                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JAMES STEINLE, individually and as       No. 17-16283
heir to Kathryn Steinle, deceased;
ELIZABETH SULLIVAN, individually            D.C. No.
and as heir to Kathryn Steinle,          3:16-cv-02859-
deceased,                                     JCS
                Plaintiffs-Appellants,

                  v.                       OPINION

CITY AND COUNTY OF SAN
FRANCISCO, a government entity;
JUAN FRANCISCO LOPEZ-SANCHEZ;
ROSS MIRKARIMI; UNITED STATES OF
AMERICA,
             Defendants-Appellees.



      Appeal from the United States District Court
         for the Northern District of California
      Joseph C. Spero, Magistrate Judge, Presiding

       Argued and Submitted November 15, 2018
               San Francisco, California

                  Filed March 25, 2019
2       STEINLE V. CITY & COUNTY OF SAN FRANCISCO

    Before: Susan P. Graber, Stephanie Dawn Thacker, *
            and Mark J. Bennett, Circuit Judges.

                  Opinion by Judge Bennett;
                 Concurrence by Judge Graber


                          SUMMARY **


                  California Law / Immunity

    The panel affirmed the district court’s dismissal of the
general negligence claim brought by the parents of Kathryn
Steinle against the City and County of San Francisco after
Kathryn was shot and killed by an undocumented alien with
a criminal record, who was released from custody by the San
Francisco’s Sheriff’s Department.

    On March 13, 2015, the San Francisco Sheriff issued a
Memo establishing protocols and parameters for
communications between Sheriff’s Department employees
and Immigration and Customs Enforcement (“ICE”)
representatives. On March 27, 2015, ICE sent a detainer
request asking the Sheriff’s Department to notify ICE before
releasing undocumented alien, Juan Francisco Lopez-
Sanchez, and to hold him until ICE could take custody of
him. The Sheriff’s Department released Lopez-Sanchez on

    *
      The Honorable Stephanie Dawn Thacker, Circuit Judge for the
United States Court of Appeals for the Fourth Circuit, sitting by
designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
      STEINLE V. CITY & COUNTY OF SAN FRANCISCO                3

April 15, 2015, without notification to ICE. On July 1, 2015,
Lopez-Sanchez shot and killed Steinle near Pier 41 of the
San Francisco Embarcadero.

    The Panel held that the Sheriff’s issuance of the Memo
was a discretionary act that was entitled to immunity under
California Government Code section 820.2. The panel
further held that the district court did not err in determining
immunity on a motion to dismiss.

    The panel rejected plaintiffs’ argument that the district
court improperly took judicial notice of the Memo’s
contents. The panel held that the district court properly
considered the Memo under the incorporation by reference
doctrine, where the Memo formed the very basis of
plaintiffs’ claims and plaintiffs referred extensively to the
Memo throughout district court proceedings.

    The panel rejected plaintiffs’ arguments that the Sheriff
lacked discretionary authority to issue the Memo, and
therefore, was not entitled to immunity. Specifically, the
panel held that although 8 U.S.C. §§ 1373(a) and 1644
prohibit restrictions on providing certain types of
information to ICE, they plainly and unambiguously do not
prohibit the restriction at issue in this case regarding release-
date information. The panel further held that, assuming the
Sheriff’s actions adversely affected ICE’s ability to do its
job, this did not, without more, strip him of the discretionary
authority under California law to institute the policy that he
did. The panel also rejected plaintiffs’ argument that the
Memo was a legislative act that deprived the Sheriff of
immunity. The panel held that the Sheriff’s failure to
provide ICE with the inmate release date information did not
violate the California Public Records Act. The panel also
held that the district court correctly held that California
4     STEINLE V. CITY & COUNTY OF SAN FRANCISCO

Health and Safety Code section 11369 was inapplicable
because the Sheriff’s Department was not the “arresting
agency,” and plaintiffs’ allegations failed to demonstrate any
violation of section 11369. Finally, the panel rejected
plaintiffs’ claim that other local laws prohibited the Sheriff
from limiting cooperation with ICE.

    Judge Graber concurred in the opinion which relied on
the general discretionary-immunity statute, California
Government Code section 820.2, but wrote separately to add
that the California legislature has provided an even clearer,
specific grant of immunity to defendants in the present
circumstances in California Government Code sections
845.8(a) and 846.


                        COUNSEL

Alison E. Cordova (argued) and Frank M. Pitre, Cotchett
Pitre & McCarthy LLP, Burlingame, California, for
Plaintiffs-Appellants.

