“Scared Straight” Courtroom Theater Is Not a Judicial Act: Sixth Circuit Limits Absolute Judicial Immunity for Off-the-Bench Detentions and Mock Proceedings

Precedents Cited

1) Pleading posture and standard of review

The court emphasized the Rule 12 framework: de novo review and acceptance of pleaded facts as true. It relied on Booth Fam. Tr. v. Jeffries for de novo review of motions to dismiss, and on Hodges v. City of Grand Rapids (quoting Marvaso v. Sanchez) for the plausibility lens and inference-drawing in the plaintiff’s favor. This mattered because Judge King’s entitlement to immunity could not be resolved by disputing facts; the question was whether immunity was established on the face of the complaint.

The court also reiterated that the “availability of absolute judicial immunity” at the motion-to-dismiss stage is a legal question, citing Brookings v. Clunk.

2) Forfeiture and the court’s discretion to reach the merits

Till argued that Judge King forfeited appellate arguments by failing to engage the district court’s reasoning. The Sixth Circuit acknowledged the general forfeiture principle (and its application in similar contexts) through Scott v. First S. Nat'l Bank (quoting Rees v. W.M. Barr & Co.). But it exercised discretion to excuse forfeiture, relying on Mosier v. Evans and explaining the anti-sandbagging purpose of forfeiture rules via Aaron v. King (quoting Glennborough Homeowners Ass'n v. U.S. Postal Serv.). This procedural discussion signals that judicial-immunity questions—often dispositive and public-facing—may be addressed even where appellate briefing is imperfect, so long as the appellee is not unfairly surprised.

3) The core immunity framework: “judicial act” vs. “nonjudicial act”

The decision is anchored in Supreme Court and Sixth Circuit doctrine:

• Mireles v. Waco: judges are not immune for “nonjudicial actions.”
• Stump v. Sparkman: the two-factor test—(1) whether the act is a function normally performed by a judge, and (2) whether the parties dealt with the judge in his or her judicial capacity.
• Brookings v. Clunk: “paradigmatic judicial acts” involve resolving disputes between parties who invoked the court’s jurisdiction; actions outside adjudication are less likely judicial.

4) “Function normally performed by a judge” and the limits of “courtroom control”

Judge King invoked the general power of courtroom control and discipline, which the Sixth Circuit has recognized can be a judicial act (Cameron v. Seitz). The opinion also referenced Michigan’s contempt statute, Mich. Comp. Laws § 600.1701(a), which authorizes punishment for disorderly conduct committed during a court sitting.

But the panel stressed that not everything a judge does in a courtroom is a judicial act. To illustrate the outer boundary, it cited Gibson v. Goldston and its reference to Gregory v. Thompson (denying immunity when a judge personally used excessive force to eject someone). These authorities supported a key point: location (inside a courthouse or courtroom) does not transform conduct into a “judicial act.”

The opinion then relied heavily on Barrett v. Harrington, which held that conduct is more likely nonjudicial if it “furthers no official act or sanction.” Barrett’s media-interview example supplied a functional benchmark: conduct oriented toward publicity or personal objectives, rather than adjudication, is outside immunity.

Reinforcing that functional line, the court cited Barnes v. Winchell for the idea that actions “patently motivated by private interests” are less likely judicial. The panel treated the alleged “amusement of [the judge’s] followers and fan base” and the YouTube-streamed “phony mock trial” as allegations of performative, privately motivated conduct rather than adjudicative action.

The court also found probative the alleged absence of any case number, order, or record. It contrasted this with Stump v. Sparkman, which, despite procedural deficiencies, involved the judge taking formal cognizance by acting on a petition; In re Summers was cited through Stump for the concept of judicial action being evidenced by official processing. Here, the pleaded absence of any record supported the inference that the episode did not “further[] [an] official act or sanction.”

5) Persuasive authority: Rockett ex rel. K.R. v. Eighmy

The panel found guidance in Rockett ex rel. K.R. v. Eighmy, where the Eighth Circuit denied immunity to a judge who, while unrobed, disciplined children in a courthouse “to show ‘what [he] can do.’” The Sixth Circuit treated Rockett as a close analog: using the trappings of jail/detention to scare or teach a lesson outside adjudication is not a function normally performed by a judge.

