matthew gibson – Techdirt (original) (raw)

Appeals Court Confirms Judge Gets No Immunity For Personally Searching Someone’s House

from the the-answer-is-none.-none-more-fucked-up. dept

We’ve dealt with plenty of outlandish government behavior here at Techdirt over the years. But, every so often, something clears that high bar — something that hits you square in the jaw and makes you take a step back.

You’ll never know what your government employees feel they’re entitled to do until they actually do it. I can only imagine what Matthew Gibson thought when the judge handling his divorce decided to make things extremely personal.

Trust me, you can’t even imagine what happened next.

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.

Unusual but not unheard of. Judges have occasionally requested to view scenes of crimes, etc. to gain some perspective on allegations or whatever. What is unusual is the decision to bring both parties to Mr. Gibson’s house, including his ex-wife’s lawyer.

What was even more unusual was what happened after the judge’s arrival at Gibson’s home.

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.

Holy shit.

Oh wait.

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.

That’s not what judges are supposed to do. That’s not even what law enforcement is supposed to do without probable cause a crime has been committed.

Worse, this appeared to be “normal” behavior for this particular judge.

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 district court — extremely reasonably and rationally — said this was beyond the constitutional pale and stripped the judge of immunity. And that’s not a small thing. Judicial immunity is normally impossible to remove. It takes actions like these for courts to even consider making judges subject to civil rights lawsuits.

Fortunately, the Fourth Circuit Appeals Court has come to the same conclusion. This is definitely not the sort of behavior that should be immunized. It only takes 15 pages for the Appeals Court to drive this point home in its ruling [PDF]. (h/t Short Circuit)

Here are a few highlights of the facts leading to this immunity refusal. This whole interaction would have been recorded but Judge Goldston’s threatened the victim of her rights violations with even more rights violations if he didn’t stop recording the impromptu search of his house.

The above exchange was caught on video, but Judge Goldston soon realized that she was being recorded. She ordered Gibson to stop the recordings on the ground that parties may not record family court proceedings. She told everyone to turn off their phones, warning, “I’ll take you to jail if you don’t turn them off.” When Gibson failed to comply, she ordered him to turn his phone over to the bailiff and again threatened him with arrest. Before the recording stops, Judge Goldston can be heard saying, “I am the judge trying to effect equitable distribution. We’re having a hearing. Now you let me in that house or he [the bailiff] is going to arrest you for being in direct contempt of court.”

These aren’t the actions of a public servant or a person entrusted with acting as a check and balance against government overreach. These are the acts of a thug, one who apparently misused her power multiple times to bully people into unconstitutional searches.

It only gets worse from there. And, unbeknownst to Judge Goldston, some of her further thuggery was recorded by someone she apparently felt was sufficiently under her thumb.

Unbeknownst to Judge Goldston, her bailiff recorded the first part of the search. The video painted a striking picture. Judge Goldston, her list of unproduced assets in hand, directed proceedings. When the ex-wife identified some photos hanging on the wall as being on the list, Judge Goldston told her to “take ‘em.” When the ex-wife opened a closet to reveal some yearbooks, Judge Goldston said, “Get ‘em.” And when the ex-wife said that their old DVD collection was downstairs, Judge Goldston accompanied her down and told her to “go in there and pick the ones you want.” The ex-wife sifted through the DVDs as Judge Goldston sat in a rocking chair, shoes off, supervising and giving orders.

This isn’t quasi-judicial. This is quasi-Stasi. This is also, as subsequent courts noted, standard operating procedure for Judge Goldston.

The record is extremely damning. It is also incomplete.

We lack a record of everything that happened. The bailiff recorded only seven minutes of the twenty-or-thirty-minute search. No one made a contemporaneous record of all that was taken. No police report describing the search was ever filed, even though the backup sheriff’s deputy eventually arrived, entered the home, and helped with the search. After the search, the parties reconvened in the courtroom, where Judge Goldston listed the items that had been recovered for the record. But no written order was ever entered describing or authorizing the search itself.

After admitting she performed these searches herself because she believed law enforcement officers wouldn’t be nearly as thorough in their rights violations, Goldston was hit with sanctions for “serious misconduct.” Please try not to choke on your vomit/incredulous laughter:

The disciplinary proceedings culminated when the West Virginia Supreme Court of Appeals censured Judge Goldston for her “serious misconduct” and ordered her to pay a $1,000 fine.

Jesus. Why even bother. Just because the hand was only slightly bigger than the one used in less vile cases doesn’t mean this isn’t still just a wrist slap.

Fortunately, the Appeals Court says Goldston can’t escape this lawsuit. What happened here (on multiple occasions, apparently and admittedly) falls so far outside this protection, the court simply will not grant Goldston immunity.

Judicial immunity does not protect judges so much as it protects the judicial acts they undertake as part of their public service; it is “defined by the functions it protects and serves, not by the person to whom it attaches.” […] We rest our holding that Judge Goldston is not so protected on the fact that she engaged in a nonjudicial act. Our decision is not grounded in any absence of jurisdiction. Rather, it is based on the fact that the judge clearly exceeded the most common understandings of the proper judicial role.

[…]

The search of someone’s home and the seizure of its contents are executive acts, not judicial ones. We thus hold that her activities are not eligible for the protections of judicial immunity.

The Appeals Court goes on to clarify it’s not establishing some new ground rules for judicial behavior. At this point, it is only making it clear what happened here cannot be covered by judicial immunity. The case goes back to the lower court that made the correct call in its initial decision: judges can’t pull this shit… at least not if they expect immunity to shield them from lawsuits. Goldston went rogue. With any luck it will cost her far more than $1,000. Hopefully — since she’s decided she’s better off in the private sector — it will cost her a considerable amount of her own money to right these wrongs.

And, as if this wasn’t enough to turn your stomach, two of Goldston’s fellow judges are facing judicial discipline for trying to prevent Goldston from being prosecuted. The rot runs deep. Two judges crafted a letter calling for the firing of Judicial Investigation Commission members but lied to investigators later, claiming only one judge was responsible — something that was disproven using the document’s metadata. If the judiciary cares about maintaining its reputation, it will end the careers of all three judges with enough severity they’ll be considered unhireable anywhere else in the nation.

Filed Under: 4th circuit, judicial immunity, kyle lusk, louise goldston, matthew gibson, west virginia

One Way To Lose Judicial Immunity: Perform Impromptu Warrantless Searches Of People’s Houses

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