Soto v. City of Bonner Springs (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 96,011

JOSE MORA SOTO,
Appellant,

v.

CITY OF BONNER SPRINGS, et al.,
Appellees.


SYLLABUS BY THE COURT

1.
An issue not briefed by an appellant is deemed waived or abandoned.

2.
When material facts are undisputed, appellate review of the district court's grant of
summary judgment is de novo.

3.
The Kansas Tort Claims Act is an open-ended act making governmental liability
the rule and immunity the exception.

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 matter of law.
Accordingly, appellate review is de novo.

5.
The governmental entity bears the burden to establish immunity under the
exceptions of the Kansas Tort Claims Act.

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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.

7.
In considering whether a governmental action is discretionary for the purpose of
the discretionary function exception of the Kansas Tort Claims Act, the court should
decide whether the judgment of the governmental employee is of the nature and quality
which the legislature intended to put beyond judicial review.

8.
If there is a clearly defined mandatory duty or guideline, the discretionary function
exception of the Kansas Tort Claims Act is not applicable.

9.
A wanton act is something more than ordinary negligence, but 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.

10.
In considering a motion for summary judgment, the court must determine whether
the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.

11.
Under the facts of this case, the manner in which the governmental employee
proceeded after notice of plaintiff's claim of mistaken identity was discretionary and
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entitled to immunity from liability by the discretionary function exception of the Kansas
Tort Claims Act.

Review of the judgment of the Court of Appeals in 38 Kan. App. 2d 382, 166 P.3d 1056 (2007).
Appeal from Wyandotte District Court; GEORGE A. GRONEMAN, judge. Opinion filed September 3, 2010.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

William Sharma-Crawford, of Sharma-Crawford Attorneys at Law, of Overland Park, argued the
cause and was on the briefs for appellant.

Patrick M. Waters, of legal department, Unified Government of Wyandotte County/Kansas City,
of Kansas City, argued the cause, and Henry E. Couchman, Jr., of the same office, was with him on the
briefs for appellees.

The opinion of the court was delivered by

NUSS, J.: This case considers the application of the Kansas Tort Claims Act
(KTCA), K.S.A. 75-6101 et seq., to a law enforcement detention. Jose Mora Soto was
lawfully stopped for a traffic violation in Bonner Springs in Wyandotte County. He was
then arrested and detained at a Wyandotte County detention facility pursuant to a Johnson
County arrest warrant issued for a similarly named individual. Upon Soto's release 2 1/2
days later, he brought suit for false arrest and imprisonment against the City of Bonner
Springs, Unified Government of Wyandotte County/Kansas City, the Wyandotte County
Sheriff's Department, and various officers. The district court granted summary judgment
in favor of all defendants on various bases.

Soto appealed only the summary judgments granted to the Unified Government of
Wyandotte County/Kansas City, and the Wyandotte County Sheriff's Department
(collectively County). The Court of Appeals affirmed the summary judgment, holding
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that the Wyandotte County detention officers were engaged in a discretionary function in
deciding whether to further investigate if Soto was the person named in the arrest
warrant. Accordingly, the discretionary function exception of the KTCA provided the
County with immunity from liability for false arrest and imprisonment. Soto v. City of
Bonner Springs, 38 Kan. App. 2d 382, 385, 166 P.3d 1056 (2007). We granted Soto's
petition for review under K.S.A. 60-2101(b).

As we understand Soto's brief to this court and his accompanying oral arguments,
he essentially raises only one argument on appeal. The rest of his issues are therefore
abandoned. See State v. Richmond, 289 Kan. 419, 437, 212 P.3d 165 (2009) (An issue not
briefed by an appellant is deemed waived or abandoned.). His basic appellate issue is
whether the County is immune from liability under the discretionary function exception
of the KTCA.

We answer: "Yes." Accordingly, we affirm the district court and the Court of
Appeals.

FACTS

In November 2003, Soto was stopped by Bonner Springs Police Officer Mark
Stites, who noticed that Soto's license plate was loose and hanging. Officer Stites was
told by a police dispatcher that the license plate on the car Soto was driving belonged to a
car of a different make and model. In Soto's deposition, he testified that the license plate
on the car he was going to drive had expired, so he put on a license plate from another.

