Schreiner v. Hodge

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 117,034

MARK T. SCHREINER,

Appellant,

v.

CHAD S. HODGE and DANNY SMITH,

Appellees.

SYLLABUS BY THE COURT

1.

When the material facts are not in dispute, an order granting summary judgment

presents only a question of law subject to de novo review.

2.

The Fourth Amendment to the United States Constitution prohibits state actors

from performing unreasonable searches or seizures. An officer effects a seizure when the

officer, through physical force or show of authority, has in some way restrained the

liberty of a citizen.

3.

A brief seizure is reasonable for purposes of the Fourth Amendment to the United

States Constitution when the officer has an articulable and reasonable suspicion, based in

fact, that the detained person is committing, has committed, or is about to commit a

crime.

1

4.

Whether a governmental entity is immune from liability under an immunity

exception of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., is a question of law

subject to de novo review. A governmental entity bears the burden to establish immunity

under an immunity exception to the Act.

5.

In determining whether a governmental action is a discretionary function for the

purposes of immunity under K.S.A. 75-6104(e), courts consider whether the judgment of

the governmental employee is of the nature and quality which the Legislature intended to

put beyond judicial review. The more a judgment involves the making of policy, the more

it is of a nature and quality to be recognized as inappropriate for judicial review.

However, Kansas Tort Claims Act immunity does not depend on the status of the

individual exercising discretion and thus may apply to discretionary decisions made at the

operational level as well as at the planning level.

6.

The determination of whether reasonable suspicion exists is an inherently

discretionary act because it requires officers to evaluate the totality of the circumstances

and make a judgment in light of their experience and training. And, generally, the types

of decisions officers make over the course of an investigation, including whether

reasonable suspicion exists to detain a person, are sufficiently grounded in policy to fall

within the discretionary function immunity provision of K.S.A. 75-6104(e).

7.

The plain language of K.S.A. 75-6104(e) shows that the Legislature intended for

immunity to apply to discretionary functions even when the exercise of discretion could

be characterized as erroneous or mistaken under the facts.

2

8.

The breach of a legal duty does not necessarily foreclose discretionary function

immunity as a defense against a tort claim.

9.

If an officer acts wantonly or maliciously, or if the officer breaches a specific duty

owed to an individual rather than the public at large, then discretionary function

immunity under K.S.A. 75-6104(e) does not apply.

Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 50, 407 P.3d 264 (2017).

Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed February 18, 2022. Judgment

of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Mark T. Schreiner, appellant pro se, argued the cause, and was on the briefs.

Christopher L. Heigele, of Coronado Katz LLC, of Kansas City, Missouri, argued the cause, and

was on the brief for appellees.

The opinion of the court was delivered by

WALL, J.: On an afternoon in June 2014, a police officer responded to a report of

suspicious activity in a residential area of Johnson County. During the investigation, the

officer encountered Mark T. Schreiner and detained him. Several other officers arrived at

the scene before Schreiner was eventually released. Schreiner later filed suit against two

of the responding officers to recover money damages under various state law tort

theories, which allegedly arose from this encounter.

The district court granted the defendants' motion for summary judgment. The

district court found the officers' conduct was privileged under common law because they

had reasonable suspicion to detain Schreiner. The district court also found the officers

3

were entitled to discretionary function immunity under the Kansas Tort Claims Act

(KTCA), K.S.A. 75-6101 et seq. The Court of Appeals affirmed the district court's order

in a split decision, and we granted Schreiner's petition for review.

After thorough review of the summary judgment record and analysis of the legal

arguments, we conclude the officers lacked reasonable suspicion to detain Schreiner as

part of their investigation. Thus, the officers' conduct was not privileged. Given this

holding, the controlling question on appeal is whether the KTCA grants the officers

immunity from Schreiner's state law tort claims. To resolve this question, we must

interpret K.S.A. 75-6104(e) to determine whether the Legislature intended discretionary

function immunity to apply, even though the officers' investigation did not satisfy Fourth

Amendment scrutiny.

Ultimately, we conclude the officers' reasonable suspicion determination

inherently required them to exercise judgment and discretion based largely on experience

and training. While the Fourth Amendment to the United States Constitution and Kansas

statute require officers to have reasonable suspicion before they may lawfully detain a

person without a warrant, that requirement does not alter the discretionary nature of the

officers' reasonable suspicion determination in the field. The plain language of the KTCA

extends immunity to government employees performing discretionary functions "whether

or not the discretion is abused." K.S.A. 75-6104(e).

Of course, the KTCA does not protect malicious or wanton misconduct or other

conduct in breach of a specific legal duty. But without evidence of such misconduct, we

conclude the officers are entitled to discretionary function immunity, even though their

reasonable suspicion determination ultimately proved to be mistaken when subjected to

after-the-fact scrutiny.

4

Therefore, we affirm the district court order granting summary judgment to the

defendants.

FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 2014, at approximately 12 p.m., Schreiner legally parked his truck,

which had Missouri license plates, on a residential street in Mission, Kansas. Schreiner

then exited his truck and walked south through a nearby wooded area.

Sometime later, someone called the police and reported Schreiner's truck as

"suspicious." Officer Chad Hodge was dispatched to investigate the truck. While en

route, Hodge learned that someone had previously reported the same vehicle parked in

the area and the same individual leaving that vehicle and entering the wooded area. In his

deposition, Hodge testified that he was also aware there had been peeping Toms, break-

ins, and car burglaries in the area. When Hodge arrived, Schreiner was not present.

Hodge collected the vehicle information and called it into dispatch.

At approximately 3 p.m., Schreiner returned to his truck through the wooded area.

Hodge had just finished calling Schreiner's information into dispatch and approached

Schreiner as he walked to his truck. Hodge asked Schreiner if the truck belonged to him.

Schreiner told Hodge he refused to answer any questions and asked if he was free to go.

Hodge told him yes, he was free to leave. Schreiner got into his truck, but Hodge took

control of his left arm and ordered him back out.

Hodge asked Schreiner his name and Schreiner provided his driver's license.

Hodge did not return the license when Schreiner asked for it back. After being denied his

license, Schreiner began walking away. He did not get far before Hodge "took control of

his right arm" and told Schreiner he was not under arrest, but not free to leave until the

investigation was complete. Schreiner yelled, "If I'm not free to leave then I'm under

5

arrest." Then, Schreiner spontaneously lay down on the ground in a "defensive position."

Undeterred, Hodge told Schreiner to get up and sit on the curb. Schreiner asked Hodge to

call his supervisor.

Eventually, Hodge's supervisor, Sergeant Danny Smith, arrived at the scene along

with two other officers. One of the officers was instructed to stand in front of Schreiner

and prevent him from leaving. Schreiner first told the officers that he would not answer

questions, but he ultimately relented. In his complaint, Schreiner alleged that he was

detained for over an hour. However, in his deposition, Schreiner did not dispute the

accuracy of dispatch records, which reflected that the encounter lasted less than an hour.

Hodge completed the investigation and determined that Schreiner had committed

no crime. In his deposition, Hodge estimated that the entire encounter lasted 20 to 25

minutes.

Acting pro se, Schreiner sued the officers for various state law tort claims

allegedly arising from his interaction with the officers. In his amended complaint,

Schreiner asserted claims for assault, battery, unlawful seizure, false arrest, and false

imprisonment against Hodge. Schreiner asserted claims for false arrest and false

imprisonment against Smith. Hodge and Smith moved for summary judgment. They

argued that Schreiner could not establish the elements of his claims because reasonable

suspicion of criminal activity rendered their actions privileged under common law. They

also asserted they were entitled to discretionary function immunity under the KTCA.

After a hearing, the district court granted summary judgment for the defendants.

From the bench, the district court ruled that the officers' actions were "justified" because

they were supported by reasonable suspicion of criminal activity and that the officers

were entitled to immunity under the KTCA because they were performing a discretionary

function. The district court's findings of fact and conclusions of law in support of the

6

summary judgment ruling were memorialized in its December 2, 2016, Journal Entry and

Judgment.

Schreiner appealed. A majority of the Court of Appeals panel affirmed the district

court's order granting summary judgment for the defendants. It held that reasonable

suspicion of criminal activity supported Schreiner's detention and thus the officers were

entitled to discretionary function immunity under K.S.A. 75-6104(e). Schreiner v. Hodge,

55 Kan. App. 2d 50, 60-61, 407 P.3d 264 (2017). We granted Schreiner's petition for

review.

ANALYSIS

Schreiner challenges the Court of Appeals' decision affirming the district court's

order granting summary judgment for Officer Hodge and Sergeant Smith.

I. Standard of Review and Legal Framework

The legal standard governing summary judgment is well established:

"'"Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as

a matter of law. The trial court is required to resolve all facts and inferences which may

reasonably be drawn from the evidence in favor of the party against whom the ruling is

sought. When opposing a motion for summary judgment, an adverse party must come

forward with evidence to establish a dispute as to a material fact. In order to preclude

summary judgment, the facts subject to the dispute must be material to the conclusive

issues in the case. On appeal, we apply the same rules and when we find reasonable

minds could differ as to the conclusions drawn from the evidence, summary judgment

must be denied."'" Patterson v. Cowley County, Kansas, 307 Kan. 616, 621, 413 P.3d

432 (2018).

7

When, as here, the material facts are not in dispute, an order granting summary judgment

presents only a question of law subject to de novo review. Jason Oil Company v. Littler,

310 Kan. 376, 380-81, 446 P.3d 1058 (2019).

Based on the uncontroverted facts, the district court concluded the defendants

were entitled to judgment as a matter of law for two reasons: (1) the officers' actions

were supported by reasonable suspicion of criminal activity and thus Schreiner could not

establish that the officers' privileged conduct satisfied the elements of Schreiner's tort

claims; and (2) the officers were immune from liability under K.S.A. 75-6104(e)—the

KTCA's discretionary function exception to liability.

A majority of the Court of Appeals agreed that the officers had reasonable

suspicion of criminal activity. Even so, it did not focus its analysis on the common-law

privilege issue. Instead, the majority held the officers were performing a discretionary

function when they stopped and investigated Schreiner, and consequently they were

immune from liability under K.S.A. 75-6104(e). See Schreiner, 55 Kan. App. 2d at 61-

63.

We begin our analysis by reviewing the reasonable suspicion issue. Then, we turn

our attention to the question of discretionary function immunity under the KTCA.

II. Schreiner's Detention Was Not Supported by Reasonable Suspicion

The Fourth Amendment to the United States Constitution prohibits state actors

from performing unreasonable searches or seizures. State v. Chavez-Majors, 310 Kan.

