Qualified or "good faith" immunity is an affirmative defense against a lawsuit that must be asserted (pled) by a defendant government official. Gomez v. Toledo, 446 U.S. 635 (1980).
The U.S. Supreme Court established that the "good faith" defense has both an "objective" and a "subjective" aspect.
The objective element involves a presumptive knowledge of and respect for "basic, unquestioned constitutional rights." Wood v. Strickland, 420 U.S. 308, 322 (1975).
The subjective component refers to "permissible intentions." Id.
Typically the Supreme Court has defined these elements by identifying the circumstances in which qualified immunity would not be available. Referring both to the objective and subjective elements, it has held that qualified immunity would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury ...." Id. (emphasis added).
The "objective" standard for qualified immunity in the United States departs from the tradition of English common law, which used a subjective standard based on malice. As Justice Scalia wrote in Anderson v. Creighton, 483 U.S. 635 (1987):
- Although it is true that we have observed that our determinations as to the scope of official immunity are made in the light of the "common-law tradition," 5 Malley, supra, at 342, we have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow, where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. See Harlow, 457 U.S., at 815-820. As we noted before, Harlow clearly expressed the understanding that the general principle of qualified immunity it established would be applied "across the board."