Soto provided Officer Stites a driver's license for Jose M. (Mora) Soto.
Consequently, Stites requested information from the dispatcher about Jose M. Soto, a
Hispanic male with a date of birth of December 26, 1973, a height of 5'5", and a weight
of 165 lbs. The dispatcher advised Stites of a Johnson County warrant for a Jose L. (Luis)
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Soto, a Hispanic male with a date of birth of December 24, 1973, a height of 5'3", and a
weight of 115 lbs. According to Stites' affidavit, the driver's license given to him by
plaintiff Soto contained the same number as the driver's license on the warrant provided
by the dispatcher, and he confirmed this match with the dispatcher. These facts are
uncontroverted in Soto's response to the County's summary judgment motion. At oral
arguments, Soto's attorney conceded that his client's driver's license number was
corroborated, i.e., it also appeared in the warrant.

Officer Stites asked the dispatcher if the Soto warrant was still valid, and the
dispatcher told him it "had been confirmed." Stites arrested Soto and transported him to
the Wyandotte County Detention Center with the understanding that someone from the
Johnson County Sheriff's Department would pick him up. Soto testified in his deposition
that he protested his arrest and attempted to inform Stites that he was not the person
named in the warrant. According to Soto's brief, he also "attempted to tell the jail
personnel that he was not the person named in the warrant."

Deputy David Ornelas was the intake booking officer at the Wyandotte County
Detention Center. According to Ornelas' affidavit, he called the Johnson County Sheriff's
Department's warrants desk. His purpose was to confirm the existence of the warrant and
to make certain that Johnson County still wanted Wyandotte County to detain Soto.
Ornelas provided the Johnson County deputy "the information on [Stites'] arrest report,"
including Soto's first and last names, middle initial, date of birth, and the number of the
warrant on which Soto had been arrested. The Johnson County deputy confirmed that "a
warrant existed for Mr. Soto's arrest" and requested that Wyandotte County continue to
detain Soto. Ornelas then proceeded to book Soto on the Johnson County warrant. Soto
did not controvert any of these facts in his response to the County's motion for summary
judgment.

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After approximately 2 1/2 days in custody, Soto was picked up by authorities from
Johnson County. Not long after he arrived at their facility, Soto pointed out that he did
not look like the person pictured on the warrant. He was then released.

Soto filed a petition claiming negligence against various officers, the City of
Bonner Springs, Unified Government of Wyandotte County/Kansas City, and the
Wyandotte County Sheriff's Department. Soto later conceded that all of his negligence
claims were, in fact, claims for false arrest and imprisonment.

The City of Bonner Springs and its officers filed a motion for summary judgment
arguing that Soto's claim for false arrest was filed outside of the 1-year statute of
limitations. They also claimed immunity from liability under certain portions of the
KTCA—most importantly, the discretionary function exception.

In the County's motion for summary judgment, it argued the officers were legally
justified in detaining Soto because there was probable cause to believe a valid warrant
existed for his arrest. The County claimed that the officers had no duty to investigate
whether Soto was the person named in the Johnson County warrant. Finally, the County
argued that the discretionary function and police protection exceptions in the KTCA
provided immunity from any liability.

After hearing arguments, the district court granted summary judgment to Bonner
Springs and the County. The judge concluded that Soto's petition as to the Bonner
Springs entities and individual officers was barred by the statute of limitations, that there
was probable cause to believe there was a valid warrant for Soto's arrest, and that the
discretionary function exception applied to all of Soto's claims against both Bonner
Springs and the County. Soto appealed only the judge's order granting summary
judgment to the County. The Court of Appeals affirmed on the basis of the discretionary
function exception, and we granted Soto's petition for review.
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More facts will be provided as necessary to the analysis.

ANALYSIS

Issue: The County is immune from liability under the discretionary function exception of
the KTCA.

