it please the court my name is allison cordova and i'm here on behalf of the plaintiffs in this matter jean stein lee elizabeth stanley as well as the estate of katherine stanley to appeal the motion to dismiss by the lower court  here we have the lower court dismissed the plaintiff's claims against the city and county of san francisco and sheriff mercury me on discretionary immunity grams that is the only issue that the lower court reached it is also the primary and only question that we presented in our opening briefs to the court and so just as a preliminary matter we would ask that the court narrowly decide this issue on we can then the are asking that duty should be reminded for an issue of first impression with the trial court this is a simply a beginning request but i'm prepared to address today and will do so now for the court so i think that the real issue here and the big question that is confusing is what is the proper duty analysis when we are talking about injury to a third party victim and the defendant says we should go to a special relationship analysis and i believe that that is squarely against the law here because we have to start with the two fundamental principles of duty and  is on duty your argument that this duty would have been to any person at all would have been injured by really slightly but there's a distinction there because we have california civil code one seven one four and it's broad there isn't a limitation as to who is affected it's the general standard that you have to use ordinary care in conducting your activities him there who was exposed to a spa stows by an employee who brought it home on their clothing and what the court said is that the court did not perform a special relationship test and in fact the court explicitly rejected a special relationship test and said that that the idea of where we're going to cut off the duty under one seven one four that you must act with ordinary care in your activities is a role in factors and primarily foreseeability and the court limits duty in that case to only household members and it says that household members it's foreseeable here that the duty of sorry and therefore people who live in a household with an employee who is bringing this last dose home on his clothes it's a reasonably foreseeable they will come into significant contact with the a spouse does and be exposed firearm where it could be picked up and i guess i'm concerned that there is no real sort of causation between the acts that you're alleging against the city there's this sort of you know anywhere thank you judge and i think that first the ability right we have two questions of first the ability because first the ability comes into play in the duty analysis as well as it comes into play with proximate cause and when we look at it under duty  have big b and has a nerve that will say that it's not the specific character of the event or the harm it's the general nature we do not look at was this force sealable that a particular plaintive would be injured judge and i it's not about undocumented status it is about the safety and felony nature that is involved here in terms of analysis so we have a city administrative provision in the sanctuary policy that explicitly creates a caviar for communicating with ice in regards to prior convicted felons it doesn't say that they have to but there isn't there is out to allow for that and the idea here is that before sheriff mirkarimi created a no contact policy the sheriff's deputies could make a case by case determination about the inmate who is currently in their custody who's a prior convicted felon and whether or not that inmate presented himself as a safety risk to society where it would not be unreasonable for the sheriff's department to take on the very very low burden of making a phone call to ice to tell them one piece of information the date they intended to release the person on the other hand we're talking about it may not happen all the time that's correct they're there this this doesn't have to be highly probable to be foreseeable and big b says that as well as has an error it is not about  may happen all the time it's is this something in our modern world that would generally be a consideration in guiding our conduct when we make a decision when we make a decision regarding the conduct of issue so here the question is when we have someone with specifically to mr sanchez we have someone with an extensive who is a prior convicted felon who has displayed a repeated disregard for the law who has serious narcotic felonies on his record and who also present himself as currently an individual who will be prone to reckless behavior by the immunity the idea here is that the court summarily said that none of the statutes that plaintiffs cites to requires the sheriff's department to contact ice or requires the sheriff's department to create a policy where they don't provide release date information and so it's almost like he takes a very cleaver kind of two discretionary immunity and the idea here is we're saying he created a policy of no contact with ice that is wrong one of the wrongful acts the other wrongful act is he failed to respond to an ice request for information have not something that was the result of exercise of discretion vested to him because of course it's not up to us to decide the wisdom or lack of it or the policy thank you judge because the policy of no contact if that's the policy it absolutely violates california health and safety code one one three six nine which says that if you have an inmate in custody who has been convicted of one of these following drug offenses you statute that you're referring to does not as i read it require communication about a release date it requires