Judge allows suit alleging another judge ordered drug testing of courtroom observers

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Judicial immunity does not completely protect a Missouri judge in a lawsuit accusing him of jailing and drug testing three courtroom observers, a federal judge has ruled.

U.S. District Judge Roseann Ketchmark of Kansas City, Missouri, ruled last week that the three people may sue for a declaratory judgment in a suit alleging unlawful seizure under the Fourth Amendment and violation of the plaintiffs’ First Amendment rights as courtroom observers. The suit also claims that there was a 14th Amendment violation.

Bloomberg Law has coverage; a press release by the American Civil Liberties Union of Missouri is here.

Ketchmark said the three plaintiffs could sue Judge Douglas Gaston for prospective declaratory relief because of a substantial likelihood of future injury but not for retroactive declaratory relief because of his judicial immunity.

The observers were in the courtroom because of a custody hearing for a minor child, “K.C.” The child’s paternal grandparents had filed a custody petition for temporary guardianship alleging that the child’s parents were unfit.

The observers were the child’s maternal grandparents, Norma and Arthur Rogers, as well as William Hale, who gave the Rogerses a ride to court, according to Ketchmark’s opinion.

Hale has diabetes. He developed an abscess from being restrained around his ankle, leading to partial amputation of his foot, according to the suit filed in September 2019 by the ACLU of Missouri.

Gaston had appeared irritated by Arthur Rogers’ answers to his questions about whether the couple had a lawyer, according to the ACLU.

At one point, Gaston said he had sworn statements that K.C. is in immediate danger. Arthur Rogers protested, saying, “That’s just not true.”

Gaston told Arthur Rogers that he shouldn’t interrupt. “You do it again and there’s a penalty for that,” Gaston said. “It involves a cell with bars.”

After ordering drug testing, Gaston told Arthur Rogers to “just come right back” and asked him whether he had something to say.

“No, sir! I’m—nothing,” Arthur Rogers replied.

“Well, you just bought yourself 24 hours in the Texas County Jail for that look,” Gaston said. “Now anything else you wanna say or any looks you want to give?”

Norma Rogers and Hale were detained for nearly eight hours and restrained to a metal bench. Arthur Rogers was detained overnight.

The drug tests came back positive, but it was apparently because of their prescription medication, according to Ketchmark. Gaston has since recused himself from the custody case, although he is presiding in a criminal proceeding involving the child’s mother.

The suit alleges that Gaston “is prone to losing his temper,” and he has also ordered the detention and drug testing of a nonparty in an unrelated matter.

“Given the alleged policy and practices of Judge Gaston, there exists a substantial likelihood plaintiffs would be chilled of future protected activity under the First Amendment,” Ketchmark wrote. “For instance, plaintiffs may be chilled from attending hearings, a trial, or potential sentencing in the criminal matter because of Judge Gaston’s alleged policies. Therefore, plaintiffs’ claims for prospective declaratory relief are not moot, and will not be dismissed at this time.”

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