The Court of Appeals affirmed the district court's summary judgment on one basis:
even if the defendants owed Soto a duty and breached that duty, Soto's claims were
barred by the discretionary function exception to liability of the KTCA. As we
understand Soto's brief and clarifying oral arguments to this court, he makes no federal
claims. We further understand his arguments on appeal are limited to (1) once he asserted
a claim of mistaken identity, County detention personnel had an affirmative duty to
investigate his claim, and (2) that they lacked discretion to detain him without
investigation.

For purposes of our review, we assume, but do not decide, that a duty existed. As
discussed below, we agree with the district court and the Court of Appeals: the County is
immune from liability under the discretionary function exception.

Standard of Review

The district court's conclusion that the County is immune from liability under an
immunity exception of the KTCA is a matter of law. See Jarboe v. Board of Sedgwick
County Comm'rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997). Therefore, our review is de
novo. See Stroda v. Joice Holdings, 288 Kan. 718, 720, 207 P.3d 223 (2009) (when
material facts are undisputed, appellate review of the district court's grant of summary
judgment is de novo); Wilson v. Kansas State University, 273 Kan. 584, 586-87, 44 P.3d
454 (2002).
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Discussion

The KTCA is an "open ended" act, meaning that liability is the rule and immunity
is the exception. Kansas State Bank & Tr. Co. v. Specialized Transportation Services,
Inc., 249 Kan. 348, 364, 819 P.2d 587 (1991). The burden is on the government to
establish immunity under one of the exceptions. 249 Kan. at 364.

We recently discussed the analytical framework of the KTCA in Adams v. Board
of Sedgwick County Comm'rs, 289 Kan. 577, 585, 214 P.3d 1173 (2009):

"Hence, the analytical matrix established by the legislature in enacting the KTCA
dictates that a governmental entity can be found liable for the negligent or wrongful act
or omission of any of its employees while acting within the scope of their employment
only if (1) a private person could be liable under the same circumstances and (2) no
statutory exception to liability applies."

We will follow the framework affirmed by Adams.

A private person could be held liable for false imprisonment and arrest

A claim of false imprisonment and arrest may be asserted against either a private
individual, a private corporation, or state officials. See e.g., Alvarado v. City of Dodge
City, 238 Kan. 48, 58, 708 P.2d 174 (1985) (discussing the history of false arrest and
imprisonment as it applies to merchants); Hammargren v. Montgomery Ward & Co., 172
Kan. 484, 241 P.2d 1192 (1952); Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62
P.2d 875 (1936). In fact, the Kansas Legislature has enacted a "merchant defense" statute,
K.S.A. 21-3424(C), that this court has interpreted as applying to both criminal
prosecutions and civil claims for false arrest and imprisonment. Codner v. Skaggs Drug
Centers, Inc., 224 Kan. 531, 533, 581 P.2d 387 (1978). Because a private person could be
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liable under the same circumstances, we must address whether a statutory exception to
liability, i.e., a governmental immunity, applies.

Discretionary function statutory exception to liability

The immunity relied upon by the district court and Court of Appeals, the
governmental discretionary function exception, is contained in K.S.A. 2003 Supp. 75-
6104(e) and states:

"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."

The term "discretionary function or duty" is not defined in the KTCA. To
determine whether the function or duty is discretionary, Kansas courts look foremost to
the nature and quality of the discretion exercised. Bolyard v. Kansas Dept. of SRS, 259
Kan. 447, 452, 912 P.2d 729 (1996); Robertson v. City of Topeka, 231 Kan. 358, 361-62,
644 P.2d 458 (1982). The mere application of any judgment is not the hallmark of the
exception. See Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 623, 731 P.2d 314 (1987)
(whether employee used wet or dry mop or plain water or detergent in cleanup of vomit
on floor is ministerial because these choices do not involve any particular skill or
training; discretionary function exception does not apply).

