Also known as: discretionary function · discretionary function exception
Written by attorneys — see sources below.
A category of official conduct involving the formulation of policy or the exercise of judgment in areas of governmental discretion, as opposed to the execution of ministerial duties that merely implement established rules. Such functions typically receive immunity from tort liability or support absolute rather than qualified immunity for high-level officials when closely tied to core executive responsibilities.
Deputy Director Harlan, a White House finance advisor, coordinated with regulators to freeze Ridge Equity accounts after receiving a presidential directive on foreign financial threats. Ridge Equity sued Harlan for violating clients' due-process rights. Because the restrictions involved policy judgments in a sensitive national-security area tied to presidential decisionmaking, Harlan received absolute immunity from the damages claim.
Attorney General Mitchell authorized a warrantless wiretap on a suspected domestic subversive group, claiming national-security needs. Forsyth sued Mitchell for violating Fourth Amendment rights. The court held that Mitchell performed a discretionary function but granted only qualified immunity because the conduct did not meet the narrow criteria for absolute immunity.
In 1970, the Federal Bureau of Investigation learned that members of the East Coast Conspiracy to Save Lives had planned to blow up heating tunnels linking federal office buildings in Washington, D.C. The group had also discussed kidnapping National Security Adviser Henry Kissinger. On November 6, 1970, then Attorney General John Mitchell authorized a warrantless wiretap on the telephone of William Davidon, a Haverford College physics professor and group member. The stated purpose was gathering intelligence in the interest of national security. The FBI installed the tap in late November 1970 and it remained in place until January 6, 1971. During that period the Government intercepted three conversations between Davidon and respondent Keith Forsyth. Forsyth learned of the wiretap in 1972 while facing unrelated criminal charges. He moved under 18 U.S.C. § 3504 for disclosure of any electronic surveillance to which he had been subjected. The Government's response revealed that Forsyth had participated in conversations overheard during surveillance expressly authorized by the President acting through the Attorney General. An affidavit from then Attorney General Richard Kleindienst stated the surveillance was authorized under the President's national security authority in 18 U.S.C. § 2511(3). Shortly after this Court decided United States v. United States District Court, 407 U.S. 297 (1972), Forsyth filed suit against Mitchell and other defendants in the United States District Court for the Eastern District of Pennsylvania. He alleged violations of the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968. He sought compensatory, statutory, and punitive damages. Discovery and preliminary proceedings continued for five and a half years. By early 1978 both parties had filed motions for summary judgment. The District Court found no genuine dispute that the FBI had informed Mitchell of the ECCSL plots, that Mitchell had authorized the warrantless tap on Davidon's phone, and that the ostensible purpose was national-security intelligence gathering. The court rejected Mitchell's claim to absolute prosecutorial immunity under Imbler v. Pachtman but held that he could assert qualified immunity. Neither side had established the absence of a genuine issue of material fact as to his good faith, so the court denied both summary-judgment motions. Mitchell appealed the denial of absolute immunity. The Third Circuit remanded for further factfinding on whether the authorization was necessary to a decision to initiate a criminal prosecution. On remand the District Court held a hearing and concluded that Mitchell's authorization was not intended to facilitate any prosecutorial decision. After this Court decided Harlow v. Fitzgerald, 457 U.S. 800 (1982), the District Court reconsidered qualified immunity, denied Mitchell's motion for summary judgment, granted Forsyth's motion on liability, and scheduled proceedings on damages. Mitchell again appealed. The Third Circuit held that it had jurisdiction over the absolute-immunity denial but that the qualified-immunity denial was not appealable under the collateral-order doctrine, and it remanded for further proceedings. Mitchell petitioned for certiorari, which this Court granted.
View caseDeputies Layne and others invited a newspaper reporter to accompany them during the execution of an arrest warrant at the Layne home. The Laynes sued the deputies for violating their Fourth Amendment rights. Because the media presence served no law-enforcement purpose and violated clearly established rights, the deputies received only qualified immunity for their discretionary arrest decisions.
