James Steinle v. City and County of S.F.

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 affected ICE’s ability to do its

job, this did not, without more, strip him of the discretionary

authority under California law to institute the policy that he

did. The panel also rejected plaintiffs’ argument that the

Memo was a legislative act that deprived the Sheriff of

immunity. The panel held that the Sheriff’s failure to

provide ICE with the inmate release date information did not

violate the California Public Records Act. The panel also

held that the district court correctly held that California

4 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

Health and Safety Code section 11369 was inapplicable

because the Sheriff’s Department was not the “arresting

agency,” and plaintiffs’ allegations failed to demonstrate any

violation of section 11369. Finally, the panel rejected

plaintiffs’ claim that other local laws prohibited the Sheriff

from limiting cooperation with ICE.

Judge Graber concurred in the opinion which relied on

the general discretionary-immunity statute, California

Government Code section 820.2, but wrote separately to add

that the California legislature has provided an even clearer,

specific grant of immunity to defendants in the present

circumstances in California Government Code sections

845.8(a) and 846.

COUNSEL

Alison E. Cordova (argued) and Frank M. Pitre, Cotchett

Pitre & McCarthy LLP, Burlingame, California, for

Plaintiffs-Appellants.

Margaret W. Baumgartner (argued), Deputy City Attorney;

Cheryl Adams, Chief Trial Deputy; Dennis J. Herrera, City

Attorney; Office of the City Attorney, San Francisco,

California; for Defendants-Appellees.

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 5

OPINION

BENNETT, Circuit Judge:

The facts of this case are undeniably tragic. Kathryn

Steinle (“Steinle”), a 32-year-old woman, was shot and

killed by Juan Francisco Lopez-Sanchez, an undocumented

alien with a criminal record, after he was released from

custody by the San Francisco Sheriff’s Department. In this

appeal, Steinle’s parents, James Steinle and Elizabeth

Sullivan (“Plaintiffs”), challenge the district court’s

dismissal of their general negligence claim against the City

and County of San Francisco and Sheriff Ross Mirkarimi

(collectively, “City Defendants”). While we deeply

sympathize with Steinle’s family, the question of

discretionary immunity raised in this case is controlled by

California law. After careful deliberation, we conclude that

California law bars Plaintiffs’ negligence claim.

Accordingly, we affirm the decision of the district court.

FACTS AND PROCEDURAL HISTORY 1

In February 2015, then San Francisco Sheriff Mirkarimi,

through a meeting with the U.S. Department of Homeland

Security Deputy Director, informed the United States that

the Sheriff’s Department would not honor Immigration and

Customs Enforcement (“ICE”) detainer requests or notify

ICE of the pending release of any undocumented alien unless

a judicial order or warrant was issued for the alien’s removal.

Shortly thereafter, Sheriff Mirkarimi issued a memorandum,

1

The following facts are taken from Plaintiffs’ complaint and are

assumed true for purposes of our review. See Parks Sch. of Bus., Inc. v.

Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

6 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

dated March 13, 2015 (the “Memo”) to all Sheriff’s

Department employees.

The Memo established protocols and parameters for

communications between Sheriff’s Department employees

and ICE representatives. It stated that employees “shall not

provide” “non-public” information to ICE, including

“release dates or times,” but that employees were authorized

to provide certain “public” information to ICE. Disclosure

of any information beyond the public information explicitly

authorized by the Memo would require consultation with the

Sheriff’s Department’s legal counsel, confirmation by

counsel that disclosure was required by court order or law,

and authorization by Sheriff Mirkarimi. 2 The Memo

changed the “longstanding policy and procedure” of the

Sheriff’s Department “to freely provide information to ICE

regarding undocumented immigrant felons in custody.”

The Memo referenced Chapter 12H of the San Francisco

Administrative Code, which is commonly referred to as the

“Sanctuary City Law,” and other relevant laws and

regulations, including the California Public Records Act and

the San Francisco Sunshine Ordinance of 1999. While the

Sanctuary City Law limits information that San Francisco

and its officers and employees share with federal

immigration officials, it includes an exception for

cooperation as required by state or federal law. It also

allows, but does not require, communication and

2

Plaintiffs characterize the Memo as a “no contact” policy. This

label is not precisely accurate because, as noted, the Memo authorized

Sheriff’s Department employees to provide certain public information to

ICE. The Memo also allowed other information to be provided to ICE

if its request was supported or required by a warrant, court order or

decision, or federal or state statute or regulation, and was confirmed by

the Sheriff’s counsel and approved by the Sheriff.