We have consistently recognized that where there is a "clearly defined mandatory
duty or guideline, the discretionary function exception is not applicable." Nero v. Kansas
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State University, 253 Kan. 567, 585, 861 P.2d 768 (1993); see Barrett v. U.S.D. No. 259,
272 Kan. 250, 263, 32 P.3d 1156 (2001); Kansas State Bank & Trust Co., 249 Kan. at
365. A mandatory guideline can arise from agency directives, case law, or statutes.
Barrett, 272 Kan. at 263 (stating legal duty may arise by case law or by statute); Bolyard,
259 Kan. at 452-54 (agency directives).

However, if there is a duty owed (and breached), the discretionary function
exception to liability is not necessarily barred as a defense. If it were otherwise, there
would be little, if any, need for the existence of this statutory immunity for the
tortfeasor's negligence. See 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. If such were the case, K.S.A. 75-6104(e) could never
apply in a negligence action, for in order to recover for negligence, a plaintiff must
establish the existence of a duty."); see also Barrett, 272 Kan. at 264 (the discretionary
function exception provides a defense against ordinary negligence).

As we understand Soto's basic argument, he first contends that the County
detention personnel possessed a mandatory duty to investigate his claims under agency
directives, a duty they had no discretion to fail to perform. He refers to the County's
policy, Wyandotte County Sheriff's Office Detention Center Standard Operating
Procedure No. C-100. It directs jail personnel during the intake process to "receive and
review" the documents of those persons arrested "with an eye for the content and the
correct statement of charges." Soto contends that this document expresses a policy
reflecting the duty assigned to the County in K.S.A. 22-2304, which imposes a duty of
care that the person in the warrant be identified with reasonable certainty. Subsection (1)
of that statute states in relevant part:

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"The warrant shall be signed by the magistrate and shall contain the name of the
defendant, or, if his name is unknown, any name or description by which he can be
identified with reasonable certainty."

The Court of Appeals panel pointed out that all of the detention officers, in
reviewing the arrest documents, performed the duties stated in Procedure No. C-100.
Nothing in the Procedure required the officers to perform a broader investigation, e.g.,
compare fingerprints, access photographs, or take a DNA sample for potential analysis.
Further, as the County pointed out, nothing in K.S.A. 22-2304(1) limits the officers'
discretion under the current facts. By its plain language, the statute applies to the
magistrate issuing the warrant and requires a description only if the name of the
defendant is unknown. As a result, the County contends that the statute does not apply to
the actions of its detention officers. We agree with the rationale of the County and the
Court of Appeals.

Soto next points to excerpts from a deposition of Lt. Tracy McCullough of the
Wyandotte County Sheriff's Department that he alleges were made in the unrelated case
of Echols v. Unified Government of Wyandotte County/Kansas City, Kan., Case No. 04-
2484 (D. Kan. 2004). There, Lt. McCullough stated her general opinion of the usual
intake procedure. She testified that even if she did not believe an inmate's claim that he or
she was not the person named in the warrant, she would look into it. The County
responds that she in no way opined that the County had a policy for such circumstances.
Rather, Lt. McCullough testified about what she had the discretion to do when someone
made a claim of mistaken identity during the booking process. We agree. McCullough
was not expressing a County policy or her duty; only her individual practice. As
additional support for this conclusion, we observe that Soto failed to controvert a material
fact asserted by the County in its motion for summary judgment that was contained in an
affidavit from a department captain, James Eickhoff: "The decision about whether to
investigate a claim of mistaken or wrongful arrest was left to the discretion of the
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booking officer or intake supervisor. The decision about how to conduct such an
investigation also was left to the booking officer's or intake supervisor's discretion."

Soto next argues that the failure of County detention personnel to ensure with
reasonable certainty that they were holding the correct person amounts to wanton
conduct. He appears to make this argument because wanton conduct is not covered by the
discretionary function exception. See Barrett, 272 Kan. at 264.

Wantonness has long been defined in Kansas case law:

"A wanton act is something more than ordinary negligence, and yet it is 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." Saunders v. Shaver, 190 Kan. 699, 701, 378 P.2d
70 (1963).

See Reeves v. Carlson, 266 Kan. 310, 313-14, 969 P.2d 252 (1998).

