cal. 4th 550, 559 (2000)).
Although California law does not generally permit a public entity to be held liable for its

24
25
11

26
27
28

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.
25

1

own negligence, see Cal. Gov‘t Code § 815, a public entity may be held vicariously liable for

2

actions of its employees, within the scope of those employees‘ duties, if an employee‘s conduct

3

would give rise to a cause of action against the employee himself or herself, id. § 815.2(a). Public

4

employees are generally liable for their actions to the same extent as private persons. Id. § 820(a).

5

Section 820.2 of the Government Code, however, provides that public employees are generally

6

immune from liability for exercising discretion granted to them by law, and section 815.2(b)

7

provides that, in the context of vicarious liability, public entities share any immunity that would

8

apply to their employees. Id. §§ 815.2(b), 820.2.
Without reaching the City Defendants‘ other arguments, including whether the March 31

10

memorandum was a legally sufficient proximate cause of Steinle‘s death and whether immunity

11
United States District Court
Northern District of California

9

under Government Code sections 845.8(a) or 846 applies, the Court concludes that Mirkarimi is

12

immune under section 820.2 of the Government Code and that the City is therefore also immune

13

under section 815.2(b) of the Government Code.
―Except as otherwise provided by statute, a public employee is not liable for an injury

14
15

resulting from his act or omission where the act or omission was the result of the exercise of the

16

discretion vested in him, whether or not such discretion be abused.‖ Cal. Gov‘t Code § 820.2.

17

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.

18
19
20
21

22
23
24

Trujillo v. City of Ontario, 428 F. Supp. 2d 1094, 1123 (C.D. Cal. 2006), aff’d sub nom. Bernhard

25

v. City of Ontario, 270 F. App‘x 518 (9th Cir. 2008). Sheriffs are among the public employees

26

subject to immunity under section 820.2. Venegas v. County of Los Angeles, 32 Cal. 4th 820, 836

27

(2004).

28

The parties do not address whether Mirkarimi‘s issuance of the March 13 memorandum
26

qualifies as a discretionary act for the purpose of section 820.2. The Court concludes that it does.

2

The memorandum on its face indicates that Mirkarimi issued it after consulting with the Sheriff‘s

3

Department‘s legal counsel to determine how best to implement section 12H.2 of the San

4

Francisco Administrative Code. See City RJN Ex. A. The memorandum delineated categories of

5

information that Sheriff‘s Department employees could presumptively provide to ICE, as well as

6

categories (such as release dates) that employees could not share with ICE absent a court order or

7

warrant, consultation with the legal department, and authorization by Mirkarimi. Id. The Court is

8

therefore satisfied that the memorandum was a policy decision resulting from ―a conscious

9

balancing of risks and advantages,‖ and not a mere ―operational or ministerial‖ act. See Trujillo,

10

428 F. Supp. 2d at 1123. Establishing such a policy falls within a county sheriff‘s broad authority

11
United States District Court
Northern District of California

1

to regulate the personnel within his or her department. See Cal. Govt‘ Code § 26605 (providing

12

that the sheriff is ―the sole and exclusive authority to keep the county jail and the prisoners in it‖);

13

Brandt v. Bd. of Supervisors, 84 Cal. App. 3d 598, 602 (1978) (holding that a sheriff has exclusive

14

authority to control the operation of a jail); see also, e.g., Gordon v. Horsley, 86 Cal. App. 4th

15

336, 344 (2001) (holding that a ―Sheriff has the inherent authority to control [a deputy‘s] off-duty

16

use of a concealed weapon and exercise of peace officer powers‖); Compl. ¶ 98 (alleging that

17

―[w]hen MIRKARIMI issued The March Memo he was acting and/or purporting to act in the

18

performance of his official duties, and at all times relevant, MIRKARIMI was a policymaking

19

official of [the City]‖).

20

Plaintiffs‘ only argument against the application of section 820.2 here is that ―the acts were

21

mandatory not discretionary,‖ or in other words, that the City Defendants ―are not vested with

22

authority to contravene the law.‖ Opp‘n to City Mot. at 19. As discussed above in the context of

23

negligence per se, no law required the Sheriff‘s Department to share Lopez-Sanchez‘s release date

24

with ICE, nor did any law forbid Mirkarimi establishing a policy against such cooperation.

25

Plaintiffs‘ argument here is therefore unavailing. Section 820.2 bars liability against Mirkarimi

26

for the decision to issue the March 13 memorandum, and 815.2(b) of the Government Code,

27

which provides that ―a public entity is not liable for an injury resulting from an act or omission of

28

an employee of the public entity where the employee is immune from liability,‖ therefore bars
27

1

liability against the City. Plaintiffs‘ negligence claims against the City Defendants must therefore

2

be DISMISSED. The Court finds that leave to amend these claims would be futile.

3

3. 42 U.S.C. § 1983

4

Plaintiffs‘ claim under § 1983 alleges that the City Defendants deprived Steinle of her life

5

and liberty without due process of law. Compl. ¶¶ 95–101. Section 1983 provides ―a method for

6

vindicating federal rights elsewhere conferred.‖ Graham v. Connor, 490 U.S. 386, 393–94 (1989)

7

(citation omitted). Thus, analysis of a civil rights claim brought under § 1983 begins with the

8

identification of the ―specific constitutional right allegedly infringed by the challenged [state

9

action].‖ Id. at 394 (citation omitted). The claim is then evaluated under the constitutional
standards that apply to that constitutional right. Id. (citing Tennessee v. Garner, 471 U.S. 1, 7–22

11
United States District Court
Northern District of California

10

(1985)). Plaintiffs‘ opposition brief clarifies that Plaintiffs seek to pursue a claim based on the

12

Fourteenth Amendment‘s guarantee of both procedural and substantive due process. Opp‘n to

13

City Mot. at 19–23.

14

a. Substantive Due Process
The substantive component of the Due Process Clause ―forbids the government from

15
16

depriving a person of life, liberty, or property in such a way that shocks the conscience or

17

interferes with rights implicit in the concept of ordered liberty.‖ Nunez v. City of Los Angeles, 147

18

F.3d 867, 871 (9th Cir. 1998) (internal quotation marks omitted). It ―protects individual liberty

19

against ‗certain government actions regardless of the fairness of the procedures used to implement

20

them.‘‖ Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams,

21

474 U.S. 327, 331 (1986)). Substantive due process ―forbids the government to infringe certain

22

‗fundamental‘ liberty interests at all, no matter what process is provided, unless the infringement

23

is narrowly tailored to serve a compelling state interest.‖ Reno v. Flores, 507 U.S. 292, 302

24

(1993).