a different kind of communication the one you're claiming was a problem in this case i agree you are right if that's so then what is would you continue to answer judge bennett's question about why the memo itself and the decision not to call with a release date isn't a discretionary act two to discretionary i don't think that you can divide them were alleging there was one act that he created a policy of absolutely no contact with ice he eliminated all have acted on wealthy he's not vested with discretion to violate the law he's not vested with discretion to create a policy that violates the law and while it may not violate the law under the facts of this case it violated his authority to pursue that policy and under the law you are not entitled to discretion to create a policy that violates the law and said i'm looking at the memo i don't see taken for on judicial notice for the materials are there in one request of the plaintiff would make is a request that to amend our complaint and to remove any reference to the memo because as an officer of this court what we understood and what we can situations are my time is almost up but on the other issue it's a ministerial act in regards to mr sanchez himself and i think what's important here is to highlight the difference between below nya and our case the baloney because that seems really factually similar to our case but it's very different on duty and the reason being isn't below nya there was no request made by ice it specifically says pla against him and that ramos could have been deported that's at page four thirty three so then the court goes blank just acknowledge that absent a special relationship public and it is ordinarily bear no common law duty to protect individuals so they the plaintiffs assert that they are liable under negligence per se provisions here we have a different situation i was flagged to this individual eyes wanted to detain this individual and was lawfully pursuing them for detained mn and so here we have the key difference between a duty to protect versus a duty to act with organ nearly care in responding to requests made by another law enforcement agency about an inmate in your custody we're not asking that they respond to every request we're not asking that they have to detain anyone it's simply that they act immunity under twenty point two but also whether there is a duty under california negligence law and whether there is causation under california negligence law in this particular case so i'll discuss all three of those issues first of all the issue of duty there is a case that has ever stented a negligence duty as far as plaintiffs request in this particular case there is under california supreme court last starting with thompson in one nine hundred eighty there is no duty to protect a third party from the criminal acts of somebody who is released from prison or not arrested or otherwise allowed to be in the public through probation or any other act of the government entity and there's a good reason for that it's it's a duty that would extend to extraordinary extent on forseeable locations things that are not within the control of the government entity itself that lack of duty acknowledged not just in the cases of thompson and selig and also claims council noted below nya but it's also part of the immunity statutes in california which were not particularly specifically address by judge sparrow including eight i believe say forty five point eight that there is no liability for release of prisoners for whatever reason there's also the lack of causation in this particular circumstance on our brief you are the excerpts of record two sixty six we list the number of discretionary events that would have had to have in that particular circumstance simply because there's it's a conclusion under its own family we don't have to assume that those don't don't they quote ice saying we would have taken this man into custody and this tragedy would never occurred isn't that somebody believes that would have occurred again it's speculative and again the question of causation alleging causation requires more than simply ice would have taken into custody there's a lot of other discretionary acts that would have had to have occurred for him to be permanently removed from the streets including actions by the f b i and various other entities that would have had to address this particular concerns there is a case that is not cited in the process because we didn't get into the issue of causation in the briefing that specifically says on a motion to dismiss allegations of  causation that something would have occurred for example a court would have done something about a particular matter is insufficient to actually state a claim there has to be more than that well here i use ask for the information and they weren't given  complaint says that if ice had been given to he would have been taken into custody so i mean clearly the district court didn't rely on this below but i don't understand why that is insufficient for a motion to dismiss on at least the issue of cause and fact well there are other things that would have to occur there's no dispute here that provision of release date information which is what's at issue here is a voluntary act on the part of the sheriff there is no legal requirement that in this particular circumstance without a warrant that really state information be provided so there is again another discretionary act that would have had to occur assuming that again what  plaintiffs claim to be the fault here which is the posing counsel says discretionary act can't be to create a policy that violates the law that this policy violates the law can you respond to that yes this policy does not violate the law  it was