Full opinion text
ORDER REGARDING MOTIONS TO DISMISS Re: Dkt. Nos. 21, 36 JOSEPH C. SPERO, Chief Magistrate Judge I. INTRODUCTION This action arises from the tragic death . of Kathryn Steinle (“Steinle”) on July 1, 2015. Plaintiffs James Steinle and Elizabeth Sullivan—individually, as heirs to Steinle, and as representatives of Steinle’s estate—bring several claims against Defendants Ross Mirkarimi, the City and County of San Francisco (“San Francisco” or the “City”), and the United States of America, alleging that but for Defendants’ actions and inactions, non-party Juan Francisco Lopez-Sanchez would not have been in a position to obtain a handgun and shoot Steinle. Mirkarimi and the City (collectively, the “City Defendants”) and the United States each move to dismiss all claims against them. The Court held a hearing on December 2, 2016. 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. For the reasons discussed below, the City Defendants’ motion is GRANTED, and the United States’ motion is GRANTED in part and DENIED in part. II. BACKGROUND A. Allegations of the Complaint A plaintiffs factual allegations are generally assumed to be true at the pleading stage. This section therefore summarizes the allegations of Plaintiffs’ complaint. Nothing in this Order, including the following summary of Plaintiffs’ allegations, should be interpreted as deciding that Plaintiffs’ allegations are true or as resolving any issue of fact. 1. Sanctuary City Ordinance and March 13, 2015 Memorandum Chapter 12H of the San Francisco Administrative Code limits the information that San Francisco and its officers and employees share with federal immigration officials. Compl. (dkt. 1) ¶ 24; see also Pis.’ Req. for Judicial Notice in Supp. of Pis.’ Opp’n to City Defs.’ Mot. to Dismiss (“RJN re Opp’n to City,” dkt. 30) Ex. A (Chapter 12H). Chapter 12H includes an exception for cooperation as required by state or federal law, and it was amended in 1992 to add an exception allowing communication and cooperation with federal authorities regarding individuals previously convicted of felonies. Compl. ¶ 24; RJN re Opp’n to City Ex. A § 12H.2-1. On March 13, 2015, then-Sheriff Mir-karimi issued a memorandum to all San Francisco Sheriffs Department personnel regarding protocols for communication with federal Immigration and Customs Enforcement (“ICE”) representatives. Compl. ¶ 30; City Defs.’ Req. for Judicial Notice in Supp. of Mot. to Dismiss (“City RJN”) Ex. A. Citing Chapter 12H, the memorandum stated that Sheriffs Department employees “shall not provide” several categories of information to ICE, including “citizenship/immigration status of any inmate” and “release dates or times.” City RJN Ex. A; see also Compl. ¶ 30. The memorandum instructed employees to provide other categories of information in response to ICE requests pursuant to state and local law, including “current charges,” “arrest date and location,” and “location in custody.” City RJN Ex. A. Disclosure of any additional information beyond the categories explicitly authorized would require consultation with the Sheriffs Department’s legal counsel, confirmation by counsel that disclosure was required by law or court order, and authorization by Mirkari-mi. Id.-, Compl. ¶ 31. Mirkarimi separately “made it known to ICE that he would not contact them under any circumstances.” Compl. ¶ 31. The memorandum included no exception for individuals convicted of a felony. City RJN Ex. A. Before Mirkarimi issued the March 13 memorandum, the Sheriffs Department had freely “provide[d] information to ICE regarding undocumented immigrant felons in custody.” Compl. ¶32. Mirkarimi had previously met with a Department of Homeland Security official and informed him that the San Francisco Sheriffs Department would not honor ICE detainer requests or inform ICE when undocumented immigrants. were being released except as required by a court order or warrant. Id. ¶ 38. 2. Release of Lopez-Sanchez Lopez-Sanchez has been convicted of “at least seven felonies,” including several related to controlled substances and others related to supervised release violations or criminal reentry after deportation. Id. ¶¶ 21-21. He has been deported to Mexico at least five times. Id. After completing a 46-month sentence at a federal prison on March 26, 2015, Lopez-Sanchez was released to the custody of the San Francisco Sheriffs Department to face additional felony charges for selling marijuana. Id. ¶¶22, 33. The charges against him were dropped on March 27, 2015. Id. ¶ 22. That same day, ICE sent a detainer request asking that the Sheriffs Department notify ICE forty-eight hours before releasing Lopez-Sanchez and continue to hold him until ICE could take custody of him. Id. ¶¶ 34-35. The Sheriffs Department did not respond to the detainer request or otherwise communicate with ICE, and released Lopez-Sanchez on April 15, 2015, nineteen days after the charges' against him had been dropped. Id. ¶¶ 22, 36. ICE took no further action to detain or deport Lopez-Sanchez other than issuing the detainer request. Id. ¶ 39. 3. Death of Steinle At some point after his release, Lopez-Sanchez acquired a government-issued handgun. See id. ¶¶ 1, 44^15. Despite training and policies requiring rangers to ensure the security of their firearms and to leave them “in a secure place, out of sight, under lock and key” and unloaded when not in use, on June 27, 2015 a U.S. Bureau of Land Management (“BLM”) ranger left his handgun loaded and unlocked in a backpack in an unattended vehicle in downtown San Francisco, “in plain sight of passersby’s [sic] and within reach of someone smashing the window of the vehicle.” Id. ¶¶ 40-44. The handgun was stolen from the vehicle. Id. ¶ 44. The Complaint does not specify whether Lopez-Sanchez himself stole the handgun or acquired it later. The evening of July 1, 2015, four days after the handgun was stolen and approximately two and a half months after Lopez-Sanchez was released by the Sheriffs Department, Lopez-Sanchez was under the influence of narcotics and “acting bizarrely” near Pier 14 of the San Francisco Embarcadero. Id. ¶ 17, 20. Steinle was walking in the area with her father. Id. ¶ 17. Lopez-Sanchez shot and killed Steinle Id. ¶ 19. Plaintiffs contend that Defendants should have been aware of the risk that Lopez-Sanchez would engage in violence based on: (1) a 2008 incident in which an undocumented immigrant with a history of violent felonies killed three people after he was released from custody in San Francisco, leading to a lawsuit against the. City; and (2) studies demonstrating recidivism rates for undocumented immigrant criminals ranging from 16% to 28%. Id. ¶¶ 28-29. 