Police officer Heather Weyker, of the St. Paul, Minnesota, Police Department, was found by the federal courts to have fabricated false charges against several dozen Somali refugees, including Hamdi Mohamud, who spent 2 years in prison for it. Hamdi is now represented by the Institute for Justice, who represents her in an almost decade-long lawsuit against Weyker, which so far has been unsuccessful. Believe it or not, Weyker is still working a six figure job at the St. Paul Police Department, despite having been adjudicated as a liar. Her attorney, Patrick Jaicomo, of the Institute for Justice, joined me to explain this insane story.
Even though the U.S. Eighth Circuit Court of Appeals found in 2016 that Officer Weyker had fabricated false charges against numerous individuals, the St. Paul Police Department used her in a recruiting video in 2017!
We’ve all seen the recent shooting footage out of Ohio. But that may have overshadowed another recent case where body cam footage was just released from the LAPD. Body cam footage reveals that just before officers shot an unarmed man holding an automotive part, that one of the officers said to the others, “it’s not a gun bro.” Then he was shot with no warning. Indeed, it wasn’t a gun.
Here’s the LAPD’s video:
Here’s the official account as per the LAPD:
On July 18, 2022, at around 7:20 p.m., Southwest Division patrol officers received an “Assault with a Deadly Weapon” radio call. The reporting party advised Communications Division that the suspect was armed with a black, semi-automatic handgun. Uniformed personnel observed the suspect matching the description listed in the comments of the radio call, walking on the north sidewalk of Martin Luther King Boulevard, just east of Bronson Avenue. Officers made contact with the suspect, who they believed was in possession of a handgun. The suspect refused to respond to officer’s verbal commands. As a uniformed supervisor arrived at scene, he also believed that the suspect was armed with a handgun. As the suspect walked away from the officers, he turned multiple times in their direction and pointed a black metallic object believed to be a firearm, which resulted in an Officer-Involved-Shooting (OIS). The suspect was struck by gunfire and taken into custody.
Determining whether an officer’s use of force violates the Fourth Amendment requires balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner (1985).That inquiry generally involves an assessment of factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor (1989).
In the context involved here, the Supreme Court has crafted a more definitive rule: An officer may use deadly force to apprehend a fleeing suspect only if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Garner , 471 U.S. at 11, 105 S.Ct. 1694. A suspect may pose such a threat if “there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm,” or if the suspect threatens the officer or others with a weapon capable of inflicting such harm. Id.
The key questions is whether the officer had an objectively reasonable basis for believing that the suspect posed a threat of serious physical harm, either to himself or to others.
The officer who fired here, fired from behind at a suspect who was running away from the officer. Thus it would be difficult to claim that he did so out of fear for his own safety at the moment the shots were fired. Did the officer therefore have an objectively reasonable basis for believing that the suspect posed an immediate threat of serious physical harm to others? The footage shows that no other individuals appear to be in immediate danger at the time the shots were fired. One police cruiser attempts to drive up and block the suspect’s path. Theoretically the officer, or officers, inside could be in harm’s way – though they also clearly were intentionally placing themselves in his path.
Perhaps the best argument for justification is what is known as the “fleeing felon rule” which arose out of Tennessee v. Garner. An officer can argue that permitting the suspect to escape posed a threat to the general public. A fleeing suspect’s escape can pose a threat to the public when police have probable cause to believe that the suspect has committed a violent crime. Deadly force to prevent such an escape can be reasonable if the suspect has demonstrated that he was willing to injure an officer who got in the way of his escape or that he was willing to persist in extremely reckless behavior that threatened the lives of all those around. (Orn v. City of Tacoma, Corp. (9th Cir. 2020).
Usually this would involve a vehicle pursuit, or some type of running gun battle situation, where the suspect has already tried to seriously injure someone. Here, however, though it was reported that the suspect pointed a gun at someone, the officers did not know that to be true as of yet. They had not observed him threaten anyone with a gun. They had not positively identified the person by that point. They merely observed that he was holding something that could be a gun, and that he refused to stop and talk with them. There’s no probable cause for the officers to believe that the suspect had committed any serious crime. The suspect was not given a warning of the imminent use of deadly force by the officers, which has been required by the 9th Circuit in prior cases.
