welcome back to the civil rights lawyer Channel where not only do you hear from me but you also hear from civil rights lawyers who know a whole lot more than I do and that's what you're going to hear in this video and it seems pretty clear that there were several statutory and constitutional violations that were committed by this police force and probably this Magistrate Judge a lot of people have asked me my opinion about this newspaper office raid that occurred in Marion County Kansas was this an illegal unconstitutional raid can a lawsuit be filed if so who do you sue the police can the Judge be sued what about what about YouTube channels what about citizen journalists can they be rated well who better to talk to than Patrick Giacomo of the institute for justice one of the top civil rights lawyers in the country and also the lawyer who's arguing my judicial misconduct case that I've been involved with here in West Virginia the family court judge search case in less than a month in Richmond Virginia at the fourth circuit foreign hiding under a rock you saw the news that this small Police Department in Kansas just straight up raided the newspaper office of this small newspaper and took everything and did a whole lot more and apparently one of the owners of the newspaper is alleged to have died as a result of it everything you need to know about this as far as a legal analysis standpoint you are about to hear and more let's take a look yeah I mean it's obviously everyone is rightly shocked by this incident where the in basically the entire police force of this Tiny Town raided not only the local newspaper the Marion County record but the homes of several journalists including its owner and then you know of course the tragedy that befell one of the owners that the the owners are a man in his 98 year old mother who then because of the stress of the situation is he alleges she was otherwise healthy but died the weekend after this raid um and so there's a million different angles of this that are shocking in this story is very interesting let's put it that way because ultimately you have this strange situation where the police executed this multi-pronged search to seize a bunch of computers and notes not just by the way of the local newspaper and its employees but they also searched and this I've seen this very underreported the home of a city councilwoman and apparently the basis for all of this being done was because this newspaper and the city councilwoman received information pertaining to some DUI conviction that had been secured against a local businesswoman and next thing they knew the councilwoman who passed the information along to the town who I guess at some point was deciding whether to Grant this woman an alcohol license and then the newspaper which ultimately declined to even do a story on this all got raided and had a bunch of their stuff seized and of course we've seen the aftermath of that as you alluded to now the local D.A who became involved after the fact from all the reporting I've seen has basically said there was no basis for the search they have said they're going to return all the stuff that was taken but there's a lot more questions than answers at this point and it seems pretty clear that there were several statutory and constitutional violations that were committed by this police force and probably this Magistrate Judge seems like one of these small town you know typical small town sorts of deals similar to that case you guys had in Texas yeah well that's actually you know the the thing that kind of sparked in my mind when I saw in the Wall Street Journal about this city councilwoman who was also rated alongside the newspaper because there's a lot of similarities between that case and our case for Sylvia Gonzalez against Castle Hills Texas and those include that you know this person had information that the powers that be did not like and then they sort of cooked up a scheme to get involved without involving the local prosecutor and they went to a friendly magistrate to get a warrant and then we're able to wreak havoc which is exactly what happened in Arceus Gonzalez versus Trevino or Castle Hills where the same situation there's a flimsy basis for some sort of warrant and instead of involving local prosecutor they went around prosecutor got a warrant from a friendly magistrate then you know did in that case arrested our client in this case executed a search of someone's home and then will inevitably turn around like they have in our case and say well it's not our fault the magistrate said we could do it but in this case it's even crazier because from what I've seen the application for the search warrant didn't provide any factual basis whatsoever for the search all it said was I'm the police chief and I think there's probable cause to believe that there are some instrumentalities of crimes related to the illegal use of a computer and identity theft and so I want to search and then a giant list of every possible thing physical digital forensic that this newspaper had and the warrant that ultimately came out of the other end by this judge magistrate VR was just a copy and paste job of this application where the first sentence instead of saying you know know I police chief Gideon think this was the judge saying you know I have been presented with evidence sufficient to find probable cause and then copy and pasting the rest of it just set aside setting aside the fact that this was a newspaper Newsroom that was that was raided just ignoring that fact do you believe that this otherwise was a valid search warrant based on what you've seen no I think the newspaper aspect of it is what kind of makes it seem more outrageous and I think that's totally you know a Justified reaction by a lot of people in the you know in the Press defense space and they're right about that but I think that this was gone about in a completely unconstitutional way because like I said um everything that I've seen reported and anything else that I've seen you know in the news has shown that there was no basis for these warrants to be issued in the first place um I think there's something else going on here that we haven't quite uncovered there have been a number of motives that have been kind of bandied about in in the coverage of this case but the bottom line is this is not the sort of justifiable warrant process that was envisioned by the the founders and to be protected um via the fourth amendment was do you know was