However, there is no evidence from which a reasonable jury could conclude that
the County personnel acted in a wanton manner, e.g., with a reckless disregard for Soto's
rights and complete indifference to the probable consequences. By contrast, we generally
note that Deputy Ornelas called the Johnson County warrants deputy, provided Soto's
personal information from Stites' arrest report and, after relating this information,
received confirmation of the continuing validity of the warrant under which Soto had
been arrested and confirmation that Johnson County wanted Soto detained. See Warner v.
Stover, 283 Kan. 453, 456, 153 P.3d 1245 (2007) (in considering summary judgment,
court must determine whether the evidence presents a sufficient disagreement to require
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submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law).

Soto additionally argues that the County had notice that a failure to investigate a
claim of mistaken identity and a continued detention of an individual whom it should
know is probably not the person named in the warrant would make the County liable for
false imprisonment. In support of this argument, Soto lists four cases where he alleges the
County was successfully sued for other false arrest and false imprisonment claims. He
refers to these cases as: "Daniel Kirkpatrick v. Unified Government of Wyandotte
County/Kansas City, Kansas, et al.[,] 99-2450 (D. Kan[.] 1999); Alonzo Echols v. Unified
Government of Wyandotte County/Kansas City, Kansas, et al., 01-2291 (D. Kan[.]
2001)[;] Fugate v. Unified Gov't of Wyandotte County et al[.], 01 CV 02069 (D. Kan[.]
2001); [and] Alonzo Echols v. Unified Government of Wyandotte County/Kansas City,
Kansas, et al.[,] 04-2484 (D. Kan. 2004)."

The Court of Appeals panel held that the prior litigation did not provide notice to
the County because there was no proof that officers involved in the instant case were
involved in, or had any knowledge of, the prior court actions. See Soto, 38 Kan. App. 2d
at 387. More important, in Soto's argument he fails to indicate how these prior cases
provided, or created, a "clearly defined mandatory duty or guideline," i.e., to show that as
a matter of law the discretionary function exception cannot apply. See Nero, 253 Kan. at
585.

We turn now to Soto's basic argument: that detention personnel, i.e., Ornelas, had
no discretion to detain him without investigating his claim of mistaken identity.

We begin our analysis by observing that Soto points to no Kansas case law
establishing an affirmative duty for officers to investigate all claims of mistaken identity.
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Our research identifies none. Our case law does provide some guidance on discretion
from other contexts, however.

In G. v. State Dept. of SRS, 251 Kan. 179, 833 P.2d 979 (1992), this court held that
the decision by the Kansas Department of Social and Rehabilitation Services (SRS) to
remove a child from a foster care home after an investigation and finding of sexual abuse
was within the discretionary function exception. In G., there were no specific guidelines
to determine the proper course of action after a finding of sexual abuse. Similarly, in
Beebe v. Fraktman, 22 Kan. App. 2d 493, 496, 921 P.2d 216 (1996), the Court of
Appeals cited G. to support its holding that the SRS's decision whether to open a file for
further investigation of two episodes of allegations of child neglect or abuse by a father is
a discretionary function. And in Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394,
931 P.2d 26 (1997), the Court of Appeals then relied upon Beebe to hold that the SRS's
manner of conducting an investigation into a charge of child abuse by a teacher is a
discretionary function:

"The next claim of liability is based on the failure of SRS to conduct a proper
investigation. We have held the decision as to whether to open a file for further
investigation is a discretionary function. Beebe, 22 Kan. App. 2d at 496. We hold that the
manner of conducting an investigation into a charge of child abuse is also a
discretionary function. SRS is granted immunity from liability in the performance of
discretionary functions by the provisions of 75-6104(e). If there was any fault or
negligence on the part of SRS in conducting the investigation into the allegations of child
abuse in this case, no liability could be predicated on that fault under the aforementioned
section of the Kansas Tort Claims Act." (Emphasis added.) 23 Kan. App. 2d at 402-03.

