D. Bart Rockett, as next friend of his minor children, K.R. and B.R. v. The Honorable Eric Eighmy

United States Court of Appeals
For the Eighth Circuit
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No. 21-3903
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D. Bart Rockett, as next friend of his minor children, K.R. and B.R.
Plaintiff - Appellee
v.
The Honorable Eric Eighmy
Defendant - Appellant
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National Police Accountability Project; Institute for Justice; National Association
of Counsel for Children
Amici on Behalf of Appellee(s)
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: February 16, 2023
Filed: June 22, 2023
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Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.
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STRAS, Circuit Judge.

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Bart Rockett sued a Missouri judge for putting his kids in jail twice, once after
a custody hearing and again after ordering law enforcement to pick them up in
Louisiana. At this early stage, the only question before us is whether judicial
immunity shields these acts. The district court said no. We affirm in part and reverse
in part.
I.
Rockett and Kami Ballard divorced each other in Missouri and initially shared
custody of their two children. Despite their differences, the whole family packed
their bags and moved to California, where they were hoping that the children, who
were aspiring stars, would make it big.
The parents’ relationship remained rocky, even after the move. Ballard, in
particular, did not like sharing custody. Nor did she like how slowly the California
courts were dealing with her request for sole custody. So she filed a second one in
Missouri, where it landed on the desk of Judge Eric Eighmy.
Judge Eighmy wanted to see the family in person before he ruled. When they
arrived at the courthouse, the children waited in the lobby while Ballard and Rockett,
along with their attorneys, worked out an agreement. It called for the children to
stay with Ballard for about a month before returning to live with Rockett.
The children did not want to live with Ballard, even for a short time, so they
let her hear about it in the lobby. Judge Eighmy, by this time unrobed, saw what
was happening and tried to intervene. But when the children refused to back down,
he took them to a conference room. Once there, he told them they needed to leave
Hollywood, or else they would not grow up “normal.” When the children continued
to protest, Judge Eighmy decided to put them in jail to show “what [he] can do.”
He took them there himself. They were ordered to remove their shoes, socks,
jackets, and jewelry before entering separate cells. After approximately an hour,

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Judge Eighmy returned and asked if they were “ready to listen” and “comply.” They
finally agreed to go with Ballard, but only after he threatened to place them in foster
care. This would not be the last time they saw the inside of a jail cell.
Several months later, Ballard filed a contempt motion that prompted Judge
Eighmy to schedule another hearing. This time, neither Rockett nor the children,
who were by then living in Louisiana, showed up. Their absence did not sit well
with Judge Eighmy, who issued a writ of bodily attachment for Rockett and a pick-up
order for the children. In executing it, Louisiana officers came to their door, gave
the children Miranda warnings, and placed them both in solitary confinement in a
juvenile-detention center.
These orders set off a flurry of activity. First, the Missouri Supreme Court
issued a writ of prohibition that required Judge Eighmy to vacate his orders. Second,
Rockett brought the Missouri Supreme Court order to a Louisiana judge, who
released the children.
Unhappy with the treatment they received, Rockett filed a civil-rights action
against Judge Eighmy in federal district court. See 42 U.S.C. § 1983. The complaint
alleged that placing his children in jail, and then later in a juvenile-detention facility,
violated their First, Fourth, and Fourteenth Amendment rights. Judge Eighmy
argued that he should receive absolute immunity, but the district court disagreed and
ruled that the case could proceed.
Fortunately for Judge Eighmy, a denial of absolute immunity is immediately
appealable. See Alt. Fuels, Inc. v. Cabanas, 435 F.3d 855, 858 (8th Cir. 2006). At
this stage, our review is de novo, see Hager v. Ark. Dep’t of Health, 735 F.3d 1009,
1013 (8th Cir. 2013), and “limited to the facts alleged in the . . . [c]omplaint, which
we accept as true and view most favorably to the plaintiffs,” J.T.H. v. Mo. Dep’t of
Soc. Servs. Child.’s Div., 39 F.4th 489, 491 (8th Cir. 2022) (citation omitted).

