Gibson Brief of Appellee

USCA4 Appeal: 22-1757 Doc: 27 Filed: 11/14/2022 Pg: 1 of 72
RECORD NO. 22-1757
In The
United States Court of Appeals

for the Fourth Circuit
MATTHEW GIBSON,
Plaintiff-Appellee,
v.
LOUISE E. GOLDSTON, individually,

Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BRIEF OF APPELLEE
Victoria Clark Anya Bidwell

INSTITUTE FOR JUSTICE Patrick Jaicomo
816 Congress Avenue, Suite 960 INSTITUTE FOR JUSTICE
Austin, Texas 78707 901 North Glebe Road,
(512) 480-5936 Suite 900
Arlington, Virginia 22203
(703) 682-9320
John Bryan
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street, PO Box 366
Union, West Virginia 24983
(304) 772-4999
Counsel for Plaintiff-Appellee

RULE 26.1 DISCLOSURE STATEMENT
Under Federal Rule of Appellate Procedure 26.1 and Local Rule
26.1, Plaintiff-Appellee Matthew Gibson makes these disclosures:
• Plaintiff-Appellee is a natural person.
• To Plaintiff-Appellee’s knowledge, no publicly held corporation or
other publicly held entity has a direct financial interest in the
outcome of this litigation.
• This case does not arise out of a bankruptcy proceeding.
• This is not a criminal case in which there was an organizational
victim.
Date: November 14, 2022.

/s/ Victoria Clark
Victoria Clark
i
TABLE OF CONTENTS
PAGE
RULE 26.1 DISCLOSURE STATEMENT ................................................. i
TABLE OF CONTENTS ........................................................................... ii
TABLE OF AUTHORITIES ..................................................................... vi
JURISDICTIONAL STATEMENT ........................................................... 1
STATEMENT OF THE ISSUES ............................................................... 1
STANDARD OF REVIEW......................................................................... 1
STATEMENT OF THE CASE .................................................................. 2
I. West Virginia family court Judge Louise Goldston searches

the plaintiff’s home. ................................................................ 2
II. The West Virginia high court fines and censures Judge
Goldston, concluding that she acted without judicial
authority when she conducted the unconstitutional search
and seizure. ............................................................................. 7
III. The district court denies Judge Goldston judicial immunity

because, as the West Virginia high court confirmed, her
actions were not judicial and were taken in the complete
absence of jurisdiction. .......................................................... 11
SUMMARY OF THE ARGUMENT ........................................................ 12
ARGUMENT ........................................................................................... 14
I. Judge Goldston is not entitled to judicial immunity because

conducting a search of an individual’s home is a
quintessentially non-judicial act........................................... 16
ii
PAGE
A. Searching someone’s home is not a function normally

performed by a judge.................................................... 16
i. Goldston personally participated in a search of

Gibson’s home. .................................................... 17
ii. Goldston is precluded from arguing she did not

personally participate in the search. .................. 22
iii. Personally participating in and leading a search

is an executive act under longstanding Supreme
Court precedent................................................... 24
iv. Judicial immunity does not shield

executive-branch actions, even when the actor is
a judge. ................................................................ 27
1. The Supreme Court has expressly held that

judicial immunity does not apply to judges
performing executive actions. .................... 28
2. The Fifth, Seventh, and Ninth Circuits

affirm that judges are not entitled to
judicial immunity when behaving like
law-enforcement officers. ........................... 29
3. No one receives absolute immunity for

behaving like a police officer. .................... 32
v. It is a judicial act to order a search; it is not a

judicial act to conduct a search........................... 34
vi. Conclusion ........................................................... 39
iii
PAGE
B. Gibson was not interacting with Judge Goldston in

her judicial capacity. .................................................... 40
i. Gibson stated on video—and surrounding

circumstances confirmed—that he was not
interacting with Goldston in her judicial
capacity. .............................................................. 41
ii. Even if the parties appeared to interact with

Goldston in her judicial capacity at times, she
was not acting in her judicial capacity when
performing the search. ........................................ 45
iii. Neither the bailiff’s recording—of which Goldston

disapproved—nor the nature of Goldston’s
disciplinary proceedings prove that the parties
interacted with Goldston in a judicial
capacity. .............................................................. 48
iv. Conclusion ........................................................... 49
II. Judicial immunity is also inapplicable because, under the

West Virginia Constitution, Judge Goldston acted in the
complete absence of jurisdiction by performing
executive-branch functions. .................................................. 50
A. Goldston lacked jurisdiction because she was entirely

devoid of the power to search Gibson’s home under the
West Virginia Constitution. ......................................... 51
B. The West Virginia Supreme Court has specifically held

that Goldston completely lacked the authority to
search in this case. ....................................................... 53
III. Granting judicial immunity here would not serve the

doctrine’s underlying purposes. ............................................ 55
iv
PAGE
A. Immunizing judges from suit for usurping executive

power does not protect the judicial process. ................ 55
B. Appellate review of Goldston’s actions was

unavailable. .................................................................. 57
CONCLUSION ........................................................................................ 58
REQUEST FOR ORAL ARGUMENT ..................................................... 59
CERTIFICATE OF COMPLIANCE ........................................................ 61
CERTIFICATE OF SERVICE................................................................. 62
v
TABLE OF AUTHORITIES
PAGE(S)
CASES
Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) .................. 38, 55
Barr v. Mateo, 360 U.S. 564 (1959) ......................................................... 55
Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871) ............................ passim
Brown v. Reinhart, 760 F. App’x 175 (4th Cir. 2019) ............................... 1
Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ................................... 33, 57
Buckley v. Valeo, 424 U.S. 1 (1976) ......................................................... 40
Burns v. Reed, 500 U.S. 478 (1991)................................................. passim
Butz v. Economou, 438 U.S. 478 (1978) ............................................ 12, 57
Carpenter v. United States, 138 S. Ct. 2206 (2018) .......................... 18, 19
Coolidge v. New Hampshire, 403 U.S. 443 (1971) .................................. 38
Dotzel v. Ashbridge, 438 F.3d 320 (3d Cir. 2006) ................................. 1, 2
Ex parte Virginia, 100 U.S. 339 (1879) ................................................... 27
Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) ................... 44
Figueroa v. Blackburn, 208 F.3d 435 (3d Cir. 2000) .............................. 47
Forrester v. White, 484 U.S. 219 (1988) .......................................... passim
Gibson v. Goldston, No. 5:21-cv-00181, 2022 WL 2719725

(S.D. W. Va. July 13, 2022) .......................................................... passim
vi
PAGE(S)
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) .......................................... 44
Goldstein v. Moatz, 364 F.3d 205 (4th Cir. 2004) ................................... 33
Gray-Hopkins v. Prince George’s County, 309 F.3d 224

(4th Cir. 2002) ........................................................................................ 2
Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974) ......................... passim
Imbler v. Pachtman, 424 U.S. 409 (1976) ............................................... 32
In re McNallen, 62 F.3d 619 (4th Cir. 1995) ........................................... 23
Jones v. Cannon, 174 F.3d 1271 (11th Cir. 1999)..................................... 1
King v. Myers, 973 F.2d 354 (4th Cir. 1992) ................................... passim
Kyllo v. United States, 533 U.S. 27 (2001) .............................................. 19
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) ........................ passim
Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980) .......... 31, 32, 52, 53
Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d 1306

(10th Cir. 1999) ...................................................................................... 1
Malina v. Gonzalez, 994 F.2d 1121 (5th Cir. 1993) .................... 29, 30, 47
Matter of Goldston, 866 S.E.2d 126 (W. Va. 2021) ......................... passim
Mireles v. Waco, 502 U.S. 9 (1991) .................................................. passim
Nero v. Mosby, 890 F.3d 106 (4th Cir. 2018) ............................................ 1
Pegg v. Herrnberger, 845 F.3d 112 (4th Cir. 2017) ................................... 2
vii
PAGE(S)
Pierson v. Ray, 386 U.S. 547 (1967) ............................................ 14, 56, 57
Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001) ................................. 44
State ex rel. Hensley v. Nowak, 556 N.E.2d 171 (1990) .......................... 10
State ex rel. McGraw v. Johnson & Johnson, 704 S.E.2d 677

(W. Va. 2010)........................................................................................ 23
Stump v. Sparkman, 435 U.S. 349 (1978) .................................. 16, 26, 40
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478
(5th Cir. 2000) ........................................................................................ 1
United States v. Brinkley, 980 F.3d 377 (4th Cir. 2020) ........................ 44
United States v. Jacobsen, 466 U.S. 109 (1984)...................................... 18
United States v. Leon, 468 U.S. 897 (1984) ............................................ 26
United States v. Servance, 394 F.3d 222 (4th Cir. 2005), vacated on
other grounds, 544 U.S. 1047 (2005) ............................................. 20, 27
Weathers v. Ebert, 505 F.2d 514 (4th Cir. 1974) ..................................... 34
CONSTITUTIONAL PROVISIONS
W. Va. Const. art. V, § 1 .................................................................... 50, 52
CODES AND STATUTES
28 U.S.C. § 1331 ........................................................................................ 1
42 U.S.C. § 1983 ...................................................................................... 11
W. Va. Code § 62-10-9 ............................................................................. 38

viii
PAGE(S)
W. Va. Code § 62-1A-3 ............................................................................. 38
W. Va. Code § 62-1A-4 ............................................................................. 38
OTHER AUTHORITIES
Brad McElhinny, Ethics hearing concludes in judge’s case, with his

peers to decide if he crossed the line, MetroNews, June 16, 2022 ....... 49
Debra Cassens Weiss, Alleged Walmart walkouts lead to new ethics

charge against ‘distracted’ judge, ABAJournal, Mar. 2, 2022 ............ 49
Noah Webster, An American Dictionary of the English Language 66

(1828) (reprt. 6th ed. 1989) .................................................................. 19
The Federalist No. 47 (James Madison)