this signed by a a real judge who had like been to law school and all that or was this like sort of sort of what we have here in West Virginia like a magistrate level judge who which is just anyone who's elected to the position yeah so this uh this judge her name is I think Laura VR she did go to law school in fact I found this out because I read a longer article about her and she actually you know as we mentioned earlier this underlying information and issue has to do with this local business person having had a DUI on a record um this judge herself actually has a DUI or two in her past and she was a prosecutor computer in another small town in Kansas for I don't know six or eight years before being appointed to this magistrate position and she was somehow appointed to be the the chief prosecutor of the county where she worked two years after she graduated from law school so to answer your question yes I mean she went to law school she's you know for all intents and purposes you know a real lawyer judge um but do you believe do you believe that this is one of those cases where the judge is to blame or is this one of these cases where uh misleading or incorrect information was provided to the judge um by the by law enforcement and then the judge relied on that so I think it's hard to separate the two in this case I know what you're saying I don't think that there's anything particularly misleading about what I've seen from the submission that generated the warrant except for the fact that it was facially inadequate by any basic constitutional standard so in the Supreme Court um in Illinois versus Gates and others the court has said when you are trying to get a warrant and the court is determining whether there's probable cause what needs to be submitted are statements of fact sufficient to support the existence of probable cause and the role of the neutral magistrate is to consider those facts and the totality of the circumstances in light of the law that's alleged to have been violated and determined if there's probable cause and in this case there are no facts actually alleged as I mentioned earlier from what I've seen what was submitted was just a statement from the police chief that there was probable cause which is the kind of quintessentially conclusory statement that the Supreme Court has said is definitely not good enough and so you don't have a situation here at least that I've seen any evidence of where the police mislead the judge into granting them a warrant here the police should have known that what they were submitting was insufficient to generate probable cause for a warrant and the magistrates certainly should have known that what was presented to her was insufficient um to to support a finding a probable cause that would then support this extremely broad search that like I said covered not just this Newsroom but the homes of reporters and the home of us at least one city councilwoman and and we haven't seen the formal documents be released yet um I suspect they will be now that the local prosecutor is said that these searches weren't Justified but once we can see those documents we'll be able to know with much more certainty you know exactly what the legal flaws here were but it's clear at this point that there were a lot of them so the newspaper owner I think already has said that they they want to file a lawsuit any chance that the institute for justice might be involved in it um I would love to be involved in it I I can say at this point we're not involved in it um but I do think that with the institute for Justice's particular Specialties involving things like First Amendment retaliation the Fourth Amendment our project on immunities that we're kind of uniquely positioned to challenge a lot of the aspects of this case that might be kind of esoteric or uncommon to civil practitioners and so we would love to be involved in this case in some capacity I think there's a lot of pitfalls that involve different forms of immunities or quasi-immunities like we mentioned earlier we've got this judicial immunity aspect you've got the independent intermediary aspect you've got all sorts of strange little quirks that have to do with the way that search warrants can be secured and then executed and so I would love to see how we could be helpful in this case because I do think it's a great illustration of a problem that's otherwise quite widespread as you mentioned you know we've got the case in in Castle Hills Texas where similar things have happened we have a case in Louisiana where someone's Facebook post caused them to be charged with terrorism and then raided by a Tactical Team um in Alexandria Louisiana we had the case from um outside of Cleveland Ohio on behalf of Anthony Novak where he was arrested months after posting a parody of his local police department on Facebook and so we've just seen these sort of strong armed tactics being engaged in by you know local smaller police forces all across the country in enough instances where it's clear to me at least that this is something that's quite widespread and I suspect that the only thing rare about what happened in in Marion Kansas was that we all found out about it because it became an overnight news story and thank God that it did just based on what you know now how difficult will it be to get around judicial immunity if they sue the judge here oh I think in this case it would be extremely difficult to get around judicial immunity and and the reason I think that is because to the extent that we've found ways around judicial immunity as in in our case in in West Virginia it has a lot more to do with arguing that the judge wasn't acting in a judicial capacity um when he or she did what she did and so um you know there was just this case out of the fifth circuit called Rocket versus Amy where a judge a family court judge uh physically uh arrested some kids actually I think that might be an eighth circuit case um and the court said no when you actually take the kids and put them in jail that's an executive role not a Judicial role you can order people to be jailed and the courts have granted incredible leeway for those sorts of um bad and in many cases abusive Decisions by judges in their judicial capacity but so far the the real line that's been drawn by courts is whether you're acting as a judge and here I think it's it's difficult to argue that granting a search warrant isn't an inherently judicial function it's just a question of whether the judge's