4. Claims Plaintiffs’ first claim is for “general negligence” against all Defendants, citing sections 815.2(a) and 820(a) of the California Government Code. See id. ¶¶ 46-64. Plaintiffs contend that the City Defendants acted negligently by issuing the March 18 memorandum, failing .to share information with ICE and forbidding employees from doing so, and ignoring the detainer request from ICE regarding Lopez-Sanchez. Id. ¶ 47. According to Plaintiffs, such actions were outside the scope of the City Defendants’ discretion because they violated state and federal law, specifically 8 U.S.C. § 1373(a), section 11369 of the California Health and Safety Code, and section 7282.5 of the California Government Code. Compl. ¶ 48. Plaintiffs also contend that the United States is responsible for the BLM ranger’s negligence in leaving a loaded firearm where it could easily be stolen, and for ICE’s negligence in failing to detain and deport Lopez-Sanchez. Id. ¶¶ 55-64. Plaintiffs’ second claim is for “public entity negligence” against all Defendants, citing section 669 of the California Evidence Code, which sets forth the standard for negligence per se. See id. ¶¶ 68-89. Plaintiffs contend that the City Defendants were negligent under that standard because they restricted Sheriffs Department employees’ discretion to cooperate with ICE in violation of state and federal law. Id. ¶¶ 69-72. Plaintiffs also argue that agents of the United States were negligent under that standard because the BLM agent did not follow certain provisions of BLM and Department of the Interior manuals regarding firearm security and storage, id. ¶¶ 75-82, and because ICE did not take custody of Lopez-Sanchez despite federal laws requiring the Attorney General of the United States to take custody of certain aliens, id. ¶¶ 83-86. Plaintiffs’ third claim, brought by Plaintiffs in their capacity as representatives of Steinle’s estate, is for basic negligence against all Defendants. Id. ¶¶ 90-94. Plaintiffs’ fourth and final claim is under 42 U.S.C. § 1983 against the City Defendants, alleging that the March 13 memorandum “deprived [Steinle] of life and liberty without due process” by prohibiting Sheriffs Department employees from notifying ICE when Lopez-Sanchez was released. Id. ¶¶ 95-101. B. Arguments 1. The City Defendants’ Motion to Dismiss The City Defendants move to dismiss all claims against them. See generally City Mot. (dkt. 21). First, they contend that Plaintiffs’ negligence claims rest on a supposed duty to protect.Steinle from Lopez-Sanchez’s criminal act, and that California law does not recognize such a duty except where “the government had a direct relationship with the victim and placed the victim in a position of danger.” Id. at 5-7 (citing, e.g., Zelig v. County of Los Angeles, 27 Cal.4th 1112, 119 Cal.Rptr.2d 709, 45 P.3d 1171 (2002); Wallace v. City of Los Angeles, 12 Cal.App.4th 1385, 16 Cal.Rptr.2d 113 (1993)). According to the City Defendants, they had no such relationship with Steinle. Id.at 7. The City Defendants contend that similar principles bar Plaintiffs’ § 1983 due process claim. Id. at 13-14. The City Defendants also argue that the statutes regarding communication with federal immigration authorities cited in Plaintiffs’ complaint—specifically, 8 U.S.C. § 1373 and section 7282.5(a)(2) of the California Government Code—do not create the sort of mandatory duty actionable under California law, and that those statutes do not by their terms require a county sheriff to permit his or her subordinates either to detain an individual based on a federal immigration hold or to inform ICE of a detainee’s release date. Id. at 7-10. Moreover, according to the City Defendants, violating a statutory duty only gives rise to liability if the statute was intended to protect people in the position of the person injured, and a California appellate court has held that at least one of the statutes at issue here, § 1373, was not intended to protect members of the public from violence at the hands of released immigrants. Id. at 10. Next, the City Defendants contend that sections 845.8(a) and 846 of the Government Code, which immunize public employees and entities from liability for harm resulting from decisions regarding the release of prisoners, as well as section 820.2 of the Government Code, which immunizes public employees from liability for harm resulting from exercises of discretion vested in them, apply here to bar Plaintiffs’ claims. Id. at 10-11. Finally, the City Defendants argue that “the chain of causation is too attenuated and speculative to establish proximate cause,” because “several other entities and persons (including Lopez-Sanchez himself) would have had to take actions outside of [the City Defendants’] control to effect Lopez-Sanchez’s removal.” Id. at 12-13. 2. Plaintiffs’ Opposition to the City Defendants’ Motion According to Plaintiffs, their claims against the City Defendants should be allowed to proceed based on Mirkarimi’s “blatant disregard for the mandate imposed by San Francisco Administrative Code Section 12[H].2-1,” which Plaintiffs contend “created a mandatory duty not to prohibit employees from communicating with ICE.” Opp’n to City Mot. (dkt. 29) at 1-2. Plaintiffs make clear that their claims against the City Defendants are not based on “failure to warn or making the decision to release Lopez-Sanchez,” but instead rest on “Mirkarimi’s decisions [sic] to issue the March Memo, which forbid employees from contacting ICE, ignored ICE’s de-tainer request, and failed to notify ICE regarding Lopez-Sanchez’s release on April 15.” Id. at 1, 5 (capitalization altered). Plaintiffs argue that a mandatory duty sufficient to support a claim can arise from prohibitory language in statutes—if a statute forbids a certain action, then public officials have a mandatory duty not to take that action. See id. at 6-9. Plaintiffs focus their argument on section 12H.2-1 of the San Francisco Administrative Code, which at the time of the events at issue provided that “[n]othing in this Chapter shall preclude any City and County department, agency, commission, officer or employee from” reporting information about or cooperating with a federal request for information regarding individuals convicted of felonies. Id. at 9; see also RJN re Opp’n to City Ex. A § 12H.2-1. According to Plaintiffs, that language was intended to “prohibit all restrictions on the use of [San Francisco] resources to assist ICE in the apprehension of undocumented felons.” Opp’n to City Mot. at 10; see also id. at 12 (noting the use of the word “shall” in section 12H.2-1). Plaintiffs also contend that section 12H.2-1 is consistent with 8 U.S.C. § 1373(a), California Government Code section 7282.5, and California Health and Safety Code section 11369, all of which, according to Plaintiffs, “prohibit all restrictions on voluntary communications with ICE regarding undocumented felons.” Id. Plaintiffs cite Bologna v. City & County of San Francisco, 192 Cal.App.4th 429, 438, 121 Cal.Rptr.3d 406 (2011), as support for this interpretation of § 1373, and note that the California Attorney General issued an opinion in 1992 stating that local governments may not bar their employees from cooperating with federal immigration officials. Opp’n to City Mot. at 11 (citing 75 Ops. Cal. Att’y Gen. 270 (1992)). Plaintiffs next turn to the question of whether the duty at issue was designed to protect against the injury suffered. Id. at 13-14. Acknowledging the Bologna court’s holding that 8 U.S.C. § 1373 and Health and Safety Code section 11369 were not intended to protect members of the public from violence, Plaintiffs instead rely on Chapter 12H, the purpose of which was not addressed in Bologna, arguing that the exemption of felons from San Francisco’s general sanctuary city policy “clearly demonstrates the purpose behind this amendment was to protect the safety of the community.” Id. Plaintiffs also argue that their claim for general negligence should proceed, even absent a statutory duty, because the harm to Steinle was a reasonably foreseeable result of both the March 13 memorandum, which established a policy of not providing certain information to ICE, and Mirkari-mi’s own failure to contact ICE himself regarding Lopez-Sanchez’s release. Id. at 14. Citing the test of Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), Plaintiffs contend that basic principles of California negligence law support their claim. Opp’n to City Mot. at 14-17. According to Plaintiffs, their claim is not based on “failure to warn or failure to protect,” but rather on “fail[ure] to use reasonable care to prevent harm to others.” Id. at 14. Plaintiffs also argue that although several intervening steps would have had to take place after the Sheriffs Department contacted ICE before Lopez-Sanchez would have been removed from the country, their allegations that such steps would have occurred must be taken as true at the pleading stage, and the causal chain of this case is not so attenuated as in the cases cited by the City Defendants. Id. at 17-18. Plaintiffs contend that the City Defendants cannot claim immunity under sections 845.8(a) and 846 of the Government Code because Plaintiffs are not challenging a decision to release Lopez-Sanchez, but rather the decision to issue the March 13 memorandum prohibiting Sheriffs Department employees from providing certain information to ICE, including release dates. Id. at 18-19. Plaintiffs also argue that the City Defendants cannot claim immunity for discretionary acts under section 820.2 of the Government Code because “the acts were mandatory not discretionary,” and the City Defendants “are not vested with authority to contravene the law.” Id. at 19. Finally, Plaintiffs argue that their § 1983 claim should proceed based on theories of both procedural and substantive due process violations. Id. at 19-23. With respect to procedural due process, Plaintiffs contend that “the Constitution requires some kind of a hearing before the State deprives a person of life or liberty,” and the March 13 memorandum'—which Mirkarimi implemented without a hearing or public notice—deprived Steinle of her “right to life and liberty.” Id. at 20-21. With respect to substantive due process, Plaintiffs acknowledge that the Constitution does not generally create an affirmative duty to protect, but argue that they should be allowed to proceed on this claim based on decisions recognizing an exception to that rule where affirmative state actions created or increased danger to a plaintiff. Id. at 21-23. 3. The City Defendants’ Reply The City Defendants’ reply brief reiterates their position that the City cannot be held liable for negligent failure to protect Steinle absent a breach of some statutory duty. City Reply (dkt. 32) at 2-3 (citing, e.g., Zelig, 27 Cal.4th 1112, 119 Cal.Rptr.2d 709, 45 P.3d 1171). They also argue that they breached no actionable statutory duty, because 8 U.S.C. § 1373 and Health and Safety Code section 11369 were not intended to protect the public from criminal violence, id. at 3 (citing Bologna, 192 Cal.App.4th 429, 121 Cal. Rptr.3d 406), and because neither those statutes nor Government Code section 7282.5 address sharing detainees’ release dates with federal immigration officials, id. at 4. According to the City Defendants, policies and practices regarding the Sheriff’s Department’s response to detainer requests from federal officials fall within the discretionary authority of the sheriff. Id. at 4-5. The City Defendants next address Plaintiffs’ argument that Chapter 12H of the San Francisco Administrative Code created a mandatory duty and civil liability for breach of that duty. Id. at 6-8. According to the City Defendants, Plaintiffs rely on the word “shall” in that ordinance without context, and the language of the statute, i.e., “Nothing in this Chapter shall preclude ...,” “does not require that an employee act in a specific or mandatory way—it simply means that in certain situations an employee would not violate the particular ordinance by providing information.” Id. at 7; see RJN re Opp’n to City Ex. A § 12H.2-1. The City Defendants also argue that Plaintiffs have not demonstrated that any part of Chapter 12H was intended to protect the public from criminal acts, and note that section 12H.5 states that Chapter 12H is not intended to create civil liability. City Reply at 8. The City Defendants contend that Plaintiffs’ allegations regarding causation are too speculative to be taken as true under the Twombly pleading standard, and that even if the steps leading to Steinle’s death can be traced back to the City Defendants’ decisions, the connection is too attenuated to establish proximate causation under California law. Id. at 8-9. They also argue that discretionary immunity under Government Code section 820.2 applies “[i]f any part of the acts plaintiffs claim creates [sic] liability includes discretionary decisions,” and therefore applies here. Id. at 9. As for Plaintiffs’ § 1983 claim, the City Defendants argue that the cases Plaintiffs cite for substantive due process violations based on creating a risk of harm all involve actions that “placed a specific, identifiable persons [sic] in a greater position of danger than without the affirmative actions of law enforcement.” Id. at 9-10. The City Defendants also contend that Plaintiffs have not stated a procedural due process claim because no law required a public hearing before Mirkarimi issued a directive to his staff such as the March 13 memorandum. Id. at 10. 4. The United States’ Motion to Dismiss The United States structures its motion to address separately Plaintiffs’ claims regarding ICE’s failure to detain Lopez-Sanchez and Plaintiffs’ claims regarding the gun stolen from the BLM ranger’s vehicle. To the extent that the United States’ motion is based on sovereign immunity, it is a motion to dismiss for lack of jurisdiction rather than for failure to state a claim. See U.S. Mot. (dkt. 36) at 1. With respect to claims regarding ICE, the United States first argues that it is protected by sovereign immunity under the discretionary function exception, a statutory rule providing that waiver of immunity under the Federal Tort Claims Act (“FTCA”) does not apply to claims based on a federal employee or agency’s “ ‘exercise or performance or ... failure to exercise or perform a discretionary function or duty ... whether or not the discretion involved be ahused.’ ” Id. at 6 (quoting 28 U.S.C. § 2680). According to the United States, the decision to detain and deport aliens falls within ICE’s prosecutorial discretion, even under the ostensibly mandatory language of 8 U.S.C. § 1226(c). Id. at 7-10. The United States cites decisions by other courts acknowledging that ICE cannot detain every alien who is subject to removal. See, e.g., id. at 10 (citing Lora v. Shanahan, 804 F.3d 601, 612 (2d Cir. 2015)). The United States also argues that the decision of whether to detain and deport a given alien depends on “the type of judgment that the [discretionary function] exception was intended to shield, ie., ... considerations of public policy.” Id. at 11. The United States relies in part on a declaration by Christopher Shanahan, Acting Assistant Director for Enforcement and Removal Operations at ICE, discussing ICE’s resource constraints and decision making processes. Id.; Shanahan Decl. (dkt. 36-1). The United States also argues that even if the discretionary function exception does not apply, the FTCA does not waive sovereign immunity for violations of federal law, and Plaintiffs therefore .cannot pursue a claim for breach of duties set by federal law even where such a claim is framed as negligence per se under California law. Id. at 13-14. In a footnote, the United States suggests that Plaintiffs’ claims for “public entity negligence” by ICE may not proceed under the FTCA because that statute only waives sovereign immunity for claims “where the United States, if a private person, would be liable,” 28 U.S.C. § 1346(b)(1) (emphasis added), not for circumstances where local law would impose liability on a public entity, and because “it is not clear that there are any private analogs under California state law applicable to ICE’s conduct at issue here, which involved decisions regarding detention and deportation.” U.S. Mot. at 13-14 n.5 (citing United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005)). The United States also contends that Plaintiffs cannot state a claim under California law because California does not recognize a duty to protect others absent a special relationship with the victim, which Plaintiffs do not allege here. Id. at 14-17. Finally, the United States argues that, based on Plaintiffs’ allegations, ICE’s failure to detain Lopez-Sanchez was not sufficiently connected to Steinle’s death to be a proximate cause under California law. Id. at 17-18. Turning to the claims based on the stolen gun, the United States again argues that it has not waived sovereign immunity for claims based on federal law, and that Plaintiffs therefore cannot base a claim on the BLM ranger’s failure to follow firearm storage procedures set forth in a BLM handbook. Id. at 19. The United States also contends that although California recognizes liability in some circumstances for negligent storage of firearms and requires “a high degree of care” from gun owners, id. at 19-20 (citing Reida v. Lund, 18 Cal.App.3d 698, 704, 96 Cal.Rptr. 102 (1971); Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317, 282 P.2d 12 (1955)), the circumstances for imposing liability are not present here, and the Court should follow numerous decisions from other jurisdictions declining to impose liability on gun owners for acts committed with stolen firearms, id. at 20-23. According to the United States, the BLM ranger did not owe a duty to persons such as Steinle who might be injured by his stolen gun, and the alleged failure to secure the gun was not a legal proximate cause of Steinle’s death. Id. 5. Plaintiffs’ Opposition to the United States’ Motion Plaintiffs begin their opposition brief with the argument that the Court should not consider Shanahan’s declaration, citing the rule that motions under Rule 12(b)(6) are based only on the allegations of the complaint and certain exceptions such as documents subject to judicial notice. Opp’n to U.S. Mot. (dkt. 38) at 5. Next, Plaintiffs argue that ICE is not immune to suit based on an exercise of discretion, although Plaintiffs focus on California Government Code section 820.2 and California court decisions interpreting that statute, rather than on the discretionary function exception to the FTCA’s waiver of sovereign immunity on which the United States relies in its motion. See id. at 5-6, 8-10. According to Plaintiffs, 8 U.S.C. § 1226(c) imposes a mandatory, not discretionary, duty on ICE to detain certain aliens. Id. at 6-8 (citing, e.g., Demore v. Kim, 538 U.S. 510, 520-21, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)). Plaintiffs also contend that, under California law, whether a decision actually qualifies for discretionary immunity is often, and is here, a question of fact inappropriate for resolution on the pleadings. Id. at 8-10. Plaintiffs argue that even if the decision of whether to detain Lopez-Sanchez was discretionary, “the lower-level ‘ministerial’ or ‘operational’ decisions made to carry out that detention were not immunized from liability.” Id. at 10. Plaintiffs contend that the detainer request that ICE sent to the Sheriffs Department demonstrates that ICE had already made the decision to detain Lopez-Sanchez, and that its failure to do so is therefore attributable to shortcomings in the execution of that decision, not to a discretionary policy decision. Id. at 9-10. Plaintiffs also argue that the United States is subject to a negligence claim under California law because it was reasonably foreseeable that Lopez-Sanchez would engage in crime if ICE failed to detain him, and that proximate causation is a question of fact inappropriate for resolution at this stage of the case. Id. at 11-13, 15-17. According to Plaintiffs, their claim that ICE failed to carry out a mandatory duty to detain Lopez-Sanchez is not a claim that ICE failed to provide police protection, which would be barred by California Government Code section 845. Id. at 13-15. As for their claims based on the BLM ranger’s failure to secure his firearm, Plaintiffs argue that general negligence principles apply because it was foreseeable that the gun could be stolen and used in a manner that would lead to harm. Id. at 17-19. Plaintiffs cite a California Supreme Court decision holding summary judgment inappropriate where the defendant’s employees left the key in the ignition of a truck and the plaintiff was injured by a thief who stole the truck, and an administrative decision holding that a BLM agent acted negligently in leaving a gun accessible in his home when he hosted a gathering of friends after drinking at a bar. Id. at 17-19 (citing Palma v. U.S. Indus. Fasteners, 36 Cal.3d 171, 203 Cal.Rptr. 626 (1984), 681 P.2d 893; In re Cain, 48 OHA 85 (2015) (included in the record as Exhibit C to Plaintiffs’ Request for Judicial Notice in Support of Plaintiffs’ Opposition to the United States’ Motion, dkt. 38-1)). Plaintiffs also argue that proximate