(Benjamin F. Wright ed., 1961) ............................................... 14, 52, 59
ix
JURISDICTIONAL STATEMENT
This Court has subject-matter jurisdiction under 28 U.S.C. § 1331.
This Court also has appellate jurisdiction over interlocutory appeals of
denials of absolute immunity. See Nero v. Mosby, 890 F.3d 106, 121–23
(4th Cir. 2018).
STATEMENT OF THE ISSUES
This appeal poses a single issue: Is a judge entitled to judicial
immunity for performing the executive function of searching someone’s
home and directing the seizure of his property?
STANDARD OF REVIEW
Federal appellate courts typically review de novo the denial of
summary-judgment motions based on absolute immunity. See, e.g.,
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 482
(5th Cir. 2000); Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d
1306, 1313 (10th Cir. 1999); Jones v. Cannon, 174 F.3d 1271, 1281 (11th
Cir. 1999). However, as in qualified-immunity cases, this court has
jurisdiction over interlocutory appeals of the denial of absolute immunity
only to the extent the denial turns on an issue of law. Brown v. Reinhart,
760 F. App’x 175, 178 (4th Cir. 2019); accord Dotzel v. Ashbridge, 438
1
F.3d 320, 324 (3d Cir. 2006). Thus, on review, this Court “construe[s] all
facts in the light most favorable to [the] non-moving party” and must
“accept the facts as the district court articulated them when it
determined whether summary judgment was appropriate.” Pegg v.
Herrnberger, 845 F.3d 112, 117 (4th Cir. 2017); see also Gray-Hopkins v.
Prince George’s County, 309 F.3d 224, 229 (4th Cir. 2002). Only then does
the Court determine, based on the district court’s version of the facts,
whether immunity is proper. See Pegg, 845 F.3d at 117.
STATEMENT OF THE CASE
This case arises out of the illegal search of plaintiff Matthew
Gibson’s home.
I. West Virginia family court Judge Louise Goldston

searches the plaintiff’s home.
During their divorce proceedings, Gibson and his ex-wife reached
an agreement on the division of certain items of personal property.
Gibson v. Goldston, No. 5:21-cv-00181, 2022 WL 2719725, at *1 (S.D. W.
Va. July 13, 2022); JA541–543 (Gibson Depo.) 14:7–23:15. Gibson’s ex-
wife later filed a petition for contempt, allegedly because Gibson retained
some of her property after the divorce. Gibson, 2022 WL 2719725, at *1;
JA546 (Gibson Depo.) 35:14–37:21. On March 4, 2020, the parties
2
appeared in West Virginia family court—before defendant Judge Louise
Goldston—for a hearing on the petition. Gibson, 2022 WL 2719725, at *1;
JA546–547 (Gibson Depo.) 37:12–41:2. During the hearing, Judge
Goldston abruptly stopped the proceeding and ordered the parties to
meet at Gibson’s home immediately. Gibson, 2022 WL 2719725, at *1.
Goldston did not explain the purpose of the visit and Gibson—a federal
law-enforcement officer by trade—did not have legal representation. Id.
at *2; JA260–261 (Goldston Depo.) 58:16–59:20; JA546–547 (Gibson
Depo.) 37:17–38:3; JA554 (Gibson Depo.) 69:12–69:18.
After Goldston arrived at the house, Gibson moved to recuse
Goldston on the ground that she had become a witness in the case.
Gibson, 2022 WL 2719725, at *1; JA Digital Media Volume Ex. D
(hereinafter “Gibson Video”) at 1:00–1:25. 1 Goldston denied the motion
as untimely. Gibson, 2022 WL 2719725, at *1; Gibson Video at 1:16–1:22.
Gibson also stated that he did not consent to the search of his home
without a warrant and told Goldston that she “[wouldn’t] get in [his]
house without a search warrant.” Gibson Video 1:21–1:23; Gibson, 2022
WL 2719725, at *1. Goldston responded: “Oh yeah, I will.” Gibson Video
1 Available at https://youtu.be/DA67kzFO-oQ.
3
1:23–1:25; Gibson, 2022 WL 2719725, at *1. Shortly after, Goldston again
ordered Gibson to let her into his house under threat of arrest. Gibson,
2022 WL 2719725, at *1; Gibson Video 2:12–2:17.
During these events, Gibson and his girlfriend were recording the
encounter. Gibson, 2022 WL 2719725, at *1; Gibson Video at 2:12–2:17.
When Goldston realized that she was being recorded, however, she
ordered Gibson and his girlfriend to stop. Gibson, 2022 WL 2719725, at
*1. Goldston then ordered the bailiff to seize Gibson’s cell phone because
she believed that Gibson was still recording. Id.
Goldston then directed and led a search of Gibson’s home for about
half an hour, accompanied by a search party that included the court
bailiff, Gibson’s ex-wife, and the ex-wife’s attorney. Gibson, 2022 WL
2719725, at *2; JA211–215 (Goldston Depo.) 9:3–13:20; JA574 (Gibson
Depo.) 149:1–149:3. At all times during the incident, everyone in the
home was taking instructions from Goldston. See generally JA Digital
Media Volume Ex. E (hereinafter “McPeake Video” 2). Specifically, during
the search, Goldston gave numerous orders to members of the search
2 Available at https://youtu.be/HA1UuxUiCwk.
4
party about where, when, and how they could look for and seize disputed
items. As shown in the McPeake Video:
- Goldston pointed to disputed photographs and
demanded the search party “take ‘em” (0:25–0:30);
- Goldston, upon seeing disputed yearbooks, ordered the
search party to “get ‘em” (1:00–1:08);
- Goldston instructed the ex-wife: “I can’t let you search
unless you have some idea of where they might be”
(2:30–2:36);
- Goldston herself decided to go to the basement, with
the search party following, upon learning that
disputed property might be located there (2:50–3:00);
- Goldston ordered the ex-wife to “go in there and pick
[the DVDs] you want” (3:17–3:22);
- Goldston controlled and supervised the ex-wife’s
search through Gibson’s DVD collection: “Just go
through ‘em” (3:22–4:22);
5
- When Gibson requested to “kill two birds with one
stone,” Goldston responded that it “depends what it is”
(4:24–4:28);
- Goldston granted Gibson permission to check a safe
and ordered the bailiff, multiple times, to go with him
(4:27–4:42);
- Goldston further instructed Gibson and his ex-wife on
how to continue with the DVD search (6:00–6:22);
- Finally, Goldston demanded: “You look at those
[DVDs] over there Mr., uh, Gibson. Mr. Gibson, listen
to me! Look over there and see if you agree that you
had all of those” (6:39–6:50).
During much of this time, Goldston sat in Gibson’s rocking chair
barefooted, without permission, while she demanded that those around
her continue the search according to her precise instructions. McPeake
Video at 3:22–4:47, 5:48–7:18.
Despite Goldston’s order that the incident not be recorded, the court
bailiff videoed about seven minutes of the search inside the house on his
cell phone without Goldston’s knowledge. Gibson, 2022 WL 2719725, at
6
*1; see generally McPeake Video. When he informed Goldston of the
recording, she admonished that his actions were improper and that he
should not do it again. Gibson, 2022 WL 2719725, at *1; JA221–222
(Goldston Depo.) 19:8–20:22. No known recording exists of the remainder
of the search.
The search party ultimately removed several items from the home
without Gibson’s consent. Gibson, 2022 WL 2719725, at *1; JA576–577
(Gibson Depo.) 157:8–159:17. Some of the items belonged to Gibson’s
children or girlfriend, and some of the wrongfully seized items were never
returned. JA576–577 (Gibson Depo.) 157:8–159:17; Gibson, 2022 WL
2719725, at *2. And law enforcement on the scene did not create an
inventory of the items taken. Gibson, 2022 WL 2719725, at *2.
II. The West Virginia high court fines and censures Judge
Goldston, concluding that she acted without judicial
authority when she conducted the unconstitutional
search and seizure.
After video footage of the incident became public, Goldston faced
multiple ethics complaints for her actions. Matter of Goldston, 866 S.E.2d
126, 130–31 (W. Va. 2021). The West Virginia Judicial Investigation
Commission thereafter filed ethics-violations charges against Goldston
under the state Code of Judicial Conduct. Id. at 131. She ultimately
7
settled the case via an agreement in which she admitted to both the
violations and the underlying factual allegations. Id. at 132. She also
agreed that censure and a $5,000 fine were appropriate sanctions. Id.
During the disciplinary process, Goldston admitted that she
regularly conducted these so-called “home visits” in the midst of family-
court proceedings. Id. at 131; see also JA479 (Stump Depo.) 6:22 (officer
stating that he had gone to litigants’ houses “[n]umerous times” with
Goldston). However, Goldston could not identify any legal authority that
supported her practice or any established procedures that governed it.
Matter of Goldston, 866 S.E.2d at 131. She also admitted that she never
created a record of the off-site proceedings—either via court reporter or
otherwise—and did not subsequently enter orders reflecting what
happened at the homes. Id. at 131–32. And she agreed that her personal
presence at the residences made her a potential witness to future
proceedings and improperly usurped the litigants’ burden of producing
evidence. Id. at 132. Moreover, Goldston admitted that she could have
ordered law-enforcement officers to conduct searches, but she asserted
that the officers would not have done a good enough job. Id. at 131
(quoting Goldston disciplinary-proceeding testimony: “I have been told by
8
every sheriff that I’ve worked with . . . that [looking for property in
divorce disputes is] not something they do, that they’re not going for more
than 15 minutes . . . to do anything”).
The West Virginia Supreme Court of Appeals ultimately imposed a
censure and a $1,000 fine, id. at 139, publicly rebuking Goldston for
“exercis[ing] executive powers forbidden to her under the West Virginia
Constitution,” id. at 129. Citing federal Fourth Amendment precedent,
the Court held that Goldston conducted a search of Gibson’s residence.
Id. at 135. According to the Court, “the record [was] clear that Judge
Goldston went to the property to locate things.” Id. The Court observed
that when Gibson stated that he did not know where certain items were
located, Goldston replied: “Well, we’re gonna find it.” Id. “Looking for
things,” the Court reasoned, “is a ‘search’ by any sensible definition of the
term.” Id.
The Court went on to explain that “[s]earches are an activity of the
executive department,” which “is to announce no new principle of law.”
Id. “[S]earches are so quintessentially executive in nature,” the Court
reasoned, “that even a judge who participates in one acts not as a judicial
officer, but as an adjunct law enforcement officer.” Id. (cleaned up)
9
(quoting State ex rel. Hensley v. Nowak, 556 N.E.2d 171, 173 (Ohio 1990)
(per curiam)). The inescapable conclusion, then, was that Goldston’s
behavior was unlawful: “Under our system of government, judges may
not exercise executive powers.” Matter of Goldston, 866 S.E.2d at 135.
The Court thus held that Goldston unlawfully usurped the powers of the
executive branch by searching Gibson’s home and seizing his property.
Id.
But the Court continued, noting that Goldston also “compounded
her error by the manner in which she conducted the search.” Id. at 129.
The Court opined that “Judge Goldston went about the search in a
highhanded and procedurally flawed manner,” failing to afford the
parties the opportunity to be heard and prohibiting the creation of a
record despite “claim[ing]” to be holding a hearing. Id. at 137. “Without
question,” the Court observed, “Judge Goldston’s conduct cast doubt in
the minds of the citizens who viewed the recording of the incident as to
whether the parties were being treated with justice and fairness.” Id. The
Court ultimately rejected the state hearing board’s recommendation for
a lower sanction and imposed a censure based on “the seriousness of
10
Judge Goldston’s conduct and the impact such violations have on the
public’s confidence in the judiciary.” Id. at 138.
III. The district court denies Judge Goldston judicial

