The exception applies where conduct involves an element of judgment or choice and that judgment is grounded in policy considerations. Conduct governed by a mandatory directive falls outside it.
The Berkovitz and Gaubert framework governs federally.
Alternative Names:
Discretionary Function|Discretionary Immunity
Why it Matters?
A mandatory directive removes discretion entirely, which means internal policies specifying required conduct can defeat the exception that would otherwise apply, and plaintiffs accordingly seek policy manuals establishing mandatory procedures. That dynamic creates tension between clear operational guidance and litigation exposure. Framing policies with appropriate discretion language, where operationally acceptable, preserves the defense.
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Frequently asked questions
What defeats the exception?
What tension does that create?