1048, 1053, 454 P.3d 600 (2019) (citing Mapp v. Ohio, 367 U.S. 643, 647, 655, 81 S. Ct.

1684, 6 L. Ed. 2d 1081 [1961]). An officer effects a seizure when "'"the officer, by means

8

of physical force or show of authority, has in some way restrained the liberty of a

citizen."'" State v. Reiss, 299 Kan. 291, 298, 326 P.3d 367 (2014).

A brief seizure is reasonable for Fourth Amendment purposes when "the officer

has an articulable and reasonable suspicion, based in fact, that the detained person is

committing, has committed, or is about to commit a crime." State v. Glover, 308 Kan.

590, 593, 422 P.3d 64 (2018) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L.

Ed. 2d 889 [1968]; State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 [1985]), rev'd on

other grounds, 589 U.S.__, 140 S. Ct. 1183, 206 L. Ed. 2d 412 (2020). We refer to this

type of constitutionally permissible seizure as an investigatory detention. Glover, 308

Kan. at 593. The Kansas Legislature has also codified law enforcement's authority to

conduct an investigatory detention based on reasonable suspicion. See K.S.A. 22-2402(1)

(granting officers discretion to stop any person the officer reasonably suspects of

committing a crime).

"To have reasonable suspicion to detain an individual, '[a] police officer must

be able to point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.'" Glover, 308 Kan. at 593

(quoting Terry, 392 U.S. at 21). We have recognized that "the suspicion must have '"a

particularized and objective basis"' and be something more than 'an unparticularized

suspicion or hunch.'" Glover, 308 Kan. at 593 (quoting State v. DeMarco, 263 Kan.

727, 735, 952 P.2d 1276 [1998]). "'What is reasonable depends on the totality of

circumstances in the view of a trained law enforcement officer.'" State v. Lowery, 308

Kan. 359, 366, 420 P.3d 456 (2018) (quoting State v. Martinez, 296 Kan. 482, 487, 293

P.3d 718 [2013]).

As the Court of Appeals observed, the seminal case on investigatory detention and

reasonable suspicion is Terry v. Ohio. In Terry, the United States Supreme Court held

that an officer did not violate the Fourth Amendment when he seized an individual

9

because the facts reasonably supported the officer's belief that the defendant was

preparing to participate in a robbery. 392 U.S. at 28. The Court noted that the defendant's

individual acts may have been innocent if considered in isolation, but

"the story is quite different where, as here, two men hover about a street corner for an

extended period of time, at the end of which it becomes apparent that they are not

waiting for anyone or anything; where these men pace alternately along an identical

route, pausing to stare in the same store window roughly 24 times; where each

completion of this route is followed immediately by a conference between the two men

on the corner; where they are joined in one of these conferences by a third man who

leaves swiftly; and where the two men finally follow the third and rejoin him a couple of

blocks away." 392 U.S. at 23.

The Court also noted that the officer had "30 years' experience in the detection of

thievery from stores in this same neighborhood," which bolstered the reasonableness of

his suspicions. 392 U.S. at 23.

A. Application of Fourth Amendment Principles to the Detention of Schreiner

The Court of Appeals majority saw parallels between the facts in this case and the

facts in Terry, but we disagree. In Terry, the officer observed the defendant for several

minutes before the stop. From this period of observation, the officer was able to point to

specific behaviors that, based on his extensive experience in detecting theft, led him to

suspect the defendant was preparing to commit robbery.

In contrast, Officer Hodge never articulated anything about Schreiner or

Schreiner's vehicle that led him to believe Schreiner was committing any crimes. During

his deposition, Hodge explained that upon arriving at Schreiner's truck, he considered all

the hypothetical crimes the absent driver could possibly be committing in the area:

10

"Okay. Initial thoughts upon arrival were why do I have a vehicle parked in a

residential area and the driver did not enter a residence. He entered the woods instead of a

residence. To me in my mind, what's running through my mind is where [is] this person

at, is he over in the apartment complex committing vehicle burglaries, is he walking

around in the neighborhood looking in windows, is he up at the businesses just to the

south trying to steal a car, trying to commit burglaries. Same things go with the apartment

complex just to the west. That's what was running through my head."

Nevertheless, Hodge stated that nothing about Schreiner's vehicle made him believe it

had been involved in a crime. Hodge also said he had not witnessed Schreiner commit

any crimes, and that Schreiner did not fit the description of any suspects from any known

crimes. And while Hodge found Schreiner's behavior to be "evasive" and "erratic," and

perceived Schreiner as "nervous," he never connected this to criminal activity.

The Court of Appeals majority also aligned this case with State v. Reason, 263

Kan. 405, 951 P.2d 538 (1997), but again we find the comparison inapt. In Reason, an

officer approached a luxury car with temporary out-of-state tags parked in a public

parking lot on a hot afternoon. He did not see anyone in or around the car, so he

suspected it might have been abandoned or was being stripped. When he approached, he

noticed Reason and another person inside the car who was asleep or unconscious. The

officer asked Reason if he was okay and whether he owned the vehicle. Reason provided

his name and said he owned the vehicle, but he also said his wallet had been stolen and

that he had no identification on him. The officer then began running warrant and vehicle

identification number (VIN) checks.

This court characterized the initial encounter—the officer's approach and initial

questions—as a voluntary encounter that did not trigger Fourth Amendment protections.

But as soon as the officer requested identification and registration and began running

warrant and VIN checks, the voluntary encounter began to resemble an investigatory

detention, at which point the officers would need to establish reasonable suspicion of

11

illegal activity to justify the detention. But even viewing the interaction as an

investigatory detention, this court concluded that the officers had reasonable suspicion

based on "Reason's claim of vehicle ownership without presenting any vehicle

registration or personal identification." 263 Kan. at 412.

The Court of Appeals majority here turned to Reason to hold that "Schreiner's

refusal to answer when Hodge asked if the truck was his certainly provided the officer

with justification to investigate." Schreiner, 55 Kan. App. 2d at 60. But Schreiner's case

is distinguishable from Reason because it did not begin with a voluntary encounter.

Schreiner refused to reply when Hodge asked if he owned the truck. Schreiner did not

voluntarily choose to engage with an officer, tell the officer that he owned the vehicle,

and then fail to produce evidence of vehicle registration or identification, as in Reason.

As Judge Atcheson pointed out in his dissent in this case, Schreiner's refusal to

answer questions cannot serve as a basis for reasonable suspicion. If the officers did not

have reasonable suspicion of criminal activity before Schreiner refused to answer

questions, as the majority implied, then the encounter with Hodge was only permissible

under the Constitution if it was a voluntary encounter. And we have acknowledged that a

person's "lack of response" during a voluntary encounter "cannot be weighed against him

[or her]." State v. Andrade-Reyes, 309 Kan. 1048, 1057, 442 P.3d 111 (2019).

"In a voluntary encounter, '[t]he person approached . . . need not answer any question put

to him; indeed, he may decline to listen to the questions at all and may go on his way.'

And if the person declines, '[h]e may not be detained even momentarily without

reasonable, objective grounds for doing so; and his refusal to listen or answer does not,

without more, furnish those grounds.' [Citations omitted.]" 309 Kan. at 1057.

The facts here are more akin to those in Andrade-Reyes, where this court held that

officers did not have reasonable suspicion to perform an investigatory detention. 309

Kan. at 1067. In Andrade-Reyes, just after midnight, two officers noticed a legally parked

12

car in a dark parking lot with two individuals inside. The officers approached the car and

directed flashlights inside. Andrade-Reyes, who was in the car, reached down toward the

floorboard and then sat upright with his hands clenched and held in front of him. The

officer asked Andrade-Reyes what was in his hands. Andrade-Reyes did not answer or

open his hands. He eventually moved one hand, dropped something on the ground, and

opened the hand to show the officer it was empty. The officer asked what was in his other

hand and then ordered him to open it. When Andrade-Reyes complied, he dropped a bag

of cocaine.

We concluded that the officers did not have reasonable suspicion of criminal

activity to support their investigatory detention—which consisted of one officer's

repeated requests and eventual order for Andrade-Reyes to open his hands. Before

Andrade-Reyes dropped the bag of cocaine,

"the officers knew only that, after midnight, Andrade-Reyes sat in a car legally parked in

a high-crime area, he was extremely nervous, he had reached toward the floor, his hands

were clenched, and he did not respond to Officer Larson's questions. These facts did not

cause either officer to articulate a subjective belief that a particular crime had occurred,

was occurring, or was about to occur or even that they reasonably suspected any criminal

activity." 309 Kan. at 1058.

Here, there are even fewer indicators of criminal activity than in Andrade-Reyes.

Schreiner left his truck legally parked in an area where officers were aware other crimes

had taken place. The officer had knowledge that Schreiner or someone driving

Schreiner's truck had done the same thing a few weeks earlier. Upon returning, Schreiner

refused to answer any of the officers' questions and attempted to leave. Neither officer

testified that he reasonably believed Schreiner had committed, was committing, or was

about to commit a crime. We conclude these circumstances do not support the lower

courts' conclusions that the officers had reasonable suspicion of criminal activity.

13

B. The Officers' Actions Were Not Privileged

The district court granted summary judgment for the defendants, in part, because

it concluded the defendants' actions were "justified" by their reasonable suspicion of

criminal activity and, consequently, Schreiner could not establish the elements of his tort

claims. Because we conclude the officers here lacked reasonable suspicion of criminal

activity, their conduct was not privileged. The district court erred when it granted

summary judgment on these grounds, and the Court of Appeals erred in affirming this

legal conclusion.

We must now determine whether the defendants were, nonetheless, entitled to

summary judgment based on discretionary function immunity under the KTCA.

III. The Officers Are Entitled to Discretionary Function Immunity Under the KTCA

The district court and the Court of Appeals concluded the defendants were entitled

to summary judgment under the KTCA because they were performing a discretionary

function when they committed the allegedly tortious conduct. Consistent with Judge

Atcheson's dissenting opinion, Schreiner argues the officers were not performing a

discretionary function because they stopped and investigated him without reasonable

suspicion of criminal activity.

A. Standard of Review and Legal Framework

As with the previous issue, our review of an order granting summary judgment

based on undisputed facts is unlimited. Jason Oil Company, 310 Kan. at 380-81.

Furthermore, this issue requires us to construe the immunity provisions of the KTCA.

"Whether 'a governmental entity is immune from liability under an immunity exception

of the [KTCA] is a matter of law. Accordingly, appellate review is de novo.'" Williams v.