25

Substantive due process does not, however, create a ―constitutional right to be protected by

26

the state from attack by private third parties, absent some special relationship between the state

27

and the victim or the criminal and the victim that distinguishes the victim from the general

28

public.‖ Ketchum v. County of Alameda, 811 F.2d 1243, 1247 (9th Cir. 1987); see also DeShaney
28

1

v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189, 195–96 (1989). This limitation applies

2

―‗even if the state was remiss in allowing the third person to be in a position in which he might

3

cause harm to a member of the public.‘‖ Ketchum, 811 F.2d at 1247 (quoting Wright v. City of

4

Ozark, 715 F.2d 1513, 1515 (11th Cir. 1983)).

5

Here, Plaintiffs rely on a line of cases recognizing that harm caused by third parties can

6

support a substantive due process claim where the defendant state actor‘s ―conduct ‗affirmatively

7

placed the plaintiff in a position of danger.‘‖ Wood v. Ostrander, 879 F.2d 583, 589–90 (9th Cir.

8

1989) (quoting Ketchum, 811 F.2d at 1257). Plaintiffs characterize this as a separate exception to

9

the rule against a constitutional duty to protect, distinct from the ―special relationship‖ exception.
See Opp‘n to City Mot. at 22. According to Plaintiffs, Mirkarimi‘s issuance of the March 13

11
United States District Court
Northern District of California

10

memorandum was an affirmative act that placed Steinle in a position of danger, because the failure

12

to deport undocumented immigrants with felony convictions ―foreseeably would result in the loss

13

of innocent lives.‖ Id. at 23. The City Defendants argue that ―the [state-created danger] cases

14

cited by plaintiffs all involve the acts of a law enforcement officer that affirmatively placed a

15

specific, identifiable persons [sic] in a greater position of danger.‖ City Reply at 10 (emphasis

16

added). The Court agrees that the doctrine requires a more particularized danger than is alleged in

17

this case.

18

―Under the state-created danger doctrine, a state actor can be held liable for failing to

19

protect a person‘s interest in his personal security or bodily integrity when the state actor

20

affirmatively and with deliberate indifference placed that person in danger.‖ Pauluk v. Savage,

21

836 F.3d 1117, 1122 (9th Cir. 2016).

22
23
24
25
26
27
28

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
29

1
2
3
4
5
6

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

7

state trooper arrested an intoxicated driver and impounded the vehicle, but, according to the

8

plaintiff‘s testimony, left the plaintiff (who had been a passenger in the vehicle) to walk home late

9

at night in a high-crime area, ignoring her request for assistance getting home. Wood, 879 F.2d at
586; see also Pauluk, 836 F.3d at 1122 (noting that the Ninth Circuit ―first recognized the state-

11
United States District Court
Northern District of California

10

created danger doctrine in Wood‖). After beginning the five-mile walk to her home in cold

12

weather, the plaintiff eventually accepted a ride from a stranger, who raped her. Wood, 879 F.2d

13

at 586. The Ninth Circuit reversed the district court‘s entry of summary judgment for the

14

defendant and held instead that the plaintiff ―raised a triable issue of fact as to whether [the state

15

trooper‘s] conduct ‗affirmatively placed the plaintiff in a position of danger.‘‖ Id. at 589–90

16

(quoting Ketchum, 811 F.2d at 1247).

17

One aspect of the Ninth Circuit‘s reasoning, not specifically discussed by either party here,

18

is significant: ―The fact that [the state trooper] arrested [the driver], impounded his car, and

19

apparently stranded [the plaintiff] in a high-crime area at 2:30 a.m. distinguishes [the plaintiff]

20

from the general public and triggers a duty of the police to afford her some measure of peace and

21

safety.‖ Id. at 590 (emphasis added). It follows that the state-created doctrine does not encompass

22

claims that policy decisions increased danger to the public as a whole, rather than to specific

23

individuals or groups. See also Paulak, 836 F.3d at 1125 (stating that the government‘s

24

―affirmative act must have exposed the plaintiff to ‗an actual, particularized danger‘‖ (quoting

25

Kennedy, 439 F.3d at 1063) (emphasis added)). One way to look at the state-created danger

26

doctrine is therefore as a particular application of the special relationship rule: when state action

27

places a person or particular group of people at risk of harm, the state creates a special relationship

28

with the affected person or group sufficient to impose a duty to mitigate that risk.
30

1

Subsequent Ninth Circuit decisions imposing liability under the state-created danger

2

doctrine comport with that view of the rule. In Kennedy, for example, a police officer informed

3

the family of a teenager with a known history of violence that a neighbor had accused the teenager

4

of sexually assaulting her daughter, without warning the accuser that he had done so despite

5

previously assuring her that he would provide such a warning, and without providing police

6

patrols in the neighborhood despite promising that as well. Kennedy, 439 F.3d at 1057–58. The

7

teenager then broke into the accuser‘s house and shot her and her husband, severely wounding the

8

accuser and killing her husband. Id. The Ninth Circuit held that by informing the family of the

9

teenager without first warning the accuser so that she could take precautions, the officer
―affirmatively created an actual, particularized danger [the accuser] would not otherwise have

11
United States District Court
Northern District of California

10

faced.‖ Id. at 1063. In Munger v. City of Glasgow Police Department, police officers ejected an

12

intoxicated, lightly dressed man from a bar in Montana in subfreezing temperatures and prevented

13

him from reentering the bar or driving his truck; the man was found dead from hypothermia the

14

next day. 227 F.3d 1082, 1084–85, 1087 (9th Cir. 2000). The Ninth Circuit held that the officers

15

could be held liable for having ―placed Munger ‗in a more dangerous position than the one in

16

which they found him.‘‖ Id. at 1087 (quoting Penilla v. City of Huntington Park, 115 F.3d 707,

17

710 (9th Cir. 1997) (per curiam)). In Penilla, neighbors called 911 after observing Juan Penilla

18

seriously ill on his front porch, but the police officers who responded, despite finding Penilla ―to

19

be in grave need of medical care, cancelled the request for paramedics, broke the lock and door

20

jamb on the front door of Penilla‘s residence, moved him inside the house, locked the door, and

21

left.‖ Penilla, 115 F.3d at 708. The Ninth Circuit affirmed the district court‘s holding that ―by

22

cancelling the 911 call, removing Penilla from public view, and locking the front door,‖ the

23

defendant officers ―clearly placed Penilla in a more dangerous position than the one in which they

24

found him‖ and thus could be held liable on a theory of state-created danger. Id. at 710. And in

25

L.W. v. Grubbs, the Ninth Circuit held that a nurse at a custodial institution could proceed on a

26

state-created danger claim against supervisors who assigned her to work alone with ―a violent sex

27

offender who had failed all treatment programs‖ with ―an extraordinary history of unrepentant

28

violence against women and girls,‖ who then ―assaulted, battered, kidnapped and raped her.‖ 974
31

1

F.2d 119, 120–22 (9th Cir. 1992). In each of these cases, the danger that the defendants created

