1

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.
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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.
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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
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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.
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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, breakins, 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 
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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
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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).
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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 
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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
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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:
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"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 
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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 
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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.
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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. 
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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,
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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:
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"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 
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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 
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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).
20

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, 
21

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 
22

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). 
23

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 
24

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
25

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 
26

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-thescene 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 
27

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 
28

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. 
29

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 
30

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.
31

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 
32

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. 

1REPORTER'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.
33

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. 
34

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: 
35

"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.
36

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 
37

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 nondiscretionary 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 
38

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 
39

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 
40

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 
41

(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-
42

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 
43

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 
44

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 
45

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 
46

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.)
47

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 
48

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 
49

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 
50

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.