Margaret W. Baumgartner (argued), Deputy City Attorney;
Cheryl Adams, Chief Trial Deputy; Dennis J. Herrera, City
Attorney; Office of the City Attorney, San Francisco,
California; for Defendants-Appellees.
        STEINLE V. CITY & COUNTY OF SAN FRANCISCO                     5

                             OPINION

BENNETT, Circuit Judge:

    The facts of this case are undeniably tragic. Kathryn
Steinle (“Steinle”), a 32-year-old woman, was shot and
killed by Juan Francisco Lopez-Sanchez, an undocumented
alien with a criminal record, after he was released from
custody by the San Francisco Sheriff’s Department. In this
appeal, Steinle’s parents, James Steinle and Elizabeth
Sullivan (“Plaintiffs”), challenge the district court’s
dismissal of their general negligence claim against the City
and County of San Francisco and Sheriff Ross Mirkarimi
(collectively, “City Defendants”).       While we deeply
sympathize with Steinle’s family, the question of
discretionary immunity raised in this case is controlled by
California law. After careful deliberation, we conclude that
California law bars Plaintiffs’ negligence claim.
Accordingly, we affirm the decision of the district court.

        FACTS AND PROCEDURAL HISTORY 1

    In February 2015, then San Francisco Sheriff Mirkarimi,
through a meeting with the U.S. Department of Homeland
Security Deputy Director, informed the United States that
the Sheriff’s Department would not honor Immigration and
Customs Enforcement (“ICE”) detainer requests or notify
ICE of the pending release of any undocumented alien unless
a judicial order or warrant was issued for the alien’s removal.
Shortly thereafter, Sheriff Mirkarimi issued a memorandum,



    1
     The following facts are taken from Plaintiffs’ complaint and are
assumed true for purposes of our review. See Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
6       STEINLE V. CITY & COUNTY OF SAN FRANCISCO

dated March 13, 2015 (the “Memo”) to all Sheriff’s
Department employees.

    The Memo established protocols and parameters for
communications between Sheriff’s Department employees
and ICE representatives. It stated that employees “shall not
provide” “non-public” information to ICE, including
“release dates or times,” but that employees were authorized
to provide certain “public” information to ICE. Disclosure
of any information beyond the public information explicitly
authorized by the Memo would require consultation with the
Sheriff’s Department’s legal counsel, confirmation by
counsel that disclosure was required by court order or law,
and authorization by Sheriff Mirkarimi. 2 The Memo
changed the “longstanding policy and procedure” of the
Sheriff’s Department “to freely provide information to ICE
regarding undocumented immigrant felons in custody.”

    The Memo referenced Chapter 12H of the San Francisco
Administrative Code, which is commonly referred to as the
“Sanctuary City Law,” and other relevant laws and
regulations, including the California Public Records Act and
the San Francisco Sunshine Ordinance of 1999. While the
Sanctuary City Law limits information that San Francisco
and its officers and employees share with federal
immigration officials, it includes an exception for
cooperation as required by state or federal law. It also
allows, but does not require, communication and

    2
       Plaintiffs characterize the Memo as a “no contact” policy. This
label is not precisely accurate because, as noted, the Memo authorized
Sheriff’s Department employees to provide certain public information to
ICE. The Memo also allowed other information to be provided to ICE
if its request was supported or required by a warrant, court order or
decision, or federal or state statute or regulation, and was confirmed by
the Sheriff’s counsel and approved by the Sheriff.
      STEINLE V. CITY & COUNTY OF SAN FRANCISCO            7

cooperation with federal authorities regarding individuals
previously convicted of felonies. The Memo, however,
contained no exception regarding individuals previously
convicted of felonies.

    From 1993 to 2011, Lopez-Sanchez was convicted of “at
least seven felonies” related either to controlled substances
or to illegal reentry after deportation. He also was removed
to Mexico at least five times during that time period. After
completing a 46-month sentence in federal prison, Lopez-
Sanchez was released to the custody of the Sheriff’s
Department on March 26, 2015, to face felony charges for
selling marijuana. The charges against him were dropped on
March 27, 2015, and on that same day, ICE sent a detainer
request asking the Sheriff’s Department to notify ICE
48 hours before releasing Lopez-Sanchez and to hold him
until ICE could take custody of him. The Sheriff’s
Department did not respond to the detainer request or
otherwise communicate with ICE, and Lopez-Sanchez was
released on April 15, 2015, without notification to ICE.
After his release, Lopez-Sanchez acquired a government-
issued handgun belonging to a U.S. Bureau of Land
Management ranger. The handgun had been stolen from a
vehicle on June 27, 2015.

    On July 1, 2015, four days after the handgun had been
stolen and approximately two and one-half months after
Lopez-Sanchez had been released by the Sheriff’s
Department, he shot and killed Steinle near Pier 14 of the
San Francisco Embarcadero. Steinle was shot “in the chest,
piercing her aorta.” There is no allegation that Lopez-
Sanchez knew Steinle. After the shooting, ICE stated: “If
the local authorities had merely notified [U.S. Immigration
and Customs Enforcement] that they were about to release
this individual into the community, ICE could have taken
8        STEINLE V. CITY & COUNTY OF SAN FRANCISCO

custody of him and had him removed from the country—
thus preventing this terrible tragedy.”