14

C-U-Out Bail Bonds, 310 Kan. 775, 794, 450 P.3d 330 (2019) (quoting Soto v. City of

Bonner Springs, 291 Kan. 73, Syl. ¶ 4, 238 P.3d 278 [2010]).

To the extent this issue requires us to interpret the KTCA, the rules of statutory

construction also apply. The most fundamental rule of statutory construction is the intent

of the Legislature governs if that intent can be ascertained. State v. Spencer Gifts, 304

Kan. 755, 761, 374 P.3d 680 (2016). "Reliance on the plain and unambiguous language

of a statute is 'the best and only safe rule for determining the intent of the creators of a

written law.'" 304 Kan. at 761 (quoting Merryfield v. Sullivan, 301 Kan. 397, 399, 343

P.3d 515 [2015]). If there is ambiguity in the statute's language, we resort to legislative

history and canons of construction to glean the Legislature's intent. In re Paternity of

S.M.J. v. Ogle, 310 Kan. 211, 212-13, 444 P.3d 997 (2019).

B. The KTCA

Enacted in 1979, the KTCA transformed the law regarding governmental tort

liability in Kansas. Prior to its enactment, Kansas had adhered to the common law

doctrine of governmental immunity, which generally shielded cities, counties, and the

state from liability when their employees acted negligently or wrongfully. As this court

has explained,

"'The doctrine of governmental immunity was held to exempt governmental entities

from privately instituted civil suits without the expressed consent of the sovereign.

The doctrine was founded upon the belief the courts, which derived their power from

the sovereign, could not have been empowered to enforce such authority against the

sovereign; that the king could do no wrong, nor could he authorize such conduct while

acting in his sovereign capacity, for no man can do by his agents and officers that which

he cannot do by himself. Under the doctrine of immunity for governmental officers, the

common law recognized the necessity of permitting public officials to perform their

official duties free from the threat of personal liability.'" Collins v. Heavener Properties,

15

Inc., 245 Kan. 623, 628, 783 P.2d 883 (1989) (quoting Siple v. City of Topeka, 235 Kan.

267, 169-70, 679 P.2d 190 [1984]).

The KTCA modified this common-law doctrine and essentially subjected

governmental entities to vicarious liability under the doctrine of respondeat superior,

making such entities liable for the tortious conduct of their employees in the same way

that a private employer would be. Westerbeke, The Immunity Provisions in the Kansas

Tort Claims Act: The First Twenty-Five Years, 52 U. Kan. L. Rev. 939, 944 (2004).

The general rule of liability is set forth in K.S.A. 75-6103(a), which provides:

"Subject to the limitations of this act, each governmental entity shall be liable for

damages caused by the negligent or wrongful act or omission of any of its employees

while acting within the scope of their employment under circumstances where the

governmental entity, if a private person, would be liable under the laws of this state."

Consistent with K.S.A. 75-6103(a), we have frequently observed that "liability is

the rule and immunity is the exception" under the KTCA. Soto, 291 Kan. at 78. Yet, the

exceptions to the general rule of liability are numerous and confirm "there has been no

wholesale rejection of immunity by the Kansas Legislature." Robertson v. City of Topeka,

231 Kan. 358, 360, 644 P.2d 458 (1982); see also Mendoza v. Reno County, 235 Kan.

692, 693, 681 P.2d 676 (1984) ("There are, however, numerous exceptions to this general

rule of liability which 'indicates there has been no wholesale rejection of immunity by the

Kansas Legislature.'"); McAllister and Robinson, The Potential Civil Liability of Law

Enforcement Officers and Agencies, 67 J.K.B.A. 14, 16 (September 1998) (noting KTCA

"is far from a complete relinquishment of sovereign immunity from suit").

The KTCA enumerates 24 specific exceptions from liability. Among those

exceptions, the one most relevant to our analysis is the discretionary function immunity

provided under K.S.A. 75-6104(e), which states:

16

"A governmental entity or an employee acting within the scope of the employee's

employment shall not be liable for damages resulting from:

....

"(e) any claim based upon the exercise or performance or the failure to exercise or

perform a discretionary function or duty on the part of a governmental entity or

employee, whether or not the discretion is abused and regardless of the level of discretion

involved."

K.S.A. 75-6104 further clarifies that "[t]he enumeration of exceptions to liability in this

section shall not be construed to be exclusive nor as legislative intent to waive immunity

from liability in the performance or failure to perform any other act or function of a

discretionary nature."

C. Meaning and Scope of the KTCA's Discretionary Function Immunity

Provision

To determine whether K.S.A. 75-6104(e) bars Schreiner's tort claims, "the Court

must determine whether [defendants'] alleged tortious conduct occurred during the

performance of a discretionary function." Stead v. U.S.D. No. 259, 92 F. Supp. 3d 1088,

1113 (D. Kan. 2015). A governmental entity bears the burden to establish immunity

under this exception. Williams, 310 Kan. at 795 (citing Soto, 291 Kan. 73, Syl. ¶ 5). But

this framework begs the question: "What constitutes a discretionary function?"

The KTCA does not define the term "discretionary function," and the legislative

history offers no insight into the intended meaning. However, K.S.A. 75-6104(e) is

patterned after a provision in the Federal Tort Claims Act (FTCA) that likewise carves

out immunity for discretionary functions. Carpenter v. Johnson, 231 Kan. 783, 785, 649

P.2d 400 (1982); Robertson, 231 Kan. at 360. And we have previously looked to the

17

interpretation of the FTCA's discretionary function exception in construing the meaning

of K.S.A. 75-6104(e). See Robertson, 231 Kan. at 360-62.

K.S.A. 75-6104(e)'s federal counterpart provides that the FTCA's liability

provisions do not apply to:

"Any claim based upon an act or omission of an employee of the Government, exercising

due care, in the execution of a statute or regulation, whether or not such statute or

regulation be valid, or based upon the exercise or performance or the failure to exercise

or perform a discretionary function or duty on the part of a federal agency or an employee

of the Government, whether or not the discretion involved be abused." 28 U.S.C.

§ 2680(a) (2018).

The FTCA's discretionary function exception applies only to those acts that

"'involv[e] an element of judgment or choice.'" United States v. Gaubert, 499 U.S. 315,

322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991) (quoting Berkovitz v. United States, 486

U.S. 531, 536, 108 S. Ct. 1954, 100 L. Ed. 2d 531 [1988]). But not every act involving an

element of judgment will qualify for immunity. Rather, "[b]ecause the purpose of the

exception is to 'prevent judicial "second-guessing" of legislative and administrative

decisions grounded in social, economic, and political policy through the medium of an

action in tort,' . . . the exception 'protects only governmental actions and decisions based

on considerations of public policy.' [Citations omitted.]" Gaubert, 499 U.S. at 323.

Even so, courts have not narrowly construed the immunity provision to apply

only to those decisions made by personnel at the planning or policy-making level of

government (to the exclusion of decisions made by personnel at the operational or

management level of government). 499 U.S. at 325. Indeed, government employees at

the operational and management level frequently exercise discretion based on, or in

furtherance of, established policy considerations. Thus, whether the FTCA's discretionary

18

function exception applies depends not on "'the status of the actor'" but rather "'the nature

of the conduct.'" 499 U.S. at 325.

We have interpreted K.S.A. 75-6104(e) in a similar fashion, recognizing it is the

nature and quality of the discretion exercised, rather than the status of the employee, that

determines whether certain acts or omissions are entitled to immunity. See Soto, 291 Kan.

73, Syl. ¶ 6 ("In deciding whether the discretionary function exception of the Kansas Tort

Claims Act applies, it is the nature and quality of the discretion exercised which should

be the focus rather than the status of the employee exercising the discretion."). This

construction is bolstered by the Legislature's 1987 amendment to K.S.A. 75-6104(e),

which clarified that discretionary function immunity would apply "regardless of the level

of discretion exercised." L. 1987, ch. 353, sec. 3.

Thus, to determine whether a government employee's function or duty is

discretionary for the purposes of the KTCA, courts must ask "whether the judgment of

the governmental employee is of the nature and quality which the legislature intended to

put beyond judicial review." Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 452, 912

P.2d 729 (1996). "'The more a judgment involves the making of policy[,] the more it is of

a "nature and quality" to be recognized as inappropriate for judicial review.'" Thomas v.

Board of Shawnee County Comm'rs, 293 Kan. 208, 234, 262 P.3d 336 (2011) (quoting

Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348,

365, 819 P.2d 587 [1991]). However, "'[KTCA] immunity does not depend upon the

status of the individual exercising discretion and thus may apply to discretionary

decisions made at the operational level as well as at the planning level.'" Thomas, 293

Kan. at 235 (quoting Westerbeke, 52 U. Kan. L. Rev. at 960).

19

D. Police Investigations and Reasonable Suspicion Determinations Fall Within

the Scope of K.S.A. 75-6104(e)

With this analysis in mind, we turn to the conduct in question. Schreiner's tort

claims arose from the officers' investigation of a citizen's report of suspicious activity

and, more specifically, their determination that the totality of the circumstances created

reasonable suspicion to detain Schreiner during the investigatory process.

We have consistently found the investigatory methods and procedures employed

by governmental employees to be matters requiring the exercise of judgment and

discretion. Soto, 291 Kan. at 85 (noting by way of example that "the precise steps to be

taken . . . to verify personally identifying information," the "manner of conducting an

investigation," and the "people to whom social workers converse in supervising child

placements" are discretionary functions); see also Awad v. United States, 807 Fed. Appx.

876, 880 (10th Cir. 2020) (unpublished opinion) (manner in which law enforcement

agents conduct their investigation and identify suspects involves elements of judgment or

choice).

Likewise, an officer's determination whether reasonable suspicion exists is an

inherently discretionary process. Before officers decide to detain or stop a person, they

must evaluate the totality of the circumstances and determine whether reasonable

suspicion exists—a judgment officers make based largely on their experience and

training. See Lowery, 308 Kan. at 366. As such, law enforcement's reasonable suspicion

determination necessarily entails the exercise of judgment and discretion. See Thomas,

293 Kan. at 234-35 (whether a particular judgment requires a government employee to

use his or her expertise is a factor relevant to determining whether a particular act is

discretionary); see also Odom v. Wayne Co., 482 Mich. 459, 476, 760 N.W.2d 217 (2008)

(characterizing officers' exercise of judgment "to determine whether there is reasonable

suspicion to investigate" as a discretionary, rather than ministerial, act); Beattie v. Smith,

20

543 Fed. Appx. 850, 860 (10th Cir. 2013) (unpublished opinion) (applying Kansas law

and finding officers' determination that probable cause existed based on their

investigation of a report of potential criminal activity is a discretionary function);

Magnan v. Doe, Civil No. 11-753 (JNE/SER), 2012 WL 5247325, at *14 (D. Minn.

