Gibson Brief of Appellee
Gibson Brief of Appellee
In The
MATTHEW GIBSON,
Plaintiff-Appellee,
v.
BRIEF OF APPELLEE
victim.
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TABLE OF CONTENTS
PAGE
STANDARD OF REVIEW......................................................................... 1
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
ARGUMENT ........................................................................................... 14
PAGE
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PAGE
PAGE
CONCLUSION ........................................................................................ 58
CERTIFICATE OF SERVICE................................................................. 62
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TABLE OF AUTHORITIES
PAGE(S)
CASES
Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) .................. 38, 55
Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) ................... 44
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PAGE(S)
King v. Myers, 973 F.2d 354 (4th Cir. 1992) ................................... passim
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
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
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PAGE(S)
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. Servance, 394 F.3d 222 (4th Cir. 2005), vacated on
other grounds, 544 U.S. 1047 (2005) ............................................. 20, 27
CONSTITUTIONAL PROVISIONS
PAGE(S)
OTHER AUTHORITIES
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JURISDICTIONAL STATEMENT
denials of absolute immunity. See Nero v. Mosby, 890 F.3d 106, 121–23
STANDARD OF REVIEW
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
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
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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
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,
Gibson’s home.
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;
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Goldston did not explain the purpose of the visit and Gibson—a federal
Goldston on the ground that she had become a witness in the case.
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]
1 Available at https://youtu.be/DA67kzFO-oQ.
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ordered Gibson to let her into his house under threat of arrest. Gibson,
During these events, Gibson and his girlfriend were recording the
When Goldston realized that she was being recorded, however, she
*1. Goldston then ordered the bailiff to seize Gibson’s cell phone because
Goldston then directed and led a search of Gibson’s home for about
2 Available at https://youtu.be/HA1UuxUiCwk.
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party about where, when, and how they could look for and seize disputed
(2:30–2:36);
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(4:24–4:28);
(4:27–4:42);
to me! Look over there and see if you agree that you
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
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recording, she admonished that his actions were improper and that he
of the search.
The search party ultimately removed several items from the home
children or girlfriend, and some of the wrongfully seized items were never
2719725, at *2. And law enforcement on the scene did not create an
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
under the state Code of Judicial Conduct. Id. at 131. She ultimately
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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.
court proceedings. Id. at 131; see also JA479 (Stump Depo.) 6:22 (officer
Goldston). However, Goldston could not identify any legal authority that
Matter of Goldston, 866 S.E.2d at 131. She also admitted that she never
happened at the homes. Id. at 131–32. And she agreed that her personal
evidence. Id. at 132. Moreover, Goldston admitted that she could have
that the officers would not have done a good enough job. Id. at 131
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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
censure and a $1,000 fine, id. at 139, publicly rebuking Goldston for
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.
reasoned, “that even a judge who participates in one acts not as a judicial
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(quoting State ex rel. Hensley v. Nowak, 556 N.E.2d 171, 173 (Ohio 1990)
The Court thus held that Goldston unlawfully usurped the powers of the
Id.
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
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
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Judge Goldston’s conduct and the impact such violations have on the
July 13, 2022). Gibson claimed that the search and seizure of his property
violated his Fourth and Fourteenth Amendment rights and that the
at *2. Goldston later sought summary judgment on the ground that she
The district court denied the motion, holding that Goldston was not
at *6. The court reasoned that Goldston’s conduct was nonjudicial for two
function that judges do not normally perform (tracking the West Virginia
Supreme Court’s holding); and second, because Gibson was not dealing
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Gibson specifically moved for her to recuse herself for acting outside her
judicial capacity. Id. at *5. Furthermore, the court concluded that even if
tracking the West Virginia Supreme Court’s decision). Id. at *6 n.3. And
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.
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
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case turns on the simple idea that a judge is not entitled to judicial
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).
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
question.”). Further, judges don’t get immunity, even for judicial acts,
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
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(13 Wall.) 335, 347 (1871); Pierson v. Ray, 386 U.S. 547, 554 (1967).
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
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
ARGUMENT
For decades, the Supreme Court has instructed that the judicial
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been done by [a] judge[].” Forrester v. White, 484 U.S. 219, 227 (1988).
not judicial, act, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979).
entitled to immunity for actions that are (1) “nonjudicial,” meaning “not
of Gibson’s home and the resulting seizures of his property—fall into both
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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
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.
‘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
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search of Gibson’s home. The Supreme Court has long held that the
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
and her conduct was not a judicial act to which immunity protections
attach.