6) Distinguishing Orta v. Repp and other immunity cases

Judge King principally relied on the Sixth Circuit’s unpublished Orta v. Repp. The panel distinguished it on multiple grounds:

• Orta involved the judge on the bench in connection with a case and a formal contempt finding and sentence.
• Here, Judge King was alleged to be off the bench, unrobed, lecturing during a vocational program with no associated case or record.

The court also distinguished several other cases invoked by Judge King because they involved parties with official business before the court or formal judicial actions:

• Ashelman v. Pope (defendant appearing before the judge in a case)
• Mireles v. Waco (public defender ordered brought to court in a pending matter)
• King v. Myers (criminal complaints and charges—an “official act or sanction”)
• Green v. Maraio (addressed “clear absence of all jurisdiction” rather than whether the act was judicial)

7) Cross-appeal doctrine and the “complete absence of all jurisdiction” exception

Till cross-appealed to preserve an alternative rationale. The panel stated the cross-appeal was unnecessary under Nw. Airlines, Inc. v. County of Kent, which allows an appellee to defend a judgment on any ground raised below without changing the judgment.

On the merits, the court cited Mireles v. Waco for the “complete absence of all jurisdiction” exception, and Mann v. Conlin for the classic example (a probate judge trying a criminal case). The panel held the exception did not fit because it presupposes the challenged conduct is judicial in nature; the court’s own holding was that the conduct plausibly was nonjudicial.

Legal Reasoning

The panel’s reasoning is a careful application of the Stump/Mireles framework to modern, performative misuse of courtroom apparatus:

1. Functional inquiry, not geography. The court rejected the idea that “in the courtroom” equals “judicial.” It treated alleged handcuffing, jail garb, detention, and “mock trial” as potentially outside adjudication, particularly when the court was not in session and no case existed.
2. “Official act or sanction” as a dividing line. Drawing from Barrett v. Harrington, the panel framed the question as whether the conduct furthered an official act (a real proceeding, sanction, or order) as opposed to serving personal interests (humiliation, entertainment, reputation, or a “lesson” for disrespect).
3. Two-factor test applied to pleaded facts. Under factor one (function normally performed), the allegations resembled extrajudicial discipline and theatrics. Under factor two (capacity), ELG allegedly encountered the judge as a lecturer/teacher, not as a presiding jurist in a dispute.
4. Procedural posture discipline. The court did not decide what “really happened” or whether later-developed facts might change the immunity analysis. It held only that on the pleadings, immunity was not established—thus allowing discovery and merits litigation to proceed.

Notably, the court treated the alleged absence of formal judicial markers (case number, order, record) as an important indicator that the episode was not adjudication. This embeds an evidentiary proxy into the functional test: when the state’s coercive tools are used without the ordinary accountability mechanisms of case initiation and docketed orders, the conduct is easier to characterize as nonjudicial for immunity purposes.

Impact

This decision is likely to matter in four recurring settings:

• Educational programs and courthouse outreach. Judges participating in mentorship or vocational programs may not be able to invoke absolute immunity when acting as speakers, teachers, or disciplinarians outside an actual case.
• Performative judging and social media. The opinion’s focus on alleged streaming, “followers,” and public spectacle signals heightened scrutiny where courtroom authority is used for content creation or public shaming rather than adjudication.
• Early-stage litigation against judges. By affirming denial of dismissal, the Sixth Circuit underscores that plaintiffs can survive Rule 12 where they plausibly allege (i) no real proceeding, (ii) no official record, and (iii) privately motivated punishment. Judicial immunity remains robust, but it is not an automatic pleading-stage exit ramp when allegations describe nonadjudicative coercion.
• Clarifying doctrinal lanes. The court sharply separated two immunity concepts: (a) nonjudicial conduct (no immunity), versus (b) judicial conduct in the complete absence of jurisdiction (also no immunity, but analytically distinct). That separation can shape how future plaintiffs plead and how courts structure immunity analyses.