The qualified immunity doctrine allows courts to dismiss constitutional claims against government officials — before they are aired at trial and without adjudicating the constitutional claims at issue — if the law is not clearly established at the time of the officials’ acts. This controversial doctrine has received increased public scrutiny amid a nationwide reckoning on race in the wake of several high-profile deaths stemming from citizen-police interactions in the summer of 2020. Despite growing public disapproval of the doctrine, little empirical work has investigated the extent to which members of the public are willing to legitimize or delegitimize it, and the circumstances under which they might do so.

This Article is the first to explore the qualified immunity doctrine from an institutional design perspective. Insights from social identity theory, relational psychology, and procedural and interactional justice suggest that the procedures through which legal doctrines are implemented have profound effects on the public’s attitudes toward the judiciary. These procedures routinely convey relational signals with respect to the degree of voice, respect, and dignity that members of the public are afforded under the law. This Article is the first to present data — derived from four original psychology experiments — suggesting that courts and policymakers ignore procedural deficiencies in the qualified immunity doctrine to the detriment of its popular legitimacy.

The experiments suggest the current iteration of qualified immunity is the least legitimate version of the doctrine as it has evolved over decades of the Supreme Court’s jurisprudence, in part because the public does not view the doctrine as procedurally just. The experiments also suggest a reason for this public disapproval: policymakers have failed to consider how the doctrine deprives plaintiffs of core tenets of procedural justice — for example, feeling meaningfully heard and respected — when the doctrine prevents plaintiffs from airing their claims in front of a jury and receiving a decision on the merits. This Article concludes by exploring recommendations for enhancing the popular legitimacy of the qualified immunity doctrine by improving the relational signals that it sends to the public.