2012) (unpublished opinion) ("The determination of whether sufficient reasonable

suspicion is present to detain a person or seize property is a discretionary decision made

by police officers.").

Moreover, an officer's exercise of this discretion in the field implicates matters of

policy sufficient to invoke K.S.A. 75-6104(e). For one, officers investigating potential

crimes, like Hodge and Smith, are acting within the scope of their employment to provide

police protection, a traditional governmental function. See Woods v. Homes & Structures

of Pittsburg, Kansas, 489 F. Supp. 1270, 1296 (D. Kan. 1980). Where the conduct in

question relates to the performance of traditional governmental functions, we have

typically found the conduct to be sufficiently policy-oriented to remove it from judicial

second-guessing and place it within the scope of K.S.A. 75-6104(e). See, e.g., Bolyard,

259 Kan. at 455 (SRS's placement decision to protect child's welfare); Mills v. City of

Overland Park, 251 Kan. 434, 446-48, 837 P.2d 370 (1992) (law enforcement officers'

decision not to detain intoxicated patron); Robertson, 231 Kan. at 362-63 (law

enforcement officers' decision to remove homeowner from premises rather than

trespasser).

Furthermore, law enforcement's authority to detain third parties has been

established as a matter of policy through K.S.A. 22-2402(1). That statute provides that,

"[w]ithout making an arrest, a law enforcement officer may stop any person in a public

place whom such officer reasonably suspects is committing, has committed or is about

to commit a crime." (Emphasis added.) K.S.A. 22-2402(1). As the Court of Appeals

observed, the statute's use of the term "may" is significant because it reflects the

discretionary nature of an investigatory stop—law enforcement officers have the choice

21

to stop someone when reasonable suspicion exists, but they are not required to do so. See

Schreiner, 55 Kan. App. 2d at 54. And, as previously noted, an officer's determination

whether reasonable suspicion exists inherently requires an exercise of discretion based on

the officer's experience and training. Because the Legislature defined this authority (and

related conditions and limitations) in statute, we presume the exercise of such powers to

be sufficiently grounded in governmental policy to fall within the scope of K.S.A. 75-

6104(e). See Gaubert, 499 U.S. at 324 ("When established governmental policy, as

expressed or implied by statute . . . allows a Government agent to exercise discretion, it

must be presumed that the agent's acts are grounded in policy when exercising that

discretion.").

Finally, the investigation of a report of criminal activity requires officers to

make informed judgments on a variety of other policy-related matters. These decisions

include, for example, whether the potential threat to public safety and the totality of the

circumstances justify detention of a suspect, what investigative techniques are most

appropriate, and what resources to allocate to a particular investigation. In turn, these

discretionary decisions are grounded in economic, political, and social policy

considerations. See Awad, 807 Fed. Appx. at 881 (describing how federal agents'

"decision whether to investigate, as well as decisions concerning the nature and extent of

an investigation, are subject to economic, political, and social policy considerations").

For these reasons, we conclude that an officer's decision whether and how to

investigate a crime, along with their reasonable suspicion determination, require the type

of policy-based judgments the Legislature intended to insulate from tort liability under

the discretionary function exception in K.S.A. 75-6104(e).

22

E. The Lack of Reasonable Suspicion Does Not Preclude Discretionary Function

Immunity

Schreiner and the dissent contend that our holding on the issue of privilege, i.e.,

that defendants lacked objectively reasonable suspicion to detain Schreiner under Fourth

Amendment standards, forecloses discretionary function immunity as a matter of law.

They reason that law enforcement officers lack discretion to violate the Fourth

Amendment, or K.S.A. 22-2402(1) for that matter, and thus those provisions stripped

defendants' conduct of its discretionary nature.

But whether defendants, in fact, correctly determined that reasonable suspicion

existed under Fourth Amendment standards is a red herring. Here, our task is to properly

construe the KTCA. And the plain language of K.S.A. 75-6104(e) simply does not

support a rule that precludes discretionary function immunity any time a court

determines, in hindsight, that the government employee's judgment was erroneous,

mistaken, or otherwise constituted an abuse of discretion.

The plain language of K.S.A. 75-6104(e) extends discretionary function immunity

to government employees exercising or failing to exercise a discretionary function,

"whether or not the discretion is abused." The plain meaning of this phrase signifies that

the Legislature intended immunity to apply to discretionary functions even when the

exercise of discretion could be characterized as erroneous, mistaken, or even

unconstitutional. See Shivers v. United States, 1 F.4th 924, 930 (11th Cir. 2021)

(construing similar language under FTCA and concluding that "there is nothing in the

statutory language that limits application of this exception based on the 'degree' of the

abuse of discretion or the egregiousness of the employee's performance"; "Congress

could have adopted language that carved out certain behavior from this exception—for

example . . . a constitutional violation," but did not do so); Linder v. United States, 937

F.3d 1087, 1091 (7th Cir. 2019) (rejecting plaintiff's argument that no one has discretion

23

to violate the Constitution; nothing in the language of the FTCA "suggests that some

discretionary but tortious acts are outside the FTCA while others aren't"); Kiiskila v.

United States, 466 F.2d 626, 627-28 (7th Cir. 1972) (plaintiff's "exclusion from Fort

Sheridan was based upon Colonel Nichols' exercise of discretion, albeit constitutionally

repugnant, and therefore excepted her claim from the reach of the [FTCA] under 28

U.S.C. § 2680[a]"). In other words, the key inquiry under K.S.A. 75-6104(e) is "not

about how poorly, abusively, or unconstitutionally the employee exercised his or her

discretion but whether the underlying function or duty itself was a discretionary one."

Shivers, 1 F.4th at 931 (interpreting discretionary function immunity under FTCA).

Consistent with this interpretation, we have held that the breach of a legal duty

does not necessarily foreclose discretionary function immunity under the KTCA. See

Soto, 291 Kan. at 80 ("[I]f there is a duty owed [and breached], the discretionary function

exception to liability is not necessarily barred as a defense."); Schmidt v. HTG, Inc., 265

Kan. 372, 392, 961 P.2d 677 (1998) ("Although governmental entities do not have

discretion to violate a legal duty, we have not held that the existence of any duty deprives

the State of immunity under the discretionary function exception."). After all, a tort, by

definition, involves the breach of a legal duty. See Mills, 251 Kan. at 445 ("A tort is a

violation of a duty imposed by law."). If all alleged breaches of a legal duty foreclosed

immunity under K.S.A. 75-6104(e), that provision would never apply in common-law

tort actions and K.S.A. 75-6104(e) would be rendered meaningless. See Soto, 291 Kan. at

80. Such an interpretation cannot withstand scrutiny under our traditional canons of

construction. See In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014) (court

favors statutory constructions that give effect to every part of a legislative act and do not

render any portion thereof useless).

Therefore, even if Hodge and Smith were mistaken, their reasonable suspicion

determination was still a discretionary function immune from tort liability. The Tenth

Circuit's analysis in Awad is instructive on this point. There, Awad sued the federal

24

government for negligence, false arrest, and false imprisonment after United States Drug

Enforcement Administration (DEA) agents mistakenly identified him as the perpetrator

of a crime and arrested him. The government invoked discretionary function immunity

under the FTCA, and the district court granted summary judgment in favor of the

government.

On appeal, Awad argued the DEA agents lacked probable cause to arrest him and

thus discretionary function immunity did not apply because the constitutional violation

deprived the agents of discretion. The Tenth Circuit was unconvinced that the immunity

question turned on the correctness of the agents' probable cause determination:

"[P]robable probable cause is a constitutional requirement of any arrest, but Awad cites

nothing that requires DEA agents to follow a 'prescribe[d] course of action' in gathering

probable cause and identifying a suspect. Indeed, deciding whether probable cause has

been established involves discretion and judgment; the requirement for probable cause to

exist does not make the ultimate, evaluative decision non-discretionary. Even if they were

mistaken, the DEA agents made a discretionary determination that probable cause to

arrest Awad existed. Awad's insistence that their initial evaluation was wrong does not

inform this debate; it is irrelevant to our analysis. [Citations omitted.]" Awad, 807 Fed.

Appx. at 880-81.

Awad makes clear, the focus of our inquiry under K.S.A. 75-6104(e) is not on whether

the officers correctly determined that the reasonable suspicion requirement had been met.

Rather, the relevant inquiry is whether the underlying act was discretionary in nature. See

Shivers, 1 F.4th at 931; Linder, 937 F.3d at 1091.

Consistent with Awad, we held in Robertson that K.S.A. 75-6104(e) applies even

where a court's post-hoc analysis reveals that law enforcement made mistakes or errors in

judgment while exercising discretionary authority. There, defendant summoned police

officers to his house to remove a trespasser, but rather than remove the trespasser, the

25

officers ordered Robertson to leave. Soon after, the trespasser set fire to Robertson's

house. Robertson sued the officers for negligence, but we held that the officers' on-the-

scene decisions, made in the absence of mandatory guidelines, were entitled to

discretionary function immunity, even if those decisions appeared erroneous in hindsight.

Robertson, 231 Kan. at 362-63. We explained:

"It would be virtually impossible for police departments to establish specific guidelines

designed to anticipate every situation an officer might encounter in the course of his

work. Absent such guidelines, police officers should be vested with the necessary

discretionary authority to act in a manner which they deem appropriate without the threat

of potentially large tort judgments against the city, if not against the officers personally.

....

"Failure to distinguish between the time frame in which police officers are

required to take action and the factual situation presented to the court by a claimant in his

petition, as here, could lead to disastrous results. The court is in the position of a

Monday-morning quarterback. The facts with which the court must deal are established.

The critical time material to the exercise of judgment by the police officers was at the

scene of the incident . . . . In our opinion the legislature did not intend to impose on

police officers the obligation to ascertain the true state of the facts within such limited

time frame at their peril. The police officers were not required to exercise judgment at

their peril. This interpretation of the discretionary function exception in the Kansas Tort

Claims Act gives it substance." 231 Kan. at 362-63.