immunity because, as the West Virginia high court
confirmed, her actions were not judicial and were taken
in the complete absence of jurisdiction.
While the disciplinary proceedings were pending, Gibson sued
Goldston and others involved in the search under 42 U.S.C. § 1983.
Gibson v. Goldston, No. 5:21-cv-00181, 2022 WL 2719725 (S.D. W. Va.
July 13, 2022). Gibson claimed that the search and seizure of his property
violated his Fourth and Fourteenth Amendment rights and that the
restrictions on recording the incident violated the First Amendment. Id.
at *2. Goldston later sought summary judgment on the ground that she
was entitled to judicial immunity. Id. at *3.
The district court denied the motion, holding that Goldston was not
entitled to immunity because the search of Gibson’s property was a
nonjudicial act to which judicial immunity protections do not attach. Id.
at *6. The court reasoned that Goldston’s conduct was nonjudicial for two
reasons: first, because conducting searches and seizures is an executive
function that judges do not normally perform (tracking the West Virginia
Supreme Court’s holding); and second, because Gibson was not dealing
11
with Goldston in her judicial capacity, as evidenced by the fact that
Gibson specifically moved for her to recuse herself for acting outside her
judicial capacity. Id. at *5. Furthermore, the court concluded that even if
Goldston’s actions were judicial in nature, they were taken in the
complete absence of jurisdiction because the West Virginia Constitution
forbids judicial officers from performing executive functions (again
tracking the West Virginia Supreme Court’s decision). Id. at *6 n.3. And
the absence of jurisdiction, the court recognized, was an independent
basis for denying Goldston immunity. Id. at *4.
SUMMARY OF THE ARGUMENT
Judges have difficult jobs. They must often preside over bitter
disputes and make hard decisions with no clear right answer. That’s why
the Supreme Court has repeatedly recognized that judges need protection
from lawsuits arising out of their judicial duties. See, e.g., Butz v.
Economou, 438 U.S. 478, 512 (1978).
Had Goldston simply erred while doing her job as a judge, immunity
would likely protect her. But that’s not what Goldston did, and nothing
in her opening brief suggests otherwise. Despite Goldston’s protests, this
12
case turns on the simple idea that a judge is not entitled to judicial
protection for acting like a member of the executive branch.
As a matter of precedent, the Supreme Court has repeatedly
observed that judicial immunity does not protect judges from suit if they
are not engaged in judicial acts. See, e.g., Mireles v. Waco, 502 U.S. 9, 11–
13 (1991) (per curiam); Forrester v. White, 484 U.S. 219, 227 (1988).
Goldston cannot carry her burden of showing that she is entitled to
immunity for engaging in executive acts instead. See Burns v. Reed, 500
U.S. 478, 486 (1991) (“[T]he official seeking absolute immunity bears the
burden of showing that such immunity is justified for the function in
question.”). Further, judges don’t get immunity, even for judicial acts,
when those acts are performed in the complete absence of jurisdiction.
Mireles, 502 U.S. at 12. And as already held by the highest authority on
the subject, the West Virginia Constitution makes clear that judges
completely lack authority to usurp the power of the executive branch.
Matter of Goldston, 866 S.E.2d 126, 136 (W. Va. 2021).
Additionally, as a matter of common sense, Goldston should not be
entitled to immunity. Judicial immunity exists to protect independent
judicial decision making and limit redundant collateral attacks that
13
belong in the ordinary appellate process. See Bradley v. Fisher, 80 U.S.
(13 Wall.) 335, 347 (1871); Pierson v. Ray, 386 U.S. 547, 554 (1967).
Because neither purpose is served here, granting judicial immunity
simply makes no sense.
As James Madison recognized at our country’s founding, merging
powers of multiple branches of government in the hands of one official
“may justly be pronounced the very definition of tyranny.” The Federalist
No. 47, at 336 (James Madison) (Benjamin F. Wright ed., 1961). Were a
judge to usurp the power of the executive branch, “the judge might
behave with all the violence of an oppressor.” Id. at 338 (quoting
Montesquieu). Thus judicial immunity does not, cannot, and should not,
protect judges who blatantly ignore the separation of powers like Judge
Goldston did here. The district court correctly concluded that judicial
immunity does not shield Goldston for exercising the power of the
executive branch and acting in the complete absence of all jurisdiction.
This Court should affirm that decision.
ARGUMENT
For decades, the Supreme Court has instructed that the judicial
immunity analysis turns on whether the conduct in question is a “truly
14
judicial act[],” or whether it is an “act[] that simply happen[s] to have
been done by [a] judge[].” Forrester v. White, 484 U.S. 219, 227 (1988).
Goldston’s conduct here is a quintessential example of “acts that simply
happen to have been done by [a] judge,” id., because conducting,
directing, and supervising the search of private property is an executive,
not judicial, act, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979).
Under the modern formulation of the doctrine, judges are not
entitled to immunity for actions that are (1) “nonjudicial,” meaning “not
taken in the judge’s judicial capacity,” or (2) “taken in the complete
absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991).
Either one is independently sufficient to deny Goldston immunity. As the
district court correctly held, the actions at issue here—Goldston’s search
of Gibson’s home and the resulting seizures of his property—fall into both
categories. Moreover, granting judicial immunity here would not serve
the doctrine’s underlying purposes. Goldston therefore is not entitled to
this special judicial protection.
15
I. Judge Goldston is not entitled to judicial immunity because

conducting a search of an individual’s home is a
quintessentially non-judicial act.
Whether a judge’s action qualifies as a “judicial act” turns on “the
nature of the act.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). Courts
ordinarily look to two factors in this analysis: (1) “whether [the act] is a
function normally performed by a judge,” and (2) “whether [the parties]
dealt with the judge in his judicial capacity.” Id. However, courts often
focus on the first factor and give it great, if not dispositive, weight. See,
e.g., Mireles, 502 U.S. at 12–13 (noting the existence of the second factor
but focusing on the first in the substantive analysis); Forrester, 484 U.S.
at 227–30 (analyzing the first factor without even mentioning the
second). Here, both factors conclusively demonstrate that Goldston’s
search of Gibson’s home was a nonjudicial act and thus insufficient to
invoke judicial immunity.
A. Searching someone’s home is not a function normally performed

by a judge.
As to the first factor, the “relevant inquiry is the ‘nature’ and
‘function’ of the act, not the ‘act itself.’” Mireles, 502 U.S. at 13 (quoting
Stump, 435 U.S. at 362). This means that courts “look to the particular
act’s relation to a general function normally performed by a judge.” Id.
16
Here, Goldston’s act—searching a litigant’s private residence—is not a
function normally performed by a judge.
Specifically, according to both Fourth Amendment precedent and
the West Virginia Supreme Court, Goldston personally participated in a
search of Gibson’s home. The Supreme Court has long held that the
nature and function of a search is executive, not judicial—it is not a
function normally performed by a judge. And the Court has made equally
clear that judges are not entitled to judicial immunity for performing
executive acts. While Goldston may be correct that she had the power to
order the search, both this Court and the Supreme Court have observed
that the power to order an executive function is separate from the power
to perform that executive function. Thus the nature of Goldston’s
personal participation in the search of Gibson’s home was non-judicial,
and her conduct was not a judicial act to which immunity protections
attach.
i. Goldston personally participated in a search of Gibson’s

home.
In her brief, Goldston argues that she did not search Gibson’s home.
See Goldston’s Br. at 18. She cannot dispute that she coerced Gibson to
allow entry into his home under threat of arrest. See Gibson, 2022 WL
17
2719725, at *1. Nor can she dispute that she maintained control of the
search at all times, deciding whether and when the search party could
look in specific parts of the house and which items they could seize. See
supra pp. 5–6 (citing McPeake Video). Instead, she contends—without
citing any supporting legal authority—that she cannot be personally
charged with engaging the search because she was merely supervising it
and was not personally looking for items. Goldston’s Br. at 18. However,
Goldston attempts to muddy the waters where the Constitution itself is
clear—any infringement of a reasonable expectation of privacy is a
search, and Goldston ran roughshod over Gibson’s privacy interest in his
own home. Moreover, Goldston personally looked for Gibson’s DVDs. And
her role as the leader of the search party only makes her more responsible
for the search, not less.
At the outset, Goldston’s arguments ignore fundamental principles
of constitutional law. A search under current Fourth Amendment
doctrine “occurs when an expectation of privacy that society is prepared
to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S.
109, 113 (1984); see also Carpenter v. United States, 138 S. Ct. 2206, 2213
(2018) (“For much of our history, Fourth Amendment search doctrine was
18
tied to common-law trespass and focused on whether the Government
obtains information by physically intruding on a constitutionally
protected area.” (internal quotation marks omitted)). And few things are
more established in constitutional law than the proposition that
individuals have a reasonable expectation of privacy in their homes. See
Kyllo v. United States, 533 U.S. 27, 34 (2001) (describing the home as “the
prototypical . . . area of protected privacy”). Goldston asserted
government power to enter Gibson’s home as the leader of a search party
looking for specific items of personal property.3 See JA422 (McPeake
Depo.) 25:14–25:16 (“I remember us going there to retrieve items that
were agreed that were going to be taken from him and given to her.”).
Had Goldston blindfolded herself and said nothing for the entire incident,
her mere presence in Gibson’s home would still have infringed on
3Goldston does not, and cannot, dispute that the individuals she
was supervising engaged in a search by looking for disputed items. As
the West Virginia Supreme Court observed in Goldston’s disciplinary
proceeding, “[l]ooking for things is a ‘search’ by any sensible definition of
the term.” Matter of Goldston, 866 S.E.2d at 135; see also Kyllo, 533 U.S.
at 32 n.1 (noting that to search means “to look over or through for the
purpose of finding something; to explore; . . . as to search the house for a
book” (quoting Noah Webster, An American Dictionary of the English
Language 66 (1828) (reprt. 6th ed. 1989)).
19
Gibson’s reasonable expectation of privacy and therefore qualified as a
search.
Yet she did far more than that. Goldston did look for things—at the
very least, Gibson’s DVDs. As shown at 2:50–3:21 of the McPeake Video,
Goldston herself decided that she and the rest of the search party should
go down to Gibson’s basement upon learning that the disputed DVDs
might be located there. She then arrived in the room with the DVDs and
observed them before anyone moved them. Thus Goldston did not merely
order others to look for things. She personally participated in looking
for—and ultimately finding—allegedly disputed items during the search.
Further, even if this Court accepted Goldston’s assertion that she
did not personally look for items during the search, Goldston is still fully
responsible as the leader of the search. As this Court has recognized, “it
is elementary that a judge can overstep his responsibilities . . . if, by way
of example, he serves as a leader of a search party.” United States v.
Servance, 394 F.3d 222, 231 (4th Cir. 2005), vacated on other grounds,
544 U.S. 1047 (2005) (mem.) (emphasis added). The Supreme Court has
similarly held that a judge does not act as a judicial officer when leading
a search party. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979)
20
(holding that the judge violated the Constitution by “allow[ing] himself
to become a member, if not the leader, of the search party which was
essentially a police operation” (emphasis added)).
Here, Goldston was unquestionably the leader of the group that
searched Gibson’s home. She forced Gibson to allow the group to enter
his home and then personally entered the home herself. She maintained
authority of the group by controlling the minutiae of the search while
inside the home, including where and how the search was conducted. See
supra pp. 5–6. She cannot now escape liability on the technicality that
she was the leader, rather than a subordinate member, of the group.4
4 Goldston’s order to Gibson to stop recording the incident falls

