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No immunity for judge who personally oversaw search

Virginia Lawyers Weekly//November 20, 2023

No immunity for judge who personally oversaw search

Virginia Lawyers Weekly//November 20, 2023//

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Where a family court judge went to the house of a litigant and supervised the search for items he allegedly failed to turn over to his ex-wife, she was not entitled to judicial immunity in a subsequent suit brought by the husband. The search of the house and the seizure of property were nonjudicial acts to which judicial immunity did not attach.


Judge Louise Goldston went to Matthew Gibson’s residence to look for items he had failed to turn over to his ex-wife after their divorce. She entered his home over his objections after threatening him with arrest should he try to stop her. She then supervised the seizure of designated items in the house.

Gibson filed suit in federal district court against Judge Goldston and others present at the search. Gibson claimed that the warrantless search and seizure of his property violated his Fourth and Fourteenth Amendment rights, that the restrictions on recording the incident violated the First Amendment and that Judge Goldston’s practice of conducting “home visits” violated the Equal Protection Clause by disadvantaging pro se litigants like himself.

Judge Goldston moved for summary judgment, claiming she was entitled to absolute judicial immunity. The district court denied her motion because it found that the search of Gibson’s home and seizure of his property were nonjudicial acts to which judicial immunity did not attach.


Judge Goldston argues that she is entitled to judicial immunity because she went to Gibson’s house in service of the “resolution of a family court matter” pending before her and “acted as a judge throughout the proceedings.” She points out that as a West Virginia family court judge, she has the express statutory authority to ensure that parties comply with marital property distribution agreements by ordering that property be located and seized. Her mere “presence at the home” and “interaction with the parties” during the search, she contends, was not so far afield of that lawful power that judicial immunity should be denied.

This court concludes that Judge Goldston can enjoy such protection only when engaged in a judicial act within her jurisdiction. But Judge Goldston stepped outside of her judicial role when she personally participated in the search of Gibson’s home. The search of someone’s home and the seizure of its contents are executive acts, not judicial ones. Her activities are not eligible for the protections of judicial immunity.

Judge Goldston’s actions instead marked her out as part of the law enforcement team. She put herself in the position of participating not only in the search of a private home over the objection of the homeowner, but in the seizure of that homeowner’s property. She demanded that the homeowner cede entrance not only to her but also to his ex-wife and her attorney. While inside, she personally ordered the seizure of various items: photographs, yearbooks, DVDs, recipes and a chainsaw.

More than just participate, Judge Goldston supervised the whole operation. She controlled the scope of both the search and the seizure. She allowed the ex-wife to sift through DVDs but denied her request to look for pictures of her child’s birth. When a dispute emerged over an umbrella stand, Judge Goldston awarded the stand to the ex-wife, who removed it from the home alongside all the other items. Searches, seizures and their supervision are classic law enforcement functions reserved for the executive branch.

This court’s unwillingness to extend the protection of judicial immunity to executive acts puts it squarely in line both with Supreme Court precedent and with other circuits that have denied immunity to judges who took law enforcement into their own hands. While Judge Goldston might have had the authority to order a search, the proper authority to conduct the operation was the local sheriff’s department or some other appropriate law enforcement agency. Just as “judges do not do double duty as jailers,” so too they do not do double duty as sheriffs.


Gibson v. Goldston, Case No. 22-1757, Oct. 30, 2023. 4th Cir. (Wilkinson), from SDWVA at Beckley (Volk). Jennifer E. Tully for Appellant. Patrick M. Jaicomo for Appellee. VLW 023-2-257. 15 pp.

VLW 023-2-257

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