Grech v. Clayton County, GA

GRECH, Brian L. Plaintiff-Appellant, COUNTY, GEORGIA,

CLAYTON

Defendant-Appellee.

No. 01-13151.

United States of Appeals,

Eleventh Circuit.

July Millar,

Bruce R. Jonesboro, GA, for Plaintiff-Appellant.

Bridgette Palmer, M. Hancock & Echols, Brian Richard Dempsey Jack Reynolds Hancock, Hancock, Story & LLC, Park, GA, Forest for De- A. Dempsey, Grech’s 1985 Arrest fendant-Appellee. In Grech was arrested for DUI speeding Clayton

and County, Georgia. The following morning, he was released jail on given bond and was a court 13, 1985, date of June for charges. both EDMONDSON, Judge, Before Chief date, On that appear Grech failed to in the TJOFLAT, ANDERSON, BIRCH, and Clayton State Court of County. Grech DUBINA, BLACK, CARNES, mistakenly believed that he could handle BARKETT, HULL, MARCUS, WILSON charges from his residence in Ken- KRAVITCH*, Judges. Circuit tucky. 24, 1985, On June the State Court Clayton County issued a bench warrant HULL, Judge: Circuit that revoked Grech’s bond and authorized appeal presents This the question of law enforcement officers arrest him. in Georgia whether a sheriff acts aas That bench warrant referenced the case county policymaker purposes of the numbers the DUI speeding county’s liability under U.S.C. charges and stated that Grech had failed review, After we conclude that the defen- appear in State Court. Clayton County dant has no authority to On June the bench warrant direct or control the Sheriff his law was entered into computer the local data- function, enforcement the Sheriff is by base shared the courts and the Sheriffs function, county policymaker not a for that 5,1985, Office in Clayton County. July On thus, Clayton County has no employees Clayton County Sheriffs liability for the Sheriffs law en- Office entered the bench warrant into policies forcement regarding conduct statewide computer database of criminal warrant information on the systems CJIS information, organized which is and regu- training supervision em- by lated Crime Information ployees regard. in that We affirm the (“GCIC”). Center The GCIC’s statewide entry of judgment favor of the defen- database is called the “Criminal Justice Clayton County. dant (“CJIS”) System” Information and is ac- cessible agencies enforcement I. BACKGROUND later, throughout Georgia. As detailed (“Grech”) Plaintiff Brian brought Grech Sheriffs Office refers to its local database solely against 1983 action Clayton as the system CJIS and uses the same County, Georgia (“Clayton County”). local terminal to access the GCIC’s state- Grech’s complaint asserts that he was system. wide CJIS Both the statewide falsely on an expired arrested bench war- and the local CJIS war- databases contain rant because of the policy Sheriffs rant information on “wanted” individuals permitting invalid warrants to remain on who be arrested law enforcement computer certain databases and of inade- officers. quately training and supervising his em- warrant, ployees. issuing We addition to the bench discuss both Grech’s 1985 arrest, warrant, which resulted in a Clayton County bench State Court of sent and his 1998 arrest on that warrant. notifying Grech letter him that he had * 46(c). Judge Phyllis United States pursuant Senior Circuit A. to 28 U.S.C. participate Kravitch elected to in this matter voluntarily bench warrant was still active. date. Grech court

missed his Thereafter, officer arrested city police a nolo and entered returned ticket and Grech. speeding plea contendere 12,1985. July The to on guilty plea a DUI Initially jail Fay- to the in transported Grech and judge sentenced State Court County, later was transferred ette Grech missing previous him for his

reprimanded jail Clayton County in and then date. court hours spent released on bond. Grech nine 17,1998, jail. August judge in a on the not informed On alleges that he was Grech n Clayton County a of returned earlier had issued State Court that the State Court Clayton posted bond to Grech. Coun- assumed that the warrant. Grech bench arrest, that, to ty emphasizes prior after he Grech’s him were resolved charges against them, convicted, withdrew its 1985 paid and the State Court never was pled thus, Grech, that reported pleas bench warrant fine. The State did not err not re- system but never re- the Sheriff s Office the local CJIS on from system. moving that that warrant the GCIC’s warrant from moved its bench systems.1 it from Office never removed CJIS The Sheriffs systems. CJIS the local or statewide either History C. Procedural Instead, ac- the bench warrant remained years systems on both 1999, tive for thirteen brought In a 1983 action Grech 3,1998. July until naming Clayton County as the sole defen- alleged that his complaint dant. Grech’s B. 1998Arrest Grech’s rights constitutional were violated when he 1998, 3, City Fayetteville pursuant arrested in 1998 to a 1985 July of was On one of bench warrant the Sheriffs Office stopped officer Grech because police systems.2 functioning. was not failed to remove from the CJIS lights his car’s tail Grech, Clayton defendant Fayetteville Fayette According is City of County’s “failure train- Georgia, neighbors Clayton adequate which to ensure County, ing, procedures, practices, and County, Georgia. city police policies, When the regarding check on driv- customs the use of GCIC officer ran a routine Grech’s license, Computer System pattern re- constituted a the GCIC’s CJIS records er’s of indifference and led outstanding practice warrant dat- deliberate vealed an bench directly foreseeably to the arrest of ing explain to 1985. tried to back Grech addition, In the Plaintiff.” Grech claimed city police officer that there was Clayton County he had that had a custom mistake in the records because in- charges. city policy permitting of errors warrant taken care officer advice from the formation to occur and to remain on the police requested systems prevent Clayton County failing Office on how to CJIS Sheriffs records, being criminal from on proceed. verifying After invalid warrants systems. those responded Sheriffs Office Grech’s warrant, 16, referencing pleas date for the was March 1. The bench the DUI shown 12, (when issued) speeding charges, July was not removed the ticket was and not the local CJIS until after Grech was arrested (when actually pled). Grech But, July back in on charges pleas had to those was Grech entered complaint 2. Grech’s sued for false arrest and system. Cap- CJIS Both on the local noted process rights of his due in violation denial Tommy tain Glaze and Warrant Officer Melba Constitution and the United both may there have been an Hensel testified that States Constitution. entry entry because the error in that CJIS County moved for sum- Clayton not be based on the doctrine Clayton mary judgment respondeat superior. on all claims.3 City Canton v. Harris, it had no asserted that 489 U.S. 109 S.Ct. liability (1989); for the acts of the or his Sheriff 103 L.Ed.2d 412 Dep’t Monell v. agent Servs., the Sheriff was an deputies because Soc. 436 U.S. 98 S.Ct. state, policymaker not a for the 56 L.Ed.2d 611 A county is county.4 “liable under section 1983 for acts for county] actually [the responsible.” granted summary The district court Marsh Butler 268 F.3d judgment Clayton favor of defendant (11th Cir.2001) (en banc). Indeed, County on all claims. The district court is liable county’s when the concluded that was not a Sheriff policy” “official causes a constitutional vio- § Clayton County for policymaker 1983 Monell, 694, lation. 436 U.S. at 98 S.Ct. his law performing when enforcement Thus, 2018. Grech must “identify a munic- emphasized duties. The court district ipal law, ‘policy’ or ‘custom’ that caused Clayton County [his] under does injury.” Miami, City Gold v. not control or direct the in the 151 F.3d Sheriff of (11th 1346, Cir.1998) 1350 performance (quotation of his law enforcement duties. (alteration omitted) (cit- marks Clayton County policymak- original) Nor does have Brown, Bd. ing authority ing County for the Sheriffs Office’scom- Comm’rs v. 520 of 397, 403, 1382, pliance regulations with the or the U.S. GCIC’s 117 S.Ct. 137 L.Ed.2d (1997)).5 training supervision and of the Sheriffs 626 employees regard. timely in that Grech Grech, plaintiff, A like has two