under this same umbrella. Neither the district court nor Goldston’s
opening brief here analyzes the order separately for immunity purposes,
and for good reason: The order is indistinguishable from Goldston’s other
actions as the leader of the search party. See Lo-Ji Sales, Inc., 442 U.S.
at 328 (Court could not distinguish between when the judge was acting
as a judge “and when he was one with the police and prosecutors in the
executive seizure”). While Goldston makes much of the fact that litigants
are not permitted to record family-court proceedings, Goldston’s Br. at 9,
17, this was not a court proceeding, see infra at Part I.B. It was a search.
Matter of Goldston, 866 S.E.2d at 138 (holding that Goldston was
engaged in an executive search, rather than a judicial view, of Gibson’s
home). Goldston’s order that Gibson stop recording was just one of the
actions Goldston took in her attempt to supervise, conduct, control, and
apparently cover up the search.
21
Simply put, any infringement on a reasonable expectation of
privacy is a search, which means that Goldston was engaged in a search
the moment she stepped foot in Gibson’s home. Contrary to her
assertions, she personally looked for disputed items. That she was
otherwise the leader and instigator of the search, rather than a
subordinate doing her bidding, only further evidences the egregiousness
of her actions. As the West Virginia Supreme Court held, “Judge
Goldston clearly left her role as an impartial judicial officer and
participated in an executive function when she entered [Gibson’s] home
to oversee the search.” Id. at 138. Goldston’s hairsplitting is merely an
attempt to introduce complexity where none exists.
ii. Goldston is precluded from arguing she did not

personally participate in the search.
Moreover, Goldston is precluded from relitigating this issue. In
Goldston’s disciplinary proceeding, the West Virginia Supreme Court
squarely held that “Judge Goldston [s]earched [Gibson’s] [h]ome.” Matter
of Goldston, 866 S.E.2d at 134; see also id. at 134–36. Yet Goldston now
argues that “she herself did not participate in the search.” Goldston’s Br.
at 18. Goldston’s arguments run headlong into the doctrine of issue
preclusion.
22
A party cannot relitigate “an issue decided previously in judicial or
administrative proceedings[,] provided the party against whom the prior
decision was asserted enjoyed a full and fair opportunity to litigate that
issue in an earlier proceeding.” In re McNallen, 62 F.3d 619, 624 (4th Cir.
1995). When determining the preclusive effect of a state-court judgment,
the forum state’s law applies. Id. In West Virginia, a party cannot
relitigate an issue if: (1) the previously decided issue is identical to the
one currently presented; (2) there is a final adjudication of the merits of
the prior action; (3) the party against whom the doctrine was invoked was
a party or in privity with a party to the prior action; and (4) the party
against whom the doctrine was invoked had a full and fair opportunity to
litigate the issue in the prior action. State ex rel. McGraw v. Johnson &
Johnson, 704 S.E.2d 677, 688 (W. Va. 2010).
Each of the four elements is met here. Satisfying element (1), the
West Virginia Supreme Court held without qualification that Goldston
engaged in a search of Gibson’s home. Matter of Goldston, 866 S.E.2d at
134–36. The Court also rendered final judgment in Goldston’ disciplinary
proceeding, and Goldston herself was party to the action—meeting
elements (2) and (3). See id. at 139. Finally, fulfilling element (4),
23
Goldston had a full and fair opportunity to litigate the issue. Indeed, she
did so vigorously and even provided a sworn statement in support of her
arguments. See id. at 131, 134. Goldston cannot now rehash the issue
after she litigated it fully before the West Virginia Supreme Court just
because she lost.
iii. Personally participating in and leading a search is an

executive act under longstanding Supreme Court
precedent.
Because Goldston participated in and ultimately led the search, her
actions were executive in nature. In Lo-Ji Sales, Inc. v. New York, 442
U.S. 319 (1979), the Supreme Court straightforwardly instructed that
personally participating in a search is an executive function, not a
judicial one—even if the judge retains some appearance of judicial action.
That principle applies with even more force here, where the conduct at
issue had even less of a judicial veneer than that in Lo-Ji Sales.
In Lo-Ji Sales—which Goldston does not cite or discuss in her
brief—the Court roundly condemned a judge who led a search party
through an adult bookstore looking for obscene material. Id. at 321–23.
The judge initially authorized the search via warrant based on two
specific films, but police requested that he accompany them to the store
to make probable-cause determinations on any additional items they

24
might find. Id. at 321. The judge, accompanied by several police officers
and prosecutors, then proceeded to spend six hours rifling through the
store’s products to look for obscene materials. Id. at 322–23.
The Court held that the search and seizures were unconstitutional,
despite the government’s assertion that the judge’s presence ensured
that no items would be seized without probable cause. Id. at 326. The
judge’s presence did not obviate the violations, the Court reasoned,
because the judge was no longer acting as a judge when he participated
in the search. Id. at 327. According to the Court, the judge “allowed
himself to become a member, if not the leader, of the search party which
was essentially a police operation.” Id. Because the judge “conducted a
generalized search under authority of an invalid warrant[,] he was not
acting as a judicial officer but as an adjunct law enforcement officer.” Id.
(emphasis added).
Goldston’s actions here were even less judicial than the judge’s in
Lo-Ji Sales. Unlike in that case, Goldston never bothered to sign a
warrant authorizing the search of Gibson’s house. Thus, unlike the judge
there, Goldston cannot even argue that her involvement in the search
was an extension of her judicial act of signing the warrant being
25
executed. Goldston instead “conducted a generalized search” of Gibson’s
home without a warrant (even if such a warrant would have been invalid)
that purported to provide authority to search or seize. 5 See id.
The cases’ factual similarities further confirm that Goldston’s
actions were executive in nature. Just like the judge in Lo-Ji Sales,
Goldston was “a member, if not the leader, of the search party which was
essentially a police operation.” Id. In both cases, the search parties looked
for and seized specific items on private property while using threats of
incarceration. See id. at 322 (store clerk placed under arrest and forced
to assist the search party in viewing materials); Gibson, 2022 WL
2719725, at *1 (Gibson under threat of arrest unless he allowed Goldston
into his home). Goldston, then, “was not acting as a judicial officer.” Lo-
Ji Sales, Inc., 442 U.S. at 327; see also United States v. Leon, 468 U.S.
897, 914 (1984) (citing Lo-Ji Sales and affirming that a judge is no longer
acting as a judge, even losing her legal power to authorize searches, when
5 This is not to suggest that Goldston’s actions were non-judicial

because they were illegal. Judges may retain immunity even for actions
that fall outside their legal authority. Cf. Stump, 435 U.S. at 356. Even
if Goldston had conducted an otherwise legal search, however, her actions
would still have been non-judicial and thus not entitled to judicial
immunity.
26
she acts as a police officer); Servance, 394 F.3d at 231 (“[I]t is elementary
that a judge can overstep his responsibilities . . . if, by way of example,
he serves as a leader of a search party.”). Instead, Goldston was acting
“as an adjunct law enforcement officer” and usurping power reserved for
the executive branch. Lo-Ji Sales, Inc., 442 U.S. at 327.
iv. Judicial immunity does not shield executive-branch

actions, even when the actor is a judge.
Because Goldston exercised executive authority by engaging in a
search, judicial immunity does not apply. “Whether the act done by [a
judge] was judicial or not is to be determined by its character, and not by
the character of the agent.” Ex parte Virginia, 100 U.S. 339, 348 (1879);
see also Forrester, 484 U.S. at 227. In other words, an act is either
inherently judicial or it is not. Here, Goldston’s actions would not have
been even arguably judicial if they were performed by someone who was
not a judge—they “might as well have been,” and typically are, performed
by executive-branch officers. See Ex parte Virginia, 100 U.S. at 348. The
only foothold Goldston has for arguing that her actions were judicial is
the fact that she was a judge.
As the Supreme Court has long affirmed, that is not enough. See id.
Judicial immunity does not apply to executive functions. Further, the
27
Fifth, Seventh, and Ninth Circuits all affirm that judges are not entitled
to judicial immunity when they act as law-enforcement officers. And the
Supreme Court has rejected absolute immunity for government officials
in other contexts when they engage in investigative functions. Absolute
judicial immunity, then, does not apply here.
1. The Supreme Court has expressly held that judicial

immunity does not apply to judges performing
executive actions.
The Supreme Court itself has distinguished between judicial
functions, which entitle the actor to judicial immunity, and executive
functions, which do not.
In Forrester v. White, the Court held that a state judge was not
immune from suit for demoting, and later firing, a court employee. 484
U.S. 219, 221 (1988). The Court observed that judicial-immunity
precedent distinguishes “between judicial acts and the administrative,
legislative, or executive functions that judges may on occasion be
assigned by law to perform.” Id. at 227. The act of making employment
decisions did not confer immunity, the Court reasoned, because the judge
there could not “meaningfully be distinguished from a district attorney
who hires and fires assistant district attorneys, or indeed from any other
Executive Branch official who is responsible for making such