    Plaintiffs filed a complaint against the United States,
City Defendants, and Lopez-Sanchez, 3 alleging claims for
negligence per se, general negligence, and deprivation of
civil rights under 42 U.S.C. § 1983. City Defendants and the
United States moved to dismiss all claims against them
under Federal Rule of Civil Procedure 12(b)(6). The district
court granted City Defendants’ motion and granted in part
and denied in part the United States’s motion.4 The claims
against City Defendants were dismissed without leave to
amend, based on futility.

    Final judgment on the dismissed claims was entered
pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure, and Plaintiffs timely appealed. On appeal,
Plaintiffs challenge only the dismissal of their general
negligence claim against City Defendants. The district court
dismissed that claim pursuant to California Government
Code sections 820.2 and 815.2(b) because it concluded that
the alleged negligent act—the issuance of the Memo—was
an immune discretionary act.

    Plaintiffs argue that dismissal of their general negligence
claim was improper because 1) the district court erred in

    3
        Plaintiffs voluntarily dismissed all claims against Lopez-Sanchez.

    4
      The district court dismissed, with prejudice, the claims against the
United States premised on its failure to detain or remove Lopez-Sanchez
before the shooting, but it declined to dismiss the claims against the
United States premised on the ranger’s alleged failure to properly secure
the handgun that Lopez-Sanchez used to shoot Steinle. Plaintiffs do not
appeal the district court’s decision regarding their claims against the
United States.
      STEINLE V. CITY & COUNTY OF SAN FRANCISCO                9

finding immunity on a motion to dismiss, 2) the district court
erred by taking judicial notice of the contents of the Memo,
and 3) the Sheriff’s act of withholding Lopez-Sanchez’s
release date from ICE was ministerial and thus not entitled
to discretionary immunity even if entitlement to immunity
could be determined on a motion to dismiss. Plaintiffs also
make various arguments in support of their contention that
Sheriff Mirkarimi lacked discretionary authority to issue the
Memo and, therefore, is not entitled to immunity.

                STANDARD OF REVIEW

   “We review de novo a dismissal under Rule 12(b)(6),
and we can affirm on any ground supported by the record.”
Thompson v. Paul, 547 F.3d 1055, 1058–59 (9th Cir. 2008).
Further, on a motion to dismiss, “[w]e take all allegations of
material fact as true and construe them in the light most
favorable to the nonmoving party.” Parks Sch. of Bus.,
51 F.3d at 1484.

                        DISCUSSION

I. Discretionary Immunity

    We agree with the district court that the issuance of the
Memo was a discretionary act that is entitled to immunity
under section 820.2 of the California Government Code.
Section 820.2 provides, in pertinent part: “[A] public
employee is not liable for an injury resulting from his act . . .
where the act . . . was the result of the exercise of the
discretion vested in him, whether or not such discretion be
abused.”

   In applying section 820.2, the California Supreme Court
has stated that “the existence of some . . . alternatives . . .
does not perforce lead to a holding that the governmental
10    STEINLE V. CITY & COUNTY OF SAN FRANCISCO

unit thereby attains the status of non-liability under
section 820.2.” Johnson v. State, 447 P.2d 352, 358 (Cal.
1968). Thus, instead of interpreting “discretionary” literally,
the focus should be on the policy considerations underlying
the governmental entity’s claim of immunity. Id. at 356–58.

       [A] “workable definition” of immune
       discretionary acts draws the line between
       “planning” and “operational” functions of
       government. Immunity is reserved for those
       “basic policy decisions which have been
       expressly committed to coordinate branches
       of government,” and as to which judicial
       interference would thus be “unseemly.” Such
       “areas of quasi-legislative policy-making are
       sufficiently sensitive” to call for judicial
       abstention from interference that “might even
       in the first instance affect the coordinate
       body’s decision-making process[.]”

Caldwell v. Montoya, 897 P.2d 1320, 1325–26 (Cal. 1995)
(citations, brackets, and alterations omitted) (quoting
Johnson, 447 P.2d at 360–61). Further, a finding of
immunity “requires a showing that ‘the specific conduct
giving rise to the suit’ involved an actual exercise of
discretion, i.e., a ‘conscious balancing of risks and
advantages.’” Id. at 1327 (brackets omitted) (quoting
Johnson, 447 P.2d at 361 n.8).

    Applying the principles established by the California
Supreme Court, the Memo, on its face, reflects a basic policy
decision that “has been committed to [a] coordinate branch[]
of government.” Johnson, 447 P.2d at 360. The Memo was
issued by Sheriff Mirkarimi, who had the “sole and exclusive
authority to keep the county jail and the prisoners in it.” Cal.
        STEINLE V. CITY & COUNTY OF SAN FRANCISCO                   11

Gov’t Code § 26605. And, as discussed below, no federal,
state, or municipal statute or ordinance prohibited him from
issuing the Memo. Thus, Sheriff Mirkarimi was vested with
the authority to establish a departmental-wide policy setting
forth the parameters and protocols regarding his employees’
communications with ICE.