appealed. by methods which to establish a county’s (1) policy: identify officially either an pro II. LIABILITY SECTION 1983 (2) mulgated county policy or an unofficial A. County Authority Policy Re- custom or practice of the shown quired through repeated policy acts of a final Monell, Supreme county. Court has maker for the placed 436 U.S. at 690-91, 694, municipal 2018; strict limitations on un liability 98 S.Ct. Brown v. Neu mann, (11th Cir.1999) der A county’s liability 1289, 1983. under 188 F.3d 1290 complaint 3. Grech's may fairly also contained state law those whose edicts or acts claims for intentional represent infliction of emotional policy, said to official inflicts the distress, arrest, imprisonment. false and false injury [county] [constitutional] that the as an motion, summary judgment Clayton In its Monell, entity responsible is 1983.” " County argued that all state law were claims 436 U.S. at 98 S.Ct. 2018. This 'offi by sovereign immunity. barred In his briefs policy' requirement cial [is] intended to dis appeal, in the district court and on Grech did tinguish municipality acts of the acts of oppose judgment Clayton County for on employees municipality, thereby Thus, the state law claims. we do not discuss municipal liability make clear that is limited those claims further. which, municipality to action is actual for ly responsible.” City Pembaur v. Cincinna that, Clayton County's argued motion also ti, 469, 479-80, 475 U.S. 106 S.Ct. 89 event, any produce Grech failed to evi- (1986) (third added); emphasis L.Ed.2d 452 policy dence of an unconstitutional or custom Scheib, (11th Brooks v. F.2d 1193 moving which was the force behind al- Cir.1987) (interpreting requiring "Monell as leged constitutional violation. The district municipality must be at fault in '[t]he court did not address this issue. establishing maintaining some sense for or result...' "). injurious [county’s] policy policy is when execution "[I]t which causes custom, or whether made its lawmakers or City Praprotnik, St. Louis v. 485 the here acts (citing policymaker Sheriff as a 112, 121, 108 S.Ct. 99 L.Ed.2d Clayton County. U.S. defendant We thus (1988)). rarely a county Because will several review recent decisions which in- officially-adopted policy permit have an struct us how to determine whether a violation, particular constitutional ting policymaker pur- acts as Grech, plaintiffs, most must show poses of 1983. practice has a custom or Turquitt B. McMillian county’s it and that the custom permitting ‘moving “the force practice [behind] McMillian v. Monroe City violation.’”6 constitutional U.S. 138 L.Ed.2d S.Ct. Canton, at 489 U.S. 109 S.Ct. 1197 Supreme States United (alteration Monell, (citing original) that, acting concluded when in a law en- 98 S.Ct. 2018 Polk U.S. capacity, forcement Alabama sheriffs are Dodson, 312, 326, 102 U.S. S.Ct. state, policymakers for the and not (1981)). 70 L.Ed.2d McMillian, county. Under the deter- policymaker mination of the issue under avenue, plaintiff Under either 1983, although a question, federal is governmental must show that the local 786, guided by state at law. Id. 117 S.Ct. county, authority entity, here the has 1734. McMillian further teaches that responsibility governmental over the func policy- state law cannot answer the identify in issue and must

tion those question by “simply labeling” maker an with final speak policymaking officials who a official as or state official. Id. governmental for that local enti Instead, courts must focus on control over alleged act ty concerning the to have the official. particular constitutional caused viola v. Indep. tion in issue. Jett Dallas Sch. example, although For the Alabama Dist., 737, 109 2702, 105 491 U.S. S.Ct. provided Constitution that the state execu (1989); Clifton, Hill v. L.Ed.2d 598 department tive includes “a sheriff for (11th Cir.1996) 1150, 1152 (citing F.3d and, effect, county” each in labeled the Cincinnati, City Pembaur v. 475 U.S. officer, sheriff as a state executive see id. (1986)). 469, 106 89 L.Ed.2d S.Ct. the Supreme S.Ct. case, parties analysis In this do not in McMillian did not dispute end its Instead, policymak- that a acts as a there.7 it examined Alabama instead, er; dispute their provisions is over whether Code that the noted practice, adopted County, A custom or while not 6. as Monroe 520 U.S. 117 S.Ct. policy, may pervasive official an formal so similarly 138 L.Ed.2d 1 we deter equivalent as to be the functional of a formal desig mined that the Alabama Constitution's Monell, 690-91, policy. 436 U.S. at 98 S.Ct. nation of a sheriff as a state official was Huntsville, 2018; City Church v. 30 F.3d relevant, dispositive, determining but not in (11th Cir.1994). single A incident whether sheriff exercises state or pervasive would not be so as to be a custom power. desig Id. at 1580-81. We viewed the Tuttle, City practice. Oklahoma v. nation of the sheriff aas state official as 808, 823-24, U.S. 105 S.Ct. 85 L.Ed.2d county’s evidence of the lack of law enforce (1985) (plurality) (stating that when es- ("We power. Id. at ment 1581 n. 4 base our tablishing liability practice, for a custom or 'label,' decision not on a sheriffs but on the "[p]roof single of a incident of unconstitution- county's power, lack of law enforcement activity al impose liability is not sufficient to designation which sheriff's as a state official Monell"). under evidence.''). Johnson, In v. McMillian 88 F.3d 1573 (11th Cir.1996), sub nom McMillian aff'd law en liable under had no control over 198S the acts those duties, whereas the government forcement Governor whom the local [officials] Attorney had such control and the General no authority to control.” Turquitt, 137 789-91, added). an statute. Id. at Indeed, Alabama (emphasis F.3d at 1292 in Even though S.Ct. 1734. Alabama law Turquitt, emphasized Court en banc that the had some influ suggested the importance of control characterizing (such county’s the sheriff as the ence over inquiry asking McMillian as “which salary purchase of his payment government law, body, under state had though and even the sheriff equipment), direct control over how the sheriff fulfilled voters, locally by county was elected duty at Turquitt, [the issue].” 137 F.3d at Supreme Court indicated McMillian Holding counties liable in the ab- that such factors did not amount to control sence of control ignore over sheriffs would operations. over the sheriffs See id. at conception Monell’s of counties corpo- 791-92, 117 S.Ct. 1734. rations, would substitute a conception of counties as mere geography, units of Turquitt In Jefferson impose liability would even broader than (11th Cir.1998), F.3d 1285 sit- this Court the respondeat superior liability rejected ting explained en banc how to determine in Monell. Turquitt, 137 F.3d at 1291.8 policymaker whether an official as a acts Therefore, our examination of Georgia law for a or the state. we Turquitt, must center on whether counties Geor- concluded that “Alabama sheriffls] act[] gia have control over A sheriffs. exclusively for the rather than for policy or act cannot speak be said to operating county jail.” Id. if the say has no in what at Although noting 1288. that Alabama’s policy or action the sheriff takes. message Constitution “sends clear that a officer,” 1289, we, sheriff is a state id. at Both McMillian and Turquitt further too, deciding focused on control in that, control, remind us in examining we policymaker issue. than Rather particular must consider the area or func- label, relying on the “state official” our tion for government which the official was analysis Turquitt beyond went Ala- alleged to the final policymaker. bama’s Constitution and examined McMillian, 520 U.S. at 117 S.Ct. 1734 performance oper- sheriffs of his duties in (law duties); enforcement Turquitt, 137 jail ating and the lack of control F.3d at In (operation jail). county government that the had over the words, liability, other a deter- performance sheriffs of such duties. mination must be made as to “who the policymaker Central to the McMillian and is and in Turquitt particular principle gov- policymaker Turquitt, decisions is the that “local area that acted.” Thus, appropri- ernments as can never be 137 F.3d at 1287-88.9 [such counties] McMillian, Turquitt, explained Supreme we that "because 9. In Court instructed sheriffs, have over counties no control allow- policymaker question that the is not whether ing county liability for a sheriff's actions the sheriff acts for the state or "in ignore conception would Monell's of munici- categorical, nothing' 'all some manner” palities corporations as a con- substitute policymaker but whether the sheriff is a final ception municipalities as mere units of area, particular for the state or "in a geography impose ... would even [and] particular at or on a issue.” 520 U.S. liability respondeat superior than the broader 117 S.Ct. rejected liability at Monell.” 137 F.3d Johnson, (quoting McMillian F.3d 1577). ate 1983 inquiry under federal power law is directly from the State. The defen- whether defendant Clayton County, under dant Clayton County does not delegate any law, has control over the Sheriff in of governmental powers to the sheriff his law function, enforcement particularly as a subunit of the defendant Clayton entry and validation of warrants on County. systems CJIS and the training and To show independence of the sher- supervision of his employees in that re- iffs constitutional office from the defen- gard. Clayton dant County and this State control and corresponding of county absence con- III. GEORGIA LAW trol, we review the relevant Georgia con- In this appeal, plaintiff Grech’s main stitutional and statutory provisions as well argument is that sheriffs are county poli- as applicable case law. cymakers under 1983 because Georgia’s A. Georgia’s Constitution characterizes Constitution “county officers.” Grech contends that outset, At the it is important to note that Georgia’s statutory and decisional law sup- the only defendant in this case is the de ports this “county officer” classification. Clayton fendant County. Thus, we exam The insurmountable hurdles for Grech are ine governmental structure of the that, McMillian, under we must focus on sheriffs office vis-á-vis the defendant Clay control, labels, that, ton County in Georgia’s Constitution. law, counties lack authority and control Georgia’s Constitution designates the sher over sheriffs’ law enforcement functions.10 iff as a “county but, officer” in the same This is because the sheriff occupies sepa- paragraph, grants the legislature rate constitutional office independent from exclusive authority to establish and control Clayton defendant County. To the powers, duties, qualifications, extent control over exists, Const, only and minimum salary. Ga. IX, art. the State has such authority ¶ 1,§ control. 3(a)-(b).11 Interpreting this consti The sheriff receives his law enforcement provision, tutional the Georgia Supreme 10. The arguments in Judge Barkett’s Instead, concur conduct in issue. Supreme Court ring opinion erroneously reject the relevance defined the area or function in issue as of McMillian's functional and control analy whether the "represents sheriff the State or sis to this law, case. Like Georgia Alabama the county when he acts in a law enforcement law also characterizes the sheriff county as a capacity” and answered question. that Id. at Indeed, official. plaintiff 785-86, in McMillian 117 S.Ct. 1734. stressed that Alabama statutes and court rul ings refer to the county sheriff as a official. Georgia's provides Constitution that sher McMillian, 520 U.S. at 117 S.Ct. 1734. iffs "shall be by elected the qualified voters of Nonetheless, the McMillian majority exam respective their counties for terms of four ined both the sheriff's function coun years and shall have qualifications, such pow ty’s lack of control ers, and broadly concluded provided duties by general law." sheriffs, Const, Alabama acting when in a IX, 1, ¶ Ga. 3(a) § art. (emphasis add enforcement capacity, § ed). are policymak That paragraph provides also that the state, ers for the and not the county. McMil "[c]ounty may officers basis, ... be on a fee lian, U.S. at basis, 117 S.Ct. 1734. salary or fee supplemented basis by Although the Supreme Court in McMillian salary,” but that “[m]inimum compensation emphasized that courts should consider said officers by established particular area issue, or function in it did the General Assembly by general law" and restrict its inquiry to whether the sheriff supplemented acted by by local law or action of the for the State or county Const, intimidating wit county governing body. IX, Ga. art. nesses and suppressing ¶1, specific 3(b) evidence-the § added). (emphasis 399, 401-02, explained sheriffs Cobb 261 Ga. (1991).13 Thus, Georgia’s subject the control of the Con- stitution has created the sheriffs office as county employees. are not legislature and separate constitutionally protected entity Randolph County Comm’rs v. Bd. of independent from the Clayton defendant Wilson, 396 S.E.2d 903 County. (1990) (“The elected, ... is an con officer; subject stitutional he is to the B. Law Sheriffs Perform Enforcement of the charge Assembly General and is not Function the State commission.”); an of the employee independence sheriffs’ from coun- Calhoun, 202, 203, v. Chaffin ties is by further shown how sheriffs act as (1992); Walton, S.E.2d Warren agents for the state in enforcing the laws Ga. 202 S.E.2d 405 keeping and in peace. Georgia’s Con- gives In contrast to the control stitution provides that “[t]he Governor State, Georgia’s Constitution does not shall take care that the faithfully laws are grant legislative power counties or authori- executed and shall be the conservator of