28
employment decisions.” Id. at 229. The Court recognized that such
decisions can “be essential to the very functioning of the courts.” Id. at
228. Nevertheless, the Court held that immunity was not necessary to
protect the judicial process because the act of making employment
decisions was indistinguishable from one that might be performed by an
executive-branch official in their executive capacity. Id. at 229–30.
2. The Fifth, Seventh, and Ninth Circuits affirm that

judges are not entitled to judicial immunity when
behaving like law-enforcement officers.
Consistent with Forrester, other federal courts have repeatedly
recognized that judges who behave like executive-branch officers are not
entitled to judicial immunity.
For instance, in Malina v. Gonzalez, a state judge effected a traffic
stop of another driver who honked at him. 994 F.2d 1121, 1123 (5th Cir.
1993). The judge then sent a police officer to the driver’s home to order
him to appear in the judge’s court the next day. Id. When the driver
appeared in court, the judge accused him of various criminal violations
and ordered him to return to another court at a later date. Id. When the
driver attempted to explain his actions, the judge cited him with
contempt and sentenced him to five hours in jail. Id.
29
The Fifth Circuit held that judicial immunity protected the judge
for the contempt citation and sentencing, but nothing else. Id. at 1124.
Specifically, the court concluded that conducting a traffic stop was not a
judicial function because “[p]eace officers, not judges, stop motorists on
the highway.” Id. Similarly, the act of criminally charging the driver was
not covered by judicial immunity because “[i]t is well settled that
charging a defendant is a prosecutorial function, not a judicial function.”
Id. As the concurring opinion noted, immunity was not proper there
because “the policy behind judicial immunity—encouragement of
‘fearless decisionmaking’ free from the intimidation of vexatious
litigation—has no bearing on [the judge’s] conduct.” Id. at 1129 (Garza,
J., concurring). “Conversely,” the concurrence continued, “the dangers
implicit in [the judge’s] conduct—over-reaching from the joinder of
executive and judicial powers—have been apparent since before the
Constitution.” Id.
Likewise, in Gregory v. Thompson, the Ninth Circuit held that a
judge was not entitled to judicial immunity when he used physical force
to remove an unwanted visitor from his courtroom. 500 F.2d 59, 61 (9th
Cir. 1974). The visitor, a non-lawyer, refused to leave after the judge
30
informed him that he could not represent a litigant. Id. The judge then
forced the visitor out of the courtroom, threw him on the floor, and beat
him. Id. In the resulting lawsuit, the Ninth Circuit held that the judge’s
acts were non-judicial and thus undeserving of absolute immunity. Id. at
63–65. The court noted that the judge had the “judicial muscle,” in the
form of the contempt power, to remove the visitor if he wished. Id. at 64.
But “[t]he decision to personally evict someone from a courtroom,” the
court observed, “is simply not an act of a judicial nature.” Id. The court
concluded that the judge’s “choice to perform an act similar to that
normally performed by a sheriff or bailiff should not result in his
receiving absolute immunity for this act simply because he was a judge
at the time.” Id. at 65
Finally, in Lopez v. Vanderwater, a judge caused the arrest of a
former tenant of a building owned by the judge’s business partner when
the tenant trespassed on the partner’s property. 620 F.2d 1229, 1231–32
(7th Cir. 1980). The judge then allegedly drafted a criminal complaint
against the tenant, signed the tenant’s arrest warrant, forged the
tenant’s signature on a plea form, and arraigned, convicted, and
sentenced the tenant while the tenant was not present. Id. at 1232–33.
31
The court held that the judge was entitled to judicial immunity for the
judicial acts of arraigning, convicting, and sentencing the tenant. Id. at
1234–35. However, the court also held that the judge was not entitled to
judicial immunity to the extent he acted like a prosecutor. Id. at 1235.
Acts like preparing the criminal complaint and presenting it to himself,
the court observed, “were not functions normally performed by a judge.”
Id. (internal quotation marks omitted). Instead, they were “prosecutorial
acts” normally performed by the executive branch, and judicial immunity
did not apply. Id.
3. No one receives absolute immunity for behaving

like a police officer.
Even prosecutors—themselves executive-branch officials—do not
receive absolute immunity for acting like police officers. Prosecutorial
immunity, like judicial immunity, exists to safeguard the judicial
process.6 Burns v. Reed, 500 U.S. 478, 485 (1991). Thus if absolute
immunity for law-enforcement actions was necessary to safeguard the
judicial process, prosecutors would be entitled to that protection as well.
Indeed, prosecutorial immunity flows from judicial immunity. See

6
Imbler v. Pachtman, 424 U.S. 409, 422–23 (1976).

32
Yet in Buckley v. Fitzsimmons, the Court held that engaging in
investigative activities was not related enough to the judicial process to
entitle a prosecutor to immunity. 509 U.S. 259, 272–76 (1993). In that
case, the prosecutor allegedly attempted to fabricate evidence that a boot
print found at the scene of the crime belonged to a particular suspect. Id.
at 272. Absolute immunity was inappropriate, the Court reasoned,
because the prosecutor was “perform[ing] the investigative functions
normally performed by a detective or police officer.” Id. at 273. The Court
further observed that “if a prosecutor plans and executes a raid on a
suspected weapons cache, he has no greater claim to complete immunity
than activities of police officers allegedly acting under his direction.” Id.
at 274.
Put differently: Judicial immunity is unnecessary to protect the
judicial process when anyone performs investigative functions. See
Burns, 500 U.S. at 486–87 (noting “[t]he presumption” against granting
officials absolute immunity). If prosecutors and police officers do not need
absolute immunity in those circumstances, then judges don’t either. See
Goldstein v. Moatz, 364 F.3d 205, 215 (4th Cir. 2004) (no absolute
immunity for investigative acts performed by agency prosecutors during
33
a disciplinary investigation); Weathers v. Ebert, 505 F.2d 514, 517 (4th
Cir. 1974) (“Making an arrest is a police function, not a judicial one, and
[the prosecutor] would lack immunity if he were involved.”).
v. It is a judicial act to order a search; it is not a judicial

act to conduct a search.
Cases in which the Supreme Court and this Court have granted
judicial immunity further affirm that Goldston’s actions fall on the non-
judicial side of the dividing line. These cases illustrate that a judge’s
power to order something does not authorize her to participate in the
execution of that order personally. Cf. Goldston’s Br. at 11 (“As a family
court judge, [Goldston] unquestionably possessed the authority to order
the property to be searched for and seized.”). That is why Goldston is not
entitled to immunity here.
First, this Court has recognized that a judge’s power to order
something done is separate from her power to enforce that order. King v.
Myers, 973 F.2d 354 (4th Cir. 1992), also involved a divorce proceeding in
which a judge allegedly violated a litigant’s civil rights. As here, the
parties disagreed over the ownership of certain items of personal
property. Id. at 355. The disagreement culminated in the judge sending
an officer to arrest the ex-wife at her home, without a warrant and
34
without any explanation for the detention. Id. at 355–56. The ex-wife
later sued the judge for the arrest. Id. at 356.
This Court held that the judge was entitled to judicial immunity, in
part because ordering the arrest was a judicial act. Id. at 358. The ex-
wife argued that the judge had “usurped the powers of a law enforcement
officer” because only law enforcement officers were statutorily authorized
to make warrantless arrests. Id. The Court rejected that argument,
however, because “[t]he magistrate did not conduct the warrantless
arrest.” Id. (emphasis added). Instead, the judge had merely ordered the
arrest, and “[i]ssuing process of arrest for one accused of a crime is a
judicial function.” Id. The Court thus concluded that judicial immunity
was available because the judge, who did not personally arrest the
plaintiff, “cannot be deemed to have usurped the powers of a law
enforcement officer.” Id.
The Supreme Court has made a similar observation. In Mireles v.
Waco, a judge ordered police officers to seize an attorney with excessive
force and bring him to the judge’s courtroom. 502 U.S. at 10. The officers
then violently seized the attorney, used offensive language, and slammed
him into doors as they brought him before the judge. Id. Nonetheless, the
35
Supreme Court concluded that the judge’s actions were judicial in nature.
Id. at 12–13. Although it acknowledged that judges do not normally order
police to carry out orders with excessive force, id. at 12, the Court
emphasized that the correct inquiry was the “particular act’s relation to
a general function normally performed by a judge,” id. at 13. There, the
judge was engaged in “the function of directing police officers to bring
counsel in a pending case before the court,” which was a judicial act even
though the judge performed it in an illegal way. Id.
In reaching that decision, however, the Mireles Court specifically
concluded that the judge had not been performing executive functions.
Id. “[T]he fact that [the judge’s] order was carried out by police officers,”
the Court observed, did not “somehow transform his action from ‘judicial’
to ‘executive’ in character.” Id. (citing Forrester, 484 U.S. at 229). The
Court reasoned that the judge’s order was “no more executive in
character than a judge’s issuance of a warrant for an executive officer to
search a home.” Id. Thus the fact that the judge’s actions were not
executive in nature was key to the Court’s analysis.
On this point, Goldston’s brief gets it exactly right. “It is apparent,”
Goldston argues, “that had Judge Goldston merely ordered from the
36
bench that [deputies] go to [Gibson’s] home and secure the property at
issue, while she awaited their return at the courthouse, there would be
no controversy that she acted within her legal ambit.” Goldston’s Br. at
19. That’s true. Under Mireles, Goldston might even have been entitled
to immunity if she had ordered law-enforcement officers to conduct the
search of Gibson’s home in an unusual or illegal way—for instance, by
breaking things as they went through the house. See 502 U.S. at 12–13.
That’s because ordering a search is a function normally performed by a
judge. See, e.g., Burns, 500 U.S. at 492 ([T]he issuance of a search
warrant is unquestionably a judicial act.”).
But Goldston did not merely order the search—she performed it.
Goldston acknowledges in her brief that “[i]t is [Goldston’s] personal
presence at the home and interaction with the Parties while the property
was located that allegedly causes the departure from her authorized
sphere of action.” Goldston’s Br. at 19–20. Again, that’s correct. Goldston
was not only personally present in Gibson’s home during the search, but
she also instructed other members of the search party on where, when,
and how to look for the disputed items. See supra pp. 5–6 (citing McPeake
Video). Thus she was the leader of the search party—a police operation—
37
from her perch in Gibson’s rocking chair. That is a far cry from ordering
the execution of an enforcement operation from the courthouse bench. Lo-
Ji Sales, Inc., 442 U.S. at 327. That is why the judge in Mireles was
entitled to judicial immunity but Goldston is not.7
This distinction between ordering and enforcing also makes sense
in the context of the larger judicial-immunity analysis. Ultimately, the
“touchstone” of the judicial-immunity inquiry is whether the judge was
“resolving disputes between parties, or [] authoritatively adjudicating
private rights.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435–36
(1993) (quoting Burns, 500 U.S. at 500 (Scalia, J., concurring in part and
7 A breadth of additional legal authority, from Supreme Court