Likewise, in Bolyard, 259 Kan. 447, this court ruled that SRS's decision to
temporarily place children with their mother was entitled to immunity under the
discretionary function exception:

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"Plaintiffs complain specifically that SRS was negligent in failing to talk to
[mother's] parole officer and failing to adequately monitor the household. The
means by which placements are monitored and the people to whom social workers
converse in supervising placements are not subject to any carefully drawn,
precise legal standard, but involve discriminating judgment between competing
interests and are clearly beyond the nature and character of acts the legislature
intended to be subject to judicial review." (Emphasis added.) 259 Kan. at 455-56.

Similarly, in Schmidt, 265 Kan. 372, plaintiffs' daughter was raped and killed by a
former restaurant coworker who had been conditionally released from prison. They
brought a personal injury and wrongful death action against various parties, including a
claim alleging that the Kansas Department of Corrections and a state parole officer were
liable for failure to notify their daughter's employer of her coworker's prior convictions
for rape and aggravated sodomy. This court held that the officer's failure to disclose the
criminal history to the employer fell within the discretionary function exception.

Likewise, in Jarboe, 262 Kan. 615, plaintiffs' son was shot by an escapee from a
youth residential facility where the shooter had been placed by SRS following a juvenile
court adjudication. Plaintiffs pursued several claims for personal injuries against several
entities, including a claim against SRS for the shooter's negligent placement in the
facility. This court rejected this claim, holding that the placement of a juvenile offender at
a residential facility was a discretionary function. 262 Kan. at 631; cf. Woodruff v. City of
Ottawa, 263 Kan. 557, 566-67, 951 P.2d 953 (1997) (police decision whether to take an
intoxicated individual into custody is discretionary and entitled to immunity).

Based upon our review of this Kansas case law, we hold that the County detention
officers' actions were discretionary and therefore are afforded immunity under the KTCA.
At least one court has held that allegations of mistaken identity at jail are not unusual.
Davis v. Klevenhagen, 971 S.W.2d 111 (Tex. App. 1998). The decision whether to do
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anything about a claim of mistaken identity may or may not be discretionary. Cf. Beebe,
22 Kan. App. 2d at 496 (whether to open file to investigate possible child abuse by father
is discretionary). That is a determination we need not make today under our case's facts.
But the precise steps to be taken by detention personnel to consider such a claim, e.g., to
verify personally identifying information, is discretionary. Burney, 23 Kan. App. 2d at
402-03 (manner of conducting an investigation into charge of child abuse is
discretionary); cf. Bolyard, 259 Kan. at 455-56 (people to whom social workers converse
in supervising child placements are not subject to any carefully drawn, precise legal
standard).

Here Deputy Ornelas gave the Johnson County deputy at the warrants desk the
information in Stites' arrest report, including Soto's first name, last name, middle initial,
date of birth, and the number of the warrant on which Soto had been arrested. After
receiving this information, the Johnson County deputy then informed Ornelas that the
"warrant existed for Mr. Soto's arrest" and requested Soto's detention. While in retrospect
it appears that Johnson County had a different middle initial and a different date of birth
than those provided by Ornelas, there is no evidence its deputy advised Ornelas of any
discrepancies. Indeed, Johnson County apparently confirmed Ornelas' information
because its deputy then requested that Ornelas continue to detain Soto. Moreover, per
Stites' experience as described in his uncontroverted affidavit—and as suggested by
Soto's counsel's concession at oral arguments—if Ornelas had given to Johnson County
the number of Soto's driver's license from the arrest report, that identifying information
would also have been corroborated.

The Court of Appeals looked to Davis, 971 S.W.2d 111. In Davis, the deputy who
worked in the bonding department of a jail was advised by a clerk that a jail visitor had
an outstanding warrant. The visitor denied he was the person sought. Because this was
not "an unusual response," the deputy consulted the identifiers appearing in the computer
system, compared them to the driver's license, and determined the visitor was indeed the
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person sought in the warrant. 971 S.W.2d at 112. After confirming the warrant's validity,
the deputy arrested him. It was later shown to be a misidentification, and the arrestee
sued for false arrest.