particularly with regard to release date for a number of reasons first of all it is not as plaintiffs claim a no contact policy what this policy did was sure if america you mean was managing his employees he was saying if you have a request from my us for volunteer information we're going to address that by looking at it and making an individual eyes determination at the upper levels of management about whether we're going to be providing that information so this was not a absolute no contact policy this was a procedure by which contact would be made and also the that it is also not illegal to prevent or to discuss release states again the section that's because the policy itself contains an illegal provision that it can't be protected by the discretionary act immunity what you're response to that there's certainly no causation issue  here sparrow noted in order the issue of whether immigration status information was going to be provided is not the issue because the federal government already knew his immigration status but they were very aware of what his status was so to the extent that there was a prohibition of and to the extent that it violated thirteen seventy three that is a different issue from the issue of release states which is the alleged causation here i agree with you that it's a different issue but it seems like counsel is arguing today because the policy contained some illegal provisions of the policy itself which is what the complaint is based on cannot be protected studio environment that has many concerns one of those concerns how to comply with all of the different provisions of the law not just thirteen seventy three but also for example the local sanctuary city policy and he needed to be able to govern how that was going to occur so the people i have i have as your answering judge bennett's question could you follow the on the following of discretion and obviously immunity wouldn't exist if there was a requirements that everybody if you interpret a particular law in the way that ultimately gets interpreted showed me issued this particular memo there were a lot of issues about towels again we between the different requirements legal requirements and he made a contradict the law is not the issue he made a decision right or wrong if judge bennett noted earlier the question of whether it's wise it's whether he made a reasoned decision and the answer is obviously yes he made a reasoned decision to require that provision of information to ice flow through the upper management of the sheriff's department there are other reasons also that it's we're not here on issues directly related to how the federal government has interpreted thirteen seventy three but there are all the federal cases that have looked at or most of the federal cases that have looked at that have in fact found thirteen seventy three to be unconstitutional under the anti commandeering you're not asking us the sides commandeering issue are you not unless it's critical to the court's decision in this case i don't believe that that's necessary in this case i think that the  can be affirmed on issues of california negligence last pacifically duty and causation and i also believe that no matter what the interpretation of thirteen seventy three is that a twenty point two applies to prevent to create immunity in this particular indication that that section nor thirteen seventy three for that matter create any kind of mandatory duty that would be subject to negligence liability under section two section six six nine which adopted for the particular purpose of preventing harm by criminal acts to a forseeable third party with regard to the public records question the way i read the complaint in this case w there is a lot of details about public records requests and you basically have to identify it as a public records request and there's no indication here that ice ever made what would be considered a public records request there's also this is future information this is not information that  three bases duty causation and immunity so yes and yeah i do and that seems to leave our government on section eight forty five point eight is that incorporated in your comment about immunity because in many ways that seems to me that just speaking for myself and perhaps the closest fit to the issues in this kid i do believe that's true and i did raise that in the motion to dismiss initially the direct immunity that applies it's immunity for release of prisoners 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 so which is one of the for release of prisoners for any reason whatsoever which is what eight forty five point eight states thank you thank you this court over you have one  primarily i think it was clear hearing the other side that there are a lot of facts that are being added in here at this stage and on a motion to this mission i would think that that is improper and they can't be considered at this time such  reasoned decision and that he considered a lot of factors before issuing this policy he consulted with his legal department he looked at all these laws none of that's on the face of the complaint this is why oftentimes discretionary immunity is left to a later stage to decide because oftentimes it's a question of fact it's a question of whether or not discretion was actually exercise and that's in our brief our opening brief under  nerium unity argument the other thing that's a question of fact is proximate cause and this is in our underlying opposition it's in the record as are two three one and it says and it quotes big b the proper classification of an intervening act as a concurrent cause or as a superseding cause present a question of fact which rarely can be resolved on a motion dismiss in addition t