    The Memo shows that Sheriff Mirkarimi considered
applicable laws and regulations, determined what
information should and should not be provided to ICE, and
established a process for providing information to ICE when
required by law. The allegations in the complaint also
demonstrate that Sheriff Mirkarimi actually exercised
discretion because, by issuing the Memo, according to
Plaintiffs, he consciously changed the “longstanding policy
and procedure . . . to freely provide information to ICE.”

    The decision concerning what information Sheriff’s
Department employees would provide to federal
immigration officials (beyond the information required by
law to be provided) is an important policy decision that is
“sufficiently sensitive to justify a blanket rule that courts will
not entertain a tort action.” Johnson, 447 P.2d at 361.
Indeed, the debate over policies that severely limit
cooperation with immigration officials, like those embodied
in the Memo, underscores the nature of Sheriff Mirkarimi’s
decision, 5 and further supports a conclusion that judicial
intervention “would place the court in the unseemly position

    5
       Compare, e.g., Jeff Sessions, Opinion, Sanctuary City Policies
Harm Public Safety and the Rule of Law, S.F. Chronicle (April 7, 2017),
https://www.sfchronicle.com/opinion/article/Sanctuary-city-policies-ha
rm-public-safety-11056840.php., with Gene Demby, Why Sanctuary
Cities Are Safer, NPR (Jan. 29, 2017, 7:02 AM), https://www.npr.org/s
ections/codeswitch/2017/01/29/512002076/why-sanctuary-cities-are-
safer.
12    STEINLE V. CITY & COUNTY OF SAN FRANCISCO

of determining the propriety of decisions expressly entrusted
to a coordinate branch of government.” Id. at 360. The
tragic and unnecessary death of Steinle may well underscore
the policy argument against Sheriff Mirkarimi’s decision to
bar his employees from providing the release date of a many-
times convicted felon to ICE. But that policy argument can
be acted upon only by California’s state and municipal
political branches of government, or perhaps by Congress—
but not by federal judges applying California law as
determined by the California Supreme Court.

    The cases on which Plaintiffs rely are inapposite
because, unlike here, they involved lower level
“operational” acts that were performed after a basic policy
decision had already been made. See Johnson, 447 P.2d at
361–62 (holding that, while a decision to parole is a basic
policy decision, a parole officer’s subsequent decision as to
what warnings to give to foster parents was “a determination
at the lowest, ministerial rung of official action” and not
entitled to immunity); Barner v. Leeds, 13 P.3d 704, 709,
712 (Cal. 2000) (noting that “there is no basis for
immunizing lower level decisions that merely implement a
basic policy already formulated,” and holding that acts of a
deputy public defender in representing a client are not
entitled to discretionary immunity because a deputy public
defender’s “services consist of operational duties that merely
implement the initial decision to provide representation and
are incident to the normal functions of the office of the public
defender”); McCorkle v. City of Los Angeles, 449 P.2d 453,
460 (Cal. 1969) (holding that, even if a police officer made
a discretionary decision to undertake an investigation, the
officer’s subsequent negligent acts in performing the
investigation were not protected by discretionary immunity).
        STEINLE V. CITY & COUNTY OF SAN FRANCISCO                      13

    The Memo is plainly an example of decision-making at
the “planning” level, as that term is used by the California
Supreme Court. Thus, the issuance of the Memo was a
discretionary act insulated from liability under section 820.2
of the California Government Code. 6

    We also conclude that the district court did not err in
determining immunity on a motion to dismiss—the issue
before the court was a legal one, not dependent on disputed
facts, and courts routinely answer questions of immunity on
a motion to dismiss. See, e.g., Gonzalez v. United States,
814 F.3d 1022, 1025 (9th Cir. 2016) (holding, on an appeal
from a motion to dismiss, that discretionary immunity barred
plaintiffs’ claims); Caldwell, 897 P.2d at 1323 (holding, on
an appeal from a sustained demurrer by the trial court, that
discretionary immunity applied).

    We now turn to Plaintiffs’ remaining arguments.

II. Incorporation by Reference Doctrine

    Plaintiffs argue that the district court improperly took
judicial notice of the Memo’s contents. We disagree. The
district court expressly stated that it considered the Memo

    6
       Plaintiffs also claim that, even if the act of issuing the Memo was
insulated from liability, the separate act of withholding the requested
information from ICE was ministerial and thus not protected by
discretionary immunity. We decline to view the act of issuing the Memo
and the act of withholding the very information that the Memo instructed
to be withheld as separate acts. To do so would allow a protected
discretionary act to be converted into a non-discretionary ministerial act.
Cf. Cty. of Sacramento v. Superior Court, 503 P.2d 1382, 1386–87 (Cal.
1972) (“Ministerial implementation of correctional programs, however,
can hardly, in any consideration of the imposition of tort liability, be
isolated from discretionary judgments made in adopting such
programs.”).
14     STEINLE V. CITY & COUNTY OF SAN FRANCISCO

under the incorporation by reference doctrine. This doctrine
permits a court to consider a document “if the plaintiff refers
extensively to the document or the document forms the basis
of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d
903, 908 (9th Cir. 2003).