Granted, we have held that discretionary function immunity does not apply when

a clearly defined mandatory duty exists. Schreiner and the dissent suggest the Fourth

Amendment and K.S.A. 22-2402 create such a mandatory duty. Contrary to their

assertions, the reasonable suspicion requirement cannot be characterized as a clearly

defined mandatory duty. Such a mandatory duty may arise from agency directive,

caselaw, or statute. Montgomery v. Saleh, 311 Kan. 649, 664-65, 466 P.3d 902 (2020)

(citing Soto, 291 Kan. at 80). And it must "leave[] little to no room for individual

26

decision making, exercise of judgment, or use of skill, and qualify[] a defendant's actions

as ministerial rather than discretionary." Thomas, 293 Kan. at 235. In other words, a

"clearly defined mandatory duty" is one that completely governs or prescribes the

required course of conduct under the circumstances, leaving no room for governmental

employees to exercise independent discretion or judgment.

Undoubtedly, both the Fourth Amendment and K.S.A. 22-2402 require officers to

have reasonable suspicion of criminal activity before detaining a person. But neither

provision sets forth a mandatory process or protocol that officers must follow in

determining whether reasonable suspicion exists under the totality of the circumstances.

Nor has the Legislature or police department undertaken the almost certainly impossible

task of delineating every possible set of facts which may give rise to reasonable suspicion

and committing them to policy. Thus, the officers' reasonable suspicion determination

remains an inherently discretionary process that is not subject to or controlled by any

clearly defined mandatory duty. In fact, here, both the district court and the Court of

Appeals majority concluded that Hodge and Smith did have reasonable suspicion to

detain Schreiner. While anecdotal, the lower courts' decisions illustrate why the

reasonable suspicion requirement is not properly characterized as a clearly defined

mandatory duty. Cf. Shivers, 1 F.4th at 931 (Eighth Amendment contains no specific

directive as to inmate classifications or housing placements and plaintiff's allegations of

an Eighth Amendment violation cannot demonstrate a breach of a mandatory duty

sufficient to overcome discretionary function immunity under the FTCA).

In accord with Shivers, Linder, Awad, and Robertson, we read the plain language

of K.S.A. 75-6104(e) to leave no room for a statutory construction exposing officers to

tort liability if their in-the-moment judgment fails to satisfy after-the-fact constitutional

scrutiny. To effectively perform their core governmental functions, K.S.A. 75-6104(e)

requires law enforcement officers be afforded discretion to determine the existence of

reasonable suspicion based on their experience and training, free from the deterring

27

influence of potential tort liability. The Legislature left no room for the extra-textual

constitutional-claims exclusion for which Schreiner and the dissent advocate. See

Shivers, 1 F.4th at 930. Accordingly, we hold that Hodge's and Smith's conduct falls

within the scope of K.S.A. 75-6104(e), even though our post-hoc analysis reveals that the

officers were mistaken in their judgment regarding the existence of reasonable suspicion.

However, this does not mean that officers may engage in any type of investigatory

conduct with impunity. K.S.A. 75-6104(e) grants immunity from liability for damages

arising from the officer's exercise of discretion. "The term 'discretion' imparts the

exercise of judgment, wisdom and skill, as distinguished from unthinking folly, heady

violence and rash injustice." Hopkins v. State, 237 Kan. 601, 612, 702 P.2d 311 (1985).

Thus, the phrase "whether or not the discretion is abused" in K.S.A. 75-6104(e) does not

insulate malicious or wanton conduct because such conduct reflects the absence of

discretion, not its abuse. Hopkins, 237 Kan. at 612 ("If the officers acted needlessly,

maliciously or wantonly, resulting in injury to the plaintiff's property, the officers acted

outside the protection of the act."); see Barrett v. U.S.D. No. 259, 272 Kan. 250, 264, 32

P.3d 1156 (2001); Moran v. State, 267 Kan. 583, 596, 985 P.2d 127 (1999); Taylor v.

Reno County, 242 Kan. 307, 309, 747 P.2d 100 (1987); Beck v. Kansas Adult Authority,

241 Kan. 13, 33, 735 P.2d 222 (1987).

Liability for wanton or malicious conduct is consistent with the rule of liability at

common law. "Under the common law, personal liability was imposed on officers who

maliciously or wantonly injured a person or his property even though the officers were

engaged in a governmental function." Hopkins, 237 Kan. at 611; see Beck, 241 Kan. at

27. We have recognized that the Legislature did not intend the KTCA to extinguish

liability for a breach of these common-law duties. 237 Kan. at 611. For these reasons, the

KTCA's discretionary function immunity does not insulate officers from liability for

damages arising from wanton or malicious conduct.

28

Additionally, the KTCA does not insulate officers from potential liability arising

from the breach of a specific duty owed to an individual. Under the common-law "public

duty doctrine," a law enforcement officer's general duty to preserve the peace was

considered a duty owed to the public at large, rather than to any specific person, and

officers were immune from claims arising out of the performance or nonperformance of

their general duties. Conner v. Janes, 267 Kan. 427, 429, 981 P.2d 1169 (1999);

Westerbeke, 52 U. Kan. L. Rev. at 969. However, if an officer had a special relationship

with the plaintiff or owed a specific duty to that individual, the officer could be liable for

breaching that specific duty. 267 Kan. at 429; see also Williams, 310 Kan. at 788 ("To

warrant an exception to the public duty doctrine, a plaintiff suing a governmental entity

must establish either a special relationship or a specific duty owed to the plaintiff

individually."). Because the common law did not insulate officers from liability for

damages arising from negligent performance of a specific duty, the Legislature did not

intend K.S.A. 75-6104(e) to apply to such conduct. See Hopkins, 237 Kan. at 611

("Neither the courts nor our legislature, in passing the [KTCA], extended the mantle of

immunity beyond the boundaries of protection previously recognized under the common

law.").

Here, however, the summary judgment record confirms that neither of these

exceptions to discretionary function immunity applies. As for the breach of a specific

duty, Schreiner never alleged the existence of a special relationship with defendants. See

Williams, 310 Kan. at 788-89 (discussing types of relationships which may give rise to

government entity's specific duty). Nor did he allege any undertaking or conduct giving

rise to a specific duty. See Dauffenbach v. City of Wichita, 233 Kan. 1028, 1033, 667

P.2d 380 (1983) (specific duty may arise if government agent performs affirmative act

that causes injury or makes specific promise or representation that creates justifiable

reliance). And the summary judgment evidence does not establish any of the

circumstances that customarily create a special relationship or give rise to a specific duty

on the part of law enforcement. See, e.g., Carl v. City of Overland Park, Kan., 65 F.3d

29

866, 869 (10th Cir. 1995) (mandatory police policy governing vehicle pursuits gave rise

to specific duty); Hendrix v. City of Topeka, 231 Kan. 113, 137, 643 P.2d 129 (1982)

(police officers may be liable for failure to provide promised protection to informant

or for excessive use of force during arrest). Rather, the record confirms the officers

were responding to a citizen's call regarding suspicious activity and investigating the

same in furtherance of their general duty to preserve the peace and prevent crime.

Law enforcement officers are immune from tort claims arising from the

performance/nonperformance of such general duties. Conner, 267 Kan. at 429.

Likewise, the record reveals no evidence of wanton, let alone malicious, conduct.

Wanton behavior requires:

"'something more than ordinary negligence, and yet . . . something less than willful

injury; to constitute wantonness, the act must indicate a realization of the imminence of

danger and a reckless disregard and complete indifference and unconcern for the probable

consequences of the wrongful act. It is sufficient if it indicates a reckless disregard for the

rights of others with a total indifference to the consequences, although a catastrophe

might be the natural result.'" Soto, 291 Kan. at 82 (quoting Saunders v. Shaver, 190 Kan.

699, 701, 378 P.2d 70 [1963]).

Neither the district court findings nor the summary judgment record suggests

Hodge or Smith acted wantonly or maliciously. As the Court of Appeals observed:

"[W]e note that Schreiner was never arrested, or handcuffed, nor was he frisked by

Officer Hodge. From this record, it is clear that no voices were raised toward Schreiner

and no foul language or epithets of any kind were directed toward him by any officer.

While wanton conduct of a government employee is not covered by discretionary

function immunity, there is simply no evidence that Officer Hodge (or Sergeant Smith)

acted wantonly in this case. See Soto, 291 Kan. at 81-82. To the contrary, this record

shows that both officers acted with professional restraint." Schreiner, 55 Kan. App. 2d

at 60.

30

Schreiner does not controvert this evidence or challenge the relevant district court

findings.

In conclusion, we hold that Officer Hodge and Sergeant Smith lacked reasonable

suspicion to detain Schreiner. Nevertheless, the officers' detention and investigation of

Schreiner, along with their reasonable suspicion determination, were discretionary

functions implicating matters of policy. Therefore, the officers are entitled to

discretionary function immunity under the KTCA. The plain language of K.S.A. 75-

6104(e) makes clear that this immunity applies even though the officers' reasonable

suspicion determination was incorrect under the facts. In the absence of any evidence

establishing wanton or malicious conduct or a breach of a special duty owed to Schreiner,

the district court and Court of Appeals properly concluded that the officers are entitled to

judgment as a matter of law.

This holding does not deprive Schreiner of a remedy for constitutional violations.

Under federal law, 42 U.S.C. § 1983 (2018) creates a cause of action for money damages

based on a violation of any constitutional right under color of state law, including

unconstitutional searches and seizures. Slayton v. Willingham, 726 F.2d 631, 635 (10th

Cir. 1984). Schreiner asserts no such claim in this action. Further, the Legislature did not

create the KTCA to address such constitutional violations—the KTCA only addresses

liability for state tort law claims against government officials where a private person or

entity would be liable in the same circumstances. See K.S.A. 75-6103(a) (limiting

liability to damages caused by negligent or wrongful acts or omissions of government

officials acting within the scope of their employment "under circumstances where the

governmental entity, if a private person, would be liable under the laws of this state");

Linder, 937 F.3d at 1090 ("What's more, the theme that 'no one has discretion to violate

the Constitution' has nothing to do with the Federal Tort Claims Act, which does not

apply to constitutional violations. It applies to torts, as defined by state law—that is to

31

say, 'circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred.'

The Constitution governs the conduct of public officials, not private ones. [Citation

omitted.]"). And private persons are not generally liable for violations of constitutional

rights, removing such claims from the reach of the KTCA. Morse v. North Coast

Opportunities, Inc., 118 F.3d 1338, 1340 (9th Cir. 1997) (private individuals not

generally liable for violations of constitutional rights unless action attributable to the

government). This leaves Schreiner with the traditional state law tort theories he pled

under the KTCA. Under the circumstances, K.S.A. 75-6104(e) grants the officers

immunity from those claims.