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 7

cooperation with federal authorities regarding individuals

previously convicted of felonies. The Memo, however,

contained no exception regarding individuals previously

convicted of felonies.

From 1993 to 2011, Lopez-Sanchez was convicted of “at

least seven felonies” related either to controlled substances

or to illegal reentry after deportation. He also was removed

to Mexico at least five times during that time period. After

completing a 46-month sentence in federal prison, Lopez-

Sanchez was released to the custody of the Sheriff’s

Department on March 26, 2015, to face felony charges for

selling marijuana. The charges against him were dropped on

March 27, 2015, and on that same day, ICE sent a detainer

request asking the Sheriff’s Department to notify ICE

48 hours before releasing Lopez-Sanchez and to hold him

until ICE could take custody of him. The Sheriff’s

Department did not respond to the detainer request or

otherwise communicate with ICE, and Lopez-Sanchez was

released on April 15, 2015, without notification to ICE.

After his release, Lopez-Sanchez acquired a government-

issued handgun belonging to a U.S. Bureau of Land

Management ranger. The handgun had been stolen from a

vehicle on June 27, 2015.

On July 1, 2015, four days after the handgun had been

stolen and approximately two and one-half months after

Lopez-Sanchez had been released by the Sheriff’s

Department, he shot and killed Steinle near Pier 14 of the

San Francisco Embarcadero. Steinle was shot “in the chest,

piercing her aorta.” There is no allegation that Lopez-

Sanchez knew Steinle. After the shooting, ICE stated: “If

the local authorities had merely notified [U.S. Immigration

and Customs Enforcement] that they were about to release

this individual into the community, ICE could have taken

8 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

custody of him and had him removed from the country—

thus preventing this terrible tragedy.”

Plaintiffs filed a complaint against the United States,

City Defendants, and Lopez-Sanchez, 3 alleging claims for

negligence per se, general negligence, and deprivation of

civil rights under 42 U.S.C. § 1983. City Defendants and the

United States moved to dismiss all claims against them

under Federal Rule of Civil Procedure 12(b)(6). The district

court granted City Defendants’ motion and granted in part

and denied in part the United States’s motion.4 The claims

against City Defendants were dismissed without leave to

amend, based on futility.

Final judgment on the dismissed claims was entered

pursuant to Rule 54(b) of the Federal Rules of Civil

Procedure, and Plaintiffs timely appealed. On appeal,

Plaintiffs challenge only the dismissal of their general

negligence claim against City Defendants. The district court

dismissed that claim pursuant to California Government

Code sections 820.2 and 815.2(b) because it concluded that

the alleged negligent act—the issuance of the Memo—was

an immune discretionary act.

Plaintiffs argue that dismissal of their general negligence

claim was improper because 1) the district court erred in

3

Plaintiffs voluntarily dismissed all claims against Lopez-Sanchez.

4

The district court dismissed, with prejudice, the claims against the

United States premised on its failure to detain or remove Lopez-Sanchez

before the shooting, but it declined to dismiss the claims against the

United States premised on the ranger’s alleged failure to properly secure

the handgun that Lopez-Sanchez used to shoot Steinle. Plaintiffs do not

appeal the district court’s decision regarding their claims against the

United States.

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 9

finding immunity on a motion to dismiss, 2) the district court

erred by taking judicial notice of the contents of the Memo,

and 3) the Sheriff’s act of withholding Lopez-Sanchez’s

release date from ICE was ministerial and thus not entitled

to discretionary immunity even if entitlement to immunity

could be determined on a motion to dismiss. Plaintiffs also

make various arguments in support of their contention that

Sheriff Mirkarimi lacked discretionary authority to issue the

Memo and, therefore, is not entitled to immunity.

STANDARD OF REVIEW

“We review de novo a dismissal under Rule 12(b)(6),

and we can affirm on any ground supported by the record.”