To the contrary, here, the officers themselves were unsure of whether they many even had a gun. As we heard on the body cam footage, one of the officers said, “that’s not a gun bro.” And it wasn’t. At the end of the day, there is sufficient evidence here to deny qualified immunity and take the officer before a civil jury on an excessive force claim. The jury can decide whether the officer’s claims, whatever they end up being, are objectively reasonable.
You may have seen the video I posted last week of police harassing private citizens on their own front porch here in West Virginia. This sort of behavior happens all the time: cops show up to a private residence, they knock on the door. What are your rights in that situation? What rights to the police have to do what they’re doing? Let’s make some things clear.
For instance, in the McDowell County video I just posted, the officer can be heard multiple times in the body cam footage, claiming that he had reasonable suspicion to justify his behavior, based on the fact that he found what he believed to be four marijuana plants near the home. Based on that, the officer demanded the name and birthdate of the property owner, who was standing on the porch.
Can police officers, assuming they have reasonable suspicion to believe that a crime was committed, and the property owner on the front porch may have committed it, demand identification under penalty of arrest for obstruction for noncompliance? That’s what ended up happening, of course, as you’ll see if you watch the footage of what happened to Jason Tartt.
The too-long-didn’t-watch answer is no. If police officers are on your private property, that changes things. Cops are trained on the requirement for reasonable suspicion – to develop some reasonable suspicion they can articulate, even if total B.S., and then that entitles them to forcibly demand identification from whomever they deem a suspect. That is generally how things work in public places – but not on private property, especially a home.
Let’s look at this scenario of police on your front porch and make sure we’re all on the same page about what the law is, and what the law is not, for both police and the occupants of private property.
According to the 1980 Supreme Court opinion in Payton v. New York, in order to legally arrest someone in a home, rather than in a public place, absent consent or exigent circumstances, police officers must have a warrant.
According to the 1984 Supreme Court opinion in Oliver v. United States, the heightened Fourth Amendment protections of the home extend beyond just the interior of the home itself into what’s called the “curtilage” of the home, which is the land immediately surrounding and associated with the home. Why? Because according to the Supreme Court, the curtilage is considered part of the home itself for Fourth Amendment purposes. The Fourth Circuit, where the porch video occurred, just in 2015 issued an opinion holding that a warrantless search of curtilage is presumed to be unreasonable. (Covey v. Assessor of Ohio County).
In the 2013 Supreme Court opinion of Florida v. Jardines, the Court held that a search undoubtedly occurs when the government, without a warrant, obtains information by physically intruding within the curtilage of a house, which in that actual case involved a home’s front porch. The Court cautioned that a search occurs unless a homeowner has explicitly or implicitly sanctioned the government’s physical intrusion into the constitutionally protected area, i.e., the yard and/or porch of the home.
Some of these broad Supreme Court holdings have been interpreted in slightly different ways in different federal appellate circuits. The porch video from last week was from West Virginia, which is in the Fourth Circuit.
The Fourth Circuit made clear as early as 2001 that police officers will be denied qualified immunity for failing to comprehend that they have no right to enter a home’s curtilage to make an investigation based on reasonable suspicion. (Rogers v. Pendleton). They have no “right.” All they can do is engage in what’s called a “knock and talk.” This is the scenario in the large majority of these front door encounters with police.
That’s right… Police officers in the Fourth Circuit were cautioned in 2001 that they would be denied qualified immunity for ignorantly believing the existence of reasonable suspicion allowed the to enter and remain in a homeowner’s curtilage without consent of the homeowner. Yet it seems that it’s still being taught to officers, and being used to arrest people.
Under the “knock and talk” exception to the warrant requirement, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” This means there is an “implicit license . . . to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” An officer may also bypass the front door (or another entry point usually used by visitors) when circumstances reasonably indicate that the officer might find the homeowner elsewhere on the property. “Critically, however, the right to knock and talk does not entail a right to conduct a general investigation of the home’s curtilage.”
The obvious difference between a police officer and a young girl selling girl scout cookies, is that many, if not most, homeowners have no idea whether they have any right to refuse to answer the door, or to ask the person to leave. Police like it this way. They don’t inform people of these rights, and the courts have ruled that they have no legal obligation to do so. You have to inform yourself and spread the word.