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
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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
charged with engaging the search because she was merely supervising it
and was not personally looking for items. Goldston’s Br. at 18. However,
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
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
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protected area.” (internal quotation marks omitted)). And few things are
Kyllo v. United States, 533 U.S. 27, 34 (2001) (describing the home as “the
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,
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)).
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search.
Yet she did far more than that. Goldston did look for things—at the
Goldston herself decided that she and the rest of the search party should
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
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
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)
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to become a member, if not the leader, of the search party which was
searched Gibson’s home. She forced Gibson to allow the group to enter
his home and then personally entered the home herself. She maintained
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
assertions, she personally looked for disputed items. That she was
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.
preclusion.
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decision was asserted enjoyed a full and fair opportunity to litigate that
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
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 &
Each of the four elements is met here. Satisfying element (1), the
elements (2) and (3). See id. at 139. Finally, fulfilling element (4),
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Goldston had a full and fair opportunity to litigate the issue. Indeed, she
arguments. See id. at 131, 134. Goldston cannot now rehash the issue
after she litigated it fully before the West Virginia Supreme Court just
actions were executive in nature. In Lo-Ji Sales, Inc. v. New York, 442
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.
The judge initially authorized the search via warrant based on two
specific films, but police requested that he accompany them to the store
might find. Id. at 321. The judge, accompanied by several police officers
and prosecutors, then proceeded to spend six hours rifling through the
The Court held that the search and seizures were unconstitutional,
that no items would be seized without probable cause. Id. at 326. The
judge’s presence did not obviate the violations, the Court reasoned,
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
(emphasis added).
Goldston’s actions here were even less judicial than the judge’s in
warrant authorizing the search of Gibson’s house. Thus, unlike the judge
there, Goldston cannot even argue that her involvement in the search
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home without a warrant (even if such a warrant would have been invalid)
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
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
she acts as a police officer); Servance, 394 F.3d at 231 (“[I]t is elementary
“as an adjunct law enforcement officer” and usurping power reserved for
search, judicial immunity does not apply. “Whether the act done by [a
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
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
only foothold Goldston has for arguing that her actions were judicial is
As the Supreme Court has long affirmed, that is not enough. See id.
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Fifth, Seventh, and Ninth Circuits all affirm that judges are not entitled
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
decisions did not confer immunity, the Court reasoned, because the judge
who hires and fires assistant district attorneys, or indeed from any other
decisions can “be essential to the very functioning of the courts.” Id. at
228. Nevertheless, the Court held that immunity was not necessary to
recognized that judges who behave like executive-branch officers are not
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
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
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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
the highway.” Id. Similarly, the act of criminally charging the driver was
Id. As the concurring opinion noted, immunity was not proper there
Constitution.” Id.
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
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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
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.
court observed, “is simply not an act of a judicial nature.” Id. The court
receiving absolute immunity for this act simply because he was a judge
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
sentenced the tenant while the tenant was not present. Id. at 1232–33.
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The court held that the judge was entitled to judicial immunity for the
1234–35. However, the court also held that the judge was not entitled to
process.6 Burns v. Reed, 500 U.S. 478, 485 (1991). Thus if absolute
print found at the scene of the crime belonged to a particular suspect. Id.
than activities of police officers allegedly acting under his direction.” Id.
at 274.
Goldstein v. Moatz, 364 F.3d 205, 215 (4th Cir. 2004) (no absolute
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Cir. 1974) (“Making an arrest is a police function, not a judicial one, and
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
the property to be searched for and seized.”). That is why Goldston is not
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
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without any explanation for the detention. Id. at 355–56. The ex-wife
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
arrest.” Id. (emphasis added). Instead, the judge had merely ordered the
judicial function.” Id. The Court thus concluded that judicial immunity
was available because the judge, who did not personally arrest the
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
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Supreme Court concluded that the judge’s actions were judicial in nature.