ty expressly over sheriffs and prevents peace throughout the state.” Ga. controlling affecting counties from the Const, ¶2. Y, 2,§ art. In enforcing the elective office.12 Ga. laws and conserving peace, the Gover- Const, ¶ 1(c)(1). IX, 2,§ art. re- alone, nor does not act necessarily but acts gard, Georgia Supreme Court has con- through agents such as sheriffs.14 In cluded that this constitutional restriction Georgia, the office of sheriff carries with it legislative power granted on the to coun- statutory both the common law and duties (that Rule) is, prevents ties Home counties of sheriffs to enforce the and pre- laws taking affecting action the sheriffs peace, serve the as well as additional statu- Warren, office. Ga. tory imposed duties the State. 405; Stephenson 15-16-10(a)(l)-(8).15 see Bd. Comm’rs O.C.G.A. Georgia's provides Constitution and unalterable or the legislative "power granted governing body. to counties ... shall not be construed to extend to ... [a]c- office, affecting any tion elective 14. Other state actors available for law en- thereof, thereof, personnel salaries or the ex- activity forcement include the Bu- cept personnel subject jurisdiction Investigation reau of and the State county governing authority.” (GBI); seq. Patrol. See O.C.G.A. 35-3-3 et Const, ¶ IX, 2, 1(c)(1). (GSP). art. seq. 35-2-30 et State, Although prior 13. Warren involved a version See 15. Hannah v. Constitution, (1956) ("The Georgia of the the same relevant office of sheriff carries language present is in the version of the Geor- with it ... all of its common-law duties and Warren, gia statute.”). powers, except by Constitution. See 231 Ga. at as modified The plain language 202 S.E.2d 405. The of Geor- sheriff's office is as old as the State of Geor- gia's provides powers gia, Constitution powers that the administers the law enforcement State, and constitutionally protect- duties of the sheriff's office are estab- the and is a by legislature by general independent county govern- lished the State ed law. office III(J). supra Georgia's See note Georgia 11. Constitution ment. See Section infra goes precludes Attorney explained further and from tak- counties General has that under law, ing any Georgia statutory action to affect the sheriff's office. have duties supra Contrary position See 12. note in and of their also all common law duties and statute, Judge concurring opinion, plain powers by Barkett’s the unless modified and that language Georgia's enforcing Constitution the these makes duties include the laws and powers conserving peace. Op. Atty and duties of the constitutional sher- the See Ga. Gen. (1969); legislature Op. Atty. iff's office alterable the No. 69-385 Gen. No. Georgia legislature mandates that it is the In general addition to their law enforce express duty duties, perform of the sheriff “to ment the legislature pre imposed by such duties as are or be scribes and controls other law enforcement necessarily law which or to his appertain duties sheriffs. For example, the State 15-16-10(a)(8). § office.” O.C.G.A. requires her sheriffs perform specific relating duties to state courts. The Geor McMillian, Supreme In the point- gia legislature mandates that it duty the is historically ed geo- out sheriff had of sheriffs execute and “[t]o return the but in graphic reality “repre- restrictions processes and orders of the and courts in fulfilling duty sented the State his to competent officers of authority ... with McMillian, keep peace.”16 the 520 U.S. 15-16-10(a)(l) diligence.” § due O.C.G.A. Indeed, at 117 S.Ct. 1734. “in con- (Supp.2002). The State mandates serving in public peace, vindicating sheriffs, in counties, their respective have law, in preserving rights and duty all to attend sessions of superi government, represents [the sheriff] sales, or court of county,17 publish sovereignty of the State he and has no citations, and proceedings other as re superior county.” Anderson, in his W. A law, quired docket, keep an execution Sheriffs, Treatise on the Law of Coroners and to keep specified other records. (1941), Constables ap- cited with 15-16-10(a)(2)-(6). § O.C.G.A. This same McMillian, proval in at U.S. statute provides that “[i]f sheriff or Thus, S.Ct. entirely consistent deputy fails to comply any provision with for sheriffs be labeled “county offi- 15-16-10(a) ], § of [O.C.G.A. he shall be in Georgia’s cers” Constitution to reflect fined for a contempt.” O.C.G.A. 15—16— their geographic territory, for them but (b). 10(a)(8), act on still to behalf of the State enforc- ing the laws and keeping peace. empowers State further sheriffs to Cooley, R. Handbook on the Law of beyond Mu- act the boundaries of their counties (1914) (“Sheriffs nicipal Corporations 512 of election in certain Sher- circumstances. ... clerks and other so-called offi- iffs may transfer prisoners to another properly cers are state county jail officers for the jails if the in their counties are county. Their pertain functions duties an “unsafe condition.”18 O.C.G.A. chiefly to the 42-4-4(a)(3). affairs of the coun- addition, In au- State ty”). thorizes sheriffs to exercise their discre- (both construing 77-83 former diction to his generally elected voters, Code 24-2813 now by county O.C.G.A. 15- reality was in officer of an 16-10). addition, In State, must state- ultimately represented officers, peace certified who are "vested ... fulfilling State duty keep peace. with to enforce the or traf- criminal (internal U.S. 117 S.Ct. 1734 through power fic laws and [are arrest omitted). footnote charged preservation with public the] or- der, protection property, of life and Georgia, superior courts of the prevention, detection, investigation or general jurisdiction. the State's courts 35-8-2(8)(A). § crime." O.C.G.A. 6, 4, ¶ 1; § See Ga. Const. Art. § O.C.G.A. 15- 6-8. 16. Regarding the historical evolution of sher iffs,McMillian stated that: jail the issue Unless of unsafe conditions is court, As basic English government forms of properly before a trial were transplanted States], [the in prisoner United have to order such trans- also Irvin, became 251, 253-54, understanding common fers. re In sheriff, here that the though (1985). juris- in limited a prisoner years prior offering candidacy, “transfer[] tion to to another and be a registered peace if or jail in another the sheriff con- certified officer or complete the requirements being a cer- cludes that such transfer the best tified peace officer within six months after prisoner interest of the or that such trans- 16—1(c)(1)(B), § office. taking O.C.G.A. orderly for the administra- necessary fer is 15— (J). (D), (F), The State sets the sheriffs’ 42-4-^4(b). jail.” § tion of the O.C.G.A. salary requires minimum and it be law also empowers from paid funds based on the coun- traffic make arrests for violations outside ty’s § population. O.C.G.A. 15—16— See 40-13-30; § their counties. O.C.G.A. 20(a)(1). Strickland, City Winterville v. 718-19, addition, In App. the State the training fixes requirements for sheriffs-elect and exist- sum, law, the sheriffs ing § sheriffs in all counties. O.C.G.A. 15- function, both under his common law heri- if Notably, 16-3. a sheriff to comply fails statute, tage supplemented and as state training with the annual requirements, keep peace is to enforce the laws and may Governor the sheriff suspend without geographical on behalf of the State pay ninety § days. O.C.G.A. 15—16— Thus, territory. Georgia’s Constitution 3(e)(4). Newly-elected sheriffs must com- constitutionally has made the sheriff a pro- plete specialized training provided by the independent tected office from the defen- Georgia Sheriffs’ Association with the as- Clayton County prevented dant sistance of Public Safety Clayton County taking any defendant 16—3(b). Training § Center. O.C.G.A. 15— action to affect the sheriffs office. Thereafter, complete sheriffs must at least twenty training hours annually. Qualifications, Salary C. State Controls 16—3(e)(1). § O.C.G.A. The Georgia 15— Training Sheriffs’ Association uses state or federal Georgia legislature The also has de- training funds to cover all costs. O.C.G.A. “proper qualifications clared that and stan- 15-16-3(d). § The State further mandates required dards be of the ... sheriff so that a complete training sheriffs failure to to increase the effectiveness of the several requirements will result the loss of ar- sheriffs of state as law enforcement 15-16-3(b), § powers. rest O.C.G.A. officers to crime.” combat O.C.G.A. 15- (e)(4). 1(a). The State mandates a detailed 16— Investigation D. Suspension State qualifications set of that a person must satisfy to be a candidate for the sheriffs State, counties, right The not has the county. office in any 15- O.C.G.A. investigate suspend sheriffs. If a 16-l(a)-(e). example, For the State re- misconduct, suspected sheriff is quires twenty-five that a sheriff be at least may Governor initiate an investigation old, record, years have felony be a may suspend the sheriff. O.C.G.A. 15- (c).19 16-26(a), resident of the for at investigation least two is con- powers regarding Governor determine that an in- sion a sheriffs misconduct vestigation performance of a sheriff "should be made as a in the of his duties. This statute commissioners, charges, alleged result of criminal cover misconduct does not and we office, alleged incapacity parallel granting of the sheriff to can locate no statute perform the express functions of his office." O.C.G.A. the Governor the same broad authori- 15-16-26(a) added). (emphasis ty This inves- and control over commissioners. Instead, statute, tigation-suspension wholly statute addresses Gov- distinct O.C.G.A. 45-5-6, authority only public § ernor’s and control over addresses the removal of officials, commissioners, grants investigation-suspen- including county and broad sheriff but committee, by ducted a composed of two pobcies. duties and Counties also have no sheriffs, who by Governor, are selected role in training supervision or of the General, and the Attorney State deputies. Instead, and is sheriffs exer- by § funded the State. O.C.G.A. 15-16- cise authority deputies over their indepen- 26(a). thirty days, Within the committee dent from the county. Sheriffs alone hire provides the a fire report deputies. in- and their § Governor O.C.G.A. 15—16— 23; Wayne Herrin, 16—26(b). § County v. vestigation. O.C.G.A. If 210 Ga.App. 15— 747, 751, the committee suspension, recommends S.E.2d 793 may suspend Governor the sheriff for courts have concluded up days to sixty may and extend sheriffs’ deputies employees are of the thirty for suspension additional days. sheriff and not the county. Warren v. 15-16-26(c). § O.C.G.A. The Governor Walton, 495, 499, 231 Ga. 202 S.E.2d 405 also is to request “authorized the district (1973) (recognizing that “[djeputy sheriffs attorney of of the sheriffs resi- ... are employees sheriff, of the whom the a bring dence to petition removal against sheriffs alone are entitled to or appoint the sheriff.” Id.20 (internal discharge”) quotation marks Robinson, omitted); Drost v. 194 Ga. E. Lack Control over Sheriff 710, 22 (1942); Brown v. Jack Deputies son, 200, 201, 221 Ga.App. 470 S.E.2d 786 State, In contrast counties have (1996) (noting deputy sheriffs “were em authority over, no or control and no role ployees of the sheriff and not Peach Coun in, Georgia sheriffs’ law enforcement func- ty”); Herrin, 210 Ga.App. at grant tion. Counties do not their Smith, 793; Pettus v. S.E.2d 174 Ga.App. powers, enforcement pre- neither (1985); 330 S.E.2d 735 Boswell cf. scribe nor control Bramlett, their law enforcement 549 S.E.2d 100 only in this limited grand situation: after a point that the governing authority has jury's felony indictment for a charge criminal no control over the sheriff. When the sheriff only felony if the indictment relates to the suspected perfor- misconduct in the performance public or activities of the duties, offi- mance of his may Governor initi- 45-5-6(b). § cial's office. O.C.G.A. investigation ate an by gov- funded the State ernment, Governor has the 20. The require Governor also in further suspend § the sheriff. O.C.G.A. 15-16-26. committee, vestigation "by by Significantly, no governing authority Investigation, Bureau other law enforce power. such concurring The opin- same agencies state, ment by any this or special also ion errs in how it Gipson relies on appointed committee the Governor for Bowers, (1993), 434 S.E.2d 490 purpose.” 15-16-26(c). such § O.C.G.A. the proposition for that the Governor “can judicial proceedings The for of a removal against take no official action a unless sheriff conducted in manner identical to there has been a criminal first. indictment" for the those removal of a superi clerk of the Id. 434 S.E.2d 490. This is because a court under O.C.G.A. 15-6-82. O.C.G.A. statute, wholly separate 45-5-6, O.C.G.A. 16—10(b)(Supp.2002) 42-4-4(c). §§ & 15— provide officials, does public removal Judge sheriff, including concurring opinion upon Barkett's grand jury's mistak- a in- enly Holland, relies on Cole v. felony. dictment above statutes, however, S.E.2d independently involved wheth- address a er criminal precede conviction must peti- the sheriff and the investigation Governor’s tion remove a suspension sheriff from office. sheriff for miscon- Georgia Supreme rejected argu- duct sheriff, or the alleged office incapacity of the ment that a conviction was a prece- condition require which do not in- criminal dent proceedings. removal Id. at Compare dictment. O.C.G.A. 15-16-26 anything, If Cole illustrates the with 45-5-6. (2001) constitutionally they duty (“[EJmployees of had no to determine whether a high-speed driving course rather than a county officers of a are considered elected driving defensive course reasonably was and not employees of the elected officer required supplied to be deputy to sher county, represented of the employees iffs”); Stewart, Chadwick v. 94 Ga.App. authority.”). local by governing 329, 329, (1956).21 94 S.E.2d 502 In two of speak courts also with unanimi concluding these cases county was ty concluding county in that a defendant liable, plaintiffs brought actions cannot be held liable for the tortious ac against the sheriff as a defendant in his official and capacities individual and sepa tions of the sheriff or his in deputies per rately against county as a defendant. forming their enforcement activities. Brown, 201, 221 Ga.App. at 470 S.E.2d 786 Warren, Wayne Comm’rs v. County Bd. (Peach sheriff, County not Peach County, (1976) 150, 152, 223 S.E.2d 133 sue); Lowe, was the proper party to (“[A] county liability has no connection Ga.App. at 499 S.E.2d 348 (noting that with rights any the violations of the civil plaintiff brought action against county as officer.”); Brown, person by a well as sheriff official capacity). at Ga.App. (affirming 470 S.E.2d 786 Likewise, Georgia courts have concluded summary judgment County for Peach be for, that counties are not liable and not sheriff, County cause the Peach not Peach required give money pay, sue); County, was the proper party to judgments against rights civil Ga.App. Lowe v. Jones actions. See Wayne County Bd. of (1998) 499 S.E.2d 348 (concluding Warren, Comm’rs v. “deputy employees sheriffs are of the sher S.E.2d 133 (stating a has no iff, county, not the and the cannot liability for the violations of the civil rights vicariously be held princi liable as their sheriff). any person by added); Pettus, pal”) (emphasis 174 Ga. Georgia Supreme Court in quoted Warren App. at 735 (affirming a Georgia stating statute that “[a] summary judgment board of is not liable to any suit for cause of action concluding, commissioners and “[a]s the unless made so statute.” Id. at county commissioners had no control over 223 (quotation marks omit- ted).22 ..., Thus, the official deputy statute, duties of the was Lowe, Brown, responde- quoted Pettus involve statute in Warren is former (1933), superior liability depu- at Code 23-1502 which is sheriff for his subsequent now O.C.G.A. 36-1-4. In the ties' acts. The court Chadwick also cited for- County decision of Chatham Commissioners v. (1933), mer Code 24-201 which Rumary, 253 Ga. 315 S.E.2d 881 sheriffs, sheriffs, provided: deputy “All coro- Georgia Supreme Court held ners, constables, jailers, and other officers of Chatham Board of Commissioners actions, suits, court shall be liable to all against required pay judgment was whatever, they, disabilities which or either of deputy damages sheriff for an automobile them, respect any shall incur in matter or County's collision because Chatham own thing relating concerning whatever to or their provided deputy Code for the defense of the respective offices.” This section is now codi- payment judgments trial and of final awarded 15-13-1, similarly fied in O.C.G.A. 60-61, in courts. Id. at 315 S.E.2d 881. The sheriffs, sheriffs, provides: deputy "All coro- Georgia Supreme emphasized ners, constables, jailers, and other officers of liability nature the Board’s "[t]he here court shall be liable to all actions disabili- respondeat superior, not that of but exists sole- they respect ties which incur in matter ly by self-imposed voluntary virtue of its thing relating concerning to or re- their obligation provide indemnification for the spective offices." during employees acts of its committed performance of their duties.” Id. at 1338 addition, 36-1-21, Georgia § In examined Appeals