actions were so deficient that she was devoid of any sort of jurisdiction for what she did and I I don't know if that standard can be met here but I think it's a good case to illustrate some of the problems with judicial immunity and and and frankly that is a problem that's exacerbated by things like limits on um Municipal liability via monel and qualified immunity and you've had you know very conservative judges like Jim ho out of the fifth circuit explain how there's this sort of Unholy Trinity of overlapping immunity doctrines that essentially mean that even when someone's rights are obvious obviously violated there's no one from whom they can seek a remedy and in that case I think it was the qualified immunity monell and prosecutorial immunity but here it's the same Dynamic exactly where it's the police they can be covered by qualified immunity they can launder the warrant through the judge who's protected by judicial immunity and then the municipality can argue well this isn't actually a pattern in practice this was sort of a one-off mistake and that's sort of the kind of three-step process of avoiding accountability in many instances that are like this one yeah so here as far as this case in Kansas goes this judge is probably going to get out of a lawsuit via judicial immunity because judges are allowed to be completely incompetent so long as they don't do something like really off the wall like maybe we'd have to change the facts just a little bit like say this judge went to The Newsroom and helped in the search yeah exactly exactly so if if the judge decided to act like a police officer and actually executed the search herself that would be one of those instances where judicial immunity wouldn't apply and the courts would say or at least we hoped they would say well in in this case you were acting in an executive capacity not in a judicial capacity and I think you know to the other point that sort of subtext is that you know it's not that judges like this judge get off because of judicial immunity that's a problem but the problem is because of that a lot of attorneys and law firms won't even bring these cases to begin with and so there are very few cases that really probe into the sort of first principles and the kind of unjustified expansion of judicial immunity that we've seen basically since the 19th century because people just think well look the courts have pretty much drawn a black letter line here saying you can't sue judges so I'm not going to waste my time on that especially if I have a case where there's you know plenty of other meat on the bone and so the result is that judges like this magistrate often just completely get away with it because people don't even find out about it let alone you know is there any chance of liability yeah the only real remedy probably against this judge is going to be judicial disciplinary complaints or proceedings yeah and I saw somewhere that someone's already filed some sort of complaint but I mean it was just kind of a generic complaint about her behavior in this case and I just don't know um whether that's going to pass muster for the sort of whatever the Kansas system is for judicial discipline so that leaves us with what the the police chief who who uh signed the affidavit requesting the warrant yeah you have the police chief and then you have all you know the police chief also executed the warrant along with apparently the entire police force of this town so you you have all of them and then of course you also just have the at least the prospect of Municipal liability um and and then of course you know as a as I think we talked about earlier you also have the interesting wrinkle here where there is federal law that says that you can't search and seize things from journalists and if you do there's actually a a cause of action under that federal law 42 USC 2000 double A that allows you to bring a cause of action and recover attorneys fees when the search and seizure occurs against I'm not sure what the actual statutory language is but essentially you know newspapers and and similarly like formal journalism yeah so because this is a newsroom uh via that privacy protection act or whatever it's called Uh federal statute there is a entirely separate lawsuit aside from section 1983 where you can sue the municipality right that's right and there's no qualified immunity for that correct there is however um a good faith immunity and it's it's a little bit confusing I'm not an expert on this particular statute but my understanding is like you said you can sue the municipality or if it's the state or federal employee you can sue them as long as there's not sovereign immunity issues and if there are then you can see the individual officers and if you're suing the individual officers they have a good faith immunity where they can argue that they acted in good faith and reasonably kind of like the old version of qualified immunity that existed between 1967 and 1982 but there at least in this in this uh Privacy Act it's been codified by Congress as opposed to qualified immunity which has just been completely made up by the Supreme Court my understanding is here that you could sue like a county you can sue a city but you couldn't sue you know if it was like the state police or whatever they have in Kansas you couldn't Sue the Kansas State Police so you couldn't see the state of Kansas because of the 11th Amendment yes I think that's the default and it could be that there are states and I frankly have no clue what this the law in Kansas is where some states have waived their sovereign immunity under certain instances and if that's the case this statute provides you can sue the state of Kansas if they were state employees or not this is all just academic um and if that's not viable then you can sue the individual officers I believe is how the statute kind of deals with this problem but the interesting historical wrinkle here is that the reason why we Sue individual officers in the United States is because of sovereign immunity and it strangely comes out of the concept from English law that the king can do no wrong and even before the American founding English courts had interpreted that to mean if the king can do no wrong someone doing wrong in the king's name must actually be abusing his power as on acting acting on the king's behalf and so you can sue that person and so it had already been Twisted by Blackstone and others to be like yeah you can't sue the king but you