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
counsel in a pending case before the court,” which was a judicial act even
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’
Court reasoned that the judge’s order was “no more executive in
search a home.” Id. Thus the fact that the judge’s actions were not
Goldston argues, “that had Judge Goldston merely ordered from the
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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
breaking things as they went through the house. See 502 U.S. at 12–13.
judge. See, e.g., Burns, 500 U.S. at 492 ([T]he issuance of a search
But Goldston did not merely order the search—she performed it.
presence at the home and interaction with the Parties while the property
was located that allegedly causes the departure from her authorized
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—
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from her perch in Gibson’s rocking chair. That is a far cry from ordering
Ji Sales, Inc., 442 U.S. at 327. That is why the judge in Mireles was
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
could have, and should have, resolved the parties’ disputes over certain
items by entering orders from the bench based on the evidence the parties
Gibson, was, in fact, retaining disputed property. But the act of entering
vi. Conclusion
normally performed by a judge. Lo-Ji Sales, Inc., 442 U.S. at 327. This
at 231. Judges are not even entitled to judicial immunity for executive
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immunity for blatantly usurping the power of the executive branch, and
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
analysis.
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,
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like the first, further undermines Goldston’s contention that the search
search looked judicial and thereby alchemized the entire incident into an
act taken in her judicial capacity. But the record evidence of the parties’
appeared judicial, they did not magically transform the search into an
unpersuasive.
judicial capacity because they were making motions for her to rule on
ground that she was becoming a witness in the case. Gibson Video at
thus stated, on video, that he did not believe Goldston was acting in her
judicial capacity. 8
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
during the search—for most of it, she was not even wearing shoes. See,
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.
at 18, including her ruling on the motion to recuse. But that does not
stating that he would not allow Goldston in his home without a warrant);
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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
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
was not interacting with Goldston in her judicial capacity. Again, Gibson
when they believe they are dealing with a judge because the court staff,
e.g., Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017)
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
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property.
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
442 U.S. at 321–23. Nonetheless, the Court held that the entirety of the
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
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Thus, the fact that a judge might happen to perform judicial acts
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
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
Forrester, 484 U.S. at 227. Thus, when the same person performs a
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
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court day to discuss the case. Id. Up to that point, the judge was
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 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
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
she began to conduct the search of Gibson’s home, however, she stepped
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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,
Goldston also argues that she was acting in her judicial capacity—
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
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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
(same judge later charged with Code violations for stealing from
Walmart). The fact that the Code governed Goldston’s conduct, then, is
iv. Conclusion
*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
9 Available at https://tinyurl.com/bddtpkbw.
10 Available at https://tinyurl.com/8yxrktfc.
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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.
W. Va. Const. art. V, § 1; see also Matter of Goldston, 866 S.E.2d at 136.
these exact facts, that Goldston was entirely devoid of the power to search
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over the subject-matter.” 80 U.S. (13 Wall.) at 351. Courts must routinely
and those decisions are protected by judicial immunity even if they are
authority.” Id.
explained that “if a probate court, invested only with authority over wills
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allowed, the Court observed that those actions would merely “be in excess
id.
“exercise the powers of more than one of them at the same time.” Id.; see
judicial official. Matter of Goldston, 866 S.E.2d at 136; see also Lopez, 620
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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
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
these exact facts and held that Goldston was completely devoid of
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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
Thus, when Goldston searched Gibson’s home, she was not simply
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
her of immunity.
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Barr v. Mateo, 360 U.S. 564, 572–73 (1959) (plurality opinion). Therefore,
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
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
officer, in exercising the authority vested in him, shall be free to act upon
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,
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.
usurp the power of the executive branch for their own convenience. The
does not protect the judicial process. That principle is particularly salient
Gregory, 500 F.2d at 64 (“[W]e cannot believe that the purpose of the
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attacks. See, e.g., Forrester, 484 U.S. at 227. “A judicial act within the
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,
because Gibson’s injury was already complete when Goldston entered his
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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
the same way that an appellate judge could not order the judge in Gregory
nature of Goldston’s orders did not give Gibson any opportunity to contest
CONCLUSION
when she lead a search party into Gibson’s home. She stepped out of her
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
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Moreover, when Gibson protested and insisted that the search party
“oppressor.” The Federalist No. 47, at 338. This Court should therefore
deny Goldston immunity and affirm the judgment of the district court.
Respectfully submitted,
Anya Bidwell
Patrick Jaicomo
INSTITUTE FOR JUSTICE
901 North Glebe Road, Suite 900
Arlington, Virginia 22203
Tel: (703) 682-9320
Email: [email protected]
[email protected]
John Bryan
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street, PO Box 366
Union, West Virginia 24983
Tel: (304) 772-4999
Email: [email protected]
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CERTIFICATE OF COMPLIANCE
2. This brief document complies with the typeface and type style
requirements because:
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CERTIFICATE OF SERVICE
Court using the CM/ECF System, which will send notice of such filing
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: [email protected]
[email protected]
[email protected]
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