The Supreme Court set the modern standards for qualified immunity in Harlow v. Fitzgerald, 457 U.S. 800 (1982) . The Court ruled that government officials performing discretionary functions should be protected from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would be aware. Id. at 819. Those who are plainly incompetent or who knowingly violate the law cannot invoke qualified immunity. Malley v. Briggs, 475 U.S. 335 (1986). Therefore, the official will be protected from Bivens or § 1983 liability for a discretionary act unless the violated constitutional right is of such a basic nature that a reasonable person would have known it, or if the official breaks a law. This analysis requires a case-by-case analysis that is often unpredictable and difficult to determine. Additionally, qualified immunity might be defeated by showing that the official acted with malice or corrupt motives.

To defeat a defendant’s claim of immunity, plaintiffs must show a violation of a constitutional right that the defendant knew or should have known, or a violation of law. To illustrate, a Michigan appeals court ruled that qualified immunity did not shield the superintendent of a state psychiatric hospital from liability under § 1983 for the violation of a deceased patient's constitutional rights where facts indicated in the plaintiff’s pleadings alleged that the superintendent's conduct in failing to attend the medical needs of the patient violated a clearly established constitutional right of which reasonable person should have known. Gordon v. Sadasivan, 373 N.W. 2d 258 (Mich. App. 1985).