not liable. Su- O.C.G.A. that “there is no which allows a preme Court concluded counties to create civil ser- county system to furnish the sheriff vice and to include duty employment money rights judg- positions a civil with elected with to settle officers “ 152, system 'upon him.” Id. at 223 S.E.2d that the written against application ment ” of the elected officer.’ 210 133. 748-50, at App. (quoting County Systems Service F. Civil 1—21(b)).23 § Georgia O.C.G.A. The 36— (a) “deeply court concluded that embedded from coun- independence in our case law is that the notion by Georgia law’s ties is further shown authority power sheriff alone has the civil ser- treatment (b) to fire appoint deputies,” but systems. Although counties vice has Assembly definitely “the General systems, sheriffs have adopt civil service positively provided for the creation of authority depu- to hire their independent systems civil service and conferred decide whether their deputies ties and to Wayne on elected officials as the [such placed under civil service County ability 15-16-23; bring §§ Sheriff] the to all system. See O.C.G.A. 36-1- employees system.” in their office into the 21(Supp.2002); Brett v. Jefferson 751, 753, (11th Cir.1997); Id. at 437 S.E.2d 793. F.3d Herrin, Wayne County Ga.App. County Police Department G. (1993); 437 S.E.2d Gwinnett cf. Yates, lack County authority counties’ and con- (1995) (concluding starkly that a coun- trol over sheriffs contrasts with the S.E.2d action ty affecting” powers “can take no the em- counties’ over their own official, police department. Georgia of an elected unless the counties have ployees placed power official has his office elected under law enforcement to the extent system). service county’s delegated by Georgia leg- civil For ex- the State. The Herfin, Georgia ample, county governing Court of islature authorizes bod- S.E.2d 881. There is no evidence in this case suant to O.C.G.A. 15-16-23 to is limited retirement, Clayton County voluntarily agreed by resignation, created vacancies” personnel contrary, applicable or removal under the provide To the indemnification. system. service Id. at civil Clayton County contends that it liable policymaker is not a because the sheriff county. 36-1-21(b) This same O.C.G.A. was ex- Brett, at amined in 123 F.3d in which Herrin, end, when his term was about to deputy this Court concluded that sheriffs are Wayne County applied sheriff to have employees agreed "at-will” We of the sheriff. positions subject in the sheriff's office made deputy with the district court that "the former Wayne County personnel system. protected property sheriffs had no interest Ga.App. Wayne 437 S.E.2d 793. Both Comp- law [Sheriff] because County “fully complied and Sheriff Warren place deputy ton’s efforts to sheriffs under the requirements all [the] with set forth in system satisfy civil service failed to the statu- 1—21(b) necessary bring O.C.G.A. 1—21(b).” em- requirements tory of O.C.G.A. 36— 36— ployees of the sheriff's per- office within the Compton Id. Sheriff had made an oral re- system." sonnel Id. at 437 S.E.2d 793. quest, completed required but had not Reconciling case, §§ O.C.G.A. 15-16-23 and 36-1- application. written Id. In this there is posi- court held "that once Clayton no in the indication record that tions in a sheriff’s office County system have been made has a civil service or that the subject personnel system, to a depu- or civil service has taken to have action appoint pur- subject a sheriff’s deputies county personnel system. ties to a Treasury li. through force police ies to create particular a resolution or ordinance of the acknowledge We county governing body followed the grants county significant the control of county approval qualified of electors. “purse strings” the of the sheriffs office. 8—1(b). § county govern- The O.C.G.A. county governing body 36— sets the total ing body hiring controls the and removal amount of operating the sheriffs budget, county pays of its and “abolish a the police salary, and pays the premium for the sheriffs county any force at time.” official bond. police O.C.G.A. See O.C.G.A. 36-5-22.1, 15-16-20, §§ 45- County § police 36-8-2. officers are sub- 4-7, 15-16-5; Calhoun, v. 262 Ga. ject to the “direction and control the Chaffin 202, 203, 415 S.E.2d 906 fi- This county § governing body.” O.C.G.A. 36- control, nonetheless, nancial is attenuated County police “[t]he 8-5. officers have (a) because the State the mini- mandates power same to make arrests and to exe- salary mum and the minimum bond pro- cute criminal and return warrants and (b) sheriffs, amount for and the Georgia county cesses the of their election or Supreme budget Court held that the ... appointment as have.” provide “must reasonably sufficient funds 36-8-5(1). O.C.G.A. discharge allow the sheriff to legal his that, The net result under duties,” county and that “the commission law, county police department the is the may not dictate to the sheriff how that through county vehicle which a fulfills its budget spent will be exercise functions, but the policing sheriffs office is Chaffin, 203-04, duties.” 262 atGa. through vehicle which the State fulfills Bramlett, 906;24 Boswell S.E.2d of. part policing Clayton of its functions. The (2001) (conclud- 50, 52, Ga. 549 S.E.2d 100 Sheriff does not receive of his county ing government approves the su- powers law enforcement from the defen- perior court clerk’s budget but does not Clayton County. dant control how constitutionally elected son, 482, Chaffin, (1990)); county, In over the sheriff's 260 Ga. S.E.2d objection, responsibility patrol- (3) shifted the although county commission has ling drug county force, enforcement to the new power county police to create a " police department and reduced the sheriff's ‘the commissioners could not divest the budget by forty-seven percent. 262 Ga. at power duty sheriff of his to enforce the ” 202, 204, 415 906. The S.E.2d trial court preserve peace,’ directly laws and either granted county’s request injunction for an indirectly by exercise of their fiscal author- requiring cooperate the sheriff to in the im- ity Chaffin, property, or control of plementation plan personnel of the to transfer 203, (quoting Ga. at 415 S.E.2d 906 v.Wolfe equipment newly created (1974)). Huff, 232 Ga. 205 S.E.2d 254 202-03, police department. Id. at S.E.2d budget In another battle between the sheriff affirmed, Supreme 906. The Court commission in Board Commis- holding that the trial court had not abused its Wilson, Randolph County sioners finding remaining discretion in that the bud- requested S.E.2d the sheriff get per- sufficient to allow was the sheriff to $70,000 pay deputies, but the com- form his Id. duties. at 415 S.E.2d 906. so, budgeted lump mission sum of doing Georgia Supreme Court reaf- $60,080. Id. at 396 S.E.2d firmed that: "Sheriff Chaffin is an elected officer,” Georgia Supreme Chaffin, held constitutional 262 Ga. at Const, IX, authority, commission did not view- (citing abuse Ga. art. 1, ¶ 3(a)); (2) ing "involving power the case as of the "[t]he sheriff is not an em- commission,” ployee Chaffin, approve budget commission to the sheriff’s (citing power rather 415 S.E.2d 906 Board than the of the sheriff to hire Randolph County deputies.” Commissioners v. Wil- Id. at 396 S.E.2d 903. officer spends the budget). Georgia’s against action bond, sheriffs official prevents Constitution further counties the bond falls written contracts taking any action exception affecting any to state sovereign immunity in I, elective 9(c)).27 office or personnel Article para. Const, ¶ thereof. IX, 2, 1(c)(1). art. The argument is made that the sheriffs Payment of a sheriffs salary and for immunity stems county, from the not the equipment from county funds, when re- state, that the county’s immunity controls by the quired state legislature, does sued, when the sheriff is and that establish control over the sheriffs county defends the sheriff. The decisions law enforcement conduct policies.25 upon relied argument involve the county’s purchase of motor vehicle insur- Sovereign I. State Immunity ance and the immunity being That Georgia law extends State’s waived to the extent that the county pur- sovereign immunity to sheriffs is further chases motor vehicle insurance de- indicia that sheriffs act on See, behalf of the fends the claim. e.g., Cameron The Georgia Lang, 122, State.26 274 specifi- 126, Constitution Ga. 549 341 S.E.2d cally (2001); provides that “sovereign Richardson, Gilbert v. immunity 744, 264 Ga. 747, (1994). 452 extends to the state and all S.E.2d 476 its depart- Const, agencies.” ments and I, Ga. art. But this waiver occurs only because a ¶ 9(e). 2,§ Georgia courts have interpret- Georgia statute grants counties limited au provision ed this grant to sovereign immu- thority to waive sheriffs’ immunity with nity to sheriffs. Cantrell v. Thurman, 231 respect to motor liability. vehicle See 510, 514-15, Ga.App. (1998) 499 S.E.2d 416 O.C.G.A. § 33-24-51 (granting (concluding although sheriff is entitled discretion to purchase motor vehicle insur sovereign immunity to I, 2, under Article ance and providing immunity is waived to 9(e), para. that immunity is waived any the extent of the insurance).28 amount of 25. Alabama sheriffs are (1 elected Cir.2000); vot- 1231 lth Rodgers, 912 Hufford v. funds, ers and paid but the (11th Su- Cir.1990). F.2d 1340-41 In addi preme Court in McMillian tion, found these factors parties when raise federal claims under insufficient establish control courts, over § 1983 in state federal law must deter McMillian, sheriffs. See 520 U.S. at 117 mine particular governmental whether enti ("The S.Ct. 1734 county’s payment of the subject ties are Rose, to suit. See Howlett v. salary sheriff's does not translate into 375-78, control 496 U.S. 110 S.Ct. sheriff], over [the since the neither has (1990). 110 L.Ed.2d 332 change salary nor the payment discretion refuse completely.’’). City 27. But see Bridges, Thomaston v. 264 Supreme 4, 7, Court also Ga. (1994) concluded 439 that the S.E.2d 906 (holding that ability of governing body phrase to reduce "state departments all budget sheriff's long agencies" so as it does municipalities); remains not include reasonable results in "attenuated Hosp. Thomas v. indirect County, Auth. Clarke influence 40, 42, over the operations.” (1994) sheriff's See S.E.2d 195 (concluding 791-92, id. at 117 S.Ct. hospital authority although governmental — instrumentality agency not an depart- or —is 26. While we sovereign discuss immunity sole ment of the state sovereign entitled to immu- ly for the policymaker sheriff's function under nity). law, state sovereign immunity has no application in federal See, Cameron, court in 1983 cases. e.g., 126-27, 274 Ga. at Instead, the Eleventh grants 341; Gilbert, Amendment im 748-51, S.E.2d 264 Ga. at munity to states 476; from suits in federal courts. S.E.2d Woodard v. County, Laurens cf. See,e.g.,MiccosukeeTribe 404, 405, Indians Fla. v. Fla. Comm’n, State Athletic 226 F.3d Cameron and treated the Gilbert official ca- sovereign immunity may 508 S.E.2d 159. Nor Georgia, has it been expressly provides established, claimed, if a statute waived present even sovereign immunity is waived and the case that the sheriffs sovereign immunity Const, I, art. extent of such waiver. Ga. has been as it general relates to his waived ¶ see, Cameron, 2, 9(e); e.g., atGa. law enforcement function or his office’s 341; 126 n. 549 S.E.2d Woodard v. systems involvement the CJIS in issue.30 Laurens (1995).29 J. Clayton County Defendant this waiver statute the sher- While ties Judge Barkett’s concurring opinion actu- sovereign immunity county’s iffs ally acknowledges that under vehicles, general

