Qualified immunity

Qualified immunity was initially given to a government official who was able to prove that at the time of the commission of the act complained of, he possessed a good faith belief that his actions were lawful. This was known to be the subjective element. (Orenstein, A., Presidential Immunity from Civil Liability, Nixon v. Fitzgerald. Cornell Law Review, Vol. 68, Issue 2, Article 7, January 1983 68 Cornell L. Rev. 236 (1983), pp. 23-238)

The US Supreme Court enhanced the criteria on when to invoke qualified immunity. In Wood v. Strickland, 420 U.S. 308. (1975), the US Supreme Court ruled that aside from the aforementioned subjective test, it is also important to show if the public official should have known that his act constituted a violation of the rights of the claimant. If the government official should have known that his acts violated the claimant's rights, then immunity is not granted to the government official; otherwise, the government official is entitled to qualified immunity. (Orenstein) This is referred to as the objective test.

This two-tiered test to determine the need to grant qualified immunity was modified in Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982), where the US Supreme Court removed the subjective test reasoning that inquiring into the subjective motivation of government officials would be "disruptive of effective government." Harlow now requires a two-step analysis in the determination of whether or not a government official is entitled to qualified immunity; first, as a threshold matter, the court must determine if the statutory or constitutional right asserted by the plaintiff was clear at the time of the alleged wrongful action; and, second, the court must determine whether the official should reasonably have known the action was contrary to law. (Stein, T. Nixon v. Fitzgerald: Presidential Immunity as a Constitutional Imperative. Catholic University of Law Review, Vol. 32, Issue 3, Spring 1983. 32 Cath U.L. Rev. 759. 1983).