Update on the Family Court Judge Search Case Litigation

Recently the West Virginia Supreme Court of Appeals censured and fined West Virginia Family Court Judge Louise Goldston for searching the home of my client. That put an end to the judicial disciplinary proceedings over that issue. However, the federal civil rights lawsuit remains pending. Prior to the state supreme court opinion being released, Judge Goldston had filed a motion to dismiss in that case, asserting absolute judicial immunity, and we had filed our response brief, arguing essentially that judicial immunity did not apply because searching my client’s residence was not a “judicial act.”

On December 3, 2021, the federal court, sua sponte (on its own without request by a party), entered an order directing both my client and the defendant judge to file a supplemental brief opining whether the state supreme court opinion had an effect on the outcome of the federal court’s ruling, which has yet to come, those supplemental briefs being due this past Friday. Here’s the order:

Both parties filed responses on Friday afternoon, which will be posted below, in their entirety. What I think the Court was hopefully getting at, which we argued in our supplemental brief, is that the West Virginia Supreme Court opinion very well may be entirely dispositive of the main issues in the pending federal case. Why? Because Judge Goldston was the defendant in that underlying state case and had a full and fair opportunity at litigating all issues in that case. A federal court cannot thereafter rule differently. This would violate the Constitution, as we pointed out in our supplemental brief.

The West Virginia Supreme Court held conclusively that Judge Goldston was not performing a judicial act when she searched my client’s home on March 4, 2020, but rather was acting in a law enforcement executive capacity. The issue of whether the conduct complained of was a “judicial” act in nature is one of the requisites to get past absolute judicial immunity. Therefore, a federal court cannot subsequently issue a different ruling on the same issue against the same defendant. Moreover, the state supreme court also concluded under an even higher burden than a civil lawsuit requires (clear and convincing evidence) that Judge Goldston violated both the federal and state constitutions when she invaded the sanctity of my client’s home on that day. This arguably disposes of much of the civil case, by itself, assuming judicial immunity does not apply.

These are interesting and unusual issues. Thus, please feel free to read the supplemental brief I prepared. You can compare and contrast her response and reach your own conclusion. I’ll definitely provide an update once we receive the federal court’s ruling on this.

Here’s the underlying West Virginia Supreme Court opinion.

Analysis of Recent Police Videos with Guest LACKLUSTER

Join me and special guest LACKLUSTER, tonight to watch, discuss and analyze some recent police videos making the rounds, including the OIS in Tucson of the guy in the power chair. And more….. LIVE at 7pm ET – Freedom is Scary, Ep. 84.

Federal civil rights lawsuit filed against Mercer County Deputies for excessive force during “domestic disturbance” call

Today we filed a federal Section 1983 civil rights lawsuit alleging multiple counts of civil rights violations related to allegations of excessive force which occurred during a “domestic disturbance” call involving my client, Melvin Sargent. Following a non-violent argument with his wife, deputies from the Mercer County Sheriff’s Department arrived at his home.

Due to the fact that he was open-carrying a pistol in a retention holster, as he usually did, and as he was legally entitled to do, Mr. Sargent went out of his way to raise his hands in the air and allow the officers to disarm him, following their arrival. However, as the complaint alleges, after being disarmed, he was punched in the face with a closed fist, and subjected to violence from there. His hand was boot-stomped, which resulted in a fractured hand.

After handcuffs were applied behind his back and placed in the rear of the police cruiser, his hand began to swell and cause severe pain. When he complained about the pain, the deputy violently pushed him and began punching him again. He then sprays pepper spray in his eyes for 3 to 5 seconds, and then shuts him inside the police cruiser. Afterwards the deputy walks over to Mr. Sargent’s significant other, who was filming video, where you can see his black armored knuckle gloves, covered with my client’s blood.

Here’s the filed complaint:

WV Supreme Court Censures Family Court Judge Goldston for Illegal Search

Just a few minutes ago, the West Virginia Supreme Court issued their opinion in the Family Court Judge search case, censuring Judge Louise Goldston for performing an illegal search at the home of a litigant – my client, Matt Gibson. Though the Court elected not to raise the recommended fine of $1,000, the Court declined to opt for the less-serious written “reprimand.” Thankfully, the Court dismissed the Family Court Judicial Association’s arguments that Family Court judge have the power to engage in home searches disguised as “home views”:

We begin with a threshold question: Did Judge Goldston view the ex-husband’s home, or did she search it? We find that she searched it. A “view” is “the act or proceeding by which a tribunal goes to observe an object that cannot be produced in court because it is immovable or inconvenient to remove….”

We agree that the ex-husband’s home was “immovable” and certainly “inconvenient” to produce in court. View, BLACK’S LAW DICTIONARY (11th ed. 2019). However, Judge Goldston did not go to the property to observe the ex-husband’s house; she went there to locate and seize certain of its contents—pictures, DVDs, and other items of personal property. These items of personal property were not “immovable or inconvenient to remove” from the home. Ibid. In fact, the ex-wife removed many of these items during the so-called “view.” Accordingly, we find that Judge Goldston’s actions at the residence were not a view.

On the contrary, the record is clear that Judge Goldston went to the property to locate things, not simply to observe them. Her own words support this conclusion. When the ex-husband demanded a list of what she was seeking, she appeared to reply, “[y]ou have a list of everything [unintelligible] attached to the order.” When the ex- husband professed not to “know where some of it’s at[,]” she replied, “Well, we’re gonna find it.”

Looking for things is a “search” by any sensible definition of the term. As the United States Supreme Court stated in Terry v. Ohio, 392 U.S. 1, 16 (1968), “it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search’”.

Searches are an activity of the executive department. State ex rel. Parma Cmty. Gen. Hosp. v. O’Donnell, 2013-Ohio-2923, ¶ 7 (stating that “searches are executive in nature.”). “Indeed, searches are so quintessentially executive in nature that even a judge who participates in one acts ‘not * * * as a judicial officer, but as an adjunct law enforcement officer.’” State ex rel. Hensley v. Nowak, 52 Ohio St. 3d 98, 99, 556 N.E.2d 171, 173 (1990)….

In light of these clear prohibitions, we hold that the West Virginia Constitution forbids a judicial officer to participate in a search because a search is an exercise of executive power. W. Va. Const. art. 5, § 1. Because Judge Goldston plainly engaged in such a search, we find that the so- called “view” was improper.

Kyle Rittenhouse Trial Day 8 Analysis

Some armchair legal quarterbacking following day 8 of the Kyle Rittenhouse self defense trial in Wisconsin. This is an important firearms related self defense case which illustrates the importance of attorney skill and tactics in jury trial advocacy. There’s been some surprising events so far in the trial, including the testimony of the defendant himself today. In fact, something shocking happened during Kyle’s cross examination which may itself be a constitutional violation. Join me to watch some of it and discuss…… Freedom is Scary Episode 80:

Federal Court Allows Lawsuit Against Putnam County for Illegal Task Force Searches to Proceed

This morning a federal judge denied the motion to dismiss filed by Putnam County, who had asked the Court to dismiss the first of several lawsuits filed against Putnam County for a pattern and practice of illegal searches by their “Special Enforcement Unit,” who were caught on video searching the inside of my client Dustin Elswick’s home, which you may have seen on Youtube.

Usually in federal civil rights lawsuit, you are required to sue the individual government employee or officer who engaged in the violation. However, under the Supreme Court’s ruling in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), counties and cities (i.e., political subdivisions) may be sued directly when they have adopted some policy or practice which authorizes a constitutional violation against citizens by police officers. These are known as “Monell Claims” and they are very difficult to prove, generally. So they are pretty routinely dismissed. I’m happy this one wasn’t. Presumably the other two cases just like it will also be allowed to proceed…..

The Complaint’s other allegations include that PCC purposely established and operated the the SEU and knew of and condoned the SEU officers repeated constitutional violations. Id. ¶ 51. This alleges that the PCC was the “moving force” behind the constitutional violations where it deliberately created a unit of officers who did not comply with procedural safeguards and engaged in constitutional violations. See Bd. of Ctny. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (quoting Monell, 436 U.S. at 694).

Here’s the Court’s memorandum order and opinion allowing the case to proceed:

West Virginia Attorney General Joins Lawsuit in Georgia Challenging Mandate’s Application to Federal Contractors

West Virginia Attorney General, Patrick Morrisey, filed a lawsuit last week, along with six other states, in federal court in Georgia, challenging Biden’s mandate on behalf of federal contractors. It asserts procedural deficiencies in the federal swamp process, as well as more important constitutional violations, such as violations of separation of powers and principles of federalism. Here is the full lawsuit:

Today Morrissey is expected to file yet another lawsuit challenging the actual OSHA rule created pursuant to Biden’s executive order. I don’t have a copy of it yet, but as soon as I do, I’ll post it here….

Florida sues Biden Administration over mandate for federal contractors

The Biden Administration executive order mandate states that all federal contractors must be fully vaccinated by Dec. 8. The administration also mandated that all businesses with more than 100 employees mandate COVID-19 vaccinations. Now the State of Florida has sued the Administration in federal court to invalidate the mandate’s application to the numerous federal contractors in the State of Florida. West Virginia can, and should, file a similar lawsuit. I’m told that this is in the works.

The lawsuit challenges the procedural manner in which the mandate was issued, and also asserts several different constitutional violations, including separation of powers, since the mandate didn’t issue from Congress. Here’s the full lawsuit:

SCOTUS Issues Two Qualified Immunity Opinions this Week

This week the Supreme Court issued two separate rulings in qualified immunity cases involving allegations of excessive use of force by police officers. One out of the 9th circuit, involving an officer placing a knee on a suspect’s back for 8 seconds, and a second one involving a suspect who was shot and killed by police officers while charging at an officer with a hammer.

You may have seen the headlines around the interwebs about the SCOTUS strengthening qualified immunity in these two cases, or somehow changing the law in favor of the police. Is this the case? Since excessive force cases are my favorite, let’s go through these together. #QualifiedImmunity #ExcessiveForce #SCOTUS Freedom is Scary Ep. No. 78 (prerecorded, but scheduled to play at 10/20 at 8:00 p.m. ET)

Update on the School Bus Drivers Suspended for Attending a Trump Rally

Join me live at 8pm ET tonight for an update on the Jefferson County, West Virginia school bus drivers who were suspended for attended the Trump rally on January 6, 2021. Despite being nowhere near what occurred at the Capitol, they found themselves suspended and accused of misconduct, and then later vindicated. We files suit for First Amendment retaliation. Here’s what’s happened so far in the litigation….. Freedom is Scary, Ep. No. 77. Also available on our Facebook page.