Police officers, and anyone else really, have an implied license to come onto your property and knock on your door. This implied license can be revoked. Homeowners can prevent ordinary citizens and police officers alike from conducting a knock and talk by revoking their implied license to be there. However, few citizens know that an implied license exists. Generally, the courts require that a homeowner do so by clear demonstrations or express orders. For instance, asking someone to leave or refusing to answer questions.
What about no trespassing signs? This is a topic of dispute, and can vary by federal circuit. The Tenth Circuit had a particularly bad opinion on this in the Carloss case, which resulted in one law professor creating “LAWn” signs providing notice to the police that their implied license to perform a knock and talk at the address is revoked. No trespassing can be ambiguous. One could certainly be more specific and avoid the grey area. Of course, another option is verbally telling the police that they’re not welcome and ask them to leave. That’s hard for a lot of people to do. Police know this and use it against you.
Back to the McDowell County porch case, the officer thought he was smart saying he had reasonable suspicion, and now you have to provide identification or else get arrested for obstruction. But his own footage dooms his defense. He’s well inside private property. The homeowners have clearly expressed that they were afraid of him, asking for his name, which he refused. He arrested their landlord by physically seizing him on the front porch, well within the home’s curtilage, without probable cause and a warrant. The video disproves any later claim of exigent circumstances. More than that – I haven’t shown this footage yet – but he then radioes his superiors on the drive to jail – telling them repeatedly what he had done. There is obviously either a policy of civil rights violations in this department, or systematic ignorance, or both.
On July 29, the U.S. Court of Appeals for the Fifth Circuit released a published opinion in the case of Sylvia Gonzalez v. Edward Trevino, Mayor of Castle Hills that now appears to be headed to the U.S. Supreme Court. This is an important First Amendment Retaliation case where qualified immunity is the key issue. Qualified immunity is the most important issue in the fight for the civil rights of the American people. It must be defeated, which is why you need to learn about cases like this, which the media will never tell you about.
The case is being litigated by the Institute for Justice. They filed suit for the plaintiff, Sylvia Gonzalez, a retired resident of Castle Hills, Texas, who decided to run for city council, and became the first Hispanic councilwoman in Castle Hills history. I spoke with the Institute of Justice attorneys litigating this case on the same day the opinion was released, and they seemed very optimistic about the future of this case at the Supreme Court.
At Ms. Gonzalez’s first council meeting, she accidentally took home with her petition which had been debated at the meeting. It was laying in her stack of paperwork. It was later discovered that the petition was in her possession, which as it turns out, was technically a misdemeanor crime. The petition sought to remove the city manager. This town has fewer than 5,000 residents. During her campaign, Gonzalez learned that many residents were unhappy with the performance of the city manager. As her first act in office, she submitted this petition to the council. It was entirely unintentional that she ended up taking the petition home with her. She was supporting this petition and had no reason to suppress it or hide it. It was purely unintentional, and it was her first meeting as a councilwoman.
Well, the city leadership was unhappy with Sylvia Gonzalez. After the mistake was discovered, the mayor, Edward Trevino, requested that a Sergeant in the Castle Hills Police Department file a criminal complaint alleging that Gonzalez took the petition without consent. The first officer to investigate, a Sergeant, determined that no crime had been committed. Well, that was unacceptable to the mayor and the chief, so they turned to a so-called “special detective.” The detective decided that Sylvia committed a violation of Texas Penal Code §§ 37.10(a)(3) and (c)(1), which provide that “[a] person commits an offense if he . . . intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.”
Special Detective Alex Wright obtained a warrant, and instead of using the typical procedure of obtaining a summons, rather than a warrant, for a nonviolent crime, as well as going through the district attorney’s office, the detective instead obtained a warrant and hand-delivered it to the magistrate himself. The use of this process prevented Sylvia from using the satellite booking function of the Bexar County Jail system, making her unable to avoid spending time in jail when arrested.
There is clear evidence here that this was done with a retaliatory motive, in response to Sylvia Gonzalez’s support of the petition to remove the city manager and disturb their swamp status quo. Sylvia’s arrest enabled the city leadership to remove her from office, as well as to intimidate, punish, and silence her. There was plenty evidence of this. In fact, Sylvia was charged under a statute that has never before or since been used to arrest someone in her position. A “review of the misdemeanor and felony data from Bexar County over the past decade makes it clear that the misdemeanor tampering statute has never been used in Bexar County to criminally charge someone for trying to steal a nonbinding or expressive document.” Indeed, most indictments under the statute involved fake government IDs, such as driver’s licenses, social security numbers, and green cards.
