Appeal from the United States District Court for the Southern District of California, John A. Houston, District Judge, Presiding, D.C. No. 3:06-cv-00860-JAH-LSP.
The opinion of the court was delivered by: B. Fletcher, Circuit Judge
Argued and Submitted February 4, 2010 -- Pasadena, California.
Before: Betty B. Fletcher, Harry Pregerson and Susan P. Graber, Circuit Judges.
Opinion by Judge B. Fletcher; Dissent by Judge Pregerson.
Marie Toomer and Jaya Marie Little ("Appellants"), the mother and daughter of Roderick Little ("Little"), appeal the district court's order granting summary judgment to the United States. Appellants brought suit under the Federal Tort Claims Act ("FTCA"), claiming that negligence by the United States caused Little's death. Little was standing in the parking lot of the Del Taco restaurant located across the street from the 32nd Street Naval Base ("Naval Base") in San Diego, California, when he was shot and killed by Myron Thomas ("Thomas"). Prior to the shooting, Little and Thomas had been fighting at Club Metro, a bar and dance club located on the Naval Base and operated by the United States. We hold that the United States is not liable for Little's death. Under California law, the United States' duty to protect Little from foreseeable criminal conduct extended only to the Naval Base, not to the Del Taco restaurant, which was outside the United States' ownership and control. We affirm.
BACKGROUND AND PROCEDURAL HISTORY
Club Metro is a bar and dance club located inside the Naval Base. It is operated by the U.S. government. Because fights at Club Metro are common, customers are required to pass through metal detectors before entering, and Club Metro posts security guards at the entrance and inside the building.
Roderick Little and Myron Thomas were at Club Metro the night of November 18, 2003. Each was with a group of friends. The two parties got into a fight on the dance floor. Security personnel intervened and put an end to the physical violence, although the Thomas group continued to make threatening gestures at Little and his friends. When Little's group left the club, they were confronted by the Thomas party, and another fight broke out in the parking lot. Club Metro security guards again intervened and instructed both groups to leave the Naval Base. They complied, although Thomas had to be physically restrained and brought back to his car by his friends.
The Naval Base posted two military security officers, Darrell Gordon and Juan Salazar, at the exit from the base. The officers were assigned to direct traffic, which was typically very heavy around the time Club Metro closed at 1:30 a.m. A dark car with shiny rims and military decals drove past the officers, and they heard someone inside the car say, "I'm going to do a 187." Both officers understood this to be a threat of murder; section 187 of the California Penal Code covers murder. Cal. Penal Code § 187. The person in the car was later identified as Thomas. Neither of the officers could see him at the time, and they were not able to take down the car's license plate number. Officer Gordon intended to report the threat to dispatch, which would have then notified the local police, but he was tied up directing traffic. Later Gordon did go over to the guard booth to use the phone to report the threat. Just as he picked up the receiver, he heard shots ring out.
Meanwhile, Thomas went to the apartment of Sergeant Kayzoski Sanders, his supervisor and friend. Thomas was living with Sanders temporarily. Thomas took Sanders's AK-47 automatic rifle. Sanders knew that Thomas had the automatic rifle and that Thomas was dangerous. He called Thomas to try and persuade him to return to the apartment. Instead, around 2:30 am, Thomas drove with a friend to the Del Taco restaurant located across the street from the Naval Base, where Club Metro patrons tended to hang out after the club had closed. Little was standing in the parking lot of the restaurant. While his friend was at the wheel, Thomas shot in the direction of Little and his friends. Little was killed, and several others were injured.
Subsequently, Thomas was convicted of second-degree murder.
Marie Toomer, Little's mother, and Jaya Marie Toomer, Little's daughter, brought suit against the United States for wrongful death, claiming that Little's death was the result of negligence by the United States. After discovery was complete, the district court granted summary judgment in favor of the United States, holding that California law did not impose on the United States an affirmative duty to protect Little from violent acts that occurred off the Naval Base. Plaintiffs now appeal.
 Under the FTCA, the United States can be held liable for Roderick Little's death if "a private individual under like circumstances" could be held liable for his death under California tort law. 28 U.S.C. § 2674. Appellants argue that the United States should be treated like a private night club operator for FTCA purposes. See United States v. Olson, 546 U.S. 43, 46-47 (2005). Based on that assumption, Appellants advance two theories of liability. First, the United States owed Little an affirmative duty to protect Little from third-party criminal conduct. Second, the United States voluntarily provided security services at Club Metro and had a duty to exercise reasonable care in performing those services. Appellants argue that the United States failed in both duties.
We agree with the district court that California law does not impose on the United States an affirmative duty to protect Little from criminal activity occurring outside the Naval Base. Even if the United States had such a duty, it was not obligated to protect Little from Thomas's criminal conduct because the drive-by shooting was not reasonably foreseeable. Furthermore, because the United States did not increase the risk of harm to Little by providing security services at Club Metro, it cannot be held liable on a ...