can sue the King's Men somehow when we started this country and and completely abolished the concept of monarchy we still kind of unthinkingly carried over this concept of sovereign immunity which makes no sense in a first principles context for the United States because the people are the sovereign um but because that legal reality occurred then the solution was often found in having to sue the individual officers just like in England it had been suing them because you couldn't sue the king um and so in a roundabout way like the a lot of the complaints people have about being able to sue individual officers as opposed to their government employers is a sort of function of this weird history where there was another immunity that shielded the government employers and the court said well you can sue the individuals and that's how we get around the concept of denying rights their remedies now as far as the the federal statute that criminalizes searching like newsrooms I mean there is an exception to that right if if criminal conduct is actually alleged against somebody in The Newsroom or or somebody employed there yeah that's right and so you know if they were actually committing crimes and and to be clear the statute also kind of sees how this could potentially be abused and says except such that the crimes have to do with having the documents because they could see like oh well we'll say that you you can't do this unless there's a crime and then the immediate response from the law enforcement Community will be to say well having this document is a crime and so that's good enough and the statue says no you can't do that and so you could see instances where you know if you're a journalist working in a newsroom and you hack into a bank and and steal money to add to your account that you would not be shielded from a search warrant that would come and seize your computer to produce evidence that you'd committed a crime or something like that do you have any idea what the threshold is for being considered a journalist or a newspaper or whatever under that statute could that extend to a YouTube channel for instance so the statute does have a definition and I'm certainly not familiar with it enough to to recite it off the top of my head um but you I would just refer you to that definition and I'm pretty sure that it's more circumscribed than a YouTube channel would be enough for a citizen journalist which is you know as much as I think the journalism deserves protection and the statute at least can be more selective in that way I do think that there are a lot of misguided attempts at kind of distinguishing between what what the government considers to be real journalism and the concept of the press and this is sort of this weird misnomer where you know the media became known as The Press because we were referring to them as using printing presses to you know disseminate information but in the Constitution when you're talking about the freedom of the press they meant the freedom to use a printing press to print things and so that's why you see it you know you've got freedom of speech to speak of course and then you have the freedom of the press which just means to be able to print things and disseminate them not because there was some sort of professional class known as the press or professional journalism or anything like that and so you do see kind of and we have a case like this actually in Fort Bend Texas where our client is a YouTube journalist who has you know in YouTube news Channel and he works on all sorts of things but including police accountability stuff and he is you know very much presenting it in a way that you would see it and think this is you know citizen journalism and there the police ultimately arrested him and see some of his cameras saying oh well you know you were at these press events and you're not actually pressed because you don't work for professional media organization or whatever and you know our position in that case is like that's not how the First Amendment works it might be how this statue Works um but I do think this is one of those kind of frustratingly under understood aspects of the First Amendment which is that the Press is meant to be much broader than whatever the professional media class is even though in this case is a great example those people absolutely need that protection otherwise we're going to continue to see you know small town sheriffs across the country happily Smash down the front door of news stations anytime they're getting bad press did you find it yeah so so the way that it's phrased in 42 USC 2008 section A it says it's unlawful for a government officer to seize work product materials by a person reasonably believed to have a purpose to disseminate to the public a newspaper book broadcast or other similar form of Public Communication in or affecting Interstate or foreign Commerce there's our Commerce Clause hook um and so here yeah maybe maybe it is Broad enough to cover um a YouTuber actually because the the the working definition in the first subsection is a person reasonably believed to have a purpose to disseminate to the public a newspaper that's not YouTube a book that's not YouTube broadcast that is I think or similar form of Public Communication that definitely is so I do think actually this is you know appropriately broad to cover you know the concept of the press yeah that might work I mean that I did have that one case where a federal judge ordered me not to release something on my YouTube channel and I had briefed the the applicability of First Amendment protections to a YouTube channel and and it does apply but the judge in that case held that you know his ability to control the the release of information prior to the jury trial overcame those first amendment protections um yeah and that's that's actually an issue that we've been interested in and and we've seen that happen you know in other contexts where um attorneys in cases and and this is obviously very important to us because one of the ways that the institute for justice you know does our public interest or satisfies our public interest goals is by telling people about the litigation we're undertaking and what's happening and why they should care about that and so I do think there's an enormous First Amendment cost to courts trying to clamp down on the speech of attorneys about their own cases um but yeah we we have seen in many instances the courts will just you know use their prerogative to