But here was the big problem: technically there was probable cause to charge her under the statute that was charged. So the question is, can law enforcement arrest and prosecute Sylvia in retaliation for her protected free speech, so long as probable cause exists to do so? In other words, this is like a mayor ordering the arrest of a political opponent for some minor crime like jaywalking, where technically the crime was committed, but where there never would have been any prosecution at all, but for retaliation against free speech. This is the dispute, and there is a split in the federal circuits.
In the 2018 U.S. Supreme Court case of Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018), the Court held that a municipality could be liable under a Monell Claim where its leadership decides to selectively prosecute a particular person in retaliation for their speech. The federal circuits have differed on how broadly to interpret this holding. The Fifth Circuit, in last week’s opinion, has chosen a narrow interpretation.
The jaywalking example is the ideal example, which was discussed in the opinion:
“If an individual who has been vocally complaining about police conduct is arrested for jaywalking,” the claim should not be dismissed despite the existence of probable cause because “[i]n such a case, . . . probable cause does little to prove or disprove the causal connection between animus and injury.”
The Court “conclude[d] that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
Basically, their conclusion was that since no prior council-person had been prosecuted by the city for taking a petition home with them, then there was no evidence to support a theory of retaliatory selective prosecution. This is of course, absurd. This is like saying that law enforcement may engage in retaliatory prosecutions, so long as they choose a creative statute that has never been used before against the same type of defendant.
The fact is, that Sylvia Gonzalez engaged in highly protected First Amendment conduct, and that as a result of that conduct, a conspiracy of government officials took a material adverse action against her for purposes of retaliation. This is already prohibited under federal law. As the dissenting federal judge noted in his dissent, the police officers and city leadership have been on notice of a string of legal authority, dating all the way back to 1689, that it’s unconstitutional to jail people in response to their petitioning the government.
Hopefully the U.S. Supreme Court will overturn this. The Institute of Justice is doing some great work, not just in this case, but in many different cases across the country. They are likely even jumping into one of my cases, so stay tuned for that. Check out the youtube video the Institute did on the Gonzalez case, back when they first started. There’s a donation link. They need donations now, more than ever. Please donate, if you want to help fund the fight against qualified immunity and government corruption. Here’s the Institute’s video on the case, with donation link:
Here’s the district court order, which originally denied qualified immunity, and which the defendants appealed to the Fifth Circuit:
You may remember the West Virginia Circuit Court Judge who was pulled over in a traffic stop by the Moorefield Police Department, resulting in the dash cam footage going viral on various Youtube channels, including my own, which is where it was first released to the public. Judge Carter Williams ended up being formally charged with judicial disciplinary charges. While those charges were pending, Judge Williams got in trouble again due to allegations he left Walmart with merchandise, but without paying. More judicial disciplinary charges were tacked on…. Well, his judicial disciplinary bench trial just ended, following three days of testimony before West Virginia’s Judicial Hearing Board, which is sort of an ethics court comprised of judges and a few appointed citizens.
The bench trial was open to the public and was held in Berkeley County, West Virginia, which is up in the northern panhandle, up near D.C. However, I was unable to view the proceedings because I was actually subpoenaed as a witness, since some of the relevant testimony pertained to the public’s reaction to the judicial misconduct, which is represented in the 2,500 plus comments to the footage on Youtube, first released by me. If you recall, I first obtained the footage via a FOIA request and publicly released it. I ended up not being called though, for whatever reason. The trial ended today, as reported by WV Metronews. The same reporter did watch the proceedings, and in three separate news reports provided some witness testimony quotes. Here’s what we know.
Another Circuit Court Judge in the same judicial circuit testified:
Judge Charles Carl, serving as a witness instead of in his usual role, testified that he was surprised by what he saw in a video of his colleague, Judge Carter Williams, at a traffic stop. “Well, first off, I would say it was out of character for how I know him,” Carl said during a hearing of the Judicial Hearing Board in Martinsburg. “Angry. Agitated. That’s not how I perceive him. That’s not how he acts in court. I just thought he had a bad day.”