    Here, the Memo forms the very basis of Plaintiffs’
claims, and Plaintiffs referred extensively to it throughout
the district court proceedings. On appeal, Plaintiffs state that
they “dispute the accuracy of the contents of the
memorandum,” but their substantial reliance on the Memo
and their failure to question its accuracy below directly
belies their position. Indeed, Plaintiffs’ own legal counsel,
by declaration, submitted a copy of the Memo in support of
their motion for judgment below. Additionally, they did not
oppose City Defendants’ request for judicial notice of the
Memo below 7 and, in their opposition to City Defendants’
motion to dismiss, they actually cited and relied upon the
Memo that was attached to City Defendants’ request for
judicial notice. Moreover, Plaintiffs fail to identify any
specific part of the Memo that they claim is inaccurate, i.e.,
not part of the actual Memo.

    In short, the district court appropriately considered the
Memo under the incorporation by reference doctrine. See In
re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th
Cir. 1999) (rejecting party’s claim questioning the veracity
of SEC filings that were considered under the incorporation
by reference doctrine because the party’s “ongoing and
substantial reliance” on the filings undermined her position),



    7
      It does not appear that the district court ruled on City Defendants’
request for judicial notice of the Memo.
           STEINLE V. CITY & COUNTY OF SAN FRANCISCO                 15

abrogated on other grounds by S. Ferry LP, No. 2 v.
Killinger, 542 F.3d 776, 784 (9th Cir. 2008).

III.        The Sheriff’s Discretionary Authority

    Finally, Plaintiffs argue that Sheriff Mirkarimi lacked
discretionary authority to issue the Memo and, therefore, is
not entitled to immunity. As set forth below, we reject that
position and the various arguments offered in support.

       A. 8 U.S.C. §§ 1373(a) and 1644

    Plaintiffs claim that Sheriff Mirkarimi lacked discretion
to issue the Memo because 8 U.S.C. §§ 1373(a) and 1644
required the Sheriff’s Department to provide release date
information to ICE. 8 The relevant parts of those sections
prohibit any federal, state, or local restrictions on sending
“information regarding” the “immigration status” of
individuals to the Immigration and Naturalization Service.

    Plaintiffs argue, relying on text found in different
statutory sections, that “immigration status” includes
whether an individual is lawfully present in the United
States, and “the release date of an undocumented inmate is
the date upon which he goes from lawful to unlawful
presence in the United States.” 9 Therefore, according to

       8
      We note that some courts have found § 1373 to be unconstitutional
under the Tenth Amendment’s anti-commandeering principles. See, e.g.,
States of New York et al. v. Dep’t of Justice, 343 F. Supp. 3d 213, 237
(S.D.N.Y. 2018), appeal filed, No. 19-275 (2d Cir. Jan. 28, 2019). We
do not reach this issue because we find that the Memo is not inconsistent
with, or in violation of, § 1373.
    9
      Plaintiffs rely on 8 U.S.C. §§ 1357(g)(10)(A) and 1231(a)(4) to
support their argument.
16    STEINLE V. CITY & COUNTY OF SAN FRANCISCO

Plaintiffs, release date information is “information
regarding” “immigration status.” Plaintiffs also point to
legislative history and contend that congressional reports
relating to §§ 1373(a) and 1644 demonstrate that those
sections were intended to eliminate any restrictions on the
flow of immigration information between state and local
entities and federal immigration officials.

    Plaintiffs’ arguments ignore well-established rules of
statutory interpretation. “The preeminent canon of statutory
interpretation requires us to presume that the legislature says
in a statute what it means and means in a statute what it says
there. Thus, our inquiry begins with the statutory text, and
ends there as well if the text is unambiguous.” In re HP
InkJet Printer Litig., 716 F.3d 1173, 1180 (9th Cir. 2013)
(internal quotation marks omitted) (quoting Satterfield v.
Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009)).
Further, we turn to extrinsic materials, like legislative
history, only if the statutory text is ambiguous. See Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568
(2005).

    The statutory text at issue clearly does not include
release-date information. It includes only “information
regarding” “immigration status,” and nothing in §§ 1373(a)
or 1644 addresses information concerning an inmate’s
release date. As the district court correctly found, no
plausible reading of “information regarding” “immigration
status” encompasses the state or local release date of an
inmate who is an alien. See also United States v. California,
314 F. Supp. 3d 1077, 1102 (E.D. Cal. 2018) (holding that
§ 1373(a) does not encompass release-date information).
Congress certainly could have added explicit “release date”
wording to the statutes, but it did not. Accordingly, we hold
that, although §§ 1373(a) and 1644 prohibit restrictions on
         STEINLE V. CITY & COUNTY OF SAN FRANCISCO                   17

providing certain types of information to ICE, they plainly
and unambiguously do not prohibit the restriction at issue in
this case regarding release-date information. 10 Thus, our
inquiry is at an end, irrespective of legislative history. 11




    10
       We note that the Memo also prohibited employees from providing
“citizenship/immigration status of any inmate” to ICE. While that part
of the Memo is directly contrary to the mandate of §§ 1373(a) and 1644,
the operative part of the Memo on which Plaintiffs’ claims rest—the
withholding of release date information—is not inconsistent with those
statutes. Moreover, according to Plaintiffs, ICE was already aware of
Lopez-Sanchez’s immigration status. Under the circumstances here, we
see no reason, based on California law, to strip the Sheriff of his
discretionary authority to promulgate the portion of the Memo directly
at issue in this case because he may have lacked the authority to issue a
different part of the Memo. And Plaintiffs do not make any specific
arguments based on California law that would support such a holding.

