Mimesis Law
17 October 2018

The Tragic Case of Kathryn Steinle Highlights Government’s Limits

January 12, 2017 (Fault Lines) — The circumstances surrounding Kathryn Steinle’s murder, as well as her suspected* killer’s criminal background and immigration status, provide for the “perfect” case to stoke the flames of America’s debate on immigration. On July 1, 2015, Steinle was purportedly shot dead by Juan Francisco Lopez-Sanchez while she strolled down San Francisco’s Embarcadero with her father.

The shooting was random and unprovoked, as Lopez-Sanchez had been seen walking around the pier acting erratically, and it turned out that Lopez-Sanchez had a rap sheet with state and federal criminal courts, as well as immigration issues. Lopes Sanchez: (i) had been convicted of seven felonies; (ii) had just finished a 46-month stint in federal prison; and (iii) had been ordered deported to Mexico five times.

So why was Lopez-Sanchez on the loose? After being released from the U.S. Bureau of Prisons, he was transferred over to the custody of San Francisco Sheriff’s Department to face state charges of selling cannabis, and on that same day Immigration and Customs Enforcement (or “ICE”) lodged a detainer with the Sheriff’s Department. ICE asked the state authorities to notify it 48 hours before releasing Lopez-Sanchez, and to keep him on ice hold him until ICE got around to picking him up.

As per its official policy, the Department did not comply with any of ICE’s requests, and released him in April of 2015 after the cannabis charges were dropped. ICE took no further action with regards to Lopez-Sanchez.

Steinle’s estate then sued the City and County of San Francisco, its Sheriff, and the United States.** The suit alleged general negligence, public entity negligence, basic negligence, and a claim under 42 U.S.C. § 1983 for deprivation of life and liberty without due process. But on January 6, 2017, Chief U.S. Magistrate Judge Joseph C. Spero dismissed the claims, save for the negligence claim against the United States under the Federal Tort Claims Act. From the Courthouse News Service:

But in a Jan. 6 ruling, U.S. Magistrate Judge Joseph Spero found that none of the laws cited by the Steinle family created a mandatory duty for the Sheriff’s Department to coordinate with U.S. Immigration and Customs Enforcement, or ICE.

“No law required the Sheriff‘s Department to share Lopez-Sanchez‘s release date with ICE, nor did any law forbid Mirkarimi establishing a policy against such cooperation,” Spero wrote in his 49-page ruling.

Spero also rejected claims that the policy violated due process based on the state-created danger doctrine established in the 1988 Ninth Circuit ruling in Woods v. Ostrander.

Finding that a policy decision that increases danger to the public could give rise to such a claim “would represent a significant expansion of the doctrine and would subject virtually any decision by policymakers in the field of public safety, who often must weigh known risks to public safety on either side of a decision, to post-hoc second guessing,” Spero wrote.

But the judge refused to rule out the possibility that the United States could be found negligent due to a Bureau of Land Management ranger’s failure to secure a gun that was stolen and used in the shooting.

As anyone from the legal trenches will tell you, the interplay between different governmental agencies (state v. state counterpart, state v. federal, federal v. federal counterpart) is complex stuff. In Lopez-Sanchez’s case, a local agency decided not to play ball with a federal request, and because ICE didn’t pick him up on time, Lopez-Sanchez was released. Why wouldn’t the locals hold him?

It differs from city to city. Some refuse to honor those requests because of civil rights concerns, others claim to be part of that fantasy concept of “sanctuary cities,” while the rest say “to hell with it” because holding “illegals” until ICE decides to get off its ass drains the local coffers.

But it goes beyond ICE’s initiative (or lack thereof) to round up every non-citizen who poses some danger. It’s about finite resources, and the necessity that the government be allowed to use its prosecutorial discretion in deciding who to collar for deportation. In dismissing the estate’s claim that ICE acted negligently in failing to detain Lopez-Sanchez, while discussing the practical considerations of apprehending all immigrants who are subject to deportation, Magistrate Spero cited the 2nd Circuit’s decision of Lora v. Shanahan:

Particularly for criminal aliens in state custody, it is unrealistic to assume that DHS will be aware of the exact timing of an alien‘s release from custody, nor does it have the resources to appear at every location where a qualifying alien is being released.

Given Lopez-Sanchez’s profile and DHS’s current enforcement priorities, it’s unfortunate that ICE didn’t act fast with him. Those convicted of “significant misdemeanors” like DUIs are an enforcement priority, so Lopez-Sanchez was a top candidate for removal.

Instead of allowing the locals to take him from the BOP at the conclusion of his federal sentence, ICE should’ve stepped in and snatched the body first. If anyone asked why, ICE could’ve simply laughed and given the finger invoked the Supremacy Clause of the U.S. Constitution. That still wouldn’t have prevented Lopez-Sanchez from trying to re-enter illegally, but in the end, the government can only do so much.

The president-elect has said that he intends to pass “Kate’s Law,” which would give mandatory minimums for illegal entrants in memory of Steinle, but that wouldn’t fix anything except for vindicating the collective moral outrage. As tragic as Steinle’s murder was, it pays to keep reason ahead of passion. But don’t take my word for it. Before taking the time and care to write his elaborate order dismissing most of the estate’s claims, Magistrate Spero made it clear to the reader what his role was in Steinle’s case:

The senseless killing of Ms. Steinle was preceded by a series of actions by various government actors that have been subject to much criticism. The job of the Court, however, is narrow: to determine whether the law permits Plaintiffs to proceed on the legal theories alleged.

Keep your eye on the ball.

*Juan Francisco Lopez-Sanchez is presumed innocent until proven guilty beyond and to the exclusion of reasonable doubt, and his trial is currently set for February 17, 2017.

**Lopez-Sanchez was also named as a defendant, but the estate later dropped him from the case without prejudice.

4 Comments on this post.

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  • Donald
    12 January 2017 at 12:51 pm - Reply

    The weirdest part of that whole story is that the bullet was a ricochet (prosecution and defense ballistics experts agreed).
    The prosecutor asserted that the guy aimed too low, but lucked out and still got his target, but it seems fair to call that a laboured argument.

    It calls the entire narrative of the illegal immigrant felon roving around shooting pretty white girls into serious question.

    Much like Eric Garner and the loosies, it seems the actual facts have been forever lost to the hysteria.

  • TD
    12 January 2017 at 2:31 pm - Reply

    Lopez-Sanchez is presumed innocent with respect to government action. You have no obligation to make the same presumption. Have the courage to state that based on the available facts you believe him to be the killer.

    • shg
      12 January 2017 at 3:27 pm - Reply

      You have a remarkably bizarre sense of what constitutes courage.

    • Mario Machado
      12 January 2017 at 5:13 pm - Reply

      TD, you’re all over the place and wrong. Next time chew the Olanzapine for maximum effect.

      Speaking of courage, what’s up with the anonymity?