Moorefield’s former police chief, Steve Reckhart took a call from Judge Williams at home the night of the traffic stop. “He was upset, agitated, and began to tell me about events that had just occurred,” Reckhart testified today. “He was upset with one of the officers, Officer Johnson, because he stopped him for a cell phone violation and went on to elaborate about the cell phone and how it happened to be there. Then he began to tell me about the frustrations with the Moorefield Police Department.” Reckhart also recalled “the fact that he was expressing his displeasure in some of the criminal cases that were being brought to his court and advised that he had some leeway in some of those cases but that he might look at them tighter in the future.”
Moorefield Mayor Carol Zuber testified that Judge Williams went to her home about 10 p.m. the night of the traffic stop. “He was upset,” Zuber recalled. “He said, ‘You know I really hate to do this to you, but you’ll have to do something with the police officers’ and then proceeded to tell me that he was pulled over because they accused him of holding his cell phone, talking on his cell phone.”She continued, “He made the indication that all of my officers, that I needed to straighten them up. He said they were a bunch of young men, that they were kids.”
A retired judge from the same judicial circuit testified:
Former Circuit Judge Donald Cookman, who served on the same circuit where Williams and Carl preside, earlier in his career was chairman of the Judicial Investigation Commission. As the allegations about how Williams had behaved swirled through the community, local officials had turned to Cookman for advice. Cookman testified today that what he saw on the video created an impression. “I was shocked. I was shocked. I’d known Judge Williams for a number of years, actually knew him as an attorney,” Cookman said. “He’s always very respectful, and I was surprised and shocked.” Cookman testified, “I was concerned that it might be a violation of judicial ethics.”
And last, but not least, Judge Williams himself took the stand yesterday in his own defense:
“Yesterday, for the first time, out in the hallway during a break, I got to talk to the young man that I was so rude to,” Williams testified today. “For the first time, I got to say I’m sorry. I shook his hand and I said, ‘I’m sorry for this. I’m sorry for all this upset.’” . . . . Williams today acknowledged flying off the handle but denied trying to leverage the authority and prestige of his office. “From Day 1, I said that my conduct on July 11 last year was unbecoming of a judge. I said it was disrespectful and rude,” he testified. He later added, “I made a federal case out of it. Just silly. Made a federal case out of it. I’ve regretted it since and tried to make right on it since.” . . . .
Williams today described the mindset that led him to use that phrasing and make those accusations. “I was in fired up mode,” he said. “For whatever reason on that day, I was gonna defend myself, advocate for myself like Custer on his hill, die there. That’s what it felt like. And that was the mode I was in.” The judge testified that he never said he would change the rulings in his courtroom based on the views he had expressed. “I never said I was going to change my rulings. Wouldn’t have done that, would never do that,” he said.
The judge testified that the past year of allegations has altered his reputation in the community and hurt his family. “So yes, my conduct is what it is. It’ll have to be up to someone else,” he said, referring to the hearing board. “But regardless of that and far beyond that, I’ve had to withstand this and be called a racist in this culture and a thief. That’s just about as bad as you can be called. And I am none of those. I’ve never been. I’m a lot of things. I’m not those. “My actions opened the door for me to be called publicly what I’m not. So my actions did that, yes.”
Now, the Judicial Hearing Board will issue a written recommendation to be forwarded to the West Virginia Supreme Court, which contains the Board’s determination about whether judicial ethics violations were proven by a standard of clear and convincing evidence, and if so, ultimately advising as to the Board’s recommended disciplinary sanctions, which ranges from admonishment to a fine to suspension to loss of his law license.
The State Supreme Court is free to adopt those recommendations, or to completely ignore them. However, in my experience, I believe it’s highly likely that the Supreme Court will defer to whatever findings of fact were contained in the written recommendation. If there’s a dispute regarding the underlying law, the Supreme Court is more likely to stray from the recommendation. In the case of Judge Williams, I’m not aware of there being much of a dispute of law – just disagreement about the level of culpability and appropriate punishment.
The Raleigh County Sheriff’s Deputy defendants in the Family Court Judge Search case have requested qualified immunity from the federal court in their motion for summary judgment in the pending civil lawsuit. Unfortunately for them, they can’t claim judicial immunity, as the judge has, even where following orders of a judge. So they’re stuck with qualified immunity. But will they get it? Their depositions have been taken, and frankly, their testimony was quite shocking. Despite the fact that the WV Supreme Court declared in no certain terms that judges do not search homes, and that the March 4, 2020 search of Mr. Gibson’s house was unconstitutional and “serious misconduct,” both the defendant judge, as well as her current and former bailiffs, continue to defy the Supreme Court, even threatening to do it again.
Here’s Raleigh County’s motion, in full. The gist of their argument is that, even if they participated in a civil rights violation, they should be dismissed from liability, because it was a reasonable mistake of law, which is the basic argument for qualified immunity. Moreover, the department itself claims they didn’t have a formal policy which caused, or substantially contributed to, the civil rights violation. As you’ll see below, the arguments of their lawyers don’t match the testimony of the actual officers, who clearly admit to an ongoing policy of illegal judicial searches, and who apparently have no respect for the law whatsoever.
Posted below is our response to Raleigh County’s motion, which highlights the extremely troubling deposition testimony of two of the deputy defendants, Bobby Stump and Jeff McPeake, both current or former bailiffs of the defendant judge. Here’s a couple of highlights describing their deposition testimony:
Defendant Bobby Stump, who arrived shortly after the search and seizure began, testified that he served as Defendant Goldston’s bailiff for approximately ten years, and that during that time, he went with her to the homes of litigants “numerous times.” (Stump at 6:12-14, 19-24; 7:1-4). When asked to estimate the number, Stump stated, “There’s no way I could – over thousands of divorce cases . . . . There’s no way I could give you an accurate number. I mean, I have no idea.” (Stump at 7:19-24; 8:1)….
According to Defendant Stump, the arrest powers were utilized often while serving as Defendant Goldston’s bailiff. Stump testified that he’s arrested “dozens and dozens and dozens of people with Ms. Goldston.” (Stump at 13:22-24; 14:1-5)…. Stump testified that he personally looked for items in the home of a litigant “numerous times,” explaining, “[a]ll the judges sent me out to look for items” and that, “[i]n the middle of a court hearing they would send me out to look for items at a home.” Stump estimated this occurred dozens of times. (Stump 16:4-12)…. In fact, Stump described that he and Judge Goldston knew each other so well, that when they went into the homes of litigants, “she didn’t have to tell me anything . . . she could just give a look and I would know what to do.” (Stump 51:4-12)….
Defendant Stump remains employed as a police officer with the Raleigh County Sheriff’s Office. He noted that, even after the March 4, 2020 incident, there has been no policy change within the department about bailiffs going to the homes of litigants. Indeed, Stump asserts that, “if Judge Goldston told me today to go to the house, I’d be the first one there.” (Stump 56:1-6). Even after the WVSCA declared that Judge Goldston engaged in an unlawful search of Plaintiff’s residence on March 4, 2020, Defendant Stump boldly declared, “I’ve never had a judge to ask me to come remotely [close] to breaking the law.” When asked whether he would violate the Constitution, if asked to do so by a judge, Stump responded, “I know without a doubt, no judge that I ever worked for would ever ask me to violate the law, so I’ve never been in that predicament and I can safely say I never will.” (Stump 58:19-23).
Even in the context of a criminal case, Defendant Stump testified that he would perform a warrantless search of a defendant’s home, if asked to do so by a judge, despite his decades of knowledge and experience with the search warrant requirement under the Fourth Amendment. This same blind allegiance, or ignorance, is what guided Stump on March 4, 2020. (Stump 60:2-21). McPeake likewise subjectively believes that a warrant is not required in order to perform a search of a litigant’s home, at the direction of a family court judge, based on the fact that the judge is personally present and directing their conduct. (McPeake 22:18-24; 23:1-4; 24:5-14, 22-24; 25:1-3).
The judge’s current bailiff, Jeff McPeake, likewise testified that he was specifically told that he was allowed to participate in home searches with judges, and that there has been no policy change since then – even after the WV Supreme Court formally censured the judge for the behavior, calling it “serious misconduct,” unconstitutional, and an “egregious abuse of process” which violated the privacy and sanctity of the victim’s home.