2

was specific to identifiable individuals or groups, and thus ―distinguishe[d] [them] from the

3

general public and trigger[ed] a duty . . . to afford [them] some measure of peace and safety.‖ See

4

Wood, 879 F.2d at 590.
Plaintiffs here do not cite any authority, from the Ninth Circuit or elsewhere, holding that a

5
6

policy decision that increases danger to the public as a whole can give rise to a due process claim

7

based on the state-created danger doctrine. Such a rule, which is not supported by the reasoning of

8

Wood, would represent a significant expansion of the doctrine and would subject virtually any

9

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

11
United States District Court
Northern District of California

10

distinguished Steinle from the general public at the time of the City Defendants‘ alleged wrongful

12

conduct—i.e., when Mirkarimi issued the March 13 memorandum—the City Defendants cannot

13

be held liable for a due process violation on a theory of state-created danger. Plaintiffs‘

14

substantive due process claim must therefore be DISMISSED. The Court finds that leave to

15

amend this claim would be futile.

16

b. Procedural Due Process
The procedural guarantee of the Due Process Clause ―is that a deprivation of life, liberty,

17
18

or property be preceded by notice and opportunity for hearing appropriate to the nature of the

19

case.‖ Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation and internal

20

quotation marks omitted). The Supreme Court has ―described the root requirement of the Due

21

Process Clause as being that an individual be given an opportunity for a hearing before he is

22

deprived of any significant [protected] interest.‖ Id. (citation and internal quotation marks

23

omitted).
Plaintiffs allege that a hearing, or some other procedural safeguard, should have been

24
25

required before Mirkarimi issued the March 13 memorandum because it ―affected . . . [Steinle‘s]

26

right to life and liberty.‖ See Opp‘n to City Mot. at 20–21.12 The City Defendants respond only

27
12

28

Plaintiffs also characterize the option of making a telephone call to inform ICE of LopezSanchez‘s release date as an alternative ―adequate procedural safeguard‖ available to the City
32

1

that ―[n]o law requires elected officials to hold public hearing [sic] before adopting policies such

2

as the one here.‖ City Reply at 10. Neither party cites authority addressing whether the Due

3

Process Clause requires the head of a local law enforcement agency to hold a hearing before

4

making decisions that might affect public safety in general.

5

In the Court‘s view, the issue comes down to the particular interest affected by Mirkarimi‘s
policy. Plaintiffs characterize that interest as Steinle‘s right to life and liberty, but the more direct

7

effect was on the degree of protection from crime that Steinle and other members of the

8

community received. As discussed above in the context of substantive due process, the

9

Constitution does not create a right to protection from crime except in special circumstances.

10

Accordingly, the Due Process Clause does not require a hearing before local law enforcement

11
United States District Court
Northern District of California

6

officials set policies that reduce aspects of such protection. That such a decision sets in motion a

12

chain of events ultimately leading to a plaintiff‘s death, as is alleged here, does not alter the

13

outcome.

14

To hold otherwise would have far reaching implications. Under Plaintiffs‘ proposed

15

framework—that the right to procedural due process requires a hearing or other safeguards before

16

any decision that could foreseeably increase the risk of death to members of the public at large—

17

police commanders could not alter shift schedules without a hearing, fire chiefs could not decrease

18

readiness levels without a hearing, and parole boards would be required to solicit public input

19

before authorizing the release of prisoners, among other consequences. In the absence of any

20

authority so holding, the Court declines to so expand the scope of constitutional due process.

21

Plaintiffs‘ procedural due process claim is therefore DISMISSED. The Court finds that leave to

22

amend this claim would be futile.

23

C.

24

Under the doctrine of sovereign immunity, the United States ―‗is immune from suit save as

Claims Against the United States

25
26
27
28

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.
33

1

it consents to be sued . . . and the terms of its consent to be sued in any court define that court‘s

2

jurisdiction to entertain the suit.‘‖ United States v. Testan, 424 U.S. 392, 399 (1976) (quoting

3

United States v. Sherwood, 312 U.S. 584, 586 (1941)). Any analysis of claims against the United

4

States therefore begins with the jurisdictional question of whether sovereign immunity has been

5

waived as to the claims at issue. ―[A] waiver of the traditional sovereign immunity ‗cannot be

6

implied but must be unequivocally expressed.‘‖ Id. (quoting United States v. King, 395 U.S. 1, 4

7

(1969)).
Here, Plaintiffs‘ complaint invokes the Federal Tort Claims Act (―FTCA‖). See Compl.

8

¶ 1. ―The FTCA, a limited waiver of the United States‘ sovereign immunity, provides that the

10

United States shall be liable ‗in the same manner and to the same extent as a private individual

11
United States District Court
Northern District of California

9

under like circumstances‘ under applicable state law.‖ Dugard v. United States, 835 F.3d 915,

12

918–19 (9th Cir. 2016) (quoting 28 U.S.C. § 2674). ―Although the federal government ‗could

13

never be exactly like a private actor, a court‘s job in applying the standard is to find the most

14

reasonable analogy,‘‖ and it can in some circumstance be ―appropriate to look to cases involving

15

public entities or public immunities, so long as the policies underlying them are applicable to

16

private parties in the state as well.‖ Id. at 919, 920 (quoting LaBarge v. Mariposa County, 798

17

F.2d 364, 367 (9th Cir. 1986)).
1. Claims Based on ICE’s Conduct

18

Plaintiffs claim that ICE acted negligently in failing to detain Lopez-Sanchez pursuant to

19
20

8 U.S.C. § 1226(c), which provides that the ―Attorney General shall take into custody‖ aliens

21

meeting certain criteria. No party disputes that Lopez-Sanchez met those criteria. The United

22

States contends that ICE exercises discretion in apprehending aliens, even those who meet the

23

criteria of § 1226(c), and that the discretionary function exception to the FTCA therefore applies

24

here.

25

The FTCA does ―not apply to . . . [a]ny claim . . . based upon the exercise or performance

26

or the failure to exercise or perform a discretionary function or duty on the part of a federal agency

27

or an employee of the Government, whether or not the discretion involved be abused.‖ 28 U.S.C.

28

§ 2680. Because the discretionary function exception negates the FTCA‘s waiver of sovereign
34

1

immunity, ―federal courts do not have subject matter jurisdiction over tort actions based on federal

2

defendants‘ performance of discretionary functions.‖ Lesoeur v. United States, 21 F.3d 965, 967

3

(9th Cir. 1994). Although a plaintiff normally bears the burden of establishing subject matter

4

jurisdiction, in an FTCA case ―[t]he government bears the burden of demonstrating that the

5

discretionary function exception applies.‖ Gonzalez v. United States, 814 F.3d 1022, 1027 (9th

6

Cir. 2016).13
The Supreme Court has established a two-part test for analyzing the discretionary function

7
8

exception. Gonzalez, 814 F.3d at 1027 (citing Berkovitz v. United States, 486 U.S. 531, 536–37

9

(1988)). The first step is to determine whether the action in question was discretionary, i.e.,
whether it involved an exercise of judgment rather than merely execution of a duty set by law. Id.