motor the sheriffs sover- (1) a sheriff is not employee an eign immunity granted Georgia’s Clayton County Commission; is not independent from the Constitution coun- subject control that County Cantrell, immunity. ty’s Ga.App. (3) Commission; independent and is from 514-15, 416; Seay at 499 S.E.2d v. Cleve- that County Commission. (Concurring land, 64, 65-66, Barkett, J., Opinion, 1351-52, 1356-57, pp. example, For in the Seay, plain- 1362-64). concurring opinion This at- in capacity, tiffs sued the sheriff his official tempts circumvent the sheriffs (1) indepen- the alleging that sheriff was hable for Clayton County dence from the defendant deputies’ negligent disbursement of by reframing the issue (2) as “not whether a funds at a sheriffs sale and that the county commission controls the sheriffs negligently supervised sheriff his deputies. but 65-66, county office whether the at In controls the Seay, 508 S.E.2d 159. office.” Georgia Supreme (Concurring Opinion, the Court concluded that 1362). Barkett, (1) J., p. It plaintiffs’ against argues that the “claims [Sheriff] Clayton the defendant Seay capacity precluded County his official is not one “monolithic sovereign immunity county govern- under the doctrine structure county and it has not in this ment with been established case commission at its (2) head,” been immunity that such waived.” Id. that the sheriff the county pacity against proposition claims the sheriff as claims for the against county, counties, statute, determined that the sheriff by pay are authorized to capacity sued in his official was entitled to the legal rights by the sheriff's costs in civil suits county’s sovereign immunity, benefit of the parties against third sheriffs. See O.C.G.A. immunity and concluded that the sheriff's was however, Haywood, § 45-9-21. In the Geor pur- waived to extent the had gia Supreme emphasized that the stat chased insurance. ute authorizes counties to do so "in their County immunity large part stems in ”give[s] discretion” and considera 36-1-4, 33-24-51(a) §§ O.C.G.A. determining ble latitude in what actions will provide that a is not liable to suit for (citing be defended.” Id. at 235 S.E.2d 2 any by cause of action unless made so statute. 89-945, Ga.Code Ann. which is now addition, pro- In Constitution 29. 45-9-21). Haywood, O.C.G.A. the Glas sovereign immunity vides that waiver of "[n]o County adopted, cock Commissioners had at any ... shall be construed as a waiver special meeting, policy pay attorney's a provided immunity ments, depart- to the state or its specific by parties fees in two actions third officers, agencies, employees by against anything, the sheriff. Id. If this case Const, United States Constitution.” Ga. art. Clayton demonstrates the defendant I, 2, ¶ 9(f). County required pay is not the sheriff's Judge opinion concurring Barkett’s also attorney’s by parties. fees actions third Haywood Hughes, relies on serve as subunits of the ed Board of commission defen- Commissioners. Under law, Clayton County, Clayton defendant Coun- sharing equally dant each ty “body corporate” capable suing powers in the of the defen- governmental being sued (3) and is headed the coun- County, and Clayton dant ty governing body, Clayton County policymaker is the final for the Const, Board of Commissioners. Ga. art. Clayton County the area of defendant (“Each 1,§ body shall be a Id. p. 1351-52. law enforcement. corporate politic governing with such Thus, concurring opinion this raises law.”); ... provided by as (1) whether structural issue: §§ (“Every county O.C.G.A. 36-1-3 is a office is separate entity constitutional body corporate, power with to sue or be independent Clayton from the defendant l-3-3(7) court.”); (defining sued County, or whether the sheriffs office “County governing authority” as “the Clayton County Board of Commis- commissioners, board of the sole subunits, sioners, powers share commissioner, governing or the au- Clayton County. The an- the defendant thority government”). of a consolidated is the sheriffs office is an indepen- swer example, Clayton County For Board of entity and not a subunit of the dent defen- is “expressly given Commissioners com- Clayton dant for two reasons. plete power, authority, and control relative First, Georgia law that the provides sher- Clayton to all County.” matters derives its law pow- iffs office enforcement 1983, 4509, § p. Ga. Laws only from the State and not the ers defen- example As of the county governing County, Clayton dant 'and that the sheriffs role, body’s only head the county govern- independent office is constitutional from ing body may enter into for contracts the Clayton County. Georgia’s the defendant county entity.31 The Clayton defendant precludes even Constitution the defendant County contractually is not by bound con- County Clayton taking any action by tracts entered into the sheriff. As not- affecting the sheriffs office. earlier, ed Clayton the defendant County Second, contrary to concurring opin- also liability has no tort conduct ion, Clayton County the defendant head- is the sheriff and his deputies.32 ("All 57, O.C.G.A. 36-10-1 County, contracts entered Prods. Ga.App. Co.v. 28 31. Taliaferro (1922). 110 S.E. 331 county by governing authority into ... writing behalf of the shall See, Bramlett, e.g., Boswell v. 274 Ga. minutes.”); Chester, Ogletree entered on its (2001) ("[E]mployees 549 S.E.2d 100 (11th Cir.1982) ("Under 682 F.2d 1370 constitutionally elected officers of law, Georgia any contract entered into with employees are considered of the elected offi persons other in behalf of a must be in employees county, cer repre and not of the writing spread on the by official minutes of governing sented the local authority.”) added); (emphasis County, [County] Lowe v. Jones 231 proce Commission. Where that 372, 373, Ga.App. (1998) 499 S.E.2d 348 followed, dure is not there is no enforceable (concluding "deputy employees sheriffs are (internal omitted); agreement.”) citation sheriff, county, not the Enters., Inc., Ga.App. Smith v. Murrath 243 vicariously cannot be prin held liable as their 856, 857, (2000) ("No 534 S.E.2d party is added); Jackson, cipal”) (emphasis Brown v. alleged entitled to the benefits of an contract 200, 201, Ga.App. S.E.2d with a unless there been a full (noting deputy employees sheriffs "were compliance 36-10-1].”); with [O.C.G.A. see ") County (emphasis the sheriff and not Peach added); Glynn County, also Waters v. Ga.App. Calhoun, 202, 203, 262 Ga. Chaffin (1999); 514 S.E.2d 680 Deason v. De- (1992); Mobley 415 S.E.2d 906 v. Polk Coun County, Kalb 222 Ga. 148 S.E.2d 414 798, 801-02, ty, 242 Ga. (1966); Beacham, Graham v. (1979); Walton, Warren v. 498- 305-06, (1939); 5 S.E.2d 775 Carolina Metal 202 S.E.2d 405 Clayton county entity The fact that the defendant toms for which the has some control and responsibility.34 Holding the County by is headed its Board of Commis- Clayton County entity defendant liable by also is shown how service of sioners here, in the absence of corporate con- Clayton process against an action Coun- by trol over the county entity, if ty is sufficient under law ignore would Monell’s and law’s majority com- upon served conception corporations counties as the chairman upon missioners or through act a governing body, would sub- board of commissioners.33 That stitute a conception of counties as mere County Clayton the defendant is headed units of geography, impose and would even Clayton county governing body, liability broader than respondeat supe- Commissioners, County Board of is dem- liability rejected rior Turquitt, Monell. fact forcefully by onstrated Indeed, 137 F.3d at holding plaintiff actually process Grech served on Clayton defendant County liable for the Clayton County by serving the defendant law enforcement actions of the sheriff over Bray, Clay- the Chairman of the Crandall whom has no control would impose strict ton Board of Commissioners. liability on that defendant county entity. Monell, precedent, Our as well as in- K. Geographic Label governmental entity— structs that a local Clayton here the defendant County as All of this Georgia points Clayton County headed Board of conclusion that county poli- sheriffs are not Commissioners —is liable for 1983 cymakers as to their law enforcement except policies Constitution, violations for those Georgia’s and cus- functions.35 stat- Judge concurring gives opinion Barkett's municipality actually tion which the that, impression the mistaken responsible.”); Marsh v. Butler law, (11th Cir.2001) county entity, (en banc) here the defendant F.3d Clayton County, may (stating be liable for the torts of that a is "liable under section deputies. county] sheriff and his There 1983 is not a for acts for which [the is case, however, single Georgia actually responsible”); Turquitt holding a coun- v. Jefferson 1285, (11th ty County, depu- liable 137 F.3d for the torts of a sheriff or his 1292 Cir. 1998)(en ("[L]ocal cites, banc) concurring governments opinion ties. The can for exam- § ple, County, never be liable under 1983 the acts of Ga.App. Feise v. Cherokee for 207 government those whom the local has no au 427 Georgia but the Su- control.”); Scheib, thority v. 813 preme Brooks granted certiorari and remanded Cir.1987). (11th Feise, F.2d 1192-93 Georgia and on remand the Court of Appeals judgment summary entered in favor county. of the defendant Feise v. Cherokee 35.The district courts in our circuit have 733, 733-34, County, Ga.App. 434 S.E.2d holding reached similar conclusions in Instead, (1993). explained Georgia as county policymakers above and are not III(E), Georgia speak § in Section County, courts with 1983. See under Fletcher v. Screven (S.D.Ga.2000) unanimity concluding F.Supp.2d that a cannot 1379-80 although § be held liable for the (concluding actions of the sheriff or in a 1983 action that deputies. Georgia his law declares sheriffs to be officers, and directs that elect and counties 36-1-5; § 33. O.C.G.A. see Board sheriffs, Comm'rs pay their it cedes to counties no County Allgood, Newton v. meaningful level of control over a sheriff’s (1975); Clayton County 214 S.E.2d 522 v. Smith, activities); law enforcement Frazier Sarno, 379, 379-80, Ga.App. 145 S.E.2d (S.D.Ga.1998) (de- F.Supp.2d clining against to dismiss action the sheriff in capacity his official action redundant to the Cincinnati, City against Pembaur v. 475 U.S. the because "Sheriff Smith 469, 479-80, independently County, except 106 S.Ct. 89 L.Ed.2d 452 acts of Camden (1986) (“[Mjunicipal liability County's support is limited to ac- for the fiscal review and utes, and decisional evince state em- IV. WARRANT INFORMATION powerment of and control over sheriffs and A. Georgia Crime Center Information a notable absence of county control. This The Georgia legislature requires absence established our conclusion that Georgia Crime Information “county Center officer” nomenclature contained in (“GCIC”) “system to create a for the intra Georgia’s Constitution reflects a geograph- state communication of vital ic defining territory label information which a crimes, relating criminals, sheriff is criminal mainly operates elected and 35-3-31(a). activity.” O.C.G.A. does not make a sheriff policy- is a GCIC division of the Georgia maker.36 Bureau of Investigation, a agency. O.C.G.A. Nonetheless, McMillian, under we still 3—31(a). 35-3-2; §§ Responsibility for 35— must consider the particular law enforce- the GCIC is vested with the “Director” of issue, ment conduct of the sheriff in center, with guidance of the GCIC is the entry and validation of war- 35-3-31(b). Council.37 O.C.G.A. systems rants on the CJIS and his training and supervision of employees in that re- The GCIC is charged with operating an gard. We now review how particular system information for all crime and of- law enforcement data, function is controlled by fender including warrant information. State, counties, law. O.C.G.A. 35-3-33. The GCIC has devel- department” the Sheriffs concurring "[t]here is opinion no heavily also relies Tru on evidence ... to support Freeney, conclusion that esdel v. 197 S.E. 783 agent (1938) Sheriff Smith is an of Camden and describes Truesdel as a "founda County ultimately or that the is Truesdel, liable for his tional Id. case.” The issue in how misconduct”); Duffey Bryant, ever, F.Supp. was whether the board could fix (M.D.Ga.1997) 1174-75 (reviewing salary of the municipal clerk court. against 1983 action dep- sheriff and Addressing his Id. argument the clerk’s that he uties for wrongful officer, county jail death of a was a state Supreme granting inmate and summary judgment (1) Court noted that the clerk is selected the defendant Cook court, judge (2) Board of Commis- municipal serves in and its sioners chairman because court, "[i]t is well- a ministerial municipal function in the settled law in that a and its responsibility, "has no repre so far as commissioners are without authority concerned, senting over the the State matter deputies” and that its chairman in which the primarily State is interested.” responsibility “had no or authority super- Id. at S.E. Based on these officers”). vising training factors, Georgia Supreme Court conclud ed that the clerk of municipal court was not Judge concurring opinion Barkett’s Truesdel, a state asserts officer. a case about the many Georgia cases court, refer to sheriffs municipal as clerk of a relevancy has no (Concurring officers. Opinion, Moreover, Bark- to this case. single not a case ett, J., 1354). p. The cited concurring opinion, Constitution in this or in foot itself thereof, refers to the "county sheriff as a offi- note 12 holds a or a cer,” and that title never dispute. has been in commission liable for the tortious acts of a fact, however, The crucial is that the deputies. sheriff's sheriff (Concurring or his Opinion, primary Barkett, J., function under 12). law is to p. n. 1355-56 administer the law peace- enforcement and keeping business of the State. While 37. GCIC regulatory Council is a state concurring opinion argues that law body enforce- chaired the Governor. O.C.G.A. matter, ment is a acknowledges 35-3-32(c) (designating state Board of Pub- Georgia sheriffs Council); "sometimes act on state mat- Safety lic as GCIC O.C.G.A. 35- ters” and at times "function with reference (prescribing 2-1 composition appoint- and State matters.” (Concurring Opinion, procedures Bark- ment for the Board of Public Safe- ett, J., p. (citations omitted)). ty). This same Information oped the “Criminal Justice sheriffs office must enter and validate warrant (“CJIS”), data.38 is System” defined agencies, procedures, mecha- of those “[a]ll B. Required, Training GCIC’s forms, nisms, media, and as well as the The GCIC Council Rules establish train- itself, which are or which information be- ing requirements employees in each in the organization, come involved trans- Comp. office. See Ga. R. Regs, & mittal, retrieval, and dissemina- storage, r. 140-2-.16. A Terminal Agency Coordi- tion” crime-related information. Ga. (“TAC”) nator is an employee of the sher- 140-l-.02(2)(b). R. r. Comp. Regs. & office, sheriff, designated iffs by the Director GCIC and the GCIC Coun- as a serve liaison between the promulgate regula- cil extensive rules and the GCIC for CJIS network-related mat- (the Rules”) tions “GCIC Council for the ters.39 employee This TAC is trained by operation system. of the CJIS personnel subject GCIC and is to certifica- 35-3-32(b)(2), O.C.G.A. & testing. Comp. tion Ga. R. Regs. & r. govern GCIC Council Rules the conduct of 140-2-.16(3)-(4). responsible The TAC is Clayton County Office relat- Sheriffs validations, confirmations, for record hit ing system. Comp. R. CJIS Ga. & training Operators. of Terminal 140-2-01(1). Regs. r. participant As 2—.16(3). Comp. Regs. R. & r. 140— system, the CJIS the sheriffs office in A Operator40 Terminal an is also em- Georgia county each enters and removes ployee of the sheriffs office who enters warrant information on the local CJIS ter- data in the GCIC’s CJIS network. Termi- minal, which is in turn connected with the Operators nal must complete GCIC train- Indeed, GCIC’s statewide network. CJIS ing workbooks and require- certification Office, Clayton County within the Sheriffs Comp. Regs. ments. Ga. R. & r. 140-2- employees enter data from the local CJIS .16(5)-(6). Operators Terminal enter system onto the GCIC’s network CJIS criminal warrants into the CJIS network computer from the same local termi- CJIS and annually Clay- validate them. In the regulate nal. The GCIC Council Rules Office, ton Sheriffs employ- these information, every aspect of warrant system ees use the local gather CJIS employee training when and how a warrant information and then enter it into 38. Although inquiry the focus of our 39. A war TAC is considered a "CJIS network data, govern rant the GCIC Council Rules agency employee, designated by agency virtually every aspect participation in and sheriff) (here "responsible head” and is use of the GCIC’s CJIS information and local compliance ensuring with state and feder- CJIS terminals. 33(a)(ll) See O.C.G.A. 35-3- laws, policies, regulations al established (mandating cooperate the GCIC to by the Center Crime Information interstate, national, creating a uniform (GCIC), the Cen- National Crime Information system international of crime information and (NCIC), Law ter National Enforce- records). example, criminal For the Rules (NLETS).” System ment Telecommunications prescribe how criminal should be information 140-l-.02(2)(k). Comp. Regs. Ga. R. & r. stored, it, who receive and how it must Comp. Regs. Ga. sent. See R. & r. 140-2- Operator 40. A Terminal is a "full-time or physical .02. The also enumerate the Rules part-time employee of a termi- CJIS network security requirements for criminal informa agency nal with one or more CJIS network tion, including requiring secure areas out of performs terminals who services which in- access, public view for network secure areas operation terminals, clude the of a CJIS network termi- requir for local CJIS network part assigned job ing adequate integral nal an backup duties.” for criminal information 140-l-.02(3)(e). Comp. Regs. Regs. Comp. data. Ga. R. & r. 140-2-.08. Ga. & r. R. through the local ... is an automated func- system [stateside CJIS] CJIS GCIC’s system.” opera- tion the local An terminal. CJIS