precedent to West Virginia statutes, confirm that the enforcement of
judicial orders to search or arrest falls solely to the executive branch. See,
e.g., Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971) (holding that
“government enforcement agent[s]” may not issue warrants because they
“simply cannot be asked to maintain the requisite neutrality with regard
to their own investigations”—“there could hardly be a more appropriate
setting than this for a per se rule of disqualification”); W. Va. Code § 62-
1A-3 (stating that judges may issue search warrants, but only police
officers with jurisdiction or “other officer[s] authorized by law” may
execute those warrants); W. Va. Code § 62-1A-4 (contemplating that the
officer who executes a search warrant is different from the judge or
magistrate who provides the property owner with documentation of the
search after the fact); W. Va. Code § 62-10-9 (authorizing “sheriffs,
deputy sheriffs[,] and correctional officers,” but not judges, to make
arrests).
38
dissenting in part)). Here, Goldston’s personal participation in the search
was completely unnecessary to resolve the dispute before her. Goldston
could have, and should have, resolved the parties’ disputes over certain
items by entering orders from the bench based on the evidence the parties
produced. Doubtless, some of those orders could have had an enforcement
mechanism by which a law-enforcement officer would search Gibson’s
home—for example, if Gibson’s ex-wife produced sufficient evidence that
Gibson, was, in fact, retaining disputed property. But the act of entering
the order legally adjudicates the parties’ rights; the resulting
enforcement action does not.
vi. Conclusion
In sum, the Supreme Court has recognized for decades that
personally leading a search party that results in seizures while
threatening the property’s custodian with arrest is not a function
normally performed by a judge. Lo-Ji Sales, Inc., 442 U.S. at 327. This
Court has described that proposition as “elementary.” Servance, 394 F.3d
at 231. Judges are not even entitled to judicial immunity for executive
functions that are critical to the operation of the judicial system.
Forrester, 484 U.S. at 227–30. They certainly are not entitled to
39
immunity for blatantly usurping the power of the executive branch, and
thus violating the separation-of-powers principle upon which our country
is founded, for their own convenience. See Buckley v. Valeo, 424 U.S. 1,
124 (1976) (per curiam) (“The principle of separation of powers was not
simply an abstract generalization in the minds of the Framers: it was
woven into the document that they drafted in Philadelphia in the
summer of 1787.”). By definition, Goldston’s exercise of executive power
cannot be a judicial act—failing the first factor in the judicial-acts
analysis.
B. Gibson was not interacting with Judge Goldston in her judicial

capacity.
The second factor in determining whether an act is judicial is “the
expectations of the parties,” that is, “whether [the parties] dealt with the
judge in his judicial capacity.” Stump, 435 U.S. at 362. Again, courts often
put less emphasis on this factor and sometimes do not even consider it.
See, e.g., Mireles, 502 U.S. at 12–13 (noting the existence of the second
factor but focusing on the first in the substantive analysis); Forrester, 484
U.S. at 227–30 (analyzing the first factor without even mentioning the
second); see also King, 973 F.2d at 358 n.2 (expressly not considering this
factor because the Court concluded it was not relevant). But this factor,
40
like the first, further undermines Goldston’s contention that the search
was a judicial act.
Goldston primarily argues that some of her actions during the
search looked judicial and thereby alchemized the entire incident into an
act taken in her judicial capacity. But the record evidence of the parties’
expectations belies that contention. Even if some of Goldston’s actions
appeared judicial, they did not magically transform the search into an
act entirely performed in Goldston’s judicial capacity. Moreover,
Goldston’s other arguments—which rely on a recording she actively
opposed and her own disciplinary proceedings—are equally
unpersuasive.
i. Gibson stated on video—and surrounding circumstances

confirmed—that he was not interacting with Goldston
in her judicial capacity.
Goldston first argues that the parties were dealing with her in her
judicial capacity because they were making motions for her to rule on
during the search. Goldston’s Br. at 18. However, the record
demonstrates otherwise. As shown on video, shortly after everyone
arrived on scene, Gibson moved for Goldston to recuse herself on the
ground that she was becoming a witness in the case. Gibson Video at
1:00–1:25. Gibson’s exact words to Goldston were: “I’m putting in a

41
motion to recuse yourself because you’re putting yourself in a witness
capacity instead of a judiciary capacity.” Id. (emphasis added). Gibson
thus stated, on video, that he did not believe Goldston was acting in her
judicial capacity. 8
Moreover, although Goldston asserts that the parties made at least
two motions during the incident, the only motion captured on video was
Gibson’s motion to recuse. Goldston contends that the ex-wife also “made
a motion to be permitted to search the home for items she did not know
the location of.” Goldston’s Br. at 18. But the ex-wife’s attorney—who
appears to have made the request—did not call it a motion, and Goldston
answered it without indicating whether it was granted or denied.
McPeake Video at 2:22–2:50. The exchange had none of the hallmarks of
a motion made in court and instead sounded much more like a
conversation between a supervising police officer and her subordinate
concerning the scope of an ongoing search. If anything, this request is
further evidence that the parties—including the ex-wife’s legal
8Even if Gibson believed that he was interacting with Goldston in

her judicial capacity at the time he moved for her recusal, his motion—
which occurred shortly after everyone arrived on scene—made clear that
he believed Goldston was stepping out of her judicial capacity moving
forward.
42
representative—did not expect that they were interacting with Goldston
in her judicial capacity.
Moreover, nothing about the circumstances of the search resembled
a hearing. Goldston was not presiding in a courtroom or wearing a robe
during the search—for most of it, she was not even wearing shoes. See,
e.g., Gibson Video at 1:00–1:25; McPeake Video at 0:10–0:30. Nor was
Goldston creating a record of the proceedings. Indeed, Goldston even
chastised the bailiff for his unauthorized recording (which ultimately
captured roughly a third, if not less, of the search inside the home).
Gibson, 2022 WL 2719725, at *1. And when Gibson and his girlfriend
attempted to record the incident, Goldston ordered them to stop. See id.
True, the parties “abided by [Goldston’s] rulings,” see Goldston’s Br.
at 18, including her ruling on the motion to recuse. But that does not
mean Gibson was interacting with Goldston in her judicial capacity.
Gibson complied with Goldston’s orders under threat of arrest, see
Gibson, 2022 WL 2719725, at *1; Gibson Video 2:12–2:17. Thus he didn’t
comply because he believed Goldston was a judge cloaked in judicial
authority during a proceeding, see Gibson Video at 1:20–1:25 (Gibson
stating that he would not allow Goldston in his home without a warrant);
43
he did it because he didn’t want to be arrested for refusing to allow a
search of his home. That is how someone typically interacts with a police
officer, not a judge. See, e.g., Rogers v. Pendleton, 249 F.3d 279, 295 (4th
Cir. 2001) (noting the Court’s “inference” that officers arrested a
homeowner for his refusal to permit an illegal search of his property); see
also United States v. Brinkley, 980 F.3d 377, 382 (4th Cir. 2020)
(individual refusing entry into her home but later acquiescing on the
officers’ show of authority).
Gibson’s other actions during the search further confirm that he
was not interacting with Goldston in her judicial capacity. Again, Gibson
attempted to record the incident—something litigants do not typically do
when they believe they are dealing with a judge because the court staff,
not the parties, creates the appropriate recording of the proceeding.
Recording is common, however, during interactions with the police. See,
e.g., Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017)
(collecting numerous cases addressing the First Amendment right to
record police). And police who are being recorded sometimes demand that
the recording stop, just as Goldston did. See, e.g., Glik v. Cunniffe, 655
F.3d 78, 80 (1st Cir. 2011). Gibson had no expectation, then, that he was
44
dealing with Goldston in her judicial capacity as she personally
conducted a largely unrecorded search of his home to look for disputed
property.
ii. Even if the parties appeared to interact with Goldston