11
United States District Court
Northern District of California

10

―The discretionary function exception does not apply to ‗[a]n action specifically prescribed by a

12

federal statute, regulation, or policy,‘ because such an action is not within an agent‘s discretion.‖

13

Xue Lu v. Powell, 621 F.3d 944, 950 (9th Cir. 2010) (quoting Marlys Bear Med. v. United States,

14

241 F.3d 1208, 1213 (9th Cir. 2001)). ―In such cases, ‗the employee has no rightful option but to

15

adhere to the directive‘ . . . .‖ Gonzalez, 814 F.3d at 1027 (quoting GATX/Airlog Co. v. United

16

States, 286 F.3d 1168, 1174 (9th Cir. 2002)).14
The second prong of the test is to determine ―whether that judgment is of the kind that the

17
18

discretionary function exception was designed to shield,‖ i.e., ―governmental actions and decisions

19

based on considerations of public policy.‖ Berkovitz, 486 U.S. at 536–37. The question is not

20

―‗the agent‘s subjective intent‘‖ or whether a decision was ―‗actually . . . grounded in policy

21

considerations,‘‖ but instead whether it was the type of decision that could be ―‗susceptible to

22

policy analysis.‘‖ Gonzalez, 814 F.3d at 1027–28 (quoting United States v. Gaubert, 499 U.S.

23
24
25
26
27
28

13

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.
14
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.
35

1

315, 325 (1991); GATX, 286 F.3d at 1174). This element is somewhat derivative of the first—if a

2

law grants an agent or agency discretion, that alone creates a strong presumption that the exercise

3

of that discretion is grounded in policy. See id. at 1028.

4

In Xue Lu, for example, the Ninth Circuit held that the discretionary function exception

5

encompassed claims based on failure to detect an asylum officer‘s severe misconduct (including

6

sexually assaulting and soliciting bribes from asylum applicants) despite the fact that the officer

7

had violated regulations by keeping an asylum file for more than a year. 621 F.3d at 946, 950.

8

Because no law created a mandatory duty to discipline the officer for retaining the file, such

9

discipline was a discretionary function outside the scope of the FTCA‘s waiver of sovereign

10

immunity. Id. at 950.

United States District Court
Northern District of California

11

Here, the application of the discretionary function exception turns on whether 8 U.S.C.

12

§ 1226(c) mandates that ICE apprehend and detain all immigrants who meet the criteria of the

13

statute, or whether ICE retains discretion to determine which immigrants to apprehend and the

14

means of doing so. Plaintiffs contend that the statute‘s language is mandatory—providing that the

15

―Attorney General shall take into custody‖ qualifying aliens ―when the alien is released,‖ 8 U.S.C.

16

§ 1226(c) (emphasis added)—and that the Supreme Court recognized congressional intent for

17

mandatory detention in Demore v. Kim, 538 U.S. 510 (2003). See Opp‘n to U.S. Mot. at 6−7. The

18

United States contends that Shanahan‘s undisputed declaration demonstrates that ICE must, and

19

does, exercise discretion in determining which aliens to detain and how to go about taking custody

20

of aliens held by state authorities, and also argues that several courts have acknowledged that

21

practical considerations prevent ICE from immediate apprehending every alien subject to

22

detention under § 1226(c). See U.S. Mot. at 8−10.

23

The precise issue of whether § 1226(c) imposes a mandatory duty such that failure to

24

apprehend and detain an alien falls outside the discretionary function exception appears to be one

25

of first impression, although some courts have considered related issues.

26

In a case where an immigrant challenged ICE‘s purportedly negligent investigation of his

27

citizenship status, the Middle District of Florida concluded that, ―[o]perating with limited

28

resources, ICE must weigh various policy considerations in deciding which suspected aliens to
36

1

detain, how to detain them, and how to investigate claims of citizenship by detained aliens,‖ and

2

therefore held that the discretionary function exception applied to bar the plaintiff‘s claim.

3

Douglas v. United States, 796 F. Supp. 2d 1354, 1369 (M.D. Fla. 2011). That case did not,

4

however, involve § 1226(c), and thus did not address whether that statute negates the discretionary

5

function exception.

6

Several courts have also considered the separate issue of whether § 1226(c)‘s requirement

7

that the Attorney General take custody ―when the alien is released‖ limits mandatory detention

8

under the statute to circumstances where an alien is taken into ICE custody immediately upon

9

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

11
United States District Court
Northern District of California

10

pending. See, e.g., Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016); Lora v. Shanahan, 804 F.3d

12

601 (2d Cir. 2015). Several courts to consider that issue have held that mandatory detention under

13

§ 1226(c) applies regardless of whether an alien is detained by ICE immediately upon release from

14

state custody or some time thereafter, deferring to a decision by the Board of Immigration Appeals

15

in 2001. E.g., Lora, 804 F.3d at 611–13; Sylvain v. Attorney Gen., 714 F.3d 150, 157 (3d Cir.

16

2013); Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012); see also In re Rojas, 23 I. & N. Dec. 117,

17

125 (B.I.A. 2001). In reaching that conclusion, both the Board of Immigration Appeals and the

18

Second Circuit noted that practical considerations, including resource constraints, prevent federal

19

authorities from apprehending all immigrants who are subject to § 1226(c) at the moment that they

20

are released from state custody. Lora, 804 F.3d at 612–13 (―Particularly for criminal aliens in

21

state custody, it is unrealistic to assume that DHS will be aware of the exact timing of an alien‘s

22

release from custody, nor does it have the resources to appear at every location where a qualifying

23

alien is being released.‖); Rojas, 23 I. & N. Dec. at 124; see also Rojas, 23 I. & N. Dec. at 128

24

(Moscato, Board Member, concurring in part and dissenting in part). In a decision not discussed

25

by either party here, the Ninth Circuit departed from other circuits on the issue of whether aliens

26

not immediately taken into immigration custody after release by state authorities are subject to

27

mandatory detention, holding that they are not. See generally Preap, 831 F.3d 1193. Nothing in

28

that decision, however, addresses whether ICE can or must take custody of every alien who falls
37

1

within the scope of § 1226(c) at the time that he or she is released from state custody. See id.
As Plaintiffs note in their opposition, the Supreme Court addressed the purpose of

3

§ 1226(c) in Demore v. Kim, 538 U.S. 510. The Supreme Court recognized that in enacting other

4

immigration laws in the years leading up to the passage of § 1226, Congress intended to limit

5

aspects of the Attorney General‘s discretion: with respect to an earlier law, the Court concluded

6

that ―Congress limited the Attorney General‘s discretion over custody determinations with respect

7

to deportable aliens who had been convicted of aggravated felonies.‖ Id. at 520–21. Congress

8

was primarily concerned with decisions by federal authorities to release criminal aliens pending

9

deportation, not with failure in the first place to apprehend every criminal alien who is subject to

10

removal. See id. at 521 (quoting S. Rep. No. 104-48, at 32 (―Congress should consider requiring

11
United States District Court
Northern District of California

2

that all aggravated felons be detained pending deportation. Such a step may be necessary because

12

of the high rate of no-shows for those criminal aliens released on bond.‖)).