     11
        We do note that at least some of the legislative history cited by
Plaintiffs supports their argument. For example, the House Conference
Report that accompanied the bill related to § 1644, states, in relevant
part:

          The conferees intend to give State and local officials
          the authority to communicate with the INS regarding
          the presence, whereabouts, or activities of illegal
          aliens. This provision is designed to prevent any State
          or local law, ordinance, executive order, policy,
          constitutional provision, or decision of any Federal or
          State court that prohibits or in any way restricts any
          communication between State and local officials and
          the INS.

H.R. Conf. Rep. No. 104-725, at 383 (1996), reprinted in 1996
U.S.C.C.A.N. 2649, 2771. However, the plain and unambiguous
statutory text simply does not accomplish what the Conference Report
says it was designed to accomplish.
18     STEINLE V. CITY & COUNTY OF SAN FRANCISCO

     B. Immigration Policy

    Plaintiffs claim that Sheriff Mirkarimi did not have
discretionary authority to issue the Memo because the Memo
“invaded” the federal government’s authority over
immigration law and frustrated ICE’s ability to detain and
deport Lopez-Sanchez. We accept as true, as we must at this
stage of the proceedings, that the issuance of the Memo
interfered with ICE’s ability to detain and deport Lopez-
Sanchez, and that ICE would have detained Lopez-Sanchez
had ICE been provided with his release date. We also
acknowledge Congress’s plenary or near plenary power over
immigration issues. See, e.g., Fiallo v. Bell, 430 U.S. 787,
792 (1977). Notwithstanding these principles, Plaintiffs fail
to cite any authority that required Sheriff Mirkarimi to
provide ICE with the release date. That Sheriff Mirkarimi’s
actions adversely affected ICE’s ability to do its job does
not, without more, strip him of the discretionary authority
under California law to institute the policy that he did.

     C. Legislative Act

    Plaintiffs argue that the Memo was an “act of legislating”
and that Sheriff Mirkarimi did not have authority to legislate.
Consequently, according to Plaintiffs, the Sheriff is not
entitled to immunity because he exceeded his discretionary
authority in issuing the Memo.

    Plaintiffs appear to believe that the Memo was a
legislative act because it involved policymaking by the
Sheriff. But action by a government official that involves
some weighing of policy is not the equivalent of a legislative
act. “‘Policy’ is a broad term that is not synonymous with
legislation.” Worthington v. City Council of Rohnert Park,
31 Cal. Rptr. 3d 59, 66 (Ct. App. 2005). To the extent that
Plaintiffs intended a more specific argument, they have not
         STEINLE V. CITY & COUNTY OF SAN FRANCISCO                     19

provided an adequate explanation to preserve it. See Fed. R.
App. P. 28(a)(8)(A) (“The appellant’s brief must contain . . .
the argument, which must contain . . . appellant’s
contentions and the reasons for them, with citations to the
authorities[.]” (emphasis added)); Indep. Towers of Wash. v.
Washington, 350 F.3d 925, 930 (9th Cir. 2003) (“We require
contentions to be accompanied by reasons.”).

    D. California Public Records Act

    Plaintiffs claim that the failure to provide ICE with
Lopez-Sanchez’s release date violated the California Public
Records Act (“CPRA”) and that the Sheriff lacked discretion
to contravene the CPRA. 12 The CPRA concerns “a request
for a copy of records.” 13 As alleged, though, ICE’s detainer
request was not a request for a copy of records under the
CPRA. Plaintiffs assert that “ICE sent a detainer request to
[the Sheriff’s Department] asking to be informed of Mr.

     12
        Plaintiffs do not explain why, even if there were such a violation,
the remedy under California law would be to allow a non-requesting
party to maintain an otherwise-barred tort suit.
    13
       Section 6253(b) of the CPRA provides, in pertinent part: “Except
with respect to public records exempt from disclosure by express
provisions of law, each state or local agency, upon a request for a copy
of records that reasonably describes an identifiable record or records,
shall make the records promptly available to any person[.]” Cal. Gov’t
Code § 6253(b) (emphasis added). Section 6253(c) states, in pertinent
part: “Each agency, upon a request for a copy of records, shall, within 10
days from receipt of the request, determine whether the request, in whole
or in part, seeks copies of disclosable public records in the possession of
the agency and shall promptly notify the person making the request of
the determination and the reasons therefor.” Id. § 6253(c). These
sections are distinct from separate provisions requiring agencies to keep
certain records open to “inspection” during regular hours. See id.
§ 6253(a). There is no allegation that ICE made a request to inspect
records.
20     STEINLE V. CITY & COUNTY OF SAN FRANCISCO

Sanchez’s release date.” The complaint states that a
“detainer request asks the receiving agency to perform two
tasks in regard to an undocumented immigrant in custody:
(1) to notify ICE forty-eight (48) hours prior to the release of
the undocumented immigrant so that ICE can assume
custody; and (2) to detain the individual until” ICE can
assume custody.

