9th Circuit hears debate on whether Kate Steinle’s parents can sue SF

SAN FRANCISCO -- An appeals court panel appeared divided Thursday over whether San Francisco can be held liable for the shooting death of a young woman by an immigrant in the U.S. without permission with a string of convictions and deportations who was shielded by the city's "sanctuary" policy.

The parents of Kathryn Steinle sued former Sheriff Ross Mirkarimi and the city and county over the 2015 killing.

U.S. Magistrate Judge Joseph Spero of the Northern District threw out claims against San Francisco but said the family could sue the United States because the gun was stolen from a federal agent who left it unattended.

San Francisco has long had a policy of not notifying federal immigration officers about people in the U.S. illegally who come into custody of local police. Since Steinle's death, California passed a statewide law that bans local authorities from cooperating with federal immigration officials in most circumstances.

The Steinles' lawsuit focuses on whether the city's "sanctuary" policy of noncompliance with federal immigration authorities and its implementation by Mirkarimi was negligent and ultimately led to their daughter's death.

At Thursday's argument, 9th Circuit Judge Susan P. Graber pointedly questioned Alison Cordova, a principal at Cotchett, Pitre & McCarthy LLP who represents the Steinles, on California negligence law.

Judge Mark J. Bennett pressed San Francisco Deputy City Attorney Margaret Baumgartner over why a public official had immunity if the city's policy violated the law.

Rounding out the panel was Judge Stephanie Thacker, sitting by designation from the 4th Circuit. Steinle v. S.F., 17-16283 (9th Cir., filed Nov. 13, 2017).

"There's this sort of unforeseeable intervening cause that has nothing to do with the city," Graber said to Cordova, referring to gunman Jose Ines Garcia Zarate finding a pistol in a Bureau of Land Management ranger's car that he used to shoot Steinle. "They can't foresee that a ranger is going to leave a firearm lying around."

Cordova countered that it was not the specific event that was foreseeable and therefore negligible but its "general nature."

"This doesn't have to be highly probable to be foreseeable," Cordova said.

Bennett steered Cordova toward the question of discretionary immunity which the lower court decision largely turned on in finding that Mirkarimi cannot be held liable for a policy decision he made as a government official.

Cordova said Mirkarimi created a policy of not contacting U.S. Immigration and Customs Enforcement that violated the law and led to Steinle's death.

"While it may be a policy, he's not vested with discretion to violate the law," she said. "While it may not violate the law under the facts of the case, it violated his authority to pursue that policy."

Baumgartner said the case was an attempt to stretch liability laws to the extreme.

"There is no case that has ever extended a negligence duty as far as plaintiffs request in this particular case," she said. "There is no duty to protect a third party from the criminal acts of somebody who is released from prison or not arrested or otherwise allowed to be in the public."

Bennett pushed back, questioning her on the assertion that if ICE had been notified of Zarate's release from criminal custody, they would have arrested him and Steinle might still be alive. Zarate had been deported multiple times and had outstanding immigration warrants.

That was speculation, Baumgartner said. "The question of alleging causation requires more than simply ICE would have taken him into custody."

Turning back to his central line of questioning, Bennett grilled Baumgartner on why an illegal policy would be protected by discretionary immunity.

"He made a considered decision," Baumgartner said of Mirkarimi's enforcement of the sanctuary policy. "The fact that it may or may not ultimately have been decided to contradict the law is not the issue."

Garcia Zarate was acquitted of murder, involuntary manslaughter and assault with a deadly weapon by a San Francisco state jury last November. A separate trial is ongoing on federal weapons charges in San Francisco.