In early 1992 the Attorney General approved Operation Gunsmoke, a national program in which United States Marshals and local police targeted armed fugitives wanted for serious drug and violent felonies. One target was Dominic Wilson, who had violated probation on robbery, theft, and assault charges and whose computer record listed caution indicators for being armed and resisting arrest. The listed address was 909 North Stone Street Avenue in Rockville, Maryland, the home of his parents Charles and Geraldine Wilson. In April 1992 the Circuit Court for Montgomery County issued three arrest warrants for Dominic Wilson addressed to any peace officer and commanding immediate arrest; the warrants contained no reference to media presence. On April 16, 1992 a Gunsmoke team of Deputy United States Marshals and Montgomery County officers assembled to execute the warrants. The team was accompanied by a Washington Post reporter and photographer invited under the Marshals Service ride-along policy. Shortly after 6:45 a.m. the officers entered the Wilson home. Charles Wilson, wearing only briefs, confronted the armed men in street clothes and was subdued on the living-room floor. Geraldine Wilson, wearing only a nightgown, entered and saw her husband restrained. After a protective sweep revealed Dominic Wilson was absent, the officers left; during the entry the Post photographer took numerous pictures while the reporter observed. The Washington Post never published the photographs. Charles and Geraldine Wilson sued the federal officers under Bivens and the county officers under 42 U.S.C. § 1983, alleging that the media presence during the warrant execution violated their Fourth Amendment rights. The district court denied the officers’ motion for summary judgment on qualified-immunity grounds. On interlocutory appeal a Fourth Circuit panel reversed; after two en banc rehearings the court upheld qualified immunity without deciding whether the media presence violated the Fourth Amendment. The Fourth Circuit reasoned that no prior decision had held media entry into a home during warrant execution unconstitutional, so the asserted right was not clearly established. Noting a circuit split on the issue, the Supreme Court granted certiorari.
View caseFederal narcotics agents searched Bivens's apartment without a warrant and used excessive force. Bivens sued the agents for Fourth Amendment violations. The agents performed discretionary investigative functions but received only qualified immunity because their conduct violated clearly established constitutional rights.
On the morning of November 26, 1965, agents of the Federal Bureau of Narcotics entered Webster Bivens's apartment in the Bronx. The agents broke open the door, handcuffed Bivens in front of his wife and young children, and thoroughly searched the apartment. They then transported Bivens to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search. Several days later Bivens was released on his own recognizance, and he was never indicted or prosecuted for any offense. Bivens filed suit in the United States District Court for the Eastern District of New York against the six agents in their individual capacities. His complaint sought fifteen thousand dollars in damages from each agent and alleged that the arrest and search were effected without a warrant, that unreasonable force was employed, and that the arrest was made without probable cause. Bivens claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents' conduct. The District Court dismissed the complaint on the ground that it failed to state a cause of action. The United States Court of Appeals for the Second Circuit affirmed the dismissal. The Supreme Court of the United States granted certiorari to review the judgment.
View caseThe West Virginia State Board of Education adopted a policy requiring students to salute the flag and recite the Pledge of Allegiance. Students who refused on religious grounds were expelled and sued the board. The board exercised discretionary policy-making authority in education, yet the policy violated clearly established First Amendment rights and received no immunity.
