In Steinle v. City and County of San Francisco, published March 25, 2019, the 9th Circuit affirmed dismissal of state law negligence claims against the defendant municipality. The county sheriff informed the federal government that his department would not honor Immigration and Customs Enforcement detainer requests (to detain released prisoners for ICE) or notify ICE of any undocumented alien unless a judicial order or warrant was issued for the alien’s removal. The sheriff then issued a memo establishing protocols and parameters for the department's communications with ICE. The memo changed the longstanding practice of freely providing information to ICE regarding undocumented aliens in custody. After serving federal time for drug offenses, an undocumented alien was released to the sheriff's custody to face felony charges for selling drugs. The charges against him were dropped the next day. ICE sent the sheriff's department a detainer request asking to be notified 48 hours before the alien's release and that the sheriff's department hold the alien until ICE could take custody of him. The sheriff's department released the alien without notifying ICE. Later, the alien shot and killed plaintiffs' decedent. The plaintiffs sued the municipality for negligence in issuing the policy. The district court granted the municipality's motion to dismiss the negligence claim.
The 9th Circuit panel unanimously held that the municipality was entitled to discretionary immunity under Government Code sections 820.2 and 815.2(b). The memo was the sort of policy decision that is immunized by section 820.2. The sheriff actually exercised his discretion in issuing the policy. Further, the law gave the sheriff discretion to issue the policy. Under Government Code section 26605, the sheriff had the authority to keep the jail and the prisoners in it. 8 U.S.C. sections 1373(a) and 1644, which prohibit local restrictions on sending information regarding the immigration status of individuals to the INS, did not deprive the sheriff of discretion to enact the policy; despite legislative history to the contrary, nothing in the statutes' language required sharing information about the release of prisoners to the ICE. The federal government's control over immigration matters did not require the sheriff to provide ICE with the release date. The court rejected the argument that issuing the policy was an act of legislation outside the sheriff's discretion. It also rejected the argument that the sheriff violated the California Public Records Act by not sharing the information. The detainer request was not a CPRA request; the CPRA did not require the sheriff to create a record; and at the time the detainer request was made, there was no record of a release that had not happened yet. The court also rejected arguments that the policy conflicted with California or local laws. A concurring judge opined that liability for the prisoner's release was barred by Government Code sections 845.8 (immunity for paroling or releasing a prisoner) and 846 (immunity for failure to retain a person in custody).
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