in her judicial capacity at times, she was not acting in
her judicial capacity when performing the search.
Even if the parties believed Goldston was acting in her judicial
capacity by ruling on motions during the search, that fact does not
transform all of her actions into judicial ones. Here, too, Lo-Ji Sales, Inc.
is instructive. The judge in Lo-Ji Sales signed a warrant for the search
and was actively engaged during the search in determining probable
cause as to each item—all functions normally performed by a judge. See
442 U.S. at 321–23. Nonetheless, the Court held that the entirety of the
judge’s personal participation in the search, including conduct that
otherwise looked judicial, was not judicial in nature. Id. at 327. The Court
reasoned that it could not distinguish between when the judge was acting
as a judge “and when he was one with the police and prosecutors in the
executive seizure.” Id. at 328. This was true, the Court held, even when
the judge was purporting to perform constitutionally required post-
seizure hearings on the seized items. Id.
45
Thus, the fact that a judge might happen to perform judicial acts
while she is simultaneously performing non-judicial acts does not cloak
the entire incident in judicial immunity. Goldston was personally
directing the search and instructing members of the search party—
including Gibson’s ex-wife and the bailiff—on where, when, and how to
search. See supra pp. 5–6. That means that the entirety of her personal
involvement in the search was non-judicial, even if the parties sometimes
interacted with her in judge-like ways.
True, the parties interacted with Goldston in her judicial capacity
at the outset of the incident, but she moved out of that capacity by
conducting the search. Judicial immunity “is justified and defined by the
functions it protects and serves, not by the person to whom it attaches.”
Forrester, 484 U.S. at 227. Thus, when the same person performs a
different or additional function, the immunity analysis changes too.
Other circuits have affirmed that a judge may move in and out of
her judicial capacity in same case. For instance, in Gregory, the judge
presided over the criminal case in which the unwelcome visitor was
attempting to appear as counsel. 500 F.2d at 61. The visitor, along with
the defendant in the criminal case, appeared before the court on a regular
46
court day to discuss the case. Id. Up to that point, the judge was
unquestionably functioning as a judge by presiding over the criminal
proceeding and ruling on requests related to that proceeding. However,
the moment the judge began personally subjecting the visitor to physical
force, the judge began functioning like a police officer instead. Id. at 65.
That the parties had previously dealt with the judge in his judicial
capacity was of no import, even though the incident began in the judge’s
courtroom and was arguably related to the judge’s power to protect
courtroom proceedings. Id. at 64; see also Malina v. Gonzalez, 994 F.2d
1121, 1124 (5th Cir. 1993) (judge began acting in executive capacity by
initiating traffic stop but later acted in his judicial capacity by citing and
sentencing the plaintiff).
So too here. The parties unquestionably dealt with Goldston in her
judicial capacity when they appeared before her as litigants at a hearing
in her courtroom before the search. See, e.g., Figueroa v. Blackburn, 208
F.3d 435, 443 (3d Cir. 2000) (defendant who appeared before a judge in a
criminal case was dealing with the judge in her judicial capacity). At that
time, Goldston was performing a judicial act by holding a hearing. When
she began to conduct the search of Gibson’s home, however, she stepped
47
out of her role as judge—and Gibson no longer expected that he was
interacting with Goldston in her judicial capacity, as evidenced by his
motion to recuse on that exact ground.
iii. Neither the bailiff’s recording—of which Goldston

disapproved—nor the nature of Goldston’s disciplinary
proceedings prove that the parties interacted with
Goldston in a judicial capacity.
Goldston’s remaining arguments fare no better. Goldston argues
that the search was transformed into a court hearing because the bailiff
recorded part of the incident. Goldston’s Br. at 9, 17. But, as the district
court found, Goldston did not authorize the bailiff’s recording and
chastised him when she found out it existed. Gibson, 2022 WL 2719725,
at *1. She cannot now rely on the existence of the recording—which
documented only seven of the twenty to thirty minutes of the search—to
shield herself from liability.
Goldston also argues that she was acting in her judicial capacity—
in Goldston’s words, her “public persona”—because she was disciplined
for the incident under the West Virginia Code of Judicial Conduct.
Goldston’s Br. at 20. But the Code, unlike judicial immunity, applies to
judges simply because they are judges—even if the conduct at issue is not
judicial in nature. That is why judges are regularly charged with Code
48
violations for behavior that is completely unrelated to their judicial roles.
See, e.g., Brad McElhinny, Ethics hearing concludes in judge’s case, with
his peers to decide if he crossed the line, MetroNews, June 16, 2022 9 (West
Virginia judge charged with Code violations for behavior during and after
a traffic stop); Debra Cassens Weiss, Alleged Walmart walkouts lead to
new ethics charge against ‘distracted’ judge, ABAJournal, Mar. 2, 202210
(same judge later charged with Code violations for stealing from
Walmart). The fact that the Code governed Goldston’s conduct, then, is
irrelevant to the immunity analysis.
iv. Conclusion
As the district court below observed, Goldston’s arguments on this
point “do not withstand minimal scrutiny.” Gibson, 2022 WL 2719725, at
*5. Gibson made clear, before Goldston ever entered the house, that he
did not believe he was dealing with Goldston in her judicial capacity. And
the search did not resemble a court hearing in any other way. It is
irrelevant that some of Goldston’s actions during the search might have
been properly done in a judicial capacity if performed in another setting
9 Available at https://tinyurl.com/bddtpkbw.
10 Available at https://tinyurl.com/8yxrktfc.
49
or that the parties previously interacted with Goldston as a judge.
Goldston cannot now rely on a recording she disapproved of—and her
own disciplinary proceeding—to transform the search, after the fact, into
something it was not, especially since that issue has already been
conclusively settled by the West Virginia Supreme Court. See supra Sec.
I.A.ii.
II. Judicial immunity is also inapplicable because, under the

West Virginia Constitution, Judge Goldston acted in the
complete absence of jurisdiction by performing executive-
branch functions.
Further, as the district court correctly held, there is a second,
independent basis for denying Goldston judicial immunity: She was
acting in the complete absence of jurisdiction. See Mireles, 502 U.S. at
11–12; Gibson, 2022 WL 2719725, at *6 n.3. The West Virginia
Constitution makes clear that judges categorically lack the ability—and
therefore the jurisdiction—to exercise the power of the executive branch.
W. Va. Const. art. V, § 1; see also Matter of Goldston, 866 S.E.2d at 136.
Moreover, the West Virginia Supreme Court has specifically held, on
these exact facts, that Goldston was entirely devoid of the power to search
Gibson’s home. Goldston therefore acted in the complete absence of
50
jurisdiction by personally conducting a search of Gibson’s home, and
judicial immunity does not apply.
A. Goldston lacked jurisdiction because she was entirely devoid of the

power to search Gibson’s home under the West Virginia
Constitution.
As the Supreme Court instructed in Bradley, there is a difference
“between excess of jurisdiction and the clear absence of all jurisdiction
over the subject-matter.” 80 U.S. (13 Wall.) at 351. Courts must routinely
determine the limits of their jurisdiction in the ordinary course of a case,
and those decisions are protected by judicial immunity even if they are
incorrect. Id. at 352. However, when a judge completely lacks jurisdiction
over the subject matter at hand, “any authority exercised is a usurped
authority.” Id.
To illustrate this distinction, the Bradley Court turned to the
differences between a probate court and a criminal court. The Court
explained that “if a probate court, invested only with authority over wills
and the settlement of estates of deceased persons, should proceed to try
parties for public offences . . . his commission would afford no protection
to him in the exercise of the usurped authority.” Bradley, 80 U.S. (13
Wall.) at 352. However, if a criminal court erroneously concluded that
51
someone committed a crime, or imposed a greater sentence than the law
allowed, the Court observed that those actions would merely “be in excess
of [the criminal judge’s] jurisdiction.” Id. Immunity would thus attach in
the latter scenario, but not the former.
Ultimately, this analysis boils down to a single inquiry: “When a
judge exceeds authority, was he or she entirely devoid of power or was a
power lawfully possessed wrongly exercised?” King, 973 F.2d at 357.
Here, under the West Virginia Constitution, Goldston was entirely
devoid of the power to personally conduct a search of Gibson’s home. See
id.
Article V, § 1 of the West Virginia Constitution instructs that “[t]he
Legislative, Executive and Judicial Departments shall be separate and
distinct.” It also specifically states that no branch “shall exercise the
powers properly belonging to either of the others,” and no person shall
“exercise the powers of more than one of them at the same time.” Id.; see
also The Federalist No. 47, at 338. Because conducting a search is an
executive function, Goldston completely lacked the power to do so as a
judicial official. Matter of Goldston, 866 S.E.2d at 136; see also Lopez, 620
52
F.2d at 1235 n.13 (concluding that “[a]cting as a prosecutor is not within
an Illinois circuit judge’s jurisdiction” under the state constitution).
Further, Goldston’s usurpation of executive power is even more
egregious than the hypothetical probate judge exercising criminal
jurisdiction. The probate judge still acted within some court’s jurisdiction
by adjudicating criminal cases. See Bradley, 80 U.S (13 Wall.) at 352. But
a judge never has jurisdiction to personally conduct a search of a private
person’s home. Goldston thus could not have been acting merely in excess
of her jurisdiction because she was not exercising any judicial jurisdiction
at all. She did behave like the probate judge, however, in the sense that
she was exercising power that structurally did not belong to her. “[A]nd
for the exercise of such authority, when the want of jurisdiction is known
to the judge, no excuse is permissible.” Bradley, 80 U.S. (13 Wall.) at 352.
B. The West Virginia Supreme Court has specifically held that

Goldston completely lacked the authority to search in this case.
Further, the West Virginia Supreme Court has already considered
these exact facts and held that Goldston was completely devoid of
authority to search Gibson’s home. In Goldston’s disciplinary proceeding,
the Court declared that the Constitution’s “unmistakable terms”
prohibited judicial officers from “participat[ing] in a search because a
53
search is an exercise of executive power.” Matter of Goldston, 866 S.E.2d
at 136. And the Court held that Goldston was “plainly engaged in such a
search” during the incident at issue here. Id. The Court therefore held
that the Constitution’s “clear prohibitions,” as a structural matter,
prohibited Goldston from behaving as she did. Id.
Thus, when Goldston searched Gibson’s home, she was not simply
making a legal mistake—she was exercising “a usurped authority.”
Bradley, 80 U.S. (13 Wall.) at 352; see also Lo-Ji Sales, Inc., 442 U.S. at
327; cf. King, 973 F.2d at 358. Goldston did not wrongfully exercise a
power she otherwise possessed because she did not, in any sense, lawfully
possess the power to search Gibson’s home or seize his property. See King,
973 F.2d at 357. She did not merely make a mistake about the boundaries
of her power, see Bradley, 80 U.S. (13 Wall.) at 352, or choose to exercise
her power in an illegal way, see Mireles, 502 U.S. at 13. She was “entirely
devoid of [the] power” to conduct the search because that power belongs,
full stop, to the executive branch. King, 973 F.2d at 357; Matter of
Goldston, 866 S.E.2d at 136; Lo-Ji Sales, Inc., 442 U.S. at 327. Goldston
therefore acted in the complete absence of jurisdiction, which deprives
her of immunity.
54
III. Granting judicial immunity here would not serve the

doctrine’s underlying purposes.
Shielding Goldston from liability also would not serve any of
judicial immunity’s underlying purposes. Immunity for government
officials “is not a badge or emolument of exalted office, but an expression
of a policy designed to aid in the effective functioning of government.”
Barr v. Mateo, 360 U.S. 564, 572–73 (1959) (plurality opinion). Therefore,
immunity generally—and judicial immunity in particular—should not
extend any farther than its underlying purposes support. See, e.g.,
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432–37 (1993) (judicial
immunity did not extend to court reporters, in part because the extension
would not protect the doctrine’s underlying policies). Neither of judicial
immunity’s primary justifications—protecting the judiciary’s
independence and avoiding unnecessary collateral attacks—would be
served by granting Goldston immunity here.
A. Immunizing judges from suit for usurping executive power does not
protect the judicial process.
As the Bradley Court made clear, judicial immunity exists to
protect a judge’s “independence[,] without which no judiciary can be
either respectable or useful.” 80 U.S. (13 Wall.) at 347. “[I]t is a general
principle of the highest importance,” the Court explained, “that a judicial