CJIS pass- tor must have user account and and Maintenance Entry C. Data system. word for access to the local CJIS operator also a user ac- must have in- sharing of criminal To facilitate and a that will clear password count them formation, specify Council Rules GCIC for access to the statewide CJIS codes, formats, GCIC’s operating procedures records, local terminal will not network or the CJIS entering that must be used warrants, allow access to the statewide network. into the CJIS network including r. Comp. Regs. R. & 140- terminals. Ga. D. Validation Warrants 2-.13(a).41 procedures are To ensure followed, procedural provides the GCIC partici- are required Sheriffs offices to bulletins, which operations manuals and pate pro- the GCIC’s record verification codes, necessary procedures contain the gram, prescribes procedures which for guidance entry.42 record Ga. reviewing validity of warrant entries 140-2-.13(a). Comp. Regs. R. & r. contained on the GCIC’s network. CJIS Manual, a CJIS which the publishes State Comp. Regs. Ga. R. & r. 140-2-.14. These Clayton County Sheriffs lists in its Office monthly include procedures reviewing vali- Operating Procedures as a man- Standard listings dation sent out GCIC required kept ual to be at its Warrant checking in issuing some manner with the computer terminal. Office verify that a warrant has not Comp. been recalled or withdrawn.43 Ga. interdependence