control the aspects of cases in front of them to justify you know silencing people like you from talking about it on YouTube I do think that presents first amendment problems I haven't dug into the specifics on you know the best ways to untangle that but it's something I'm very interested in So speaking of suing judges and judicial immunity next month you're you're going to argue our West Virginia family court judge search case before the fourth circuit yeah that's right on September 20th we'll be down in Richmond um arguing whether this judge who led a search party through our client's home um in obvious violation of the judicial powers invested in her under the West Virginia Constitution is nevertheless able to claim that she has absolute judicial immunity despite the fact and I think this is really what makes um our case Gibson versus Goldston kind of unique among others despite the fact that the West Virginia Supreme Court in in um punishing her said that she acted outside of any jurisdiction and she violated um her role as a judge and acted like an executive official when she did this so that's really kind of I think what makes um our our clients case unique because you don't often see things like that in fact you know it's very hard as you know and even then I mean she was fined a very modest amount by the West Virginia Supreme Court of course there were articles of impeachment that were introduced but I think 10 there were maybe 10 co-sponsors but she retired or resigned before those could be ratified and so it you know the Rarity of this case has to do with the fact that other authorities in the state took action because that's the thing that you almost never see and that's kind of like it's it's similar to cases where like we have in our um Rosales versus Bradshaw case that we just won qualified immunity issues on in the 10th circuit there the police officer who held our client at gunpoint was actually um charged uh arrested and convicted of aggravated assault and child endangerment and so what makes these cases shocking is just that hey there were other mechanisms that actually did impose some amount of accountability and when that happens it's kind of a double-edged sword because on the one hand you know the need for accountability via civil litigation at least in a kind of like thematic way is slightly less important but it also goes to show you that there are instances where someone can behave so badly that they would be censured by the state supreme court or they would be convicted of a a felony and then still be able to go into court and say I should still get immunity though thankfully not in our case but in the the case out in the 10th circuit at least in The District Court of New Mexico um that immunity was applied and then ultimately reversed well we'll see what happens I look forward to uh to being there I'll definitely be there and uh I feel good about it I think we'll win I mean it's like I said in light of the West Virginia Supreme Court's statements about this judge's behavior in this case I think that any possible justification for judicial immunity just can't be countenanced by the fourth circuit but these are very important issues because if if someone like Matt Gibson can't win a case as egregious as the one against judge Goldstein then that means that you know people down the line down the line down the line all the way to Kansas are going to run into issues with judges that abuse their power and that's really kind of the bigger picture issue that we're always sort of trying to focus on at the institute for justice is that these issues are very important to our clients and that's you know always our focus our clients always recognize too that these issues go beyond them because there's not just one person in this country who's being abused by a judge who is violating her constitutional oath and there's not just one person who's being abused by a police officer who thinks that they're Above the Law there are thousands of people and so if one of these cases can change the law and make sure that there's sufficient accountability such that the constitution is actually enforceable the impact of that will be magnified you know in in uh you know ten hundred a thousand times I appreciate it Patrick uh a lot of great information as always we'll see what happens here hopefully hopefully they reach out to the IJ yeah I would I would love to talk to the newspaper they have a private attorney who I think is in Kansas City Missouri like I said I would love to talk to the editor um I'd love to talk to that attorney and just see how we might be of help because you know as you know we do handle these cases we do Amicus briefing we just have any consult on these issues because they are very weird and unique to the extent you kind of leave things on the table it just is a possibility that and we see this all the time that the government will argue oh well sorry you argued X Y and Z but you should have actually argued a b and c instead of course if you argue debut you can see they'll say the opposite but that's the the way the game is played it's always great to hear Patrick Giacomo's take on something because this guy is just one of the most brilliant civil rights lawyers out there so there was a lot of information there but like I told you that was everything that you need to know legal analysis wise that's out there so far on this Kansas newspaper raid and I really think the possible application of this statute to YouTube channels is interesting something I believe we're going to see a lot more of in the future I think we're going to see a whole lot more First Amendment litigation pertaining to the new era of Journalism that is YouTube and the new era of government accountability by the people that is YouTube The Institute for justice does fantastic work as you know if you've watched many of my videos I always have a my own custom donation Link in the description of every video and that is the case with this one so if you enjoyed Patrick's content you support his cause you support the Constitution I encourage you donate to the institute for justice keep Patrick working and all the other great civil rights lawyers there at the institute for justice they truly are working on your behalf and working on behalf of the Constitution because there are a lot of people out there who are convinced that freedom is just too scary for them but freedom is scary that's just the way it is deal with it foreign [Music]