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II.
Judicial immunity has been around a long time. See Yates v. Lansing, 5 Johns.
282, 291 (N.Y. Sup. Ct. 1810) (“The doctrine which holds a judge exempt from a
civil suit or indictment, for any act done, or omitted to be done by him, sitting as
judge, has a deep root in the common law.”), aff’d, 9 Johns. 395 (N.Y. 1811). In
England, it served to insulate common-law judges on the King’s courts from their
rivals on other courts. See 5 W. S. Holdsworth, A History of English Law 159–60
(1924) (explaining how judicial immunity “strengthened the position of the
common[-]law courts”).1
One of the earliest known examples involved a judge who presided over a
murder trial. After it ended, he was dragged into a rival court and charged with
conspiracy for his role. See Floyd v. Barker, 77 Eng. Rep. 1305, 1307 (Star Chamber
1607); see also Pulliam v. Allen, 466 U.S. 522, 530 (1984) (describing the case).
The prosecution ended, however, when the court recognized that the judge was
“immune from prosecution . . . for [his] judicial act[].” Pulliam, 466 U.S. at 530.
1 By the thirteenth century, the King’s courts were the sole venue for claims of
judicial error. See Statute of Marlborough 1267, 52 Hen. 3, c. 19 (explaining that
the “[p]lea of false [j]udgement” belonged to “the Crown” alone); see also 1
Frederick Pollock & Frederic William Maitland, The History of English Law Before
the Time of Edward I, at 590–91 (2d ed. 1909) (“If the court of the lower lord made
default in justice, the case could be removed at once into the county court and thence
to the king’s court, and none but the king’s court could hear a charge of false
judgment.”). Before then, if a litigant accused a judge of rendering a “false
[j]udgment,” a duel would decide the dispute. Ranulph de Glanville, A Treatise on
the Laws and Customs of the Kingdom of England 171–72 (John Beames trans., John
Byrne & Co. 1900) (describing the law at the time of Henry II). If a judge, or his
champion, lost and was “convicted of the charge,” then he would be “amerced to the
King” and “ever . . . deprived of his Court.” Id. at 172. Allowing judges in the
King’s courts to hear these types of disputes was the genesis of appellate review—a
less dangerous way of dealing with unfavorable judgments. See Pollock & Maitland,
supra, at 590–91 (explaining that the “charge of false judgment” helped develop a
system of appellate jurisdiction in the King’s courts, which greatly reduced the
power of “feudal courts” and “courts of baronies and honours”).

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As Lord Edward Coke put it, a judge could not be liable for what “a Judge doth as
Judge.” Floyd, 77 Eng. Rep. at 1307.
As broad as the rule seemed to be, two exceptions narrowed its scope. The
first was that judges could still be prosecuted for out-of-court “conspirac[ies].” Id.
at 1306. That is, like any other citizen, judges could be haled into court for any
illegal acts they committed outside the courtroom. See id. The second was that,
when judges “exceeded their authority” by considering a matter “not within their
jurisdiction,” their actions were “coram non judice,” Terry v. Huntington, 145 Eng.
Rep. 557, 559 (Ex. 1679), the Latin phrase for “before one not a judge” and
shorthand for “without jurisdiction,” Webster’s Third New International Dictionary
505 (2002). Acting without “power and authority” eliminated the shield of judicial
immunity. 6 Holdsworth, supra, at 236 (citation omitted).
As judicial rivalries began to wane, including in the American colonies, the
power-and-authority rationale for judicial immunity did too. The focus shifted to
protecting judicial independence: allowing judges “to act upon [their] own
convictions, without apprehension of personal consequences.” Bradley v. Fisher,
80 U.S. 335, 347 (1871); see Forrester v. White, 484 U.S. 219, 225 (1988); Pierson
v. Ray, 386 U.S. 547, 554 (1967) (explaining that judges “should not have to fear
that unsatisfied litigants may hound [them] with litigation charging malice or
corruption”).
Judicial immunity continues to apply today, not only in prosecutions like
Floyd, but in civil-rights actions brought under 42 U.S.C. § 1983. See Pierson, 386
U.S. at 553–54 (noting that congressional silence in the Reconstruction Era statutes
was not enough to do away with such a “solidly established” doctrine from the
“common law”). It remains an “absolute” barrier to suit, see J.T.H., 39 F.4th at 491,
even for judicial acts done “in error, . . . maliciously, or . . . in excess of . . .
authority,” Stump v. Sparkman, 435 U.S. 349, 356 (1978).