cause is a question of fact, and that they have adequately alleged that the BLM ranger’s failure to secure his firearm was a substantial factor in causing Steinle’s death. Id. at 19. Finally, Plaintiffs argue that the United States’ motion to dismiss for lack of jurisdiction must be denied because the FTCA waives sovereign immunity, and claims for negligence per se under California law, as described in Evidence Code section 669, fall within the scope of that waiver. Id. at 20-21. Plaintiffs note that Evidence Code section 669.1 provides that federal agency manuals adopted pursuant to thé Administrative Procedure Act can give rise to a duty under section 669, and argue that noncofnpliance with the Department of the Interior manual which governs proper storage of BLM firearms therefore supports a claim for negligence per se under California law. Id. Plaintiffs do not address 28 U.S.C. § 2680, which creates an exception for discretionary acts to the FTCA’s waiver of sovereign immunity, or the United States’ argument that the FTCA does not waive sovereign immunity for state negligence claims premised on violations of duties established by federal law. See id.-, U.S. Mot. at 6,13-14. 6. The United States’ Reply The United States argues in its reply that the Court may consider Shanahan’s declaration in resolving the question of sovereign immunity, because sovereign immunity is a jurisdictional question and extrinsic evidence is appropriate on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, as opposed to a motion to dismiss for failure to state a claim under Rule 12(b)(6). U.S. Reply (dkt. 39) at 1-2. The United States also contends that the discretionary function exception to the FTCA’s waiver of sovereign immunity is a question of federal law, and that the authorities Plaintiffs cite interpreting section 820.2 of the California Government Code are therefore irrelevant. Id. at 3. The United States notes that, contrary to a rule that Plaintiffs cite under California law, analysis of the FTCA discretionary function exception depends not on “ ‘ “the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and whether they are susceptible to policy analysis.” ’ ” Id. (quoting U.S. Mot. at 6-7 (quoting United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991))). According to the United States, no statute imposed a nondiscretionary duty on ICE to take the particular actions that Plaintiffs claim it should have, because “[e]ven assuming for the sake of argument that Section 1226(c) required ICE to detain Mr. Lopez-Sanchez, plaintiffs have failed to identify any federal statute or regulation that mandated how ICE was supposed to do so.” Id. at 4. The United States notes that Plaintiffs’ opposition does not respond to the United States’ argument that the FTCA does not allow claims based on a duty imposed by federal law, or to its argument that the FTCA does not allow claims based on theories of liability specific to public entities rather than applicable to private persons. Id. at 5-6. The United States also reiterates its argument that the discretionary function exception applies. Id. at 6. According to the United States, Plaintiffs fail to identify any applicable source of liability under state law, because-—despite Plaintiffs’ assertions to the contrary—their claims are best viewed as alleging a failure to prevent crime, and California law only recognizes such claims where the defendant has a “special relationship” with either the perpetrator or the victim. Id. (citing Vu v. Singer Co., 706 F.2d 1027, 1029 (9th Cir. 1983)). The United States again argues that the causal chain from ICE’s failure to detain Lopez-Sanchez to Steinle’s death is too attenuated to constitute proximate cause, that Lopez-Sanchez’s criminal conduct serves as a superseding cause and bars liability, and that a case on which Plaintiffs rely, Braman v. State of California, 28 Cal.App.4th 344, 33 Cal.Rptr.2d 608 (1994), is distinguishable because the chain of causation was more direct and did not include criminal conduct by a third party. U.S. Mot. at 7. As for the BLM ranger’s failure to secure his handgun, the United States again contends that the sequence of events was too attenuated to impose liability on the United States for Steinle’s death, id. at 9, and argues that the manual on which Plaintiffs rely cannot serve as a basis for negligence per se because it was not adopted pursuant to the Administrative Procedure Act as required by Evidence Code section 669.1 (although the United States offers no evidence or authority to support this assertion), and because the FTCA does not waive sovereign immunity for claims based on a duty imposed by federal law, including a duty set by a federal agency manual. Id at 9-10. III. ANALYSIS A. Legal Standard A complaint may be dismissed for failure to state a claim on which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiffs burden at the pleading stage is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that “[a] pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and takes “all allegations of material fact as true and construe[s] them in the light most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a lack of a cognizable legal theory or on the absence .of facts that would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint must “contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “[C]ourts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678,129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, the claim must be “ ‘plausible on its face,’ ” meaning that the plaintiff must plead sufficient factual allegations to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). When a defendant moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff, as the party seeking to invoke the court’s jurisdiction by filing the complaint, bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A defendant may attack the court’s jurisdiction as it appears on the face of the complaint or by presenting affidavits and other evidence. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A court considering a motion under Rule 12(b)(1) “need not presume the truthfulness of the plaintiffs’ allegations” if a defendant submits extrinsic evidence. Id. B. Claims Against the City Defendants As noted above, Plaintiffs’ complaint asserts four claims against the City Defendants: “General Negligence— Wrongful Death,” citing California Government Code sections 815.2(a) and 820(a), “Public Entity Negligence—Wrongful Death,” citing California Evidence Code section 669, “Negligence—Survivor Cause of Action,” citing no specific statutory provision, and “Deprivation of Federal Civil Rights,” citing “48 [sic] U.S.C. § 1983” (presumably referring to 42 U.S.C. § 1983). See Compl. ¶¶ 46-101. The parties’ arguments generally group the first three claims into two theories of liability: negligence per se, which depends on the violation of a specific duty imposed by statute, and general negligence, which depends on a duty of care under the common law. The analysis is therefore addresses three theories of liability: (1) negligence per se; (2) general negligence; and (3) deprivation of civil rights under § 1983. 