Following the Supreme Court's 1940 decision in Minersville School District v. Gobitis, the West Virginia legislature amended its statutes to require all schools in the state to conduct courses of instruction in history, civics, and the Constitutions of the United States and West Virginia for the purpose of teaching, fostering, and perpetuating the ideals, principles, and spirit of Americanism. The State Board of Education was directed to prescribe the courses of study covering these subjects for public schools. Private, parochial, and denominational schools were required to prescribe similar courses. On January 9, 1942, the West Virginia State Board of Education adopted a resolution ordering that the salute to the flag become a regular part of the program of activities in the public schools, with all teachers and pupils required to participate. The resolution specified the stiff-arm salute with the right hand raised and palm turned up while repeating the pledge: "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all." Refusal to salute was defined as an act of insubordination to be dealt with by expulsion. Readmission was denied by statute until compliance. The expelled child was treated as unlawfully absent. Parents or guardians faced prosecution with fines not exceeding $50 and jail terms not exceeding thirty days. The appellees are citizens of the United States and West Virginia who are Jehovah's Witnesses, an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which prohibits making or bowing down to any graven image or likeness. They consider the flag an image within this command, leading them to refuse to salute it on religious grounds. Children of the appellees who were pupils in the public schools were expelled for their refusal to salute the flag and take the pledge of allegiance. Their parents were prosecuted for causing delinquency. Officials threatened to send the children to reformatories maintained for criminally inclined juveniles. The appellees brought suit in the United States District Court for themselves and others similarly situated to enjoin enforcement of the laws and regulations against them. The Board of Education moved to dismiss the complaint setting forth these facts. The complaint alleged that the law and regulations denied religious freedom and freedom of speech and were invalid under the due process and equal protection clauses of the Fourteenth Amendment. The cause was submitted on the pleadings to a District Court of three judges, which restrained enforcement as to the plaintiffs and those of that class. The Board of Education brought the case to the Supreme Court by direct appeal.
View caseOfficials at Pennhurst State School decided to transfer residents with developmental disabilities to community placements without following statutory procedures. Residents sued the officials for violating federal rights. The officials exercised discretionary functions in allocating limited state resources, but the decisions violated clearly established statutory rights and received only qualified immunity.
In 1974 Terri Lee Halderman, a resident of Pennhurst State School and Hospital, filed suit in the District Court for the Eastern District of Pennsylvania. The case became a class action on behalf of all present and future residents of the institution. The Pennsylvania Association for Retarded Citizens and the United States joined as plaintiffs. Defendants included Pennhurst and its officials, the Pennsylvania Department of Public Welfare and its officials, and county officials from five surrounding counties. The amended complaint alleged that conditions at Pennhurst violated rights under the Eighth and Fourteenth Amendments, section 504 of the Rehabilitation Act of 1973, the Developmentally Disabled Assistance and Bill of Rights Act, and the Pennsylvania Mental Health and Mental Retardation Act of 1966. Both damages and injunctive relief were sought. After a lengthy trial the District Court found in 1977 that conditions were dangerous, with residents often physically abused or drugged by staff, and inadequate for habilitation. Some residents suffered deterioration in physical, intellectual, and emotional skills. The court ordered immediate steps to remove residents from Pennhurst, directed the provision of community living arrangements, and appointed a Special Master with broad supervisory powers. The Court of Appeals affirmed most of the judgment in 1979 but remanded for individual determinations regarding institutionalization. On further remand the District Court established procedures for individual habilitation plans and appointed a Hearing Master. This Court in 1981 reversed the Court of Appeals' reliance on federal statutory grounds and remanded for consideration of state-law, constitutional, and section 504 claims. On remand the Court of Appeals in 1982 reinstated its prior judgment solely on the state Mental Health and Mental Retardation Act after the Pennsylvania Supreme Court decision in In re Schmidt. It rejected Eleventh Amendment and abstention challenges. The Supreme Court granted certiorari in 1982. The District Court had found that the individual defendants acted in good faith within the sphere of their official responsibilities despite staff shortages and limited resources.
View caseDiscretionary functions involve policy formulation and the exercise of judgment, while ministerial acts merely implement established rules or policies. Many states retain immunity only for discretionary functions because policy choices are better reviewed through elections than tort suits.
Presidential aides receive absolute immunity only when performing discretionary functions in sensitive areas of national concern, such as foreign affairs, that are closely tied to presidential decisionmaking. In all other circumstances they receive only qualified immunity.
Supporting sources
No. Officials performing discretionary functions receive qualified immunity only if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Violation of such rights defeats the immunity defense.
Supporting sources
The Federal Tort Claims Act bars claims based upon the exercise or performance of a discretionary function by a federal agency or employee, regardless of whether the discretion is abused. This exception preserves governmental freedom to make policy choices without fear of tort liability.
Supporting sources
…State itself and all of its creatures — Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms…