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

USCA4 Appeal: 22-1757 Doc: 27 Filed: 11/14/2022 Pg: 2 of 72

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
Counsel for Plaintiff-Appellee

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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
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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

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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
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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

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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

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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

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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

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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

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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
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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

“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

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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.
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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.
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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);

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- 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

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*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
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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.

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

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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

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)

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(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

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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
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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

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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

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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

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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.

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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.

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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

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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

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

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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)).
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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)

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(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.
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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.

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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),

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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

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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

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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.
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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

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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

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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.

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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

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

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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

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.

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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).

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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

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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

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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

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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

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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—

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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).
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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

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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,

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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

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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.
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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);

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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

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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.

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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

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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

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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

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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.
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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

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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

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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

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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

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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.

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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

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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-

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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

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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

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

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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
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INSTITUTE FOR JUSTICE

816 Congress Avenue, Suite 960
Austin, Texas 78707
Tel: (512) 480-5936
Email: tclark@ij.org

Anya Bidwell
Patrick Jaicomo
INSTITUTE FOR JUSTICE
901 North Glebe Road, Suite 900
Arlington, Virginia 22203
Tel: (703) 682-9320
Email: abidwell@ij.org
pjaicomo@ij.org

John Bryan
JOHN H. BRYAN, ATTORNEY AT LAW
411 Main Street, PO Box 366
Union, West Virginia 24983
Tel: (304) 772-4999
Email: jhb@johnbryanlaw.com

Counsel for Plaintiff-Appellee

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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
Counsel for Plaintiff-Appellee

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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: jfuller@baileywyant.com
astrider@baileywyant.com
jtully@baileywyant.com

/s/ Victoria Clark

Victoria Clark
Counsel for Plaintiff-
Appellee

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