Thompson v. Paul, 547 F.3d 1055, 1058–59 (9th Cir. 2008).

Further, on a motion to dismiss, “[w]e take all allegations of

material fact as true and construe them in the light most

favorable to the nonmoving party.” Parks Sch. of Bus.,

51 F.3d at 1484.

DISCUSSION

I. Discretionary Immunity

We agree with the district court that the issuance of the

Memo was a discretionary act that is entitled to immunity

under section 820.2 of the California Government Code.

Section 820.2 provides, in pertinent part: “[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.”

In applying section 820.2, the California Supreme Court

has stated that “the existence of some . . . alternatives . . .

does not perforce lead to a holding that the governmental

10 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

unit thereby attains the status of non-liability under

section 820.2.” Johnson v. State, 447 P.2d 352, 358 (Cal.

1968). Thus, instead of interpreting “discretionary” literally,

the focus should be on the policy considerations underlying

the governmental entity’s claim of immunity. Id. at 356–58.

[A] “workable definition” of immune

discretionary acts draws the line between

“planning” and “operational” functions of

government. Immunity is reserved for those

“basic policy decisions which have been

expressly committed to coordinate branches

of government,” and as to which judicial

interference would thus be “unseemly.” Such

“areas of quasi-legislative policy-making are

sufficiently sensitive” to call for judicial

abstention from interference that “might even

in the first instance affect the coordinate

body’s decision-making process[.]”

Caldwell v. Montoya, 897 P.2d 1320, 1325–26 (Cal. 1995)

(citations, brackets, and alterations omitted) (quoting

Johnson, 447 P.2d at 360–61). Further, a finding of

immunity “requires a showing that ‘the specific conduct

giving rise to the suit’ involved an actual exercise of

discretion, i.e., a ‘conscious balancing of risks and

advantages.’” Id. at 1327 (brackets omitted) (quoting

Johnson, 447 P.2d at 361 n.8).

Applying the principles established by the California

Supreme Court, the Memo, on its face, reflects a basic policy

decision that “has been committed to [a] coordinate branch[]

of government.” Johnson, 447 P.2d at 360. The Memo was

issued by Sheriff Mirkarimi, who had the “sole and exclusive

authority to keep the county jail and the prisoners in it.” Cal.

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 11

Gov’t Code § 26605. And, as discussed below, no federal,

state, or municipal statute or ordinance prohibited him from

issuing the Memo. Thus, Sheriff Mirkarimi was vested with

the authority to establish a departmental-wide policy setting

forth the parameters and protocols regarding his employees’

communications with ICE.

The Memo shows that Sheriff Mirkarimi considered

applicable laws and regulations, determined what

information should and should not be provided to ICE, and

established a process for providing information to ICE when

required by law. The allegations in the complaint also

demonstrate that Sheriff Mirkarimi actually exercised

discretion because, by issuing the Memo, according to

Plaintiffs, he consciously changed the “longstanding policy

and procedure . . . to freely provide information to ICE.”

The decision concerning what information Sheriff’s

Department employees would provide to federal

immigration officials (beyond the information required by

law to be provided) is an important policy decision that is

“sufficiently sensitive to justify a blanket rule that courts will

not entertain a tort action.” Johnson, 447 P.2d at 361.

Indeed, the debate over policies that severely limit

cooperation with immigration officials, like those embodied

in the Memo, underscores the nature of Sheriff Mirkarimi’s

decision, 5 and further supports a conclusion that judicial

intervention “would place the court in the unseemly position

5

Compare, e.g., Jeff Sessions, Opinion, Sanctuary City Policies

Harm Public Safety and the Rule of Law, S.F. Chronicle (April 7, 2017),

https://www.sfchronicle.com/opinion/article/Sanctuary-city-policies-ha

rm-public-safety-11056840.php., with Gene Demby, Why Sanctuary

Cities Are Safer, NPR (Jan. 29, 2017, 7:02 AM), https://www.npr.org/s

ections/codeswitch/2017/01/29/512002076/why-sanctuary-cities-are-

safer.

12 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

of determining the propriety of decisions expressly entrusted

to a coordinate branch of government.” Id. at 360. 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.