The Davis court held that the deputy's investigation to determine whether Davis
was the same individual named in the warrant was discretionary and therefore he was
immune from liability for damages under Texas law:

"We believe the evidence shows that [the deputy's] investigation culminating in
his decision to arrest Davis required personal deliberation, decision and judgment and
was a discretionary function. [Citation omitted.] An officer's decision regarding 'if, how,
and when to arrest a person' is discretionary. [Citation omitted.] Likewise, a police
officer is engaged in a discretionary function in determining 'how to investigate, and to
what extent to investigate before seeking a warrant.' [Citation omitted.] We see no reason
why the same investigatory discretion should not apply to an officer seeking to determine
whether a presenting individual is the same individual named in an arrest warrant. In
making this determination, [the deputy] was required to 'pass on facts and determine his
actions by the facts found,' and was thus exercising a discretionary function." (Emphasis
added.) 971 S.W.2d at 117-18.

The rationale and holding of the Davis court is consistent with the Kansas case law
on the discretionary function exception as set forth above.

Soto primarily refers us to Perez-Torres v. State, 42 Cal. 4th 136, 64 Cal. Rptr. 3d
155, 164 P.3d 583 (2007). There, Lenin Freud Perez-Torres had been arrested for, but not
charged with, spousal abuse. He was fingerprinted and assigned a criminal identification
and information number. Later, one Lenin Salgado Torres, a/k/a Lenin Freud Perez, was
charged with spousal abuse, fingerprinted, assigned a criminal identification and
information number, and sent to prison after his guilty plea. Perez-Torres' number was
mistakenly entered into Salgado's parole database.

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Perez-Torres was later arrested for DUI. The parole database mistakenly indicated
that he (by Salgado's name) was on parole and was therefore in violation. He was arrested
and upon his jail arrival advised his parole agent the authorities had the wrong man.
Twenty-five days later, after fingerprint comparison, he was released from custody
because of mistaken identity. He then brought suit for false imprisonment.

The Perez-Torres court rejected the State's discretionary function immunity
defense under these facts, distinguishing between basic policy decisions and actions
simply implementing them:

"Here, the state's decision to revoke Salgado's parole, based on the mistaken
belief that plaintiff, a nonparolee, was Salgado, was—like the decision in Johnson [v.
State, 69 Cal. 2d 782 (1968),] to place the dangerous youth on parole with the foster
parents—a basic policy decision and thus within the governmental immunity provision
of section 845.8(a) [California statute which includes a discretionary immunity element].
After that basic policy decision was made, however, the state defendants' conduct in
keeping plaintiff in jail after they knew or should have known that he was the wrong man
was—like the failure in Johnson to warn the foster parents of the youth's dangerous
propensities—an action implementing the basic policy decision and thus outside the
statutory immunity, making it subject to legal redress on the question of negligence by
the state. [Citation omitted.] Just as [statutory discretion element of immunity] was
inapplicable in Johnson to the state's failure to warn the foster parents, so too here it is
inapplicable to the state defendants' decision to keep plaintiff in jail after they knew or
should have known he was not parolee Salgado." 42 Cal. 4th at 135.

The Perez-Torres approach—determining whether the discretionary function
exception applies by differentiating between basic policy decisions and actions
implementing the basic policy decisions—is inconsistent with Kansas case law. In
Robertson v. City of Topeka, 231 Kan. 358, 361, 644 P.2d 458 (1982), we rejected the
similar "planning level-operational level" analysis to determine whether the discretionary
19
function exception applied. We later confirmed that the Kansas analysis is instead based
upon the "nature and quality of the discretion" exercised:

"In Robertson v. City of Topeka, 231 Kan. 358, 361-62, 644 P.2d 458 (1982), we
determined that in deciding whether the discretionary function exception 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. The test is whether the judgment of the
governmental employee is of the nature and quality which the legislature intended to put
beyond judicial review." Bolyard, 259 Kan. at 452.

In short, we conclude that a detention officer's decision on how to investigate
Soto's claims of mistaken identity was of the "nature and quality which the legislature
intended to put beyond judicial review." Bolyard, 259 Kan. at 452.

Judgment of the Court of Appeals affirming the summary judgment granted in
favor of the County is affirmed. Judgment of the district court is affirmed.