Due to the of the state- 140-2-.14(l)(b)-(c). Regs. R. & r. networks, War- wide and local CJIS local longer rant record entries that are no valid Clayton County terminals in the CJIS cancelled, must be and warrant record en- subject securi- Sheriffs Office GCIC containing tries erroneous information ty requirements. Operating The Standard must be Clayton County supplemented Procedure manual for the or corrected. Ga. “[ajccess 2—.14(l)(c)(l)— Regs. R. r. provides Comp. Sheriffs Office con- & 140— (2).44 trol to both the level and local GCIC require 41. The GCIC Council the Sher- the State Rules checked with Court about bench respond iff's Office to “hit by comparing confirmation warrants the GCIC's CJIS en- request messages’’ specific, prescribed within tries with the State Court's local CJIS entries. depending priority time frames on the request. Comp. Regs. Ga. R. & r. 140-2- Clayton County 44. Defendant asserts that the .13(f). facially 1985 bench warrant was valid and properly outstanding remained because that specify 42. The GCIC Council Rules warrant was sufficient used, entry permit- data forms must be who is separate charge substantive of failure to information, ted to collect criminal and who appear, failure-to-appear charge and this nev duty report has the information 40-13-63; §§ er was resolved. See O.C.G.A. Comp. Regs. GCIC. Ga. R. & r. 140-2-.03. reply, 16-10-51. Grech contends that the diverge When the Office Sheriff's desires to effectively bench warrant was resolved when standards, approv- from GCIC it must receive pled speeding charges, he to the DUI and Comp. Regs. al from GCIC. See Ga. R. & r. the bench warrant should have been recalled 140-2-03(1) (alternative fingerprinting thus, time, falsely at that that he was cards); 140-2-03(3) Comp. Regs. R. & r. The district court did arrested. not address (plans disposition reporting). for automatic claims, the merits of Grech’s constitutional Clayton County, and we need not decide these issues to resolve In the courts also record county policymaker question § system update entries 1983 in on local CJIS and Thus, appeal. them. the Sheriff's Office contends that A and Sanctions V. SHERIFF IS NOT COUNTY E. GCIC Audits POLICYMAKER a bian- require Council Rules GCIC County A. Absence Control Clayton County nual audit of the Sheriff’s Georgia, has no authority explicitly The GCIC Council Rules Office. and control over the sheriffs law enforce- procedures, “validation rec- make warrant not, Clayton ment function. does ords, ... sub- supporting documents cannot, direct the how to ar- Sheriff ject to GCIC and NCIC audits.” criminal, hire, train, super- rest a how to 140-2-.07G); Comp. Regs. R. & r. 140-2- vise, discipline deputies, or his what polices .14(2). sample Auditors obtain a statistical office, adopt, operate or how to his wanted, missing person, and sto- of active much less how to record criminal informa- from, from the Office on, len vehicle files Sheriffs tion or remove it sys- CJIS Instead, in tems involved this case. its files for with the compliance and review sheriff acts on in behalf of State regulations, including GCIC rules and function as a law enforcement officer and training and vali- review of its records keeper peace general of the and in Comp. R. & procedures. dation See Ga. relation to systems particu- the CJIS 140-2-07(2). If the Of- Regs. r. Sheriffs lar.46 fice violates Council Rules or net- GCIC authority lack of counties’ and con subject policies, work then it is to a broad explains why trol over sheriffs counties sanctions, array including suspension or liability have no for their conduct. revocation of network access. Ga. GCIC example, For if a rogue adopted an 140-2-19(1). Comp. Regs. R. & r. Such policy unconstitutional law or enforcement disciplinary action be instituted practice, has no only by the implemented GCIC.45 and, turn, prevent or alter it incurs no A liability policy for it. or This review of demonstrates speak cannot be said to for the practice control, an but only absence say has no county because also that sheriffs act for and are controlled policy practice. about that As we have func- by the State their law enforcement before, a county stated is liable under relating tion to criminal information on the only for acts for which the systems training in issue and in their CJIS actually responsible. is See Marsh But supervision employees of their in that (11th ler 268 F.3d Cir. 2001) banc). (en regard. Court, holding may be