1. Negligence Per Se Plaintiffs’ negligence per se claims against the City Defendants depend on the theory that the March 13 memorandum violated a specific duty imposed by federal, state, or local law. Section 669 of the California Evidence Code, which Plaintiffs cite as the basis of their second claim, see Compl. ¶¶ 68-89, provides that failure to exercise due care is presumed where “(1) [a defendant] violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately cause death or injury to a person or property; (3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or injury ... was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Cal. Evid. Code § 669(a). “Except as provided by statute ... [a] public entity is not liable for any injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Cal. Gov’t Code § 815. In order to proceed on claims against the City, Plaintiffs must therefore identify a statute specifically authorizing public entity liability as an exception to section 815 of the Government Code. One such statute parallels the negligence per se standard: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is hable for an injury of that kind proximately caused by its failure to discharge the duty” unless it reasonably attempted to do so. Id. § 815.6. As discussed in more detail in the context of Plaintiffs’ .general negligence claims, public entities can also.be vicariously liable for injuries caused by their employees. Id. § 815.2; see also Zelig, 27 Cal.4th at 1127, 119 Cal.Rptr.2d 709, 45 P.3d 1171. Before the Court addresses the statutes and ordinance that Plaintiffs invoke, one principle that is not at issue here warrants a brief explanation. Plaintiffs do not claim that any federal law requires state or local law enforcement to assist with the administration of federal immigration law. Rather, Plaintiffs argue that the state and federal statutes at issue here limit government entities’ ability to restrict cooperation with federal immigration authorities. According to Plaintiffs, all of these statutes “prohibit all restrictions on voluntary communication with ICE regarding undocumented felons,” and Mirkarimi’s memorandum therefore violated the law by instructing his subordinates not to share certain information with ICE except under specific circumstances. Opp’n to City Mot. at 10. The Court disagrees. As discussed below, none of the statutes that Plaintiffs cite have so broad a scope—as is relevant here, none address restrictions on informing ICE of a detainee’s release date. a. 8 U.S.C. § 1373(a) The only federal statute at issue, 8 U.S.C. § 1373(a), reads as follows: Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. 8 U.S.C. § 1373(a). The question at issue here is whether § 1373(a) prohibits a local law enforcement official from significantly restricting the circumstances in which his subordinates can share an undocumented inmate’s release date with ICE. Although the March 13 memorandum also restricted providing the “citizenship/immigration status of any inmate” to ICE, see City RJN Ex. A, Plaintiffs’ theory of liability relies on Sheriffs Department employees’ inability to communicate Lopez-Sanchez’s release date to ICE, not his citizenship status, see Compl. ¶37. Given that ICE issued a detainer request for Lopez-Sanchez well before his release, there is no question that ICE was aware of Lopez-Sanchez’s immigration status. Id. ¶ 34. Plaintiffs rely on Bologna, a California state appellate decision, which characterized § 1373(a) as “invalidating] all restrictions on the voluntary exchange of immigration information between federal, state and local government entities and officials and federal immigration authorities.” Bologna, 192 Cal.App.4th at 438, 121 Cal.Rptr.3d 406. The court of appeal apparently reached that conclusion based on the statute’s legislative history, noting a House of Representatives conference report that described the purpose of the statute as to “ ‘prevent any State or local law ... that prohibits or in any way restricts any communication between State and local officials and the INS,’ ” and somewhat similar language in a Senate report. Id. at 439, 121 Cal.Rptr.3d 406 (quoting without citation H.R. Conf. Rep. No. 104-725, at 383 (1996), reprinted in 1996 U.S.C.C.A.N. 2649, 2771; also discussing S. Rep. No. 104-249, at 19 (1996)) (ellipsis in original). The Bologna court ultimately held that neither § 1373(a) nor Health and Safety Code section 11369 supported a cause of action against the City because neither was intended to prevent violent crime. Id. at 437-40, 121 Cal.Rptr.3d 406. This Court is not bound by the state court’s interpretation of federal law, and respectfully disagrees with the Bologna court’s characterization of the scope of § 1373(a). “As [the Supreme Court has] repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). The Ninth Circuit has explained in s.ome detail why the Constitution does not permit giving legislative effect to language found only in congressional reports that is not consistent with the language of a statute itself: The principle that committee report language has no binding legal effect is grounded in the text of the Constitution and in the structure of separated powers the Constitution created. Article I, section 7, clause 2 of the Constitution is explicit about the manner in which Congress can take legally binding action. Members of Congress cannot use committee report language to make an end run around the requirements of Article I. If Congress wishes to alter the legal duties of persons outside the legislative branch, including administrative agencies, it must use the process outlined in Article I. See INS v. Chadha, 462 U.S. 919, 952, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); see also Clinton v. City of New York, 524 U.S. 417, 439-40, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (holding that “the power to enact statutes may only be exercised in accord with a single, finely wrought and exhaustively considered, procedure” outlined in Article I (internal quotation omitted)).... Treating legislative reports as binding law also undermines our constitutional structure of separated powers, because .legislative reports do not-come with the traditional and constitutionally-mandated political safeguards of legislation. As noted above, legislative reports are not acts of law satisfying the precise requirements of Article I, which were devised by the Framers to ensure separation of powers and a careful legislative process. By contrast, legislative reports may in some cases be written by an individual legislator, congressional staffers, or even lobbyists. Giving binding effect to passages in legislative reports may thus give binding legal effect to the unchecked will of a lone person, and that is not what our Constitution envisions. Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 684-85 (9th Cir. 2007) (footnotes omitted). Nothing in 8 U.S.C. § 1373(a) addresses information concerning an inmate’s release date. The statute, by its terms, governs only “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). If the Congress that enacted the Omnibus Consolidated Appropriations Act of 1997 (which included § 1373(a)) had intended to bar all restriction of communication between local law enforcement and federal immigration authorities, or specifically to bar restrictions of sharing inmates’ release dates, it could have included such language in the statute. It did not, and no plausible reading of “information regarding ... citizenship or immigration status” encompasses the release date of an undocumented inmate. Because the plain language of the statute is clear on this point, the Court has no occasion to consult legislative history. In light of the Court’s holding regarding the scope of § 1373(a), the March 13 memorandum violated that statute only, if at all, by restricting the provision of inmates’ citizenship and immigration status to ICE, not by restricting the provision of release dates. Based on the facts alleged, the former restriction did not cause Steinle’s death, because ICE was already aware of Lopez-Sanchez’s immigration status. Plaintiffs therefore cannot state a claim for negligence based on violation of a duty imposed by § 1373(a). Moreover, Plaintiffs do not meaningfully dispute the Bologna court’s holding that § 1373(a) was not intended to prevent harm caused by violent crime. See Bologna, 192 Cal.App.4th at 439-40, 121 Cal. Rptr.3d 406. That court examined the text of § 1373(a), as well as' the legislative history, and concluded that the statute was designed to facilitate the enforcement of federal immigration laws, not to prevent violent crimes against individuals. Id. This Court agrees. Accordingly, even if § 1373(a) could be read to prevent Mirkar-imi from restricting the circumstances in which Sheriffs Department employees provided inmates’ release dates to ICE, that statute still would not support a claim by a plaintiff injured by someone who remained in the country as a result of Mir-karimi’s policy. See Cal. Evid. Code § 669(a)(3)-(4) (requiring that “the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and ... the person suffering the death or injury ... was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted”); Cal. Gov’t Code § 815.6 (authorizing public entity liability for injuries caused by violations of “a mandatory duty imposed by an enactment that is designed to protect against the risk of [that] particular kind of injury”). b. California Health & Safety Code Section 11369 Section 11369 of the California Health and Safety Codereads as follows: When there is reason to believe that any person arrested for a violation of [certain laws regarding controlled substances] may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters. Cal. Health & Safety Code § 11369. As with § 1373(a), this law does not, by its terms, govern the transmission of an inmate’s release date to ICE. The plain language of the statute requires only that “the arresting agency” must “notify” ICE when a person who has been arrested might not be a citizen. Id. Based on the allegations of the complaint, it is clear that the San Francisco Sheriff’s Department was not the “arresting agency” under section 11369 with respect to Lopez-Sanchez. Plaintiffs allege that the federal government transferred Lopez-Sanchez to the custody of the Sheriffs Department after he completed a federal prison sentence. Compl. ¶ 22. The complaint therefore does not allege any violation of section 11369. Further, even if the Sheriffs Department had arrested Lopez-Sanchez, notifying ICE of his arrest would not have altered the course of events, because—as demonstrated by the detainer request that ICE issued the day after the Sheriffs Department took custody of him—ICE already knew that Lopez-Sanchez was undocumented and that the Sheriffs Department was holding him. See id. ¶ 34. Finally, Plaintiffs again present no significant argument to rebut the Bologna court’s holding, based on a detailed review of precedent and legislative history, that section 11369 was not intended to prevent violent crime. See Bologna, 192 Cal. App.4th at 436-38, 121 Cal.Rptr.3d 406. Accordingly, even if Plaintiffs could allege that the City Defendants violated section 11369 and that such violation led to Lopez-Sanchez remaining in San Francisco rather than being detained or deported by ICE, they nevertheless could not base a negligence claim on such a violation because Steinle’s death was not the sort of harm that the statute was intended to prevent. c. California Government Code Section 7282.5(a) Plaintiffs’ opposition brief suggests that section 7282.5(a) of the California Government Code, in conjunction with the statutes discussed above, “prohibits] all restrictions on voluntary communication with ICE regarding undocumented felons.” Opp’n to City Mot. at 10; see also Compl. ¶¶ 26, 48, 70. That statute reads as follows: A law enforcement official shall have discretion to cooperate with federal immigration officials by detaining an individual on the basis of an immigration hold after that individual becomes eligible for release from custody only if the continued detention of the individual on the basis of the immigration hold would not violate any federal, state, or local law, or any local policy, and only under any of the following circumstances: [listing certain conditions, including conviction of felonies related to controlled substances.] Cal. Gov’t Code § 7282.5(a). According to Plaintiffs, section 7282.5(a) creates “a mandatory duty ... to allow law enforcement officials the discretion to cooperate with federal immigration officials’ if the individual in question has previously been convicted of a felony.” Compl. ¶ 70. The only cooperation specifically discussed in the statute is “detaining an individual on the basis of an immigration hold,” see Cal. Gov’t Code § 7282.5(a), while the crux of Plaintiffs’ claim is restrictions on communication, not detention, see Opp’n to City Mot. at 8 (“The mandatory duty here is prohibitory—that restrictions on communication with ICE regarding undocumented felons are strictly prohibited.”). In any event, even if “cooperation” in this statute could be construed more broadly, the Court is not persuaded that section 7282.5(a) creates any mandatory duty. As noted above, Plaintiffs do not claim that section 7282.5(a) creates a duty to actually cooperate with ICE. In describing officials’ “discretion” to cooperate, the statute makes clear that such cooperation is not mandatory. Instead, Plaintiffs argue that by establishing that law enforcement officials—which Plaintiffs interpret to in-elude all Sheriffs Department employees—have discretion to detain individuals based on requests from ICE, the statute imposes a duty on local policymakers, such