Also known as: discretionary function · discretionary function exception
Written by attorneys · grounded in primary & secondary sources — see 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.
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Deputies 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.
Federal 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.
The 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.
Officials 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.
Discretionary 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.
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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.
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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.
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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.
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…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…