13

While the existence of a mandatory duty to apprehend all aliens subject to the statute

14

seems unlikely, the Court need not decide that issue: Plaintiffs‘ claims depend on the assertion

15

that such aliens must be apprehended immediately on release from state custody, using whatever

16

methods and resources are necessary to accomplish that detention. In other words, the issue

17

before the Court is whether the language of § 1226(c) mandates how and when that apprehension

18

occurs, and whether it requires (1) that all such aliens be taken into custody immediately, i.e., at

19

the state or local detention location, as opposed to allowing ICE to arrest such aliens at a later

20

time; and (2) that ICE use specific methods to detain an alien, e.g., seeking a court order,

21

stationing an agent at the state or local detention facility before release, etc. The district court in

22

Douglas recognized that ICE exercises discretion ―in deciding which suspected aliens to detain,

23

how to detain them, and how to investigate claims of citizenship by detained aliens.‖ 796 F. Supp.

24

2d at 1369. Even if § 1226(c) cabins that discretion as to the first issue identified by that court—

25

which suspected aliens to detain—nothing in the statute compels ICE to devote whatever

26

resources are necessary to detain an alien at the moment the alien is released from state custody.

27
28

Undisputed evidence in the record indicates, and other courts have recognized, that
resource constraints and other practical considerations prevent ICE from apprehending all aliens
38

1

subject to § 1226(c) at the time they are released by state authorities. See Shanahan Decl. ¶ 9

2

(stating that one factor affecting ICE‘s enforcement priorities is ―the differential between the

3

number of people present in the United States illegally and the number of people ICE is resourced

4

to remove each year,‖ and that ―[t]his differential necessitates prioritization‖);15 Lora, 804 F.3d at

5

612–13 (―Particularly for criminal aliens in state custody, it is unrealistic to assume that DHS will

6

be aware of the exact timing of an alien‘s release from custody, nor does it have the resources to

7

appear at every location where a qualifying alien is being released.‖); Douglas, 796 F. Supp. 2d at

8

1369.
The Court therefore concludes that ICE must necessarily exercise discretion in determining

9

what resources it is willing to devote to apprehending a particular alien, even among those aliens

11
United States District Court
Northern District of California

10

subject to § 1226(c). The question of whether to devote resources—to use an example proposed

12

by Plaintiffs—to send ICE agents to the Sheriff‘s Department while Lopez-Sanchez was still in

13

custody on the chance that the Sheriff‘s Department would surrender him to them, see Opp‘n to

14

U.S. Mot. at 13, necessarily implicates policy questions of whether those resources would be

15

better spent pursuing other criminal aliens who might pose a greater known risk to the public or

16

whom ICE might have a greater chance of successfully apprehending than someone like Lopez-

17

Sanchez, whose release date was unknown.16 Under established precedent interpreting the

18

discretionary function exception to the FTCA, the Court need not consider whether ICE decision

19

makers actually weighed such policy considerations; it is enough that the decision at issue was

20

susceptible to policy analysis. See Gonzalez, 814 F.3d at 1027–28; see also Shanahan Decl. ¶¶ 8–

21

11 (stating that ICE in fact considers policy implications in deciding how to use the resources

22
15

23
24
25
26
27
28

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, 227 F.3d at 1242.
16
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.
39

1

available to it).

2

Accordingly, both prongs of the discretionary function exception are met here: ICE had

3

discretion to determine what methods it would use to pursue Lopez-Sanchez, and the decisions

4

involved in exercising that discretion implicate policy considerations. The FTCA does not waive

5

the United States‘ sovereign immunity for claims, such as Plaintiffs‘ claims here, based on the

6

exercise of that discretion, ―whether or not the discretion involved be abused.‖ 28 U.S.C. § 2680.

7

Plaintiffs‘ claims against ICE therefore fall outside the jurisdiction of this Court and must be

8

DISMISSED without leave to amend.

9
10

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

United States District Court
Northern District of California

11

immunity under state and federal law, the parties‘ arguments regarding Plaintiffs‘ claims based on

12

the BLM ranger‘s failure to secure his handgun largely relate to the basic elements of negligence

13

under California law. As noted above in the context of Plaintiffs‘ negligence claims against the

14

City Defendants, ―[t]he elements of a negligence action are duty, breach of duty, causation, and

15

damages.‖ Carrera v. Maurice J. Sopp & Son, 177 Cal. App. 4th 366, 377 (2009) (citing, e.g.,

16

Paz v. California, 22 Cal. 4th 550, 559 (2000)). Specifically, the United States contends that, on

17

the facts alleged, the BLM ranger did not owe a legal duty to Steinle or other members of the

18

public who might be killed or injured by a stolen gun, and that the shooting was not sufficiently

19

connected to the failure to secure the handgun to establish legal causation. See U.S. Mot. at

20

19−23. The United States also argues that Plaintiffs cannot rely on alleged violations of BLM

21

internal policies to establish a duty, both because the FTCA does not waive sovereign immunity

22

for violations of duties impose by federal law, and because the internal manuals cited by Plaintiffs

23

do not qualify as a source of duty under California Evidence Code section 669.1 because they

24

were not adopted under the Administrative Procedure Act. See U.S. Mot. at 19; U.S. Reply at

25

9−10. The Court addresses these arguments in turn.

26
27
28

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:
40

1

5

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.

6

Rowland v. Christian, 69 Cal. 2d 108, 113 (1968); see also, e.g., Verdugo v. Target Corp., 59 Cal.

7

4th 312, 326 (2014) (citing Rowland with approval). Of those factors, the parties‘ arguments here

8

focus primarily on foreseeability, a ―concept [that] plays a variety of roles in tort doctrine,‖

9

including in the context of proximate cause, discussed separately below. See Ballard v. Uribe, 41

2
3
4

10

Cal. 3d 564, 572 n.6 (1986).

United States District Court
Northern District of California

11

California law generally imposes a stringent duty of care for dealing with guns. In light of

12

the ―risk incident to dealing with . . . firearms‖ and other instrumentalities with similar capacity to

13

do harm, ―the standard of care required of the reasonable person when dealing with such

14

dangerous articles is so great that a slight deviation therefrom will constitute negligence.‖ Warner

15

v. Santa Catalina Island Co., 44 Cal. 2d 310, 317 (1955); see also Jacoves v. United Merch.

16

Corp., 9 Cal. App. 4th 88, 116 (1992); Reida v. Lund, 18 Cal. App. 3d 698, 704 (1971); U.S. Mot.

17

at 19−20 (acknowledging this standard). Whether a gun owner owes a duty to the public to secure

18

his or her firearm against theft by a stranger, however, appears to be an issue of first impression

19

under California law.

20

In perhaps the closest case, an appellate court held that summary judgment was improper

21

on a negligence claim against the parents of a teenager who used his father‘s rifle to kill himself

22

and other children. See generally Reida, 18 Cal. App. 3d 698. Because that case relied in part on

23

authority regarding duties to keep ―deadly instrumentalities‖ away from children, id. at 705−06,

24

and because the father stored both his rifle and the key to his gun cabinet in places where his son

25

knew to find them, id. at 701, Reida is not directly on point for the case at hand, where the shooter

26

was an adult with no relation to the gun owner and no special access to the gun. Nevertheless, to

27

the extent that that Reida is relevant, it weighs in favor of finding a duty.

28

The United States is correct that many courts outside California have held that the owner
41

1

of a stolen firearm is not liable for criminal use of such a weapon by the thief. See U.S. Mot. at

2

20. The majority of the cases cited in the United States‘ brief, however, were decided on a motion

3

for summary judgment or other procedural posture involving a factual record, not on the

4

pleadings. See Jones v. Secord, 684 F.3d 1 (1st Cir. 2012) (affirming summary judgment based on

5

New Hampshire law); Romero v. Nat’l Rifle Ass’n of Am., Inc., 749 F.2d 77 (D.C. Cir. 1984)

6

(affirming judgment in favor of the defendant notwithstanding the verdict based on District of

7

Columbia law); Finocchio v. Mahler, 37 S.W.3d 300 (Mo. Ct. App. 2000) (affirming summary

8

judgment based on Missouri law); Estate of Strever v. Cline, 278 Mont. 165 (1996) (affirming

9

summary judgment based on Montana law); McGrane v. Cline, 94 Wash. App. 925 (1999)
(affirming summary judgment based on Washington law). Although a handful of cases have

11
United States District Court
Northern District of California

10

dismissed such claims at the pleading stage, the Court is aware of no authority that has considered

12

the issue under California law, regardless of procedural posture. See Bridges v. Parrish, 366 N.C.

13

539 (2013) (affirming dismissal based on North Carolina law); Valentine v. On Target, Inc., 353

14

Md. 544 (1999) (affirming dismissal based on Maryland law in a case where a handgun later used

15

in a shooting had been stolen from a gun store, in part on the basis that regulating gun dealers

16

should be left to the legislature). Some of the cases on which the United States relies involved

17

guns stolen from the owner‘s home, a fact pattern not present here. See, e.g., McGrane, 94 Wash.

18

App. at 928−29 (―The issues involved in this case implicate a narrow range of . . . issues: should

19

the courts recognize a duty on the part of a firearm owner to prevent the theft of that firearm from

20

his or her residence, such that liability may be imposed against the owner for subsequent criminal

21

use of that weapon?‖ (emphasis added)). Plaintiffs‘ opposition brief does not address any of the

22

stolen gun cases cited by the United States. See Opp‘n to U.S. Mot. at 17−20.

23

At least one case, not cited by either party and again from outside California, has held that

24

a negligence claim could proceed against the operators of a gun show from which minors had

25

stolen firearms later used in a shooting. Pavlides v. Niles Gun Show, Inc., 93 Ohio App. 3d 46

26

(1994) (reversing a grant of summary judgment based on Ohio law). Also, as the United States

27

acknowledges, the Montana case cited above held that ―the owner of a firearm has a duty to the

28

general public . . . to store the firearm in a safe and prudent manner,‖ although it nevertheless
42

1

affirmed summary judgment on the basis that intervening unforeseeable criminal conduct cut off

2

legal causation. Estate of Strever, 278 Mont. at 175, 179.
Although California courts do not appear to have addressed gun owners‘ liability for harm

4

caused by stolen firearms, a number of California cases have considered negligence claims against

5

owners of stolen vehicles. The general rule is that ―owners . . . of automobiles or ordinary pickup

6

trucks who leave the key in the ignition of an unattended vehicle [do not have a duty] to prevent

7

harm to third parties caused by a thief,‖ and thus are not subject to claims for negligence under

8

such circumstances. Carrera, 177 Cal. App. 4th at 378 (citing Richards v. Stanley, 43 Cal. 2d 60,

9

61−63 (1954); May v. Nine Plus Props., Inc., 143 Cal. App. 4th 1538, 1556 (2006); Avis Rent A

10

Car Sys., Inc. v. Superior Court, 12 Cal. App. 4th 221, 232 (1993)). In ―special circumstances,‖

11
United States District Court
Northern District of California

3

however, the California courts have recognized such a duty. Id. at 379−81.

12

The ―special circumstances‖ doctrine, an exception to the general rule that vehicle owners

13

are not liable for harm caused by thieves‘ use of their vehicles, is essentially ―nothing more than a

14

test of foreseeability of harm.‖ Palma, 36 Cal. 3d at 186. Among the factors that courts have

15

considered are ―the enormity of the potential harm, and . . . the facility with which a potential

16

wrongdoer could learn of and take advantage of the virtual invitation to theft.‖ Id. at 185 (citing

17

Richardson v. Ham, 44 Cal. 2d 772 (1955); Murray v. Wright, 166 Cal. App. 2d 589 (1958)).

18

―Those circumstances are merely illustrative, however, of conduct which may create foreseeable

19

risk of harm and impose liability if that risk becomes a reality.‖ Id.

20

The cases finding the special circumstances doctrine applicable generally involve

21

particularly dangerous vehicles left with the keys in the ignition or otherwise ready to operate. In

22

Richardson, the first case to recognize an owner‘s liability for harm caused by a stolen vehicle, the

23

defendants had failed to equip one of their 26-ton bulldozers with an effective ignition lock, and a

24

group of drunk young men started one of them in the night and, unable to stop it, let it drive itself

25

unattended for about a mile, causing severe injuries and property damage. Richardson, 44 Cal. 2d

26

at 774. After a verdict for the defendants, the California Supreme Court held that a new trial was

27

warranted, in part based on the ―foreseeable risk of intermeddling‖ (the record demonstrated

28

considerable public interest in the bulldozers), the fact that a thief would likely not know how to
43

1

operate a bulldozer, and the ―extreme danger created‖ by an uncontrolled bulldozer. Id. at 776. In

2

Hergenrether v. East, the defendants left a two-ton truck parked on the street unlocked with the

3

key in the ignition, the truck was stolen, and late that night it collided with another car, causing

4

serious injuries. 61 Cal. 2d 440, 441−42 (1964). The California Supreme Court reversed the trial

5

court‘s entry judgment for the defendants notwithstanding a jury verdict for the plaintiffs, relying

6

on the following ―significant circumstances‖:

7
8
9
10

United States District Court
Northern District of California

11
12

(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 twoton 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.