    Those allegations do not describe “a request for a copy
of records.” Additionally, even if ICE’s detainer request
were construed as a public records request for documents
reflecting a release date, the Sheriff’s Department did not
violate the CPRA because the CPRA does not require public
agencies to create records. See Sander v. State Bar of Cal.,
237 Cal. Rptr. 3d 276, 288 (Ct. App. 2018). There is no
allegation that the Sheriff’s Department had but withheld an
existing record with Lopez-Sanchez’s release date at the
time the detainer request was made. Plaintiffs’ contentions
based on the CPRA do not show that the Sheriff’s
Department’s failure to provide the release date information
to ICE contravened the CPRA.

     E. California Health and Safety Code Section 11369

    Plaintiffs argue that the Memo violated California Health
and Safety Code section 11369, which provides: “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.” 14 Contrary to
Plaintiffs’ argument, nothing in section 11369 requires the

     14
        California Health and Safety Code section 11369 was repealed
effective January 1, 2018.
       STEINLE V. CITY & COUNTY OF SAN FRANCISCO                   21

transmission of an inmate’s release date to ICE and, as noted
above, the complaint affirmatively asserts that ICE already
knew that Lopez-Sanchez was not a citizen of the United
States.

    Further, Plaintiffs allege that the federal government
transferred Lopez-Sanchez to the custody of the Sheriff’s
Department after he completed a federal prison sentence.
Accordingly, as the district court correctly ruled, section
11369 is inapplicable here because the Sheriff’s Department
was not the “arresting agency.” Plaintiffs’ allegations fail to
demonstrate any violation of section 11369.

    F. Other Local Laws

    Plaintiffs claim that other local laws prohibited Sheriff
Mirkarimi from limiting cooperation with ICE. They cite
section 67.24(d) of the San Francisco Administrative Code,
which provides in pertinent part: “The District Attorney,
Chief of Police, and Sheriff are encouraged to cooperate with
the press and other members of the public in allowing access
to local records pertaining to investigations, arrests, and
other law enforcement activity.” By its plain text,
section 67.24(d) simply “encourage[s]” cooperation; it does
not mandate cooperation.

    Plaintiffs also assert that San Francisco Administrative
Code section 12H.2-1 prohibited Sheriff Mirkarimi from
limiting cooperation with ICE. 15 Section 12H.2-1 at all
relevant times provided, in pertinent part:



     15
        San Francisco Administrative Code section 12H.2-1 was repealed
effective July 17, 2016.
22    STEINLE V. CITY & COUNTY OF SAN FRANCISCO

       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 . . . [; or]
       (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 . . . .

    However, this section does not, by express provision or
implication, mandate that the Sheriff (or any other officer)
provide information to ICE regarding a convicted felon—it
simply makes clear that the Chapter does not prohibit the
same. As the Chapter does not bar the Memo, it cannot have
the effect of stripping the Sheriff of his discretionary
authority.

    Plaintiffs also argue that, when read together,
section 6.105 of the San Francisco Charter (the “Charter”)
and section 8.27 of the San Francisco Administrative Code
require the Sheriff to cooperate with law enforcement
authorities, including ICE. Charter section 6.105 sets forth
the duties of the Sheriff and provides that, among other
duties, the Sheriff “shall . . . [r]eceive all prisoners
committed to jail by competent authorities.” Section 8.27
concerns the fixing of fees charged by the Sheriff’s
Department for the care and maintenance of prisoners from
other jurisdictions, for the furnishing of reports and other
       STEINLE V. CITY & COUNTY OF SAN FRANCISCO                     23

materials, and for the imprinting and processing of
fingerprints.

    Plaintiffs appear to reason that these sections require the
Sheriff to cooperate with ICE because, when receiving and
caring for prisoners from other jurisdictions, the Sheriff
necessarily must cooperate with other law enforcement
agencies. While it is necessary for the Sheriff to cooperate
with other law enforcement authorities in performing his
duties, there is no text in these sections that can be construed
as prohibiting the issuance of the Memo.

    In summary, Plaintiffs’ arguments fail to show that
Sheriff Mirkarimi lacked discretionary authority to issue the
Memo. We therefore hold that the issuance of the Memo
was a protected discretionary act under California
Government Code section 820.2 and that City Defendants
are immune from liability. See Cal. Gov’t Code § 815.2(b).