McPeake testified that he believed the search was authorized under department policy due to a conversation with a supervisor, Sergeant Lilly, who told him that it was fine to do so, because “we do do that from time to time.” Thereafter, no supervisor ever told McPeake not to do so. Moreover, as of the date of his deposition, he wasn’t aware of any written policy changes pertaining to bailiffs or deputies going to the home of a litigant with a judge. Nor have any of his supervisors proactively told him not to engage in similar conduct in the future, even though they’re aware that he continues to serve as a bailiff for Judge Goldston. Nevertheless, McPeake noted that his own common sense tells him he shouldn’t do it again. (McPeake 13:10-13; 40:11-24; 64:2-23; 65:9-17). It appeared to McPeake, after getting express authorization from a supervisor to participate in his first home search with a family court judge, that it seemed to be something that occurred on a regular basis. (McPeake 13:7-13; 15:3-8).
Thus, the sheriff’s department authorized the home search practice by judges, and apparently continues to authorize the unconstitutional practice, in total disregard of West Virginia law, not to mention the U.S. Constitution. If only the voters of Raleigh County had some way of holding their government officials accountable…..
Today we filed a motion for summary judgment in the federal civil rights lawsuit against Family Court Judge Louise Goldston, arguing that she should be denied judicial immunity, as well as foreclosed from even arguing at trial that her actions didn’t violate the Constitution. In other words, the jury trial in her case should be limited to the issue of damages only. It’s unusual for the plaintiff in a lawsuit to file such a motion, but in this case, not only were her actions caught on video, but also already declared by the West Virginia Supreme Court of Appeals to have been unlawful and unethical.
On March 1, 2022, I finally had the opportunity to take Defendant Goldston’s deposition, which marked the 4th time she has testified under oath about the matter, by my count. The first several times she testified in her judicial disciplinary proceedings, when she was still facing possible suspension by the Supreme Court, she admitted that she made mistakes and acted unlawfully, and that she had violated multiple canons of judicial ethics. During her deposition however, with threat of suspension behind her, she was completely defiant, testifying that she is essentially above the law; that she doesn’t believe she did anything wrong; that the Supreme Court was wrong; that the disciplinary authorities engaged in a conspiracy against her; that she doesn’t regret threatening to arrest Mr. Gibson; and that she might even “do it again.” You really have to read it to believe it, which is why I’ve also attached the transcript of her deposition, below….
You may recall the West Virginia judge who was featured in traffic stop body cam footage, which resulted in the filing of formal judicial disciplinary charges against him due to his behavior during and after the stop. That judicial disciplinary litigation is apparently ongoing, as it is being contested by the judge. But wait, there’s more…. Believe it or not, the same judge has now had a separate set of formal charges lodged against him by the West Virginia Judicial Investigation Commission. The new Formal Statement of Charges, filed on February 14, 2022, and just released today, contains allegations pertaining to, of all things, the Walmart self checkout process.
To refresh your recollection, the first set of charges were filed on October 25, 2021. After finding out about their existence, I served a FOIA request on the Moorefield Police Department, where the incident occurred, and requested the body cam footage referenced in the charges. I then posted the relevant footage on Youtube, of course, so that the public could see it, which is a necessary component of government accountability. That video, as of this time, has been viewed 270,108 times, has 5.2 thousand likes and 2,452 comments, mostly appearing to be in condemnation and disgust of the judge’s behavior.
The new formal statement of charges alleges that on August 18, 2021, Judge Williams “left the Moorefield Walmart without paying for ten or so items in his shopping cart.” Moorefield Police Chief Stephen Riggleman described the allegations in a police report, where he noted that he arrived at Walmart on September 13, 2021 on an unrelated call and was informed that there was another incident which needed investigating. The chief wrote that the asset protection officer at the store provided him with evidence involving Judge Williams:
[The asset protection associate] provided this officer with a training receipt and still photograph of an individual known to me as Charles “Carter” Williams. This officer then watched video surveillance footage of Williams utilizing a self-check out register where he was observed scanning, bagging and placing the bagged merchandise into his shopping cart.
Williams is then observed pushing his shopping cart out of the store without making any attempts to pay for the items.
Chief Riggleman then wrote in his report that he notified the Hardy County Prosecutor, Lucas See, and reported the incident, given the fact that the suspect was the local circuit court judge, who he noted was already under a judicial disciplinary investigation involving the body-cam incident with the Moorefield police officer. The chief then noted that he decided the best course of action would be to contact Judge Williams and “direct him to pay for the merchandise.” He lamented, however, that this wasn’t the first time:
It should also be noted that approximately one year ago a similar incident occurred with [Judge] Williams at the Moorefield Walmart where he and his wife had pushed out a substantial amount of merchandise without paying. It was determined that neither party realized that the other had not paid for the items.
