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Board of County Commissioners of Teton County v. Bassett7/25/2000
t. Ann §§ 1-39-101 through 1-39-121 (Lexis 1999), retains sovereign immunity except as specifically provided by statute. Hurst v. State, 698 P.2d 1130, 1132 (Wyo. 1985). The relevant statutory exception here is Wyo. Stat. Ann § 1- 39-112, which provides:
A governmental entity is liable for damages resulting from tortious conduct of peace officers while acting within the scope of their duties.
Despite this exception, we have stated that
"a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct. * * *" Blake v. Rupe, 651 P.2d 1096, 1109 (Wyo. 1982), cert. denied, 459 U.S. 1208 (1983) (quoting Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), cert. denied, 435 U.S. 924 (1978)).
Determination of a peace officer's entitlement to qualified immunity under state law is governed by consideration of four factors: (1) the officer was acting within the scope of his or her duties; (2) the officer was acting in good faith; (3) the officer's acts were reasonable under the circumstances; and (4) the officer's acts were discretionary duties and not merely operational or ministerial duties. Kanzler v. Renner, 937 P.2d 1337, 1344 (Wyo. 1997); Darrar v. Bourke, 910 P.2d 572, 575-76 (Wyo. 1996). The parties do not dispute that Sergeant Wilson was acting within the scope of his duties and in good faith, but they cannot agree on the reasonableness of Sergeant Wilson's actions, or inaction, and whether that action or inaction was discretionary. We find no discretionary activity here, and therefore, need not consider the reasonableness of Sergeant Wilson's conduct.
Qualified immunity is available only for discretionary functions, DeWald, 719 P.2d at 649, and it is the character of an official's act, rather than the character of his office, which determines whether any particular act is discretionary. Oyler v. State, 618 P.2d 1042, 1048 (Wyo. 1980). The term "discretionary" in the context of a qualified immunity question is a misnomer. It has long been understood to be limited to executive policy functions. Id. Other jurisdictions, dealing with equivalent doctrines, have determined that discretionary duties are strictly limited to acts within the special competence of the executive branch. The Washington Supreme Court has said that " ince the concept of discretionary governmental immunity is a court-created exception to the general rule of governmental tort liability, its applicability is necessarily limited only to those high level discretionary acts exercised at a truly executive level." Bender v. City of Seattle, 99 Wash.2d 582, 664 P.2d 492, 497 (1983). Colorado courts have established a similarly narrow definition of discretionary acts. "In this limited sense, discretionary acts are those which are of a judgmental, planning, or policy nature." Cooper v. Hollis, 42 Colo.App. 505, 600 P.2d 109, 111 (1979).
Viewed in light of these limitations, none of the decisions made by Sergeant Wilson were of an executive, policy nature. Sergeant Wilson participated in deciding where to establish the roadblock, and neglected to warn Bassett and Coziah that a dangerous high- speed pursuit was approaching. While these decisions involve the exercise of discreti
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