The judgment of the Court of Appeals is affirmed; the judgment of the district

court is affirmed.

BEIER, J., not participating.

MICHAEL E. WARD, Senior Judge, assigned.1

***

ROSEN, J., dissenting: Today, a majority of this court decides the Kansas

Legislature meant to deprive individuals of the right to a civil cause of action against the

state when a law enforcement officer violates K.S.A. 22-2402(1) and disregards an

individual's Fourth Amendment right to be free from an unreasonable stop or seizure.

1

REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 117,034

vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

32

Because this conflicts with the statutory provisions in question and the right to a

constitutional freedom that this court is tasked with protecting, I dissent.

I agree with the majority that the officers in this case did not have reasonable

suspicion to detain Schreiner. Nothing in the record indicates that Schreiner's entry or

exit from the "wooded area" was an act of trespass or otherwise unlawful. Although

Officer Hodge testified in his deposition that he was aware of peeping Toms, break-ins,

and car burglaries in the area, there is no suggestion that Schreiner was involved in any

such activity. Schreiner's truck was properly tagged in the adjoining state of Missouri. It

was properly parked on a residential street in Mission, Kansas. Schreiner's driver's license

was valid. Schreiner committed no traffic offenses. No fruits or instrumentalities of a

crime were observed in or near his truck.

All Officer Hodge knew when responding to the area was that someone had been

observed walking into a wooded area in broad daylight after exiting a vehicle legally

parked on a city street, and that a similar incident had occurred in the same area several

weeks prior. And upon his arrival Officer Hodge learned very little that would bolster an

objective belief of reasonable suspicion. Schreiner's lack of cooperation and lack of

response to Hodge's questions cannot factor into the reasonable suspicion analysis. State

v. Andrade-Reyes, 309 Kan. 1048, 1057, 442 P.3d 111 (2019).

This means that, regardless of whether the officers believed the circumstances to

be suspicious, the facts that were known to them would not have made a reasonable

officer with the same knowledge and training suspicious that criminal activity was afoot.

See State v. Jones, 300 Kan. 630, 644, 333 P.3d 886 (2014). The majority and I disagree

about what this means for the defendants' assertion of discretionary function immunity. I

believe it conclusively defeats it. Consequently, I would reverse the Court of Appeals

decision and the district court's grant of summary judgment.

33

Under the KTCA, subject to statutory limitations, "each governmental entity shall

be liable for damages caused by the negligent or wrongful act or omission of any of its

employees while acting within the scope of their employment under circumstances where

the governmental entity, if a private person, would be liable under the laws of this state."

K.S.A. 75-6103(a). This legislation makes the government liable for the injurious acts of

its employees and, consequently, gives injured parties a greater chance at recovery than if

they sued only the employee. It ensures this result by requiring that the government pay

for the employee's legal defense and indemnify the employee against damages even when

an injured party names only the employee in a lawsuit. K.S.A. 75-6108; K.S.A. 75-6109.

Both the Legislature and this court have made clear that "[u]nder the KTCA,

liability is the rule and immunity from liability is the exception." Thomas v. Board of

Shawnee County Comm'rs, 293 Kan. 208, 233, 262 P.3d 336 (2011). But two categories

of exceptions exist.

The first category of exceptions shields the government from liability while

leaving the employee subject to suit. The KTCA relieves the government employer from

defending and indemnifying an employee if the employee was not acting in the scope of

their employment, if the employee "fail[ed] to cooperate in good faith in the defense of

the claim," or if the conduct was a result of "actual fraud or actual malice." K.S.A. 75-

6103; K.S.A. 75-6108; K.S.A. 75-6109. If any of these are true, the injured party may file

suit against the employee, but the government will not be liable for the defense or any

resulting judgment.

The second category of exceptions shields both the government and the employee

from liability. K.S.A. 75-6104 enumerates 24 different kinds of conduct that fall within

this category of exception. The defendants here asserted immunity under the

discretionary function exception in K.S.A. 75-6104, which provides:

34

"A governmental entity or an employee acting within the scope of the employee's

employment shall not be liable for damages resulting from:

....

"(e) any claim based upon the exercise or performance or the failure to exercise or

perform a discretionary function or duty on the part of a governmental entity or

employee, whether or not the discretion is abused and regardless of the level of discretion

involved." K.S.A. 75-6104(e).

This provision immunizes the government and its employees against liability for

damages that occur when an employee is exercising a "discretionary function." Thus, the

defendants' claims of immunity turn on whether their actions were discretionary in

nature.

As the majority notes, the Kansas Legislature modeled the discretionary function

immunity off a nearly identical provision in the Federal Tort Claims Act (FTCA).

Carpenter v. Johnson, 231 Kan. 783, 785, 649 P.2d 400 (1982); Hagerman and Johnson,

Governmental Liability: The Kansas Tort Claims Act [or The King Can Do Wrong], 19

Wash. L. J. 260, 272 (1980). Federal courts have been interpreting this provision since

1953. Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953) (first

interpreting discretionary function provision in FTCA). In one of its more recent cases,

the United States Supreme Court has explained "the basis for the discretionary function

exception was Congress' desire to 'prevent judicial "second-guessing" of legislative and

administrative decisions grounded in social, economic, and political policy through the

medium of an action in tort.'" Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S. Ct.

1954, 100 L. Ed. 2d 531 (1988). The Court has also outlined a two-step model for

evaluating discretionary function questions: (1) did the government employee or agency

have discretion to make any choice at all? If the employee had no discretion, the

exception did not apply; and (2) if the employee had discretion or choice, did Congress

intend to immunize that type of discretion from liability? 486 U.S. at 536-37.

35

This court has considered this federal caselaw in interpreting Kansas' own

discretionary function provision. It first did so 1982 in Robertson v. City of Topeka, 231

Kan. 358, 362, 644 P.2d 458 (1982). There, the plaintiff alleged officers were negligent

in responding to his call to have a third party removed from his property. The officers,

unsure of who the property belonged to, ordered the plaintiff off the property. The third

party remained and burned down the house. The court held the officers had been

performing a discretionary function because, based on the facts known to the officers,

there was no clear-cut remedy and the officers lacked clear guidelines to follow under the

circumstances. Robertson, 231 Kan. at 362.

A few months later, this court offered some nuance to the discretionary function

analysis in Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982). It considered

whether the government and its employees were immune from liability when the plaintiff

alleged that employees were negligent in failing to place a warning sign at a curve in the

road in contravention to guidelines in an agency manual. The court announced that "[t]he

test is whether the judgments of the government employee are of the nature and quality

which the legislature intended to put beyond judicial review." 231 Kan. at 788. It

observed that the employees were statutorily required to follow the guidelines in the

manual and reasoned that, whether the decision to leave the curve without a sign was

discretionary depended on whether the manual's guidelines required the sign. Because

this was a factual decision that could not be determined as a matter of law based on the

summary judgment record, the defendants were not entitled to immunity. 231 Kan. at

790.

This court cited Carpenter a few years later in Cansler v. State, 234 Kan. 554, 675

P.2d 57 (1984), in holding that the State was not immune when prison staff failed to

confine dangerous inmates and to warn when those inmates escaped. This court held that

"the State, as the custodian of dangerous persons" had a "duty to confine and [a] duty to

36

warn." 234 Kan. at 570. These were "non-discretionary" requirements "imposed by law"

and, consequently, employees' alleged failure to follow the requirements was not

protected by discretionary function immunity. 234 Kan. at 570. Carpenter and Cansler

stand for the notion that government actors are not engaged in a discretionary function

that is outside of the court's review if they have allegedly violated a mandatory rule.

We expanded upon the mandatory guideline rule in Jackson v. City of Kansas

City, 235 Kan. 278, 290, 680 P.2d 877 (1984), overruled on other grounds by Simmons v.

Porter, 298 Kan. 299, 312 P.3d 345 (2013). There, we concluded firefighters were not

performing a discretionary function when their fire engines collided because they had

violated the department's policy of driving under 35 miles per hour. With Jackson, we

embraced the notion that the mandatory guidelines that make an employee's conduct non-

discretionary can come from statutes, caselaw, or department policy. We explicitly

confirmed this in Soto v. City of Bonner Springs, 291 Kan. 73, 80, 238 P.3d 278 (2010)

("A mandatory guideline can arise from agency directives, case law, or statutes.").

Shortly after Jackson, this court offered a more robust definition of discretionary

function. It observed that "'[d]iscretion' has been defined as the power and the privilege to

act unhampered by legal rule" and "as the capacity to distinguish between what is right

and wrong, lawful and unlawful, wise or foolish, sufficiently to render one amenable and

responsible for his acts." Hopkins v. State, 237 Kan. 601, 610, 702 P.2d 311 (1985). It

reasoned that "[d]iscretion implies the exercise of discriminating judgment within the

bounds of reason." 237 Kan. at 610 (citing Sandford v. Smith, 11 Cal. App. 3d 991, 1000,

90 Cal. Rptr. 256 [1970]).

We summarized much of this caselaw in Thomas v. Board of Shawnee County

Comm'rs, 293 Kan. 208, 262 P.3d 336 (2011). There, we observed that "'[t]he mere

application of any judgment is not the hallmark of the exception.'" 293 Kan. at 234

(quoting Soto, 291 Kan. at 79). Instead, we explained, "'the more a judgment involves

37

the making of policy, the more it is of a "nature and quality" to be recognized as

inappropriate for judicial review.'" 293 Kan. at 234 (quoting Kansas State Bank & Tr.

Co., 249 Kan. 348, 365, 819 P.2d 587 [1991]). And we noted three principles that guide

the application of the discretionary function exception:

"(1) '[T]he discretionary function primarily involves policy-oriented decisions and

decisions of such a nature that the legislature intended them to be beyond judicial review,'

(2) 'the immunity does not depend upon the status of the individual exercising discretion

and thus may apply to discretionary decisions made at the operational level as well as at

the planning level,' and (3) 'the discretionary function does not encompass conduct that is

deemed "ministerial," i.e., conduct that involves no discretion.'" Thomas, 293 Kan. at 235

(quoting Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First

Twenty-Five Years, 52 U. Kan. L. Rev. 939, 960 [2004]).

More recently, we emphasized that "[g]enerally, the discretionary function

exception is inapplicable when there is a '"clearly defined mandatory duty or guideline,"'

which can arise from statutes, caselaw, or agency directives." Hill, 310 Kan. at 510

(quoting Soto, 291 Kan. at 80); see also State ex rel. Franklin v. City of Topeka, 266 Kan.