In fact, as the statement of charges alleges, the shopping buggy pushed out of the Walmart in the earlier incident was “valued at approximately $300.00 and that another individual was with [Judge Williams] when the incident took place.”
Apparently the investigators were aware of the first Walmart mishap, and they asked him about it, during his sworn statement during the body-cam incident investigation. Contrary to evidence later obtained by investigators, the judge sort of laughed it off and said that it was an incident a couple years ago where he forgot to pay for $52.00 worth of goods and that his wife was not present, but that a lady he knew, who worked at Walmart, was present, and that the lady “still works there,” claiming that, “[w]e laugh about it.”
Investigators note in the new statement of charges that the county prosecutor, who initially reported the judge on the body-cam allegations, never disclosed to them that there was actually another Walmart allegation, occurring only three weeks before the judge provided them with a sworn statement about the first Walmart allegation and the body-cam incident allegation. They only found out about the August 18, 2021 Walmart incident after Chief Riggleman disclosed its existence on February 10, 2022.
It also appears that the judge failed to disclose the existence of the second Walmart incident to the appropriate authorities. Paragraphs 19 and 20 from the new charges are redacted, but they do state that the judge “also never disclosed the August 18, 2021 Walmart incident to [somebody]” who is unnamed, claiming that the judge was unaware of the August 18, 2021 allegations until the same day as his February 11, 2022 interview by judicial disciplinary investigators. In other words, nobody advised him that he had failed to pay for the merchandise.
But wait a minute…. The judge apparently claimed during his February 11, 2022 sworn statement that he had no idea that he had left Walmart on August 18, 2021 without paying for merchandise, and only discovered the existence of the allegations on the very day of his questioning by investigators on February 11, 2022. To the contrary however, other local officials say otherwise, for which there appears to be documentation.
Chief Riggleman noted in his September 13, 2021 report that he reviewed video footage of Judge Williams pushing unpaid merchandise in a cart to his vehicle at the Moorefield Walmart, and that he subsequently contacted Judge Williams directly and directed him to pay for the merchandise. Riggleman also wrote in his report that the county prosecutor called him on September 14, 2021 and advised him that he had received a call from Judge Williams advising that he wished to pay for the items; that it was an unintentional mistake. The chief’s report is corroborated by text messages between the judge and the prosecutor, which were obtained by judicial investigators, dated September 16 and 17, 2021 (clearly prior to February 11, 2022):
Judge: If you could get that amount from [the Walmart asset protection associate] tomorrow I’d really appreciate it. Thanks so much.
Prosecutor: Gotcha!! She was supposed to call me yesterday but I guess she forgot. I’ll take care of it first thing in the morning.
Prosecutor: $42.21. Do you want me to stop by your house and get a check?
Judge: I have Covide so I’ll put a check in an envelope on my wall there at my driveway. I’m in a hearing so I probably won’t have it there until around 12:30. If you could take it up there I’d really appreciate it.
Prosecutor: I can do that.
Judge: Ok. It may be in a zip lock bag. I’ll hand sanitize good before I handle any of that. Thanks a lot Lucas.
Prosecutor: No problem!!
The next day, the texts between the judge and the prosecutor continued, even discussing the name of the lady at Walmart. The prosecutor relates that the Walmart asset protection lady wanted to communicate to the judge that she doesn’t want the judge to be “mad at Walmart about it.”
Two sayings come to mind: “where there’s smoke, there’s fire;” and also, “sometimes the cover-up is worse than the crime.” Trial lawyers often leave the the most important question unasked at the end of an important line of questioning. Where the evidence is strong, one need not even ask the ultimate question, because the answer doesn’t matter. It’s obvious. The new statement of charges appears to establish that Judge Williams provided false testimony during his February 11, 2022 sworn statement, claiming to be unaware of the August, 2021 Walmart incident (as being the reason he failed to disclose it to investigators during questioning just three weeks afterwards, on October 6, 2021).
Numerous rules of the West Virginia Code of Judicial Conduct were alleged to have been violated, according to a unanimous vote of the Judicial Investigation Commission, which found probable cause. Judge Williams has been served with the charges and has a right to file responsive pleadings with the West Virginia Supreme Court within 30 days.
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.
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.