13

Id. at 445. In Palma, the California Supreme Court reversed an entry of summary judgment,

14

holding that considerations similar to those in Hergenrether warranted allowing a claim to proceed

15

where the defendants had left a large commercial truck unlocked with the keys inside in a lot near

16

the street in a high crime neighborhood, and a former employee stole the truck and ran over the

17

plaintiff. Palma, 36 Cal. 3d at 176, 184−86. In Carrera, a California appellate court reversed a

18

grant of summary judgment in favor a defendant who had left a tow truck unattended with the key

19

in the ignition in a high crime area, emphasizing that ―(1) the tow truck . . . was a powerful vehicle

20

capable of inflicting more serious injury and damage than an ordinary vehicle when not properly

21

controlled and the safe operation of the tow truck was not a matter of common experience; and

22

(2) the tow truck was unattended and accessible to thieves within the meaning of the special

23

circumstances doctrine.‖ Carrera, 177 Cal. App. 4th at 370−71.

24

The principles underlying California‘s special circumstances exception for stolen vehicles

25

weigh against dismissing, at the pleading stage, Plaintiffs‘ claim here for liability based on a stolen

26

firearm. The California Court of Appeal in Reida noted a case decided under that doctrine in

27

reaching its conclusion that a father could be held liable for his son‘s use of the father‘s rifle.

28

Reida, 18 Cal. App. 3d at 706 (citing and describing as ―somewhat analogous‖ Hergenrether, 61
44

1

Cal. 2d 440).17 The United States concedes that the special circumstances doctrine ―[p]resumably

2

. . . also applies in the context of firearm possession and storage,‖ but argues that the

3

circumstances of this case do not fall within the doctrine. See U.S. Mot. at 22. The Court

4

disagrees.
A handgun is indisputably capable of inflicting serious injury and damage—as a deadly

5
6

weapon, that is its very purpose. See Reida, 18 Cal. App. 3d at 704 (―A Swedish Mauser military

7

rifle is a lethal weapon whose sole function is to kill human beings and animals of comparable

8

size.‖). Leaving a gun loaded makes that capability for harm readily accessible in the same way as

9

leaving the key in the ignition of a vehicle. Plaintiffs allege that the handgun was left loaded and
unlocked in a vehicle in downtown San Francisco, parts of which are well known to have high

11
United States District Court
Northern District of California

10

rates of car break-ins and similar petty theft. Compl. ¶¶ 44, 56. Even assuming for the sake of the

12

argument that the car was locked and the gun itself was not visible,18 the Court holds that, at the

13

pleading stage, the complaint includes sufficient allegations to support a claim that leaving a

14

loaded gun in a backpack visible on the seat of an unattended vehicle in San Francisco ―create[s]

15

foreseeable risk of harm‖ comparable to that posed by a dangerous vehicle, and that the BLM

16

ranger therefore had a duty to better secure his handgun against theft. Whether the ranger in fact

17

had such a duty, and if so, the precise nature of that duty, depends on circumstances better

18

addressed on a more complete factual record at summary judgment or at trial.

19

b. Causation

20

The causation element of a negligence claim ―has two aspects‖: (1) whether the

21

defendant‘s action or inaction was a ―cause in fact‖ of the plaintiff‘s injury, also known as ―but

22

for‖ causation; and (2) whether, based on ―the degree of connection between the conduct‖ and

23
17

24
25
26
27
28

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, 37 S.W.3d at 303.
18
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.
45

1

considerations of public policy, it would be ―unjust to hold [the defendant] legally responsible,‖

2

often referred to as ―proximate‖ causation. State Dep’t of State Hosps. v. Superior Court, 61 Cal.

3

4th 339, 352−53 (2015) (citations and internal quotation marks omitted). ―‗Ordinarily, proximate

4

cause is a question of fact which cannot be decided as a matter of law from the allegations of a

5

complaint . . . . Nevertheless, where the facts are such that the only reasonable conclusion is an

6

absence of causation, the question is one of law, not of fact.‖ Dep’t of State Hosps., 61 Cal. 4th at

7

at 353 (quoting Weissich v. County of Marin, 224 Cal. App. 3d 1069, 1084 (1990)) (ellipsis in

8

original).
The parties‘ arguments focus primarily on proximate cause rather than cause in fact, and

10

specifically the extent to which the harm to Steinle was a foreseeable result of the BLM ranger‘s

11
United States District Court
Northern District of California

9

failure to secure the handgun. Although intervening criminal conduct of a third party can in some

12

circumstances cut off legal causation, a defendant ―‗is not relieved of liability because of the

13

intervening act of a third person if [the] act was reasonably foreseeable at the time of the original

14

negligent conduct. . . . The foreseeability required is of the risk of harm, not of the particular

15

intervening act.‘‖ Rosecrans v. Dover Images, Ltd., 192 Cal. App. 4th 1072, 1087 (2011) (quoting

16

Anaya v. Superior Court, 78 Cal. App. 4th 971, 973 (2000)) (first alteration in original). For

17

substantially the same reasons discussed above in the context of the ―special circumstances‖

18

vehicle theft cases, at this early stage of the case, Plaintiffs‘ allegations sufficiently and plausibly

19

allege that the risk of a thief stealing the handgun and shooting someone, whether intentionally or

20

negligently, was reasonably foreseeable.

21

The situation here is somewhat less straightforward, however, because Plaintiffs‘

22

complaint does not allege that Lopez-Sanchez stole the handgun. Plaintiffs allege only that the

23

―firearm was stolen from the [BLM ranger‘s] vehicle, and less than five (5) days later it was used

24

to kill [Steinle],‖ and that Lopez-Sanchez ―was in possession of‖ the BLM handgun when he shot

25

Steinle. Compl. ¶ 1, 44. As far as the Court is aware, all of the stolen vehicle cases that California

26

courts have allowed to proceed under the special circumstances doctrine involved harm caused by

27

the people who stole the vehicles at issue. It is not clear whether California courts would apply

28

that doctrine where the person causing harm did not steal the vehicle—for example, if a stolen
46

1

truck had been sold by the thief to a buyer who later negligently caused a serious traffic accident.

2

Here, it is conceivable that the ranger‘s failure to secure the gun was not even a ―but for‖ cause of

3

Steinle‘s death: if Lopez-Sanchez had set out to purchase a handgun and chosen the gun at issue

4

from among several comparable handguns sold on the black or grey market, the same outcome

5

might have resulted even if the BLM ranger‘s gun had never been stolen.

