20 July 2022 | Techdirt | #ukscams | #datingscams | #european

from the what-even-the-fuck dept

Judicial immunity is one of a handful of absolute immunities. Like the name suggests, absolute immunity is a pretty tough shield to pierce. Every so often, someone will do something terrible enough to be stripped of immunity they assumed was absolute. But those cases are extremely rare.

Rarer still is hearing of a judge being stripped of immunity. Judges are granted considerable leeway in how they handle cases. And most judges don’t come anywhere near the extremely generous guardrails that limit their judicial conduct.

Wherever the confining walls are on judicial conduct are, this West Virginia family court judge not only found them, but blew the doors off them as well. (via Volokh Conspiracy).

Here’s how you lose your judicial immunity, as recounted [PDF] by the federal judge handling family court judge Louise Goldston’s case.

On September 18, 2018, Mr. Gibson appeared before Family Court Judge Louise Goldston in his divorce action. Judge Goldston granted the parties’ divorce and adopted their property settlement agreement.

On September 26, 2019, Kyle Lusk, the attorney for Mr. Gibson’s soon-to-be-ex-wife, filed a Petition for Contempt, alleging defects in the property disbursement. On March 4, 2020, a hearing was held on this contempt petition. Judge Goldston sua sponte halted the hearing, requested Mr. Gibson’s home address, and ordered the parties to reconvene at Mr. Gibson’s home in ten minutes without explanation as to why the home visit was necessary.

You may have some idea where this is headed. But, trust me, it exceeds these presuppositions.

Having been caught off-guard by this extremely unexpected turn of events, Matthew Gibson and his girlfriend researched how to get a judge removed from a case while making the ten-minute trip. Once they arrived, Matthew Gibson approached Judge Goldston and moved to disqualify on the grounds “she had become a potential witness” by visiting Gibson’s house.

That didn’t go well.

Judge Goldston denied the motion as untimely.

That would have provoked some laughter if this were a harmless farce. But it was a harmful farce being perpetrated by a judge who seemed to believe she could resolve arguments over property disbursements by personally searching the disputed residence.

Things went downhill quickly after that.

Mr. Gibson informed Judge Goldston that she was not going inside his house without a search warrant; she replied, “oh, yes, I will.” Judge Goldston continued, “let me in that house or [the bailiff] is going to arrest you for being in direct contempt of court.” Judge Goldston admitted to threatening Mr. Gibson with arrest if he refused to allow her and others into his home. Additionally, Bailiff McPeake testified that he witnessed Judge Goldston threaten Mr. Gibson with arrest, and that as a sworn, on-duty police officer with arrest powers, he would have been obliged to effect the arrest.

Holy shit.

The judge proceeded to search the house. Gibson tried to record it but the judge ordered the bailiff to seize the homeowner’s phone. The bailiff, however, continued to record the search and took photographs inside Gibson’s house, including filming the interior of his gun safe. Once the judge was notified the bailiff was filming the search, she told him the recording was “improper” and to not do it any more.

The bailiff was accompanied by Deputy Bobby Stump, who arrived to serve as the bailiff’s requested law enforcement backup. The deputy also participated in the warrantless search (its own cause of action) “at the direction of Judge Goldston.” The search lasted for almost a half-hour. Even more bizarre and lawless bullshit happened.

Many different items of personal property were seized from Mr. Gibson’s residence without his consent, only some of which were later returned. Law enforcement created no contemporaneous inventory of the items taken or any police report.

Gibson took his recording to the media. Shortly thereafter, two complaints were filed against the judge. Gibson also sued the judge, along with the county that employed her. Apparently this wasn’t Judge Goldston’s first extrajudicial rodeo.

On September 18, 2020, the West Virginia Judicial Investigation Commission issued a Formal Statement of Charges, filed with the Supreme Court of Appeals of West Virginia, which revealed Judge Goldston admitted to conducting similar “home visits” in her capacity as Family Court Judge on at least eleven (11) separate occasions.

The end result? No judicial immunity for Judge Goldston because this rights violating field trip was so far removed from actual judicial duties, immunity cannot be applied to it.

The nature of the act was a warrantless search of Mr. Gibson’s residence and a warrantless seizure of his property. The twofold inquiry is (1) whether a search of a residence was an act normally performed by a judge, and (2) the expectations of the parties, namely, whether Mr. Gibson was dealing with Judge Goldston in her judicial capacity.

Respecting the first prong, does a judge normally execute a search warrant or personally search a residence? To quote Judge Posner, “[t]o ask the question is pretty much to answer it.” While “the issuance of a search warrant is unquestionably a judicial act,” the execution of a search and seizure is not. Indeed, searches are so quintessentially executive in nature that a judge who participates in one acts “not … as a judicial officer, but as an adjunct law enforcement officer.”

And since Judge Goldston admitted she had done this same thing “at least 11” times in the past, the claims against the Raleigh County Commission (which oversees county judges) are allowed to continue. Eleven previous warrantless searches of people’s residences suggests the Commission allows judges (and their law enforcement partners, like the bailiff and the deputy) to engage in warrantless searches. The Commission is not excused from the lawsuit.

However, the two law enforcement officers have been excused. Because qualified immunity awards officers for being ignorant and incapable/unwilling of exercising their own judgment, the two officers are free to go.

The authorities are legion that, absent a recognized exception, citizens have a clearly established right to be free from warrantless searches and seizures. […] The Court is unable, however, to find authority analogous to the present situation where officers participate in a warrantless search and seizure when a judge is physically present and personally directing the effort.

[…]

The Court is unable to conclude that reasonable law enforcement officers positioned akin to Bailiff McPeake and Deputy Stump would have known that their conduct — that is, following Judge Goldston’s orders and participating in the search and seizure that she directed — would violate Mr. Gibson’s Fourth Amendment rights.

The judge can continue to be sued by her victim. Perhaps this will lead to something far more substantial that the half-hearted wrist slap handed down by the state’s top court.

Based upon the facts and circumstances of this case, and taking into account the mitigating factors present, as well as the parties’ previous stipulations in this matter, we impose a censure and a fine of $1,000.

Yeah. That ought to do it. Hopefully, this lawsuit does more damage to a judge who has admitted a pattern and practice of exceeding the limits of her judicial duties. Maybe it will be damaging enough state and local officials will decide Judge Goldston would be better off exploring private sector employment opportunities. But that seems doubtful when the best it can do is a grand and some censure at this point.

Filed Under: 4th amendment, judicial immunity, louise goldston, matthew gibson, warrantless search, west virginia