Judicial Immunity: The Sky Is Not the Limit

A federal appeals court has rejected a judge’s attempted reliance on the judicial immunity doctrine following a sua sponte warrantless search of a litigant’s house by the judge and law enforcement officers on 10 minutes notice. In Gibson v. Goldston, the U.S. Court of Appeals for the Fourth Circuit found that the defendant judge “stepped outside of her judicial role when she personally participated” in the search of the litigant’s home, and found that such activities were “not eligible for the protections of judicial immunity.” While ABA Litigation Section leaders generally agree with the appellate court’s decision, practitioners are encouraged to “make records” to preserve their appellate rights, and to be prepared to take swift action during errant court proceedings.

Judge Orders Warrantless Search of the Plaintiff’s Home

In September 2018, the judge at issue granted the plaintiff and his ex-wife’s divorce, and adopted their proposed property settlement agreement. On September 26, 2019, the plaintiff filed a petition for contempt, alleging defects in the property disbursement. On March 4, 2020, the judge presided over a hearing that was held on plaintiff’s contempt petition. During that hearing, the defendant judge, sua sponte, ordered the parties to “reconvene” at the plaintiff’s home address in 10 minutes, but “without explanation as to why the home visit was necessary.”

Based on the court’s order, the plaintiff, the plaintiff’s ex-wife and her attorney, the judge, and the bailiff visited defendant’s home. On arrival, and over the plaintiff’s objections, the judge entered the plaintiff’s property without a search warrant. Though the plaintiff attempted to record the interaction, the judge ordered the plaintiff to stop recording. However, unbeknownst to the judge, the bailiff recorded the search.

The search lasted about 20 to 30 minutes and involved various parts of the house, in which many different items of personal property were seized from the plaintiff’s residence without consent.

Disciplinary Action and Civil Litigation

After video footage of the events were publicized, the West Virginia Judicial Disciplinary Counsel received two complaints against the defendant judge. On September 18, 2020, the West Virginia Judicial Investigation Commission issued a Formal Statement of Charges, filed with the Supreme Court of Appeals of West Virginia. Following a disciplinary proceeding, the Judicial Disciplinary Counsel censured the defendant judge and fined her $1,000.

In March 2021, the plaintiff filed a lawsuit in the U.S. District Court for the Southern District of West Virginia against the defendant judge and others, claiming that the warrantless search and seizure of his property “violated his Fourth and Fourteenth Amendment rights, that the restrictions on recording the incident violated the First Amendment, and that [defendant’s] practice of conducting ‘home visits’ violated the Equal Protection Clause by disadvantaging pro se litigants like himself.” The plaintiff also sought compensatory and punitive damages under 42 U.S.C. § 1983, in addition to attorney’s fees and injunctive and declaratory relief.

Judicial Immunity Is Not Absolute

The defendant judge moved for summary judgment claiming she was entitled to absolute judicial immunity. The district court denied the judge’s motion, finding that the search of the plaintiff’s home and seizure of his property were “nonjudicial acts to which judicial immunity did not attach.” The district court further found that the judge’s acts were “nonjudicial” because conducting searches and seizures was a “quintessentially executive function not normally performed by judges.” The judge appealed the district court’s rejection of her attempt to invoke the judicial immunity doctrine.

The court of appeals acknowledged that judicial immunity is “strong medicine” which serves as an “absolute bar” to any liability imposed against judges in a lawsuit, but noted that such potent medicine is limited by its “indiscriminate prescription.” The appellate court held that judicial immunity does not protect judges who engage in “nonjudicial” acts, and that the defendant’s actions in ordering a warrantless search and seizure of the plaintiff’s home “clearly exceeded the most common understandings of the proper judicial role.” The court of appeals concluded that the defendant “stepped outside her judicial role when she personally participated in the search of [plaintiff’s] home,” as such acts are executive, not judicial.

Practitioners Must Remain Conscientious and Diligent

While Section Leaders agree with the court of appeals’ decision, they urge procedural diligence to make sure clients’ rights are preserved. “As a practitioner, make your objections known on the record to preserve appellate rights,” recommends Kenneth R. Berman, Boston, MA, cochair of the Litigation Section’s Committee on the American Judicial System.

Section leaders also call for alignment of principles between judges and lawyers. “Mutual respect and communication between the bench and the bar is critical in these situations,” adds Rita Aquilio, Watchung, NJ, cochair of the Section’s Family Law Litigation Committee.