The cases on which Plaintiffs rely are inapposite

because, unlike here, they involved lower level

“operational” acts that were performed after a basic policy

decision had already been made. See Johnson, 447 P.2d at

361–62 (holding that, while a decision to parole is a basic

policy decision, a parole officer’s subsequent decision as to

what warnings to give to foster parents was “a determination

at the lowest, ministerial rung of official action” and not

entitled to immunity); Barner v. Leeds, 13 P.3d 704, 709,

712 (Cal. 2000) (noting that “there is no basis for

immunizing lower level decisions that merely implement a

basic policy already formulated,” and holding that acts of a

deputy public defender in representing a client are not

entitled to discretionary immunity because a deputy public

defender’s “services consist of operational duties that merely

implement the initial decision to provide representation and

are incident to the normal functions of the office of the public

defender”); McCorkle v. City of Los Angeles, 449 P.2d 453,

460 (Cal. 1969) (holding that, even if a police officer made

a discretionary decision to undertake an investigation, the

officer’s subsequent negligent acts in performing the

investigation were not protected by discretionary immunity).

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 13

The Memo is plainly an example of decision-making at

the “planning” level, as that term is used by the California

Supreme Court. Thus, the issuance of the Memo was a

discretionary act insulated from liability under section 820.2

of the California Government Code. 6

We also conclude that the district court did not err in

determining immunity on a motion to dismiss—the issue

before the court was a legal one, not dependent on disputed

facts, and courts routinely answer questions of immunity on

a motion to dismiss. See, e.g., Gonzalez v. United States,

814 F.3d 1022, 1025 (9th Cir. 2016) (holding, on an appeal

from a motion to dismiss, that discretionary immunity barred

plaintiffs’ claims); Caldwell, 897 P.2d at 1323 (holding, on

an appeal from a sustained demurrer by the trial court, that

discretionary immunity applied).

We now turn to Plaintiffs’ remaining arguments.

II. Incorporation by Reference Doctrine

Plaintiffs argue that the district court improperly took

judicial notice of the Memo’s contents. We disagree. The

district court expressly stated that it considered the Memo

6

Plaintiffs also claim that, even if the act of issuing the Memo was

insulated from liability, the separate act of withholding the requested

information from ICE was ministerial and thus not protected by

discretionary immunity. We decline to view the act of issuing the Memo

and the act of withholding the very information that the Memo instructed

to be withheld as separate acts. To do so would allow a protected

discretionary act to be converted into a non-discretionary ministerial act.

Cf. Cty. of Sacramento v. Superior Court, 503 P.2d 1382, 1386–87 (Cal.

1972) (“Ministerial implementation of correctional programs, however,

can hardly, in any consideration of the imposition of tort liability, be

isolated from discretionary judgments made in adopting such

programs.”).

14 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

under the incorporation by reference doctrine. This doctrine

permits a court to consider a document “if the plaintiff refers

extensively to the document or the document forms the basis

of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d

903, 908 (9th Cir. 2003).

Here, the Memo forms the very basis of Plaintiffs’

claims, and Plaintiffs referred extensively to it throughout

the district court proceedings. On appeal, Plaintiffs state that

they “dispute the accuracy of the contents of the

memorandum,” but their substantial reliance on the Memo

and their failure to question its accuracy below directly

belies their position. Indeed, Plaintiffs’ own legal counsel,

by declaration, submitted a copy of the Memo in support of

their motion for judgment below. Additionally, they did not

oppose City Defendants’ request for judicial notice of the

Memo below 7 and, in their opposition to City Defendants’

motion to dismiss, they actually cited and relied upon the

Memo that was attached to City Defendants’ request for

judicial notice. Moreover, Plaintiffs fail to identify any

specific part of the Memo that they claim is inaccurate, i.e.,

not part of the actual Memo.

In short, the district court appropriately considered the

Memo under the incorporation by reference doctrine. See In

re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th

Cir. 1999) (rejecting party’s claim questioning the veracity

of SEC filings that were considered under the incorporation

by reference doctrine because the party’s “ongoing and

substantial reliance” on the filings undermined her position),

7

It does not appear that the district court ruled on City Defendants’

request for judicial notice of the Memo.

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 15

abrogated on other grounds by S. Ferry LP, No. 2 v.

