FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES STEINLE, individually and as No. 17-16283 heir to Kathryn Steinle, deceased; ELIZABETH SULLIVAN, individually D.C. No. and as heir to Kathryn Steinle, 3:16-cv-02859- deceased, JCS Plaintiffs-Appellants, v. OPINION CITY AND COUNTY OF SAN FRANCISCO, a government entity; JUAN FRANCISCO LOPEZ-SANCHEZ; ROSS MIRKARIMI; UNITED STATES OF AMERICA, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Joseph C. Spero, Magistrate Judge, Presiding Argued and Submitted November 15, 2018 San Francisco, California Filed March 25, 2019 2 STEINLE V. CITY & COUNTY OF SAN FRANCISCO Before: Susan P. Graber, Stephanie Dawn Thacker, * and Mark J. Bennett, Circuit Judges. Opinion by Judge Bennett; Concurrence by Judge Graber SUMMARY ** California Law / Immunity The panel affirmed the district court’s dismissal of the general negligence claim brought by the parents of Kathryn Steinle against the City and County of San Francisco after Kathryn was shot and killed by an undocumented alien with a criminal record, who was released from custody by the San Francisco’s Sheriff’s Department. On March 13, 2015, the San Francisco Sheriff issued a Memo establishing protocols and parameters for communications between Sheriff’s Department employees and Immigration and Customs Enforcement (“ICE”) representatives. On March 27, 2015, ICE sent a detainer request asking the Sheriff’s Department to notify ICE before releasing undocumented alien, Juan Francisco Lopez- Sanchez, and to hold him until ICE could take custody of him. The Sheriff’s Department released Lopez-Sanchez on * The Honorable Stephanie Dawn Thacker, Circuit Judge for the United States Court of Appeals for the Fourth Circuit, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. STEINLE V. CITY & COUNTY OF SAN FRANCISCO 3 April 15, 2015, without notification to ICE. On July 1, 2015, Lopez-Sanchez shot and killed Steinle near Pier 41 of the San Francisco Embarcadero. The Panel held that the Sheriff’s issuance of the Memo was a discretionary act that was entitled to immunity under California Government Code section 820.2. The panel further held that the district court did not err in determining immunity on a motion to dismiss. The panel rejected plaintiffs’ argument that the district court improperly took judicial notice of the Memo’s contents. The panel held that the district court properly considered the Memo under the incorporation by reference doctrine, where the Memo formed the very basis of plaintiffs’ claims and plaintiffs referred extensively to the Memo throughout district court proceedings. The panel rejected plaintiffs’ arguments that the Sheriff lacked discretionary authority to issue the Memo, and therefore, was not entitled to immunity. Specifically, the panel held that although 8 U.S.C. §§ 1373(a) and 1644 prohibit restrictions on providing certain types of information to ICE, they plainly and unambiguously do not prohibit the restriction at issue in this case regarding release- date information. The panel further held that, assuming the Sheriff’s actions adversely ...
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