Metropolitan News-Enterprise


Tuesday, March 26, 2019


Page 1


Ninth Circuit:

San Francisco Not Liable to Parents of Slain Woman

Sheriff’s Deputies, Acting Pursuant to Sanctuary Policy, Released Man Despite Request by ICE That A Hold Be Placed on Him, With the Object of Deportation; Appeals Court Says Immunity Applies


By a MetNews Staff Writer



Slain woman


Illegal alien


The City/County of San Francisco, a proclaimed “sanctuary,” is immune from liability to the parents of a woman who was fatally shot by an illegal alien who, upon release by sheriff’s deputies, would have been placed into custody by federal authorities had deputies not refused, pursuant to department policy, to accede to a detainer request, the Ninth U.S. Circuit Court of Appeals held yesterday.

 A memo issued by then-Sheriff Ross Mirkarimi on March 13, 2015 commanded that employees “shall not provide” to Immigration and Customs Enforcement (“ICE”) any “non-public” information concerning inmates including “release dates or times.” In implementing that policy, deputies ignored a March 27, 2015 request from ICE that Juan Francisco Lopez-Sanchez (AKA José Inez García Zárate), arrested on a drug charge, not be released until ICE could take custody of him.

Sheriff’s deputies released Lopez-Sanchez on April 15, without notifying ICE, and on July 1, 2015, Lopez-Sanchez fatally shot Kathryn Steinle, 32, while she was walking along a pier. The shooting was cited by President Donald Trump, during his campaign, as pointing to a need for a crackdown on illegal immigration.

Lopez-Sanchez had been deported five times from the United States.

Public Stances

The Sheriff’s Department insisted it had acted properly because there was no warrant for Lopez-Sanchez’s arrest and no order for his removal from the United States. However, ICE spokeswoman Gillian Christensen said in a statement:

“If the local authorities had merely NOTIFIED ICE that they were about to release this individual into the community, ICE could have taken custody of him and had him removed from the country—thus preventing this terrible tragedy.”

She added:

“As a result, an individual with a lengthy criminal history, who is now the suspect in a tragic murder case, was released onto the street rather than being turned over to ICE for deportation.”

Yesterday’s opinion affirms a dismissal with prejudice of a negligence action brought by Steinle’s family members against the city/county.

Bennett’s Opinion

“While we deeply sympathize with Steinle’s family, the question of discretionary immunity raised in this case is controlled by California law,” Circuit Judge Mark J. Bennett wrote, for a three-judge panel. “After careful deliberation, we conclude that California law bars Plaintiffs’ negligence claim.”

Bennett cited California Government Code §820.2 which provides that “a public employee is not liable for an injury resulting from his act...where the act...was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

Bennett went on to say:

“Plaintiffs claim that Sheriff Mirkarimi did not have discretionary authority to issue the Memo because the Memo ‘“invaded” the federal government’s authority over immigration law and frustrated ICE’s ability to detain and deport Lopez-Sanchez. We accept as true, as we must at this stage of the proceedings, that the issuance of the Memo interfered with ICE’s ability to detain and deport Lopez- Sanchez, and that ICE would have detained Lopez-Sanchez had ICE been provided with his release date. We also acknowledge Congress’s plenary or near plenary power over immigration issues….Notwithstanding these principles. Plaintiffs fail to cite any authority that required Sheriff Mirkarimi to provide ICE with the release date. That Sheriff Mirkarimi’s actions adversely affected ICE’s ability to do its job does not. without more, strip him of the discretionary authority under California law to institute the policy that he did.”

Policy Argument

The judge commented:

“The tragic and unnecessary death of Steinle may well underscore the policy argument against Sheriff Mirkarimi’s decision to bar his employees from providing the release date of a many-times convicted felon to ICE. But that policy argument can be acted upon only by California’s state and municipal political branches of government, or perhaps by Congress— but not by federal judges applying California law as determined by the California Supreme Court.”

Circuit Judge Susan Graber joined in Bennett’s opinion but wrote separately that there’s a California immunity statute—Government Code §845.8(a)—that’s more directly in point. It provides public employee immunity on connection with “[a]ny injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.”

The case is Steinle v. City & County of San Francisco, 17-16283.

Lopez-Sanchez’s defense in connection with the shooting of Steinle was that he had just found a gun and it discharged accidentally. A jury aquitted him of murder abd manslaughter but convicted him of being a felon in possession of a firearm.


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