Killinger, 542 F.3d 776, 784 (9th Cir. 2008).

III. The Sheriff’s Discretionary Authority

Finally, Plaintiffs argue that Sheriff Mirkarimi lacked

discretionary authority to issue the Memo and, therefore, is

not entitled to immunity. As set forth below, we reject that

position and the various arguments offered in support.

A. 8 U.S.C. §§ 1373(a) and 1644

Plaintiffs claim that Sheriff Mirkarimi lacked discretion

to issue the Memo because 8 U.S.C. §§ 1373(a) and 1644

required the Sheriff’s Department to provide release date

information to ICE. 8 The relevant parts of those sections

prohibit any federal, state, or local restrictions on sending

“information regarding” the “immigration status” of

individuals to the Immigration and Naturalization Service.

Plaintiffs argue, relying on text found in different

statutory sections, that “immigration status” includes

whether an individual is lawfully present in the United

States, and “the release date of an undocumented inmate is

the date upon which he goes from lawful to unlawful

presence in the United States.” 9 Therefore, according to

8

We note that some courts have found § 1373 to be unconstitutional

under the Tenth Amendment’s anti-commandeering principles. See, e.g.,

States of New York et al. v. Dep’t of Justice, 343 F. Supp. 3d 213, 237

(S.D.N.Y. 2018), appeal filed, No. 19-275 (2d Cir. Jan. 28, 2019). We

do not reach this issue because we find that the Memo is not inconsistent

with, or in violation of, § 1373.

9

Plaintiffs rely on 8 U.S.C. §§ 1357(g)(10)(A) and 1231(a)(4) to

support their argument.

16 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

Plaintiffs, release date information is “information

regarding” “immigration status.” Plaintiffs also point to

legislative history and contend that congressional reports

relating to §§ 1373(a) and 1644 demonstrate that those

sections were intended to eliminate any restrictions on the

flow of immigration information between state and local

entities and federal immigration officials.

Plaintiffs’ arguments ignore well-established rules of

statutory interpretation. “The preeminent canon of statutory

interpretation requires us to presume that the legislature says

in a statute what it means and means in a statute what it says

there. Thus, our inquiry begins with the statutory text, and

ends there as well if the text is unambiguous.” In re HP

InkJet Printer Litig., 716 F.3d 1173, 1180 (9th Cir. 2013)

(internal quotation marks omitted) (quoting Satterfield v.

Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009)).

Further, we turn to extrinsic materials, like legislative

history, only if the statutory text is ambiguous. See Exxon

Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568

(2005).

The statutory text at issue clearly does not include

release-date information. It includes only “information

regarding” “immigration status,” and nothing in §§ 1373(a)

or 1644 addresses information concerning an inmate’s

release date. As the district court correctly found, no

plausible reading of “information regarding” “immigration

status” encompasses the state or local release date of an

inmate who is an alien. See also United States v. California,

314 F. Supp. 3d 1077, 1102 (E.D. Cal. 2018) (holding that

§ 1373(a) does not encompass release-date information).

Congress certainly could have added explicit “release date”

wording to the statutes, but it did not. Accordingly, we hold

that, although §§ 1373(a) and 1644 prohibit restrictions on

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 17

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. 10 Thus, our

inquiry is at an end, irrespective of legislative history. 11

10

We note that the Memo also prohibited employees from providing

“citizenship/immigration status of any inmate” to ICE. While that part

of the Memo is directly contrary to the mandate of §§ 1373(a) and 1644,

the operative part of the Memo on which Plaintiffs’ claims rest—the

withholding of release date information—is not inconsistent with those

statutes. Moreover, according to Plaintiffs, ICE was already aware of

Lopez-Sanchez’s immigration status. Under the circumstances here, we

see no reason, based on California law, to strip the Sheriff of his

discretionary authority to promulgate the portion of the Memo directly

at issue in this case because he may have lacked the authority to issue a

different part of the Memo. And Plaintiffs do not make any specific

arguments based on California law that would support such a holding.

11

We do note that at least some of the legislative history cited by

Plaintiffs supports their argument. For example, the House Conference

Report that accompanied the bill related to § 1644, states, in relevant

part:

The conferees intend to give State and local officials

the authority to communicate with the INS regarding

the presence, whereabouts, or activities of illegal

aliens. This provision is designed to prevent any State

or local law, ordinance, executive order, policy,

constitutional provision, or decision of any Federal or

State court that prohibits or in any way restricts any

communication between State and local officials and

the INS.