IV.      Leave to Amend

    During oral argument, Plaintiffs requested leave to
amend the complaint to remove all references to the Memo.
However, this issue is waived because Plaintiffs failed to
raise it in their opening brief. 16 See Balser v. Dep’t of
Justice, Office of U.S. Tr., 327 F.3d 903, 911 (9th Cir. 2003).
Even if the request had been properly raised on appeal
(which would have been difficult, as Plaintiffs never made
this argument below), the district court’s denial of leave to
amend was proper because Plaintiffs’ claims would not be
     16
        Plaintiffs requested leave to amend only if this court determined
that one specific allegation in the complaint was an admission that
Sheriff Mirkarimi had discretionary authority to issue the Memo. We
made no such determination, and our holding does not rest on such a
determination.
24        STEINLE V. CITY & COUNTY OF SAN FRANCISCO

saved by any amendment; the Memo, on its face, reflects a
basic policy decision entitled to discretionary immunity.17
See Carrico v. City & Cty. of San Francisco, 656 F.3d 1002,
1008 (9th Cir. 2011) (“[Leave to amend] is properly denied
. . . if amendment would be futile.”).

                          CONCLUSION

    Our holding today makes no judgment as to whether or
not the policy established by the Memo was wise or prudent.
That is not our job. “A federal court applying California law
must apply the law as it believes the California Supreme
Court would apply it.” Gravquick A/S v. Trimble Navigation
Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003). No part of
the California Supreme Court’s analysis looks at whether the
policy or planning function at issue is wise or unwise
because, of course, that is at the heart of the discretion that
is protected by the statutory immunity. See Caldwell,
897 P.2d at 1327 (“Johnson does not require a strictly
careful, thorough, formal, or correct evaluation. Such a
standard would swallow an immunity designed to protect
against claims of carelessness, malice, bad judgment, or
abuse of discretion in the formulation of policy.”).

     AFFIRMED.

     17
       Removing references to the Memo in their complaint would be
unavailing to Plaintiffs and would not assist them in overcoming the
incorporation by reference doctrine, because the Memo, which
established the policy of withholding release date information from ICE,
forms the basis of their claims. See Parrino v. FHP, Inc., 146 F.3d 699,
706 (9th Cir. 1998) (stating that the policy underlying the incorporation
by reference doctrine is to “[p]revent[] plaintiffs from surviving a Rule
12(b)(6) motion by deliberately omitting references to documents upon
which their claims are based”), superseded by statute on other grounds
as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681–
82 (9th Cir. 2006) (per curiam).
      STEINLE V. CITY & COUNTY OF SAN FRANCISCO             25

GRABER, Circuit Judge, concurring:

    I join the opinion, which relies on the general
discretionary-immunity statute, California Government
Code section 820.2, in full. I write separately to add that the
California legislature has provided an even clearer, specific
grant of immunity to Defendants in the present
circumstances.

    California Government Code section 845.8(a)
immunizes public employees from “[a]ny injury resulting
from determining whether to parole or release a prisoner or
from determining the terms and conditions of his parole or
release or from determining whether to revoke his parole or
release.”     California Government Code section 846
immunizes public employees from any “injury caused . . . by
the failure to retain an arrested person in custody.”

    As recognized by the California courts, the legislature
intended those grants of immunity to be specific applications
of the general discretionary-immunity statute.            E.g.,
Whitcombe v. County of Yolo, 141 Cal. Rptr. 189, 195 & n.10
(Ct. App. 1977). Moreover, when those specific immunity
statutes apply, we need not determine whether the
underlying acts were “discretionary” or “ministerial”
because the legislature “has already concluded that all
conduct within [the statutes’] terms is entitled to immunity.”
Id. at 197 & n.15. “[A] specific legislative mandate of
immunity effectively places beyond the pale of liability both
discretionary decisions themselves and their ministerial
implementations.” Id. at 198. Here, as in Whitcombe, “we
need not resort to th[e] general discretionary immunity
section,” because Defendants are immune under the specific
immunity statutes. Id. at 197; see also Carmack v. Reynolds,
391 P.3d 625, 632 (Cal. 2017) (“A specific provision relating
to a particular subject will govern in respect to that subject,
26    STEINLE V. CITY & COUNTY OF SAN FRANCISCO

as against a general provision, although the latter, standing
alone, would be broad enough to include the subject to which
the more particular provision relates.” (quoting Miller v.
Superior Court, 986 P.2d 170, 177 (Cal. 1999))).

    The specific immunity statutes apply here because
Plaintiffs’ entire claim rests on the manner in which a
prisoner was released (he was released without notifying
federal authorities). Even adopting Plaintiffs’ view that the
Memo, and not the release, caused the harm, the California
courts have construed sections 845.8(a) and 846 broadly to
encompass all “policy decisions . . . made prior to and as an
integral part of the ultimate basic decision to release.”
County of Santa Barbara v. Superior Court, 93 Cal. Rptr.
406, 410 (Cal. Ct. App. 1971).

    As the main opinion properly acknowledges, the events
underlying this case are tragic. And some of Plaintiffs’
claims remain to be litigated in the district court. We hold
only that, under California law, the state officials are
immune from suit.
