Raleigh County Deputies Continue to Enable the Family Court Search Judge in Defiance of the Supreme Court

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…..

Here are the deposition transcripts for both deputies:

11th Circuit: Officer Granted Qualified Immunity After Shooting Innocent Homeowner at Wrong Address

In June of 2016 in Henry County, Georgia. Police sergeant Patrick Snook arrived at the wrong house and shot and killed the innocent homeowner, William David Powell, standing in his driveway. Sharon Powell, his wife, fled a federal civil rights lawsuit alleging excessive force against the officer. The Northern District of GA ultimately granted Summary Judgment in favor of the officer, granting him qualified immunity from standing trial in the civil case. She appealed to the 11th Circuit, which issued a published opinion on February 8. Here’s the full opinion, which you should read. Below I will post my takeaways and the basic law on police shootings.

An officer may use deadly force when he:

(1) “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others” or “that he has committed a crime involving the infliction or threatened infliction of serious physical harm;” 

(2) reasonably believes that the use of deadly force was necessary to prevent es- cape; and 

(3) has given some warning about the possible use of deadly force, if feasible. 

Quoting Tennessee v. Garner, 471 U.S. 1, 11-12 (1985).

This case focused on “Garner Factor” number 3. Is an officer required, as a bright line rule, to issue a warning prior to firing at a homeowner who appears with a gun? The Court held no. Only if “feasible.”

On the subject of warnings, we “have declined to fashion an inflexible rule that, in order to avoid civil liability, an officer must always warn his suspect before firing — particularly where such a warning might easily have cost the officer his life.” Penley, 605 F.3d at 854 n.6 (cleaned up); see also Carr v. Tatangelo, 338 F.3d 1259, 1269 n.19 (11th Cir. 2003). And the Supreme Court has instructed us that a plaintiff “cannot establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.” City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (quotation marks omitted)…..

While it’s clear that in some circumstances an officer must warn before using deadly force where it’s feasible to do so, Garner, 471 U.S. at 11–12, decisions addressing how soon an officer is required to give a warning to an unarmed suspect do not clearly establish anything about whether or when a warning is required for armed suspects raising a firearm in the direction of an officer. See Garner, 471 U.S. at 4, 21 (unarmed teen burglary suspect); Perez, 809 F.3d at 1217 (unarmed man lying on his stomach); Lundgren, 814 F.2d at 603 n.1 (store owner who did not threaten the officer with a weapon). There is no obviously clear, any-reasonable-officer-would-know rule that when faced with the threat of deadly force, an officer must give an armed suspect a warning at the earliest possible moment. See White, 137 S. Ct. at 552 (concluding, where late-arriving officer shot armed suspect without giving a warning, it was not an obvious case under Garner’s general principles). Instead, what’s clearly established is that it “is reasonable, and therefore constitutionally permissible, for an officer to use deadly force when he has probable cause to believe that his own life is in peril.” Tillis v. Brown, 12 F.4th 1291, 1298 (11th Cir. 2021) (quotation marks omitted). 

https://media.ca11.uscourts.gov/opinions/pub/files/201913340.pdf

But see, Betton v. Belue, 942 F.3d 184 (4th Cir. 2019), from the Fourth Circuit, which was almost identical factually, but came out the other way. The difference? There was a factual dispute regarding whether the homeowner pointed the gun at the officer. That small detail probably made the difference, as the Court had to assume that the homeowner did not point the gun.

If Officer Belue or another officer had identified themselves as members of law enforcement, Officer Belue reasonably may have believed that Betton’s presence while holding a firearm posed a deadly threat to the officers. Cooper , 735 F.3d at 159 ; Elliott , 99 F.3d at 644. And had Betton disobeyed a command given by the officers, such as to drop his weapon or to “come out” with his hands raised, Officer Belue reasonably may have feared for his safety upon observing Betton holding a gun at his side. See, e.g. , Sigman v. Town of Chapel Hill , 161 F.3d 782 (4th Cir. 1998) (officer was justified in using deadly force after suspect failed to obey command to stop advancing toward officer while carrying a knife). However, under our precedent, Officer Belue’s failure to employ any of these protective measures rendered his use of force unreasonable.

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)