H.R. Conf. Rep. No. 104-725, at 383 (1996), reprinted in 1996

U.S.C.C.A.N. 2649, 2771. However, the plain and unambiguous

statutory text simply does not accomplish what the Conference Report

says it was designed to accomplish.

18 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

B. Immigration Policy

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. See, e.g., Fiallo v. Bell, 430 U.S. 787,

792 (1977). 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.

C. Legislative Act

Plaintiffs argue that the Memo was an “act of legislating”

and that Sheriff Mirkarimi did not have authority to legislate.

Consequently, according to Plaintiffs, the Sheriff is not

entitled to immunity because he exceeded his discretionary

authority in issuing the Memo.

Plaintiffs appear to believe that the Memo was a

legislative act because it involved policymaking by the

Sheriff. But action by a government official that involves

some weighing of policy is not the equivalent of a legislative

act. “‘Policy’ is a broad term that is not synonymous with

legislation.” Worthington v. City Council of Rohnert Park,

31 Cal. Rptr. 3d 59, 66 (Ct. App. 2005). To the extent that

Plaintiffs intended a more specific argument, they have not

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 19

provided an adequate explanation to preserve it. See Fed. R.

App. P. 28(a)(8)(A) (“The appellant’s brief must contain . . .

the argument, which must contain . . . appellant’s

contentions and the reasons for them, with citations to the

authorities[.]” (emphasis added)); Indep. Towers of Wash. v.

Washington, 350 F.3d 925, 930 (9th Cir. 2003) (“We require

contentions to be accompanied by reasons.”).

D. California Public Records Act

Plaintiffs claim that the failure to provide ICE with

Lopez-Sanchez’s release date violated the California Public

Records Act (“CPRA”) and that the Sheriff lacked discretion

to contravene the CPRA. 12 The CPRA concerns “a request

for a copy of records.” 13 As alleged, though, ICE’s detainer

request was not a request for a copy of records under the

CPRA. Plaintiffs assert that “ICE sent a detainer request to

[the Sheriff’s Department] asking to be informed of Mr.

12

Plaintiffs do not explain why, even if there were such a violation,

the remedy under California law would be to allow a non-requesting

party to maintain an otherwise-barred tort suit.

13

Section 6253(b) of the CPRA provides, in pertinent part: “Except

with respect to public records exempt from disclosure by express

provisions of law, each state or local agency, upon a request for a copy

of records that reasonably describes an identifiable record or records,

shall make the records promptly available to any person[.]” Cal. Gov’t

Code § 6253(b) (emphasis added). Section 6253(c) states, in pertinent

part: “Each agency, upon a request for a copy of records, shall, within 10

days from receipt of the request, determine whether the request, in whole

or in part, seeks copies of disclosable public records in the possession of

the agency and shall promptly notify the person making the request of

the determination and the reasons therefor.” Id. § 6253(c). These

sections are distinct from separate provisions requiring agencies to keep

certain records open to “inspection” during regular hours. See id.

§ 6253(a). There is no allegation that ICE made a request to inspect

records.

20 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

Sanchez’s release date.” The complaint states that a

“detainer request asks the receiving agency to perform two

tasks in regard to an undocumented immigrant in custody:

(1) to notify ICE forty-eight (48) hours prior to the release of

the undocumented immigrant so that ICE can assume

custody; and (2) to detain the individual until” ICE can

assume custody.

Those allegations do not describe “a request for a copy

of records.” Additionally, even if ICE’s detainer request

were construed as a public records request for documents

reflecting a release date, the Sheriff’s Department did not

violate the CPRA because the CPRA does not require public

agencies to create records. See Sander v. State Bar of Cal.,

237 Cal. Rptr. 3d 276, 288 (Ct. App. 2018). There is no

allegation that the Sheriff’s Department had but withheld an

existing record with Lopez-Sanchez’s release date at the

time the detainer request was made. Plaintiffs’ contentions

based on the CPRA do not show that the Sheriff’s

Department’s failure to provide the release date information

to ICE contravened the CPRA.