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The exceptions remain largely the same too. Judicial immunity can be
“overcome in only two sets of circumstances”: (1) when a judge takes “nonjudicial
actions”; and (2) when the action is judicial, but is done “in the complete absence of
all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (per curiam); see
Bradley, 80 U.S. at 347 (explaining that if the “character” of a judge’s act is
“judicial” and within “the jurisdiction of the court,” then the judge “cannot be
subjected to responsibility for it in a civil action”). These exceptions play a critical
role in deciding today’s case.
A.
The dividing line between judicial and nonjudicial acts can be fuzzy. See
Forrester, 484 U.S. at 227 (“Difficulties have arisen primarily in attempting to draw
the line between truly judicial acts, for which immunity is appropriate, and acts that
simply happen to have been done by judges.”). Judges do more than just decide
cases. Some routine tasks are administrative, such as hiring staff, approving rule
changes, attending meetings, and scheduling hearings. Some of these tasks are more
case-related than others. Compare id. at 229 (explaining that firing court employees
is not a judicial task), and Sup. Ct. of Va. v. Consumers Union of the U.S., 446 U.S.
719, 731 (1980) (holding that issuing the Virginia Bar Code “was not an act of
adjudication but one of rulemaking”), with Bliven v. Hunt, 579 F.3d 204, 211–14 (2d
Cir. 2009) (concluding that judges receive absolute immunity for determining
public-defender compensation), and Davis v. Tarrant County, 565 F.3d 214, 219,
226 (5th Cir. 2009) (explaining that judges are absolutely immune when setting the
rules for court-appointed attorneys).
Even within the case-related realm, the judicial-immunity analysis accounts
for the fact that not all proceedings look the same. A state-court juvenile proceeding
may look very different from a major class-action lawsuit in federal court. Compare
Schall v. Martin, 467 U.S. 253, 263 (1984) (discussing “the ‘informality’ and
‘flexibility’ that characterize juvenile proceedings” (quoting In re Winship, 397 U.S.
358, 366 (1970))), with Rodgers v. Bryant, 942 F.3d 451, 464 (8th Cir. 2019) (Stras,

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J., concurring in part and dissenting in part) (describing how Federal Rule of Civil
Procedure 23 dictates “comprehensive” rules for class actions that do not allow
plaintiffs to “use some other procedure to seek relief”). Judicial acts can take on
different forms: what may look non-case related in one context may be standard
operating procedure in another. Compare United States v. Harrison, 974 F.3d 880,
881 (8th Cir. 2020) (“Judges should not participate in plea negotiations.”), with
Sanford N. Katz, Family Law in America 145–47 (3d ed. 2021) (discussing a judge’s
active role in setting child-custody arrangements). Judicial immunity provides a
wide berth for these differences. Cf. Forrester, 484 U.S. at 227 (explaining that
judicial immunity “is justified and defined by the functions it protects and serves,
not by the person to whom it attaches”).
The array of tasks, courts, and cases has led to the adoption of a functional
test: the availability of judicial immunity depends on “the function performed, not
the identity of the actor who performed it.” Id. at 227–29. Perhaps the most
important question is whether the “function [is one] normally performed by a judge.”
Stump, 435 U.S. at 362. Another is whether the parties are “deal[ing] with the judge
in [a] judicial capacity.” Id. The overall focus is on distinguishing “between judicial
acts and the administrative, legislative, or executive functions that judges may on
occasion . . . perform.” Forrester, 484 U.S. at 227–29. The former are shielded by
judicial immunity. The latter are not.
On one end of the spectrum, the classic example of a judicial act is “resolving
disputes between parties who have invoked the jurisdiction of a court.” Id. at 227.
Other related acts qualify too, like holding litigants “in contempt,” Liles v. Reagan,
804 F.2d 493, 495 (8th Cir. 1986); see Yates, 5 Johns. at 289–90 (explaining that
every court has the “authority to punish contempts” and must “judge what are
contempts”), and issuing “search warrant[s],” Burns v. Reed, 500 U.S. 478, 492
(1991).
But those acts also have their limits. There is no doubt, for example, that
judges can “direct[] police officers to bring counsel in a pending case before the

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court,” but they cannot order the officers to beat them with their nightsticks along
the way. Mireles, 502 U.S. at 12–13. Nor can judges wake up one day and decide
to spontaneously issue a search warrant against a nosy neighbor or a political rival.
See Harper v. Merckle, 638 F.2d 848, 859 (5th Cir. 1981) (explaining that when “a
judge has acted out of personal motivation and has used his judicial office as an
offensive weapon to vindicate personal objectives, and it further appears certain that
no party has invoked the judicial machinery for any purpose at all, then the judge’s
actions do not amount to ‘judicial acts’”); Zarcone v. Perry, 572 F.2d 52, 53, 55 (2d
Cir. 1978) (authorizing a punitive-damages award against a judge who ordered a
coffee vendor to be brought “in front of [him] in cuffs” for the crime of making
“putrid” coffee).
Like these examples, Judge Eighmy’s decision to personally escort the kids to
jail took what would otherwise be a judicial act too far. Judges have the authority
to order an officer or a bailiff to escort an unruly litigant to jail. See Mireles, 502
U.S. at 13. They can also pull the parties into a conference room to discuss what
just happened in court. Cf. McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)
(holding that a judge had absolute immunity after punishing a defendant’s parents
for contempt during a meeting in his office).
Judge Eighmy crossed the line, however, when he personally escorted the kids
to jail, stood there while they removed their clothes and belongings, and personally
came back an hour later to release them. See, e.g., Gregory v. Thompson, 500 F.2d
59, 64–65 (9th Cir. 1974) (concluding that a judge who physically removed an
individual from the courtroom could not receive judicial immunity for the assault).
For one thing, the children were not even present in the courtroom, so he could not
hold them in contempt for “[d]isorderly, contemptuous or insolent behavior.” See
Mo. Rev. Stat. § 476.110(1) (giving judges the ability to punish these types of acts
under its contempt power when they occur “during [the court’s] session, in its
immediate view and presence”). For another, judges do not do double duty as jailers.
So even assuming Judge Eighmy could have ordered someone else to take the kids
to jail, he could not put them there himself. See Forrester, 484 U.S. at 227.

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It is no answer that Judge Eighmy believes he was exercising his contempt
power. See Liles, 804 F.2d at 495 (explaining that issuing a contempt order is a
judicial function). To be sure, absolute immunity is available for judges who hold a
litigant in contempt even when they are “not in [their] . . . robes, . . . no[r] in the
courtroom itself.” Stump, 435 U.S. at 361 (quoting McAlester, 469 F.2d at 1282);
see Malina v. Gonzales, 994 F.2d 1121, 1124–25 (5th Cir. 1993). But here, the
children were never parties, they never stepped foot in the courtroom, and Judge
Eighmy personally locked them up himself. We have been unable to find any case
that extends judicial immunity so far.
Judge Eighmy fares no better with his other argument: that Missouri law
allows judges to enforce child-welfare statutes informally. Without question, police
officers can take children into custody if they are behaving in a way “injurious to
[their] welfare or to the welfare of others.” Mo. Rev. Stat. § 211.131(1). But not
judges, who can only order others to “[t]ake charge of children before and after” a
juvenile hearing. Id. § 211.401.1(3). The point is that judicial immunity is
unavailable because what Judge Eighmy did is not “a function normally performed
by a judge.” Stump, 435 U.S. at 362.
B.
Pick-up orders, on the other hand, are hardly unusual. Under Missouri law, a
judge can issue one in certain situations to take “physical custody” of a child subject
to a “custody determination.” Mo. Rev. Stat. § 452.885.1 (authorizing warrants to
take “physical custody” of a child subject to a “child[-]custody determination” when
he or she “is likely to suffer serious imminent physical harm or removal from”
Missouri). That alone makes it a judicial act. The dispute now is whether Judge
Eighmy had jurisdiction to issue one here. Or did he, as Rockett argues, act in the
“complete absence of all jurisdiction”? Mireles, 502 U.S. at 11–12.

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As courts of general jurisdiction, Missouri’s circuit courts can hear all kinds
of cases, including child-custody disputes. See Mo. Const. art. V, § 14; see also
Hightower v. Myers, 304 S.W.3d 727, 733 (Mo. banc 2010) (explaining that the
Missouri Constitution grants circuit courts original jurisdiction over all cases “civil
and criminal,” including child-custody cases (citation omitted)). So Judge Eighmy’s
pick-up order, even if “erroneous or irregular,” Bradley, 80 U.S. at 354, was part of
a “civil case” over which he had jurisdiction, Hightower, 304 S.W.3d at 733. See
Stump, 435 U.S. at 356 (“[T]he necessary inquiry in determining whether a
defendant judge is immune from suit is whether at the time he took the challenged
action he had jurisdiction over the subject matter before him.”). So far, so good.
The problem, at least according to Rockett, was that Missouri has adopted the
Uniform Child Custody Jurisdiction and Enforcement Act, which provides rules to
avoid overlapping review in child-custody disputes. See Mo. Rev. Stat. §§ 452.700–
930 (codifying the Act as state law). Under one of its provisions, courts may not
exercise jurisdiction when “a proceeding concerning the custody of the child ha[s]
been previously commenced in a court of another state.” Id. § 452.765.1. From
there, the argument is that, by ignoring the fact that there was already a child-custody
proceeding ongoing in California, Judge Eighmy acted “in the complete absence of
all jurisdiction.” Just. Network, Inc. v. Craighead County, 931 F.3d 753, 762 (8th
Cir. 2019) (citation omitted).
At first glance, this statute looks like one that limits the subject-matter
jurisdiction of Missouri’s circuit courts. See, e.g., Harignordoquy v. Barlow, 313
P.3d 1265, 1268–69 (Wyo. 2013) (treating the statute as jurisdictional); Friedman v.
Eighth Jud. Dist. Ct. ex rel. County of Clark, 264 P.3d 1161, 1165–66 (Nev. 2011)
(same); Rosen v. Rosen, 664 S.E.2d 743, 747–48 (W. Va. 2008) (same). After all, it
speaks in jurisdictional terms. See Mo. Rev. Stat. § 452.765.1 (providing that “a
court of this state shall not exercise its jurisdiction . . .”).
A deeper look, however, reveals that Missouri does not treat it that way. See
Just. Network, Inc., 931 F.3d at 762 (looking to state law to determine a state court’s

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subject-matter jurisdiction); Schottel v. Young, 687 F.3d 370, 373–74 (8th Cir. 2012)
(same). As the Missouri Supreme Court has put it, “[s]ubject[-]matter jurisdiction
is governed by article V of the Missouri Constitution,” not “[t]he circuit court’s
statutory or common law authority to grant relief in a particular case.” Hightower,
304 S.W.3d at 733.
It is true, as Rockett argues, that Missouri courts once had a different view.
See Miller v. Sumpter (In re the Marriage of Miller & Sumpter), 196 S.W.3d 683,
689 (Mo. Ct. App. 2006); State ex rel. Dep’t of Soc. Servs. v. Hudson, 158 S.W.3d
319, 323 (Mo. Ct. App. 2005). No longer. See Hightower, 304 S.W.3d at 733
(explaining that jurisdiction over child-custody cases “is governed by article V of
the Missouri Constitution”). Since at least 2015, the Missouri Supreme Court has
been clear that it restricts only “the statutory authority to grant relief . . . , not
whether a Missouri court has subject[-]matter jurisdiction.” Blanchette v.
Blanchette, 476 S.W.3d 273, 279 (Mo. banc 2015).
Subject-matter jurisdiction is what counts in these types of cases. And here,
even if Judge Eighmy had no “express authority” to issue the pick-up order, he is
immune because he had jurisdiction to issue one. Stump, 435 U.S. at 358. He cannot
be sued, in other words, no matter how erroneous his interpretation of the Uniform
Child Custody Jurisdiction and Enforcement Act may be. See Bradley, 80 U.S. at
354.
III.
We accordingly affirm in part, reverse in part, and remand for further
proceedings on the first of the two incidents.
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