385, 391, 969 P.2d 852 (1998) (no immunity against employment discrimination claim

because State was subject to "legislatively created duty to refrain from discriminatory

employment practices" under K.S.A. 44-1009).

In this case, Schreiner has alleged that the officers violated a mandatory statutory

rule and a constitutional provision. Because the summary judgment record conclusively

shows this to be true, the defendants were not entitled to discretionary function immunity.

An officer's authority to detain a suspect during an investigation is expressly

limited by the United States Constitution and a Kansas statute. The Fourth Amendment

prohibits officers from conducting "unreasonable searches and seizures." U.S. Const.

amend. IV. And K.S.A. 22-2402(1) provides that "a law enforcement officer may stop

38

any person in a public place whom such officer reasonably suspects is committing, has

committed or is about to commit a crime and may demand of the name, address of such

suspect and an explanation of such suspect's actions." (Emphasis added.) Following our

own caselaw regarding the non-discretionary nature of a state actor's alleged failure to

follow mandatory guidelines, these rules take an unreasonable stop outside the realm of

discretionary functions. Many federal courts have similarly held there is no discretionary

function immunity under the FTCA's discretionary function immunity clause for alleged

violations of constitutional rights. Loumiet v. United States, 828 F.3d 935, 943-44 (D.C.

Cir. 2016) ("At least seven circuits, including the First, Second, Third, Fourth, Fifth,

Eighth, and Ninth, have either held or stated in dictum that the discretionary-function

exception does not shield government officials from FTCA liability when they exceed the

scope of their constitutional authority" and "[t]o this court's knowledge, only the Seventh

Circuit has held otherwise."); see, e.g., Nurse v. United States, 226 F.3d 996, 1002 (9th

Cir. 2000) (no discretionary function immunity when plaintiff alleged unconstitutional

policies because "governmental conduct cannot be discretionary if it violates a legal

mandate"); Muhammad v. United States, 884 F. Supp. 2d 306, 313 (E.D. Pa. 2012) ("it is

well established that the discretionary function exception does not apply to constitutional

violations").

This conclusion comports with our general understanding that a discretionary

function is one that is largely policy-based. The central question the officer faces—

whether reasonable suspicion exists—is neither policy-centered nor one I think the

Legislature intended to put beyond a court's review. This is a constitutional query, and, as

such, has been firmly within the judiciary's realm since the United States Supreme Court

held that it is the final arbiter of the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177, 2 L. Ed. 60 (1803). Courts have been explicitly examining whether an officer

had reasonable suspicion of criminal activity since the standard appeared in 1968. See

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (announcing for first

39

time that officers can briefly stop and investigate person based on reasonable suspicion of

criminal activity without offending the Fourth Amendment).

It is true that officers must, often in a split second, decide whether reasonable

suspicion exists, and their employers give them the authority to make this decision and

act on it. In this sense, an officer who chooses to pursue an investigatory detention is

clearly exercising judgment. But, as the Sixth Circuit has concluded, this "exercise of

'discretion' by the officer in the sense of choosing among alternative courses of action

does not automatically trigger official immunity." Downs v. United States, 522 F.2d 990,

998 (6th Cir. 1975) (citing Carter v. Carlson, 447 F.2d 358 [D.C. Cir. 1971], rev'd on

other grounds 409 U.S. 418, 93 S. Ct. 602, 34 L. Ed. 2d 613 [1972]). This is because

officers who suspect criminal activity have no legal authority to stop and investigate a

person unless that suspicion is objectively reasonable. Courts maintain this rule "because

protection of personal liberties is thought to outweigh the danger of less effective law

enforcement out of fear of personal tort liability." Downs, 522 F.2d at 998.

The distinction between an officer's decision to investigate and an officer's

decision to detain someone while investigating cannot be understated. The judgment of

whether to investigate the complaint of an identified citizen, or an anonymous tip, or even

an offense observed by the officer, is generally within an officer's discretion. It is not

guided or compelled by statute or caselaw or policy. Law enforcement officer's use that

discretion regularly for instance in deciding whether to initiate a traffic stop. It can be a

matter of the time available, the distance to be traveled, the perceived credibility of the

reporting party, or the need to investigate more serious matters. In that sense then, the

decision of whether to investigate is a discretionary act as that term is used in the KTCA.

This aspect of policing often involves the sometimes-competing policy concerns

of suppressing crime and protecting the public, because pursuing a suspect can endanger

the lives of bystanders. See generally Montgomery v. Saleh, 311 Kan. 649, 466 P.3d 902

40

(2020) (plaintiffs alleged officer's pursuit of suspect caused third-party injuries). And

officers are not generally compelled by a mandatory statute, regulation, or specific duty

to investigate crime. While owing a duty to the public at large to preserve the peace,

absent a special relationship, officers do not always have a duty to take affirmative

action. Robertson, 231 Kan. at 363.

But Schreiner has not alleged an issue with the officers' decision to investigate or

not investigate a suspected crime. He challenges the officers' decision to detain him

without reasonable suspicion during their investigation. This is an obvious violation of a

mandatory statutory directive. K.S.A. 22-2402(1) is clear. The detention is conditioned

on the presence of reasonable suspicion, which we unanimously agree was not present in

this case. As such, it was not a "discretionary function" as envisioned by the Kansas

Legislature.

Quoting Soto, 91 Kan. at 73, the majority posits that we regularly consider

"investigatory methods and procedures employed by governmental employees to be

matters requiring the exercise of judgment and discretion." Schreiner v. Hodge, 315 Kan.

___, slip op. at 20 (2022). While that may be true, we face a more specific situation. As I

have explained, Schreiner alleged—and established—a violation of a specific statutory

and constitutional directive. He has not offered a broad claim of negligence.

The majority relies heavily on Soto, but the facts and the analysis fail to support its

position. In Soto, officers lawfully stopped the plaintiff for a traffic violation and were

informed by dispatch that there was a warrant for the plaintiff's arrest. After the plaintiff

had been arrested, jailed, and transferred to the county that issued the warrant, officials

learned the plaintiff was not the subject of the warrant. The Court of Appeals concluded

county officials were performing a discretionary function when they confirmed the

plaintiff's identifiers with the issuing county and declined to continue investigating the

plaintiff's claims of mistaken identity. 38 Kan. App. 2d at 386. The panel quoted an out-

41

of-state case for the notion that officers are "'engaged in a discretionary function in

determining how to investigate, and to what extent to investigate before seeking a

warrant.'" Soto, 32 Kan. App. 2d at 385 (quoting Davis v. Klevenhagen, 971 S.W.2d 111

[Tex. App. 1998]). This court affirmed, but it further limited the legal contours of the

discretionary function immunity that can be gleaned from Soto by stating "the decision

whether to do anything about a claim of mistaken identity may or may not be

discretionary . . . , but the precise steps to be taken by detention personnel to consider

such a claim, e.g., to verify personally identifying information, is discretionary." Soto,

291 Kan. at 85.

Contrary to the majority's position, Soto does not stand for the notion that law

enforcement officers are always performing a discretionary function when they are

making decisions related to investigation. Rather, it offers the very specific holding that

policy decisions about how to investigate claims of mistaken identity can generally be

described as discretionary and, more generally, that the KTCA does not blanket officers

with unfettered immunity whenever they are making investigatory decisions.

But the majority uses its reading of Soto—that investigatory decisions are always

discretionary—to support its conclusion that investigatory detentions, regardless of

whether they are prohibited by statute or the Constitution, are discretionary acts for which

neither the employee nor government are liable. It reasons that, like investigatory

decisions, "an officer's determination whether reasonable suspicion exists is an inherently

discretionary process" because the officer must make a decision based on the facts and

the officer's experiences. Schreiner, 315 Kan. at ___, slip op. at 20. The majority opines

that this "necessarily entails the exercise of judgment and discretion." 315 Kan. at ___,

slip op. at 20.

By this standard, every decision would fall within the realm of a discretionary

function. This court has acknowledged that "'judgment is exercised in almost every

42

human endeavor, so that factor alone cannot be determinative of immunity.'" Carpenter,

231 Kan. at 789 (quoting Robertson, 231 Kan. at 361). Moreover, as I have emphasized,

an officer does not have discretion to detain an individual when the facts known to that

officer would not make a reasonable officer suspicious of criminal activity.

The majority also concludes that deciding whether reasonable suspicion of

criminal activity is present "implicates matters of policy sufficient" to make an officer's

detention of someone a discretionary act. The majority rests this characterization on a

number of flawed assertions.

First, the majority paints this as a policy decision because officers who are

investigating crimes are acting within the scope of their employment to perform a

traditional government function. But the KTCA applies only when an employee is acting

within the scope of their employment. K.S.A. 75-6103(a). The majority cannot use the

very circumstance that subjects the government to liability to immunize the government

from liability. And, even if the performance of a "traditional government function" is

generally discretionary, the complained of conduct in this case—detaining an individual

without reasonable suspicion—is not a traditional government function.

Next, the majority asserts that an officer's decision to detain a person is one of

policy that the Legislature intended to shield from judicial review because an officer's

authority to detain people was established as a matter of policy through K.S.A. 22-

2402(1) by the Kansas Legislature. The majority points out that the statute provides that

an officer "may" stop a person when they have reasonable suspicion, thus making their

decision to do so discretionary. I agree that officers generally have discretion to detain an

individual or not detain an individual when reasonable suspicion exists. Consequently, as

I explain above, allegations that officers were negligent when they did not pursue a

suspect will usually be defeated by a claim of discretionary immunity. But, again, that is

not what we face here. Schreiner has alleged, and we have agreed, that the officers

43

detained him without reasonable suspicion of criminal activity. The Legislature has not

authorized officers to do this and our Constitution explicitly forbids it.

The majority concludes by opining that an officer deciding how to investigate a

report of criminal activity must make many policy-related decisions. I agree that in

determining whether and how to pursue an investigation an officer must decide what will

be most effective and serve public safety. But in doing so, an officer must not traverse the

bounds of what is statutorily or constitutionally appropriate. Clearly, there are means of

investigating reports of criminal activity without detaining a person when reasonable

suspicion does not exist. In making decisions about how to do so, discretionary function

immunity will generally apply. But when a plaintiff has alleged that an officer

overstepped statutory and constitutional limits, and the summary judgment record cannot

conclusively establish this to be untrue, discretionary function immunity does not apply.