E. California Health and Safety Code Section 11369

Plaintiffs argue that the Memo violated California Health

and Safety Code section 11369, which provides: “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.” 14 Contrary to

Plaintiffs’ argument, nothing in section 11369 requires the

14

California Health and Safety Code section 11369 was repealed

effective January 1, 2018.

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 21

transmission of an inmate’s release date to ICE and, as noted

above, the complaint affirmatively asserts that ICE already

knew that Lopez-Sanchez was not a citizen of the United

States.

Further, Plaintiffs allege that the federal government

transferred Lopez-Sanchez to the custody of the Sheriff’s

Department after he completed a federal prison sentence.

Accordingly, as the district court correctly ruled, section

11369 is inapplicable here because the Sheriff’s Department

was not the “arresting agency.” Plaintiffs’ allegations fail to

demonstrate any violation of section 11369.

F. Other Local Laws

Plaintiffs claim that other local laws prohibited Sheriff

Mirkarimi from limiting cooperation with ICE. They cite

section 67.24(d) of the San Francisco Administrative Code,

which provides in pertinent part: “The District Attorney,

Chief of Police, and Sheriff are encouraged to cooperate with

the press and other members of the public in allowing access

to local records pertaining to investigations, arrests, and

other law enforcement activity.” By its plain text,

section 67.24(d) simply “encourage[s]” cooperation; it does

not mandate cooperation.

Plaintiffs also assert that San Francisco Administrative

Code section 12H.2-1 prohibited Sheriff Mirkarimi from

limiting cooperation with ICE. 15 Section 12H.2-1 at all

relevant times provided, in pertinent part:

15

San Francisco Administrative Code section 12H.2-1 was repealed

effective July 17, 2016.

22 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

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 . . . [; or]

(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 . . . .

However, this section does not, by express provision or

implication, mandate that the Sheriff (or any other officer)

provide information to ICE regarding a convicted felon—it

simply makes clear that the Chapter does not prohibit the

same. As the Chapter does not bar the Memo, it cannot have

the effect of stripping the Sheriff of his discretionary

authority.

Plaintiffs also argue that, when read together,

section 6.105 of the San Francisco Charter (the “Charter”)

and section 8.27 of the San Francisco Administrative Code

require the Sheriff to cooperate with law enforcement

authorities, including ICE. Charter section 6.105 sets forth

the duties of the Sheriff and provides that, among other

duties, the Sheriff “shall . . . [r]eceive all prisoners

committed to jail by competent authorities.” Section 8.27

concerns the fixing of fees charged by the Sheriff’s

Department for the care and maintenance of prisoners from

other jurisdictions, for the furnishing of reports and other

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 23

materials, and for the imprinting and processing of

fingerprints.

Plaintiffs appear to reason that these sections require the

Sheriff to cooperate with ICE because, when receiving and

caring for prisoners from other jurisdictions, the Sheriff

necessarily must cooperate with other law enforcement

agencies. While it is necessary for the Sheriff to cooperate

with other law enforcement authorities in performing his

duties, there is no text in these sections that can be construed

as prohibiting the issuance of the Memo.

In summary, Plaintiffs’ arguments fail to show that

Sheriff Mirkarimi lacked discretionary authority to issue the

Memo. We therefore hold that the issuance of the Memo

was a protected discretionary act under California

Government Code section 820.2 and that City Defendants

are immune from liability. See Cal. Gov’t Code § 815.2(b).

IV. Leave to Amend

During oral argument, Plaintiffs requested leave to

amend the complaint to remove all references to the Memo.

However, this issue is waived because Plaintiffs failed to

raise it in their opening brief. 16 See Balser v. Dep’t of

Justice, Office of U.S. Tr., 327 F.3d 903, 911 (9th Cir. 2003).

Even if the request had been properly raised on appeal

(which would have been difficult, as Plaintiffs never made

this argument below), the district court’s denial of leave to

amend was proper because Plaintiffs’ claims would not be

16

Plaintiffs requested leave to amend only if this court determined

that one specific allegation in the complaint was an admission that

Sheriff Mirkarimi had discretionary authority to issue the Memo. We

made no such determination, and our holding does not rest on such a

determination.

