The question before the Court, therefore, is whether Jackson must first overcome the discretionary function exception before the United States' tort liability under the law enforcement proviso is triggered. For the reasons that follow, the Court holds that he must. The interplay between the law enforcement proviso and the discretionary function exception has been addressed by numerous courts in recent years. Although these courts noted the conflict between the two provisions, they decided that canons of statutory construction, essential considerations of policy, and the common law roots of governmental immunity compelled the conclusion that the discretionary function exception applies to intentional tort claims based on the acts of law enforcement officers. The discretionary function exception does not immunize from suit any conduct that violates the Constitution, a statute, or applicable regulations.
Federal courts employ a two-part test to determine whether acts are covered by the exception.
First, the act must be discretionary in nature and involve the element of judgment or choice. Second, the act must implicate considerations of public policy. The relevant statutes and regulations give customs officers a great deal of latitude and require a broad range of choice as they decide whether to detain or search individuals who enter the United States. Congress granted the Treasury Department broad authority to detain and search persons coming to the United States from foreign countries, see 19 U.S.C. 1582, and the Department's regulations provide broad discretion for searches and inspections by Customs officers, see 19 C.F.R. 162.6. Officers must determine which passengers will be searched, but the regulations provide no specific criteria.