SAN FRANCISCO (CN) - A Ninth Circuit judge suggested Thursday that the family of a 32-year-old woman shot dead on a San Francisco pier might get a second chance to hold the city liable for not helping immigration police deport her suspected killer.
"The complaint says if [Immigration and Customs Enforcement] had been given [his release date], he would have been taken into custody," U.S. Circuit Judge Mark Bennett said during a hearing Thursday. "I don't understand why that's not sufficient."
A former attorney general of Hawaii, Bennett was appointed by President Donald Trump and confirmed by the Senate in July. He is one of two Trump-appointed judges to join the Ninth Circuit this year.
The shooting death of Kathryn Steinle near Pier 14 in downtown San Francisco on July 1, 2015, became a rallying cry for supporters of tougher immigration enforcement, including the president. Then-candidate Trump mentioned Steinle during his speech at the 2016 Republican National Convention.
A jury acquitted her suspected killer, Jose Ines Garcia-Zarate aka Juan Francisco Lopez-Sanchez, of murder charges in November 2017. Trump called the result “a disgraceful verdict” and “travesty of justice."
Zarate is a seven-time felon who had had been deported to Mexico five times before he was released in March 2015 by the San Francisco Sheriff’s Department, where he was sent to face outstanding charges for marijuana possession.
Before his release, immigration officials had asked the sheriff’s department to hold Zarate so he could be taken into custody. But former Sheriff Ross Mirkarimi had just enacted a new policy barring department employees from sharing release dates and other information with immigration authorities.
Steinle’s family sued the city and federal government in May 2016, blaming her death on the department’s refusal to cooperate with immigration agents, and on a U.S. Bureau of Land Management ranger's failure to secure a gun that was stolen from his car and used in the shooting.
The Steinle family is appealing a judge's January 2017 ruling that found San Francisco could not be held liable for the young woman's death because no federal, state or local law required it to cooperate with Immigration and Customs Enforcement, or ICE.
Despite indicating that the lawsuit adequately alleged San Francisco's policy and actions caused Steinle's death, Judge Bennett appeared less convinced Thursday on whether the city is immune from liability under state law.
The judge asked whether the former San Francisco sheriff's policy of non-cooperation with ICE was an act of discretion within his power, which would make him immune from liability under state law.
Representing the Steinle family, attorney Alison Cordova argued the policy was not a discretionary act because officials do not have "discretion to create a policy that violates the law."
The family claims the sheriff's department policy, based on an interpretation of San Francisco's sanctuary city ordinance, violates state and federal laws that require cooperation with ICE.
The city says those laws require only limited cooperation, such as sharing an inmate's immigration status in certain circumstances. San Francisco insists those laws do not conflict with the department policy, which was amended in 2016.
Judge Bennett challenged the city on that point, noting that the policy specifically forbid sharing an inmate's immigration status with ICE.
San Francisco Deputy City Attorney Margaret Baumgartner insisted the policy did not ban cooperation with ICE, but rather required that upper levels of management must decide what information could be shared.
"This was not a no-contact policy," Baumgartner said. "It was a procedure by which contact would be made."
Baumgartner also noted that a California law protects local governments from liability related to the release of inmates from jail.
"Plaintiffs have attempted to plead around that particular immunity by saying it's not the actual release of the prisoner, it's the failure to provide information," she said.
U.S. Circuit Judge Susan Graber appeared more willing to accept the lower court's finding that because Steinle was shot by a gun stolen from a federal ranger's vehicle, a direct link between San Francisco's actions and the shooting appears weak.
"They can't foresee that a ranger is going to leave a firearm lying around," Graber said. "Why is this foreseeable in any way?"
Cordova replied that the injury does not have to be "highly probable" to be foreseeable.
Cordova said the city had a duty to carefully consider whether a man with "serious narcotic felonies" who is "prone to reckless behavior" posed a risk to society.
After about 30 minutes of debate, the panel took the arguments under submission.
Fourth Circuit Judge Stephanie Thacker joined Graber and Bennett on the panel.
Graber was appointed by Bill Clinton in 1998, and Thacker was appointed by Barack Obama in 2012.
After being acquitted of murder, Steinle's accused killer, Zarate, was charged with two federal gun possession crimes. His lawyers called the prosecution politically motivated, but a federal judge in May refused to let his defense team pursue evidence of vindictive prosecution.Follow @NicholasIovino
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