6

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

8

reasonable inferences in Plaintiffs‘ favor to determine whether the complaint plausibly states a

9

claim for relief. See, e.g., Schueneman v. Arena Pharm., Inc., 840 F.3d 698, 704 (9th Cir. 2016);

10

Ali v. Rogers, 780 F.3d 1229, 1232 (9th Cir. 2015). The ―plausibility‖ standard does not require

11
United States District Court
Northern District of California

7

that a conclusion be the most probable explanation of the facts alleged. See, e.g., Twombly, 550

12

U.S. at 556; Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 999 (9th Cir.

13

2014). Here, based on the allegation that Lopez-Sanchez had the BLM ranger‘s handgun when he

14

shot Steinle within a few days of its theft, it is plausible, in the context of a motion under Rule

15

12(b)(6), that Lopez-Sanchez stole the gun from the ranger‘s vehicle. The Court need not decide

16

at this time whether such an inference would be warranted on summary judgment, or what

17

consequences would result from any intervening steps between the theft of the gun and Lopez-

18

Sanchez taking possession of it.

19

Accordingly, Plaintiffs‘ complaint adequately states a claim under California common law

20

that the BLM ranger had a duty to properly secure the handgun, that the ranger breached that duty

21

by leaving the loaded gun in an unattended vehicle, that the failure to secure the handgun

22

proximately caused Steinle‘s death, and that Plaintiffs suffered damages as a result. Plaintiffs may

23

therefore proceed on their negligence claim against the United States under the FTCA.

24
25

c. Per Se Duty of Care
In addition to a duty under the common law principles discussed above, Plaintiffs also

26

argue that BLM manuals and similar guidance regarding proper storage, transportation, and

27

security of firearms impose a duty of care applicable here under section 669 of the California

28

Evidence Code, which codifies the standard for negligence per se. See Compl. ¶¶ 75−82; Opp‘n to
47

1

U.S. Mot. at 18−21. Plaintiffs argue that the manuals qualify as a source of duty under section

2

669.1 of the Evidence Code because they were adopted as regulations pursuant to the

3

Administrative Procedure Act. Opp‘n to U.S. Mot. at 20−21. The United States contends that the

4

manuals were not in fact adopted under the Administrative Procedure Act and therefore do not

5

create a duty actionable under section 669. U.S. Reply at 10.

6

Section 669 of the California Evidence Code provides that violation of a ―statute,

7

ordinance, or regulation of a public entity‖ satisfies the duty and breach elements of a negligence

8

claim. See Cal. Evid. Code § 669(a)(1). Section 669.1 clarifies that a ―rule, policy, manual, or

9

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

11
United States District Court
Northern District of California

10

must have been adopted pursuant to either the state or federal Administrative Procedure Act. Id.

12

The complaint does not allege that either of the manuals it cites—the ―Department of the

13

Interior Departmental Manual‖ or ―BLM‘s Manual Handbook 1112-2 on Safety and Health for

14

Field Operations‖—was adopted as a regulation under the Administrative Procedure Act. See

15

Compl. ¶¶ 75−82. Plaintiffs contend that the Department of the Interior manual, an excerpt of

16

which they submit for judicial notice, qualifies based on language therein stating that ―[t]hese

17

directives and standards implement statutory provisions, Public Law, and regulations relating to

18

Federal law enforcement.‖ Opp‘n to U.S. Mot. at 20−21; Req. for Judicial Not. in Supp. of Pls.‘

19

Opp‘n to U.S. Mot. (dkt. 38-1) Ex. D.19 That language does not indicate that the manual itself was

20

adopted as a regulation. If it was not, then regardless of whether it implements other sources of

21

law, Plaintiffs cannot rely on the manual as a source of a negligence per se duty under California

22

law and must instead identify the actual statutes or regulations that create a relevant duty. See Cal.

23

Evid. Code § 669.1. Because neither the complaint nor documents subject to judicial notice show

24

that the manuals Plaintiffs cite qualify as a source of a duty under sections 669 and 669.1 of the

25

Evidence Code, Plaintiffs‘ negligence per se claim based on the BLM ranger‘s conduct is

26

DISMISSED with leave to amend.

27
19

28

This exhibit is subject to judicial notice both as a public record and as a document referenced
and relied on by the complaint.
48

The United States also argues that federal agency rules cannot serve as a basis for this

1
2

claim because ―‗[f]ailure of a duty to perform mandatory federal functions does not itself give rise

3

to a FTCA claim; rather, the source of substantive liability, under the FTCA, is the law the state in

4

which the cause of action accrued.‘‖ U.S. Mot. at 14, 19 (quoting Dugard v. United States, No.

5

11-cv-4718-CTB, 2013 WL 6228625, at *3 (N.D. Cal. Nov. 27, 2013), aff’d, 835 F.3d 915 (9th

6

Cir. 2016)). Plaintiffs argue that section 669 of the California Evidence Code provides a sufficient

7

source of substantive liability under state law regardless of whether the underlying duty is

8

borrowed from federal law. See Opp‘n to U.S. Mot. at 20−21. The United States does not identify

9

any authority specifically addressing the question of whether the FTCA permits claims under state
negligence per se doctrines that incorporate duties established by federal law. See U.S. Mot. at

11
United States District Court
Northern District of California

10

13−14, 19; U.S. Reply at 10. The Court need not reach this issue in light of Plaintiffs‘ failure to

12

identify a qualifying ―statute, ordinance, or regulation‖ establishing the duty they seek to apply. If

13

Plaintiffs amend their complaint to identify a federal law that governs the BLM ranger‘s storage of

14

his firearm and creates a duty actionable under section 669, the parties are encouraged to address

15

this issue in more detail in any future motions practice.

16

IV.

17

CONCLUSION
For the reasons stated above, the City Defendants‘ motion to dismiss is GRANTED, and

18

the United States‘ motion to dismiss is GRANTED in part and DENIED in part. Plaintiffs‘ claims

19

are DISMISSED without leave to amend, except for: (1) Plaintiffs‘ FTCA claim against the

20

United States for general negligence under California common law based on the BLM ranger‘s

21

conduct, which may proceed; and (2) Plaintiffs‘ FTCA claim against the United States for

22

negligence per se as codified at section 669 of the California Evidence Code based on the BLM

23

ranger‘s conduct, which is DISMISSED with leave to amend if Plaintiffs can identify a statute,

24

ordinance, or regulation that establishes a relevant duty. If Plaintiffs wish to amend their

25

complaint to pursue the latter claim, they may do so no later than January 27, 2017.

26
27
28

IT IS SO ORDERED.
Dated: January 6, 2017

______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge
49