as Mirkarimi, not to restrict such discretion. See Opp’n to City Mot. at 8-13. This view of section 7282.5(a) would negate an explicit limitation of the statute: that law enforcement officials may detain individuals “only if the continued detention of the individual on the basis of the immigration hold would not violate any ... local law, or any local policy.” Cal. Gov’t Code § 7282.5(a). Reading the statute as a whole, it grants law enforcement officials discretion to detain individuals based on immigration holds, but also grants local policymakers authority to limit such discretion. In that context, Mirkarimi had no mandatory duty under § 7282.5(a) to refrain from setting limits on cooperation with ICE detainer requests, and Plaintiffs therefore cannot base a claim on breach of such a duty. d. San Francisco Administrative Code Chapter 12H Although Plaintiffs’ complaint does not identify Chapter 12H as a source of any duty, see Compl. ¶¶ 48, 69-70, their opposition brief rests largely on the argument that Mirkarimi violated that ordinance by issuing the March 18 memorandum, see Opp’n to City Mot. at 9-10, 12-14. Specifically, Plaintiffs focus on section 12H.2-1, which at relevant times included the following language: Nothing in this Chapter shall prohibit, or be construed as prohibiting, a Law Enforcement Officer from identifying and reporting any adult pursuant to State or Federal law or regulation who is in custody after being booked for the alleged commission of a felony and is suspected of violating the civil provisions of the immigration laws.... Nothing in this Chapter shall preclude any City and County department, agency, commission, officer or employee from (a) reporting information to the Federal agency charged with enforcement of the Federal immigration law regarding an individual who has been booked at any county jail facility, and who has previously been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under State law; (b) cooperating with a request from the Federal agency charged with enforcement of the Federal immigration law for information regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under State law; or (c) reporting information as required by Federal or State statute, regulation or court decision, regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under State law.... RJN re Opp’n to City Ex. A § 12H.2-1. According to Plaintiffs, this section of the ordinance imposed a mandatory duty on Mirkarimi to allow officers to share information with ICE based on its use of the word “shall,” based on “the federal government’s pervasive regulation over immigration policy coupled with the necessity of cooperation by state and local governments,” and based on legislative intent, specifically language in the implementing ordinance stating that section 12H.2-1 was added “ ‘to clarify that Chapter 12H does not apply to individuals who have been convicted of certain crimes.’ ” Opp’n to City Mot. at 10, 12 (quoting RJN re Opp’n to City Ex. B (S.F. Ordinance No. 282-92, File No. 97-92-46 (approved Sept. 4, 1992))). The language of section 12H.2-1 is not consistent with Plaintiffs’ view that this section imposed a duty on Mirkarimi. A provision of an ordinance which clarifies that it does not apply in certain circumstances does not create a mandatory duty. In providing that “[n]othing in this Chapter shall preclude” certain cooperation with ICE, section 12H.2-1 simply limited the scope of the remainder of Chapter 12H. In other words, if an individual met the criteria of section 12H.2-1—e.g., someone held at a county jail and previously convicted of a felony under California law—then Chapter 12H would have no bearing on whether City employees report information about that person to ICE. Plaintiffs essentially ask the Court to skip over the words “in this Chapter,” and hold that section 12H.2-1 prohibits any preclusion of cooperation for certain individuals, whether imposed by Chapter 12H or otherwise. The Court declines to do so; the language of section 12H.2-1 limits the scope of Chapter 12H, not the authority of the sheriff. This is consistent with the statement of intent that Plaintiffs cite from the implementing ordinance, clarifying “that Chapter 12H does not apply to individuals who have been convicted of certain crimes.” RJN re Opp’n to City Ex. B (emphasis added). Because Chapter 12H did not create a duty, Plaintiffs cannot base a claim on violation of such a duty. * * * The Court concludes that Plaintiffs’ complaint does not plausibly allege that Steinle’s death resulted from a violation of any of the sources of law that Plaintiffs cite: 8 U.S.C. § 1373(a), Section 11369 of the California Health and Safety Code, section 7282.5(a) of the California Government Code, or Chapter 12H of the San Francisco Administrative Code. The complaint therefore does not state a claim against the City Defendants for negligence per se under Evidence Code section 669 or for public entity liability under Government Code sections 815 and 815.6, and such claims must be DISMISSED under Rule 12(b)(6). The Court further concludes that the defects of these claims could not be cured by amending the complaint. 2. General Negligence Plaintiffs also argue that they have stated a claim under general negligence principles because the “foreseeable result of allowing felons with serious documented drug histories to avoid deportation is that they will act erratically and dangerously in a manner that compromises the safety of the rest of the San Francisco community.” See Opp’n to City Mot. at 14-19; see also Compl. ¶¶ 46-54, 90-94. “The elements of a negligence action are duty, breach of duty, causation, and damages.” Carrera v. Maurice J. Sopp & Son, 177 Cal.App.4th 366, 377, 99 Cal.Rptr.3d 268 (2009) (citing, e.g., Paz v. California, 22 Cal.4th 550, 559, 93 Cal.Rptr.2d 703, 994 P.2d 975 (2000)). Although California law does not generally permit a public entity to be held liable for its own negligence, see Cal. Gov’t Code § 815, a public entity may be held vicariously liable for actions of its employees, within the scope of those employees’ duties, if an employee’s conduct would give rise to a cause of action against the employee himself or herself, id. § 815.2(a). Public employees are generally liable for their actions to the same extent as private persons. Id. § 820(a). Section 820.2 of the Government Code, however, provides that public employees are generally immune from liability for exercising discretion granted to them by law, and section 815.2(b) provides that, in the context of vicarious liability, public entities share any immunity that would apply to their employees. Id. §§ 815.2(b), 820.2. Without reaching the City Defendants’ other arguments, including whether the March 81 memorandum was a legally sufficient proximate cause of Steinle’s death and whether immunity under Government Code sections 845.8(a) or 846 applies, the Court concludes that Mirkarimi is immune under section 820.2 of the Governmen