24 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

saved by any amendment; the Memo, on its face, reflects a

basic policy decision entitled to discretionary immunity.17

See Carrico v. City & Cty. of San Francisco, 656 F.3d 1002,

1008 (9th Cir. 2011) (“[Leave to amend] is properly denied

. . . if amendment would be futile.”).

CONCLUSION

Our holding today makes no judgment as to whether or

not the policy established by the Memo was wise or prudent.

That is not our job. “A federal court applying California law

must apply the law as it believes the California Supreme

Court would apply it.” Gravquick A/S v. Trimble Navigation

Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003). No part of

the California Supreme Court’s analysis looks at whether the

policy or planning function at issue is wise or unwise

because, of course, that is at the heart of the discretion that

is protected by the statutory immunity. See Caldwell,

897 P.2d at 1327 (“Johnson does not require a strictly

careful, thorough, formal, or correct evaluation. Such a

standard would swallow an immunity designed to protect

against claims of carelessness, malice, bad judgment, or

abuse of discretion in the formulation of policy.”).

AFFIRMED.

17

Removing references to the Memo in their complaint would be

unavailing to Plaintiffs and would not assist them in overcoming the

incorporation by reference doctrine, because the Memo, which

established the policy of withholding release date information from ICE,

forms the basis of their claims. See Parrino v. FHP, Inc., 146 F.3d 699,

706 (9th Cir. 1998) (stating that the policy underlying the incorporation

by reference doctrine is to “[p]revent[] plaintiffs from surviving a Rule

12(b)(6) motion by deliberately omitting references to documents upon

which their claims are based”), superseded by statute on other grounds

as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681–

82 (9th Cir. 2006) (per curiam).

STEINLE V. CITY & COUNTY OF SAN FRANCISCO 25

GRABER, Circuit Judge, concurring:

I join the opinion, which relies on the general

discretionary-immunity statute, California Government

Code section 820.2, in full. I write separately to add that the

California legislature has provided an even clearer, specific

grant of immunity to Defendants in the present

circumstances.

California Government Code section 845.8(a)

immunizes public employees from “[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.” California Government Code section 846

immunizes public employees from any “injury caused . . . by

the failure to retain an arrested person in custody.”

As recognized by the California courts, the legislature

intended those grants of immunity to be specific applications

of the general discretionary-immunity statute. E.g.,

Whitcombe v. County of Yolo, 141 Cal. Rptr. 189, 195 & n.10

(Ct. App. 1977). Moreover, when those specific immunity

statutes apply, we need not determine whether the

underlying acts were “discretionary” or “ministerial”

because the legislature “has already concluded that all

conduct within [the statutes’] terms is entitled to immunity.”

Id. at 197 & n.15. “[A] specific legislative mandate of

immunity effectively places beyond the pale of liability both

discretionary decisions themselves and their ministerial

implementations.” Id. at 198. Here, as in Whitcombe, “we

need not resort to th[e] general discretionary immunity

section,” because Defendants are immune under the specific

immunity statutes. Id. at 197; see also Carmack v. Reynolds,

391 P.3d 625, 632 (Cal. 2017) (“A specific provision relating

to a particular subject will govern in respect to that subject,

26 STEINLE V. CITY & COUNTY OF SAN FRANCISCO

as against a general provision, although the latter, standing

alone, would be broad enough to include the subject to which

the more particular provision relates.” (quoting Miller v.

Superior Court, 986 P.2d 170, 177 (Cal. 1999))).

The specific immunity statutes apply here because

Plaintiffs’ entire claim rests on the manner in which a

prisoner was released (he was released without notifying

federal authorities). Even adopting Plaintiffs’ view that the

Memo, and not the release, caused the harm, the California

courts have construed sections 845.8(a) and 846 broadly to

encompass all “policy decisions . . . made prior to and as an

integral part of the ultimate basic decision to release.”

County of Santa Barbara v. Superior Court, 93 Cal. Rptr.

406, 410 (Cal. Ct. App. 1971).

As the main opinion properly acknowledges, the events

underlying this case are tragic. And some of Plaintiffs’

claims remain to be litigated in the district court. We hold

only that, under California law, the state officials are

immune from suit.