Finally, the majority declares that its ruling does not deprive Schreiner of a

remedy because he can bring a § 1983 action against the officers as individuals. This is

less persuasive than the majority implies. Unless the complained-of actions constituted

execution of local governmental "custom," the plaintiff has a suit against only the

individual employee, not the local government employer who is responsible for the

employee's training and supervision and, practically speaking, has better ability to absorb

the financial impact of a judgment against its favor. Monell v. Dep't of Soc. Servs. of City

of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In addition, the

§ 1983 plaintiff faces the towering barrier of qualified immunity. Judge Reinhardt of the

Ninth Circuit has explained, "[T]he Court has through qualified immunity created such

powerful shields for law enforcement that people whose rights are violated, even in

egregious ways, often lack any means of enforcing those rights." Reinhardt, The Demise

of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing

Limitations on the Development and Enforcement of Constitutional Rights and Some

Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1245 (2015). As a

44

consequence, the existence of a possible § 1983 action does little to relieve any distress

over eliminating the KTCA action.

In the same line of analysis, the majority also posits that the KTCA is not even

applicable to this constitutional violation because the legislation subjects government

entities to suit only when a private individual would be liable, and the Constitution

does not regulate private conduct. But Schreiner has alleged assault, battery, false

imprisonment, and false arrest. Private individuals are certainly liable for these torts

even if their actions do not also amount to constitutional violation.

I can support neither the result nor the supporting analysis from the majority.

Four members of this court have overlooked years of caselaw and statutory and

constitutional provisions to totally immunize the government and its employees from

an unconstitutional detention. Although the Kansas Legislature meant to chisel a path of

meaningful relief for those who would be harmed by the torts of government employees,

this court dismantles that path for those attempting to recover for a Fourth Amendment

violation. Put another way, I cannot agree with an interpretation of the KTCA that

immunizes the violation of one's Fourth Amendment rights.

I would conclude that the district court erred when it granted summary judgment

based on discretionary function immunity, and the Court of Appeals majority erred when

it affirmed that ruling.

MICHAEL E. WARD, Senior Judge, joins the foregoing dissenting opinion.

***

BILES, J., dissenting: Contrary to the majority's holding, both the Fourth

Amendment to the United States Constitution and Kansas law prevent law enforcement

45

from simply detaining someone in a public place without their consent while

investigating whether that person just might happen to be involved in criminal activity.

Without more, this is not an optional investigative tool. The Legislature has declared this

tactic out of bounds. See K.S.A. 22-2402(1). Our law requires an investigating officer to

have an articulable and reasonable suspicion—based in fact—that the person being

detained is committing, has committed, or is about to commit a crime. See State v.

Sanders, 310 Kan. 279, Syl. ¶ 5, 445 P.3d 1144 (2019) ("The suspicion must have a

particularized and objective basis and be something more than a suspicion or hunch.").

Today, for purposes of civil liability, the majority scraps this objective standard and sets

the new bar somewhere below even a gut feeling. For that reason, I dissent.

The majority's premise is that an officer who detains someone is immune from

civil liability under the Kansas Tort Claims Act because of the discretion the officer

exercises in deciding whether to investigate crime and how to do to it, even if the "how

to" part includes breaking the law. This makes little sense. See Hopkins v. State, 237 Kan.

601, 610, 702 P.2d 311 (1985) (noting "'discretion'" as used in K.S.A. 75-6104[e] can be

understood as "the privilege to act unhampered by legal rule"). If the Legislature wanted

law enforcement to be immune from civil liability even when violating the law, it could

have said so by broadening the statutory definition of "discretion" in K.S.A. 75-6104(e)

from its established legal meaning. But the Legislature has not done that, so the majority

engages in judicial policy making to get there.

By enacting K.S.A. 22-2402(1), the Legislature fixed an officer's duty when

deciding whether to detain someone without making an arrest. That statute provides:

"Without making an arrest, a law enforcement officer may stop any person in a

public place whom such officer reasonably suspects is committing, has committed or is

about to commit a crime and may demand of the name, address of such suspect and an

explanation of such suspect's actions." (Emphasis added.)

46

The key here is the Legislature's use of the term "reasonably suspects." And this

requirement to have reasonable suspicion before detaining someone without arresting

them resides not only in K.S.A. 22-2402(1) but also the Fourth Amendment to the United

States Constitution. Yet to get to its desired policy result, the majority twists this case

into a rhetorical pretzel by muddling two key distinct questions: whether an officer can

investigate a person who happens to be in a public place; and whether that officer can

forcibly stop the person while doing that investigation. And by clouding over things in

this way, the majority misses the real question: whether Kansas law enforcement officers

have a privilege to simply detain anyone in public unhampered by legal rule. And as to

that, our statute, the Fourth Amendment, and the caselaw collectively set a clearly

defined, mandatory standard for an officer's decision to detain. See State v. Cash, 313

Kan. 121, 130, 483 P.3d 1047 (2021) ("The reasonable suspicion analysis requires use of

an objective standard based on the totality of the circumstances, not a subjective standard

based on the detaining officer's personal belief.").

An even stranger reality here is that every member of this court agrees these

officers did not meet our well-established, reasonable suspicion standard when forcibly

detaining Schreiner during this encounter. Schreiner v. Hodge, 315 Kan. ___, slip op. at 4

(2022). The majority correctly notes Officer Hodge "never articulated anything about

Schreiner or Schreiner's vehicle that led him to believe Schreiner was committing any

crimes." (Emphasis added.) 315 Kan. at ___, slip op. at 10. And as far as I'm concerned,

that's the ballgame. The officer admits nothing about this encounter led him to believe

Schreiner was committing any crime. Making this point even clearer, the majority

continues:

"Hodge stated that nothing about Schreiner's vehicle made him believe it had been

involved in a crime. Hodge also said he had not witnessed Schreiner commit any crimes,

and that Schreiner did not fit the description of any suspects from any known crimes. And

47

while Hodge found Schreiner's behavior to be 'evasive' and 'erratic,' and perceived

Schreiner as 'nervous,' he never connected this to criminal activity." (Emphasis added.)

315 Kan. at ___, slip op. at 11.

So if the officer had nothing articulable connecting Schreiner to criminal activity,

can we not also agree the best he had was maybe a hunch? And if that is so, surely we

can agree that based on the officer's training and experience he would know, or

reasonably should have known, he had no business preventing Schreiner from moving on

without something more to go on. Yet, the officer stopped him anyway, assisted by other

officers who the majority holds also lacked any objective, articulable basis to reasonably

believe Schreiner committed, was committing, or was about to commit a crime. 315 Kan.

at ___, slip op. at 13. How is this anything other than an unlawful detention?

Our full court also understands the statutory exception to civil liability does not

apply when a clearly defined mandatory duty or guideline exists, which it does in this

case because that mandatory duty exists under statute, caselaw, and the Constitution. 315

Kan. at ___, slip op. at 26. So if the standard is so clear that every member of this court

sees it, and we also know these officers were trained and experienced in appropriate

police procedures, how can it be said there is no recognizable, clearly defined mandatory

duty when deciding entitlement to discretionary function immunity under K.S.A. 75-

6104(e)? It is not enough to simply say the investigating officer might in good faith get it

wrong sometimes because an officer who acts in good faith is typically shielded from

individual liability already through the KTCA's indemnity provisions. See K.S.A. 75-

6109. And one would think a governmental entity's potential civil liability would operate

as a beneficial deterrent for public agencies to ensure officers receive appropriate training

on something as fundamental as detaining citizens on public streets.

Even so, the majority holds "an officer's decision whether and how to investigate a

crime, along with his or her reasonable suspicion determination, require the type of

48

policy-based judgments the Legislature intended to insulate from tort liability." 315 Kan.

at ___, slip op. at 22. I disagree. To the contrary, it is an assessment whether the facts

confronting an officer are objectively sufficient to raise suspicion of criminal conduct.

And this assessment is one that courts routinely review, including as we have done in this

very case. The point is simply this: the Legislature has already decided law enforcement

does not have discretionary power to detain an individual in a public place based on some

subjective notion of suspicion. And this is not open to debate. Our law is as plain as it can

be—officers who have a hunch about possible criminal activity have no legal authority or

discretion to just stop someone out in public. Their suspicion must be objectively

reasonable.

The simple conclusion should be that the "exercise of 'discretion' by the officer in

the sense of choosing among alternative courses of action does not automatically trigger

official immunity." Downs v. United States, 522 F.2d 990, 998 (6th Cir. 1975). And given

the certainty attached to the officer's duty in these circumstances, the majority's concerns

about courts second-guessing an officer's in-the-field decision making are blind to reality.

Courts have been doing this since the reasonable suspicion standard appeared in Terry v.

Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). And the consequences when

the officer is wrong are often far more serious than potential civil liability exposure

because criminal convictions get reversed and crucial evidence gets suppressed based on

this judicial review. See, e.g., State v. Jimenez, 308 Kan. 315, 420 P.3d 464 (2018)

(upholding suppression of drug-trafficking evidence discovered during a traffic stop that

was improperly prolonged without reasonable suspicion).

Indeed, even in the civil liability context, many federal courts have held there is

no liability shield under the Federal Tort Claims Act's discretionary function immunity

clause for alleged violations of constitutional rights. Loumiet v. United States, 828 F.3d

935, 943-44 (D.C. Cir. 2016) ("At least seven circuits, including the First, Second,

Third, Fourth, Fifth, Eighth, and Ninth, have either held or stated in dictum that the

49

discretionary-function exception does not shield government officials from FTCA

liability when they exceed the scope of their constitutional authority," and "[t]o this

court's knowledge, only the Seventh Circuit has held otherwise."); e.g., Nurse v. United

States, 226 F.3d 996, 1002 (9th Cir. 2000) (no discretionary function immunity when

plaintiff alleged unconstitutional policies because "governmental conduct cannot be

discretionary if it violates a legal mandate"); Muhammad v. United States, 884 F. Supp.

2d 306, 313 (E.D. Pa. 2012) ("[I]t is well established that the discretionary function

exception does not apply to constitutional violations.").

We all agree Officer Hodge did not have a particularized and objective basis to

suspect Schreiner was committing, had committed, or was about to commit a specific

crime. Hodge even told Schreiner he was free to leave, but then stopped him by grabbing

his arm when Schreiner did what Hodge said he could do. These officers were not

performing a discretionary function as envisioned by the Legislature because their

conduct violated a clearly defined, mandatory duty requiring reasonable suspicion to

detain a person. And without any recognizable standard for accountability, those inclined

to do so will do as they please. I would reverse the Court of Appeals decision and the

district court's grant of summary judgment.

50