55
officer, in exercising the authority vested in him, shall be free to act upon
his own convictions, without apprehension of personal consequences to
himself.” Id. Judicial immunity thus exists “not for the protection or
benefit of a malicious or corrupt judge, but for the benefit of the public,
whose interest it is that the judges should be at liberty to exercise their
functions with independence and without fear of consequences.” Pierson
v. Ray, 386 U.S. 547, 554. And protecting judicial independence, in turn,
protects the integrity of the judicial process. See Bradley, 80 U.S. (13
Wall.) at 347.
The question here, then, is whether protection of the judicial
process requires courts to shield judges who knowingly (and repeatedly)
usurp the power of the executive branch for their own convenience. The
answer, of course, is no. Again, Goldston’s actions were executive, not
judicial, in nature. Insulating judges from liability for executive actions
does not protect the judicial process. That principle is particularly salient
where, as here, the executive action at issue involves government
intrusion into the security of an individual’s person or property. See
Gregory, 500 F.2d at 64 (“[W]e cannot believe that the purpose of the
judicial immunity doctrine—to promote ‘principled and fearless decision-
56
making’—will suffer in the slightest if it is held that judges who
physically assault persons in their courtrooms have no automatic
immunity.”). If absolute immunity is unnecessary to serve the public
interest when a search is conducted by a law-enforcement officer, there
is no reason to extend absolute immunity to a judge for the exact same
conduct. See Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993).
B. Appellate review of Goldston’s actions was unavailable.
Courts have also historically justified judicial immunity on the
ground that it is necessary to protect judgments from repeated collateral
attacks. See, e.g., Forrester, 484 U.S. at 227. “A judicial act within the
meaning of the doctrine [of judicial immunity] may normally be corrected
on appeal.” Gregory, 500 F.2d at 64. Thus, courts have reasoned, civil
liability for judges is unnecessary because the appellate process exists for
ordinary error correction. See Pierson, 386 U.S. at 554; Butz v. Economou,
438 U.S. 478, 512 (1978).
Here, however, appellate review would have been ineffective
because Gibson’s injury was already complete when Goldston entered his
home. “[W]hen a judge exercises physical force,” the Gregory court
observed, “his decision is not amenable to appellate correction.” 500 F.2d
57
at 64. True, unlike in this case, the judge in Gregory exercised physical
force to assault the plaintiff. Id. at 61. But Goldston, too, exercised
physical force in the sense that she herself insisted on physically entering
Gibson’s home—and she threatened Gibson with arrest if he tried to stop
her. See Gibson, 2022 WL 2719725, at *1; Gibson Video 2:12–2:17. An
appeal is not a sufficient tool for error correction here because an
appellate court could not order Goldston to un-search Gibson’s house, in
the same way that an appellate judge could not order the judge in Gregory
to un-assault the plaintiff. Likewise, the immediate and impromptu
nature of Goldston’s orders did not give Gibson any opportunity to contest
those decisions on appeal beforehand. Thus this justification, too, does
not warrant extension of immunity to Goldston here.
CONCLUSION
Goldston did not merely make a mistake or an incorrect ruling
when she lead a search party into Gibson’s home. She stepped out of her
role as an adjudicator and into the role of a law-enforcement officer. And
that decision did not have merely theoretical effects. Without warning
and without any legal basis, the judge, Gibson’s ex-wife, the ex-wife’s
lawyer, and a crew of police officers invaded Gibson’s home and rifled
58
through its most intimate parts—including a safe—in the midst of a
deeply personal divorce. See JA441 (McPeake Depo.) 44:13–44:20.
Moreover, when Gibson protested and insisted that the search party
honor constitutional safeguards by obtaining a warrant, Goldston
responded by threatening Gibson with arrest. Thus Goldston wielded the
power of the executive branch and became, in James Madison’s words, an
“oppressor.” The Federalist No. 47, at 338. This Court should therefore
deny Goldston immunity and affirm the judgment of the district court.
REQUEST FOR ORAL ARGUMENT
The issue here—whether a judge who conducts a search and seizure
of an individual’s property is entitled to judicial immunity—is one of first
impression in this Court. Further, the issue is important because it
controls whether this plaintiff, and future plaintiffs similarly situated,
can vindicate their First, Fourth, and Fourteenth Amendment rights.
Plaintiff-Appellee therefore respectfully requests oral argument.
Dated: November 14, 2022.
Respectfully submitted,
/s/ Victoria Clark

Victoria Clark
59
INSTITUTE FOR JUSTICE

816 Congress Avenue, Suite 960
Austin, Texas 78707
Tel: (512) 480-5936
Email: [email protected]
Anya Bidwell
Patrick Jaicomo
INSTITUTE FOR JUSTICE
901 North Glebe Road, Suite 900
Arlington, Virginia 22203
Tel: (703) 682-9320
[email protected]
John Bryan
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street, PO Box 366
Union, West Virginia 24983
Tel: (304) 772-4999
60
CERTIFICATE OF COMPLIANCE
1. This brief complies with type-volume limits because, excluding the

parts of the document exempted by Fed. R. App. R. 32(f) (cover page,
disclosure statement, table of contents, table of citations, statement
regarding oral argument, signature block, certificates of counsel,
addendum, attachments):
[ X ] this brief contains 12150 words.
[] this brief uses a monospaced type and contains [state the

number of] lines of text.
2. This brief document complies with the typeface and type style
requirements because:
[ X ] this brief has been prepared in a proportionally spaced

typeface using Microsoft Word 2022 in 14pt Century
Schoolbook; or
[] this brief has been prepared in a monospaced typeface using

[state name and version of word processing program] with [state
number of characters per inch and name of type style].
Dated: November 14, 2022
/s/ Victoria Clark

Victoria Clark
61
CERTIFICATE OF SERVICE
I hereby certify that on this 14 day of November 2022, I caused
this Brief of Appellee to be filed electronically with the Clerk of the
Court using the CM/ECF System, which will send notice of such filing
to the following registered CM/ECF users:
John P. Fuller
Adam Ketner Strider
Jennifer E. Tully
BAILEY & WYANT, PLLC
500 Virginia Street East, Suite 600
Charleston, WV 25301
Tel: (304) 345-4222
[email protected]
[email protected]
/s/ Victoria Clark

Victoria Clark
Counsel for Plaintiff-
Appellee
62

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USCA4 Appeal: 22-1757 Doc: 27 Filed: 11/14/2022 Pg: 1 of 72

RECORD NO. 22-1757

United States Court of Appeals

LOUISE E. GOLDSTON, individually,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

Victoria Clark Anya Bidwell

Counsel for Plaintiff-Appellee

RULE 26.1 DISCLOSURE STATEMENT

Under Federal Rule of Appellate Procedure 26.1 and Local Rule

26.1, Plaintiff-Appellee Matthew Gibson makes these disclosures:

• Plaintiff-Appellee is a natural person.

• To Plaintiff-Appellee’s knowledge, no publicly held corporation or

other publicly held entity has a direct financial interest in the

outcome of this litigation.

• This case does not arise out of a bankruptcy proceeding.

• This is not a criminal case in which there was an organizational

Date: November 14, 2022.

RULE 26.1 DISCLOSURE STATEMENT ................................................. i

TABLE OF CONTENTS ........................................................................... ii

TABLE OF AUTHORITIES ..................................................................... vi

JURISDICTIONAL STATEMENT ........................................................... 1

STATEMENT OF THE ISSUES ............................................................... 1

STATEMENT OF THE CASE .................................................................. 2

I. West Virginia family court Judge Louise Goldston searches

III. The district court denies Judge Goldston judicial immunity

SUMMARY OF THE ARGUMENT ........................................................ 12

I. Judge Goldston is not entitled to judicial immunity because

A. Searching someone’s home is not a function normally

i. Goldston personally participated in a search of

ii. Goldston is precluded from arguing she did not

iii. Personally participating in and leading a search

iv. Judicial immunity does not shield

1. The Supreme Court has expressly held that

2. The Fifth, Seventh, and Ninth Circuits

3. No one receives absolute immunity for

v. It is a judicial act to order a search; it is not a

vi. Conclusion ........................................................... 39

B. Gibson was not interacting with Judge Goldston in

i. Gibson stated on video—and surrounding

ii. Even if the parties appeared to interact with

iii. Neither the bailiff’s recording—of which Goldston

iv. Conclusion ........................................................... 49

II. Judicial immunity is also inapplicable because, under the

A. Goldston lacked jurisdiction because she was entirely

B. The West Virginia Supreme Court has specifically held

III. Granting judicial immunity here would not serve the

A. Immunizing judges from suit for usurping executive

B. Appellate review of Goldston’s actions was

REQUEST FOR ORAL ARGUMENT ..................................................... 59

CERTIFICATE OF COMPLIANCE ........................................................ 61

Barr v. Mateo, 360 U.S. 564 (1959) ......................................................... 55

Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871) ............................ passim

Brown v. Reinhart, 760 F. App’x 175 (4th Cir. 2019) ............................... 1

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ................................... 33, 57

Buckley v. Valeo, 424 U.S. 1 (1976) ......................................................... 40

Burns v. Reed, 500 U.S. 478 (1991)................................................. passim

Butz v. Economou, 438 U.S. 478 (1978) ............................................ 12, 57

Carpenter v. United States, 138 S. Ct. 2206 (2018) .......................... 18, 19

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .................................. 38

Dotzel v. Ashbridge, 438 F.3d 320 (3d Cir. 2006) ................................. 1, 2

Ex parte Virginia, 100 U.S. 339 (1879) ................................................... 27

Figueroa v. Blackburn, 208 F.3d 435 (3d Cir. 2000) .............................. 47

Forrester v. White, 484 U.S. 219 (1988) .......................................... passim