Attorneys for the family of Kate Steinle are appealing a federal judge’s decision to dismiss their claims against San Francisco over a sanctuary city policy that allegedly led to the killing of their daughter by an undocumented immigrant.
U.S. Magistrate Judge Joseph Spero threw out parts of the lawsuit earlier this year that alleged San Francisco and former Sheriff Ross Mirkarimi are liable in the killing for releasing the undocumented man several months before the shooting without notifying federal immigration authorities.
On Nov. 13, attorneys for James Steinle and Elizabeth Sullivan appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
The appeal comes as a San Francisco jury is deliberating on a first-degree murder charge against 45-year-old Jose Ines Garcia Zarate for allegedly shooting Steinle at Pier 14 on July 1, 2015. Defense attorneys claim the shooting was an accident.
The federal lawsuit claims Mirkarimi negligently created a “no contact” policy preventing the Sheriff’s Department from disclosing the release date of undocumented immigrants to U.S. Immigration and Customs Enforcement officials in violation of federal law.
As a result, ICE did not detain Garcia Zarate when jailers released him in March 2015.
Alison Cordova, an attorney for the Steinle family, said Monday that Mirkarimi was engaged in a scheme to “frustrate and undermine ICE’s ability to deport” Garcia Zarate, who is also known as Juan Francisco Lopez Sanchez.
“Mr. Lopez Sanchez was not the person with the time, the sophistication and the opportunity to do the right thing,” Cordova said. “It’s the public agencies. They were the ones who could have taken the right action so that Mr. Lopez Sanchez was never on the streets of San Francisco with a gun in his hands.”
The City Attorney’s Office is representing San Francisco and Mirkarimi in the lawsuit.
“The issue before the court is whether The City and its taxpayers can be held liable for the actions of a former inmate,” City Attorney’s Office spokesperson John Cote said. “Under well-established case law, they can’t. The court’s ruling removing The City from the case reflected that.”
In a Jan. 6 ruling, Spero cited U.S. Code Section 1373. The federal law prevents local governments from withholding “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” from immigration authorities.
“Nothing [in the law] addresses information concerning an inmate‘s release date,” Spero said.
Spero also found that Mirkarimi had “discretionary immunity” when he created the policy, meaning he cannot be held liable for a policy decision he made as a government official.
The main argument in the appeal centers on this issue.
“A government official should not be entitled to immunity for doing something that violates federal and state law,” Cordova said.
When Spero threw out the claims against San Francisco and Mirkarimi, he also decided the Steinle family could continue to pursue claims against the U.S.
The federal lawsuit claims a Bureau of Land Management ranger set off a chain of events that led to the death of Steinle when he negligently left his firearm unsecured in a parked vehicle in San Francisco. The weapon was stolen and later used to shoot Steinle.
“A gun is used to hurt people, that’s what a gun is for,” Cordova said. “You have to use the absolute safest measures to keep that gun secured.”
Spero ruled the allegation could be heard at trial.
“The risk of a thief stealing the handgun and shooting someone, whether intentionally or negligently, was reasonably foreseeable,” Spero wrote.
Though the ranger is not named in the federal lawsuit, ranger John Woychowski, Jr.’s identity was revealed through the criminal trial of Garcia Zarate.
Abraham Simmons, a spokesperson for the U.S. Attorney’s Office, declined to comment.
U.S. attorneys are expected to respond to the appeal by Jan. 5.