A panel of federal appeals court judges heard arguments Thursday in a lawsuit from the parents of Kate Steinle, who are trying to have their case reinstated against San Francisco for the shooting of their daughter by an undocumented immigrant.
Steinle’s parents filed the lawsuit in May 2016 against former Sheriff Ross Mirkarimi for creating a sanctuary policy that prevented deputies from notifying immigration authorities when Jose Ines Garcia Zarate was released from jail.
Months after his release, Garcia Zarate fired a bullet from a stolen gun that ricocheted and struck Steinle in the back on Pier 14 on July 1, 2015. The killing set off a political firestorm as President Donald Trump pointed to the case to call for a crackdown on illegal immigration during his presidential campaign.
James Steinle and Elizabeth Sullivan also named the federal government in the lawsuit because a U.S. Bureau of Land Management ranger left his loaded firearm in the backseat of a parked car along the Embarcadero. The gun was stolen in an auto burglary and later used to shoot Steinle.
U.S. Magistrate Judge Joseph Spero dismissed the allegations against Mirkarimi in January 2017, but he allowed the case to continue against the U.S.
Spero found that the policy Mirkarimi created did not violate federal law as alleged in the lawsuit and that Mirkarimi was immune from liability in the death as a government official making a discretionary decision under California law.
But Alison Cordova, an attorney for the Steinle family, argued against the ruling on Thursday in the U.S. Court of Appeals for the Ninth District.
“He’s not vested with discretion to create a policy that violates the law,” Cordova said, arguing that Mirkarimi created a “no contact” policy with the U.S. Immigration and Customs Enforcement in violation of federal law.
One issue is whether Mirkarimi could have reasonably foreseen releasing Garcia Zarate would lead to the Steinle shooting or to a public safety threat in general.
Deputy City Attorney Margaret Baumgartner said there was a “lack of causation” between the creation of the policy and the shooting.
Baumgartner said there were a “number of discretionary events that would have had to have occured to prevent the particular action on the pier that resulted in the unfortunate death.”
But U.S. Circuit Judge Mark Bennett repeated an argument from Cordova that Steinle would not have died had ICE been notified.
“Don’t they quote ICE saying that they would have taken this man in custody and this tragedy would not have occured?” Bennett said.
On the other hand, U.S. Circuit Judge Susan Graber seemed to side with Spero.
“I’m concerned that there is no real causation between the acts that you’re alleging against The City,” Graber told Cordova. “They can’t foresee that a ranger is going to leave a firearm lying around.”
The appeals court is expected to decide on the case within three months to a year.
The case against the U.S. is ongoing.
Garcia Zarate was acquitted of murder and lesser charges in San Francisco Superior Court, but found guilty of illegal gun possession. He is currently facing separate illegal gun possession charges in federal court.