45. We address the sanctions in the GCIC "the of the Court Council The Governor also has inves- Rules. position as that those Mem viewed taken tigative suspension powers over judgments bers who concurred in the on non-performance of their duties. See States, grounds.” narrowest Marks v. United O.C.G.A. 15-16-26. S.Ct. L.Ed.2d 430 U.S. (internal quotation marks and ci Judge opinion concurring Anderson’s Dean, omitted); tation see also Redner narrowly par- more concludes that as "to the (11th 1994) ("When Cir. F.3d case, ticular function at issue in this the Sher- Court, fragmented [Supreme] we faced with a state, acting on behalf of the and thus iff opinions may distill the various down to their Clayton County ... is not liable in this case.” Anderson, J., 1349). grounds of concurrence to derive narrowest (Concurring Opinion, p. binding opinion majority precedent.”). Because no obtained a Thus, we conclude that today Clay- against Sheriff Barrett her ca official County ton Sheriff is a county poli- not pacity is the equivalent functional of suing cymaker under § 1983 for his law en- the County”);47 Wayne Jarvis, 197 F.3d forcement and policies conduct regarding (11th Cir.1999) (stating that warrant on information systems the CJIS “[although [plaintiff] Wayne did sue not or the training and supervision of his County itself, Dekalb against claim employees in regard. Accordingly, Sheriff Jarvis his official capacity is a Clayton defendant County has no against claim Dekalb County5’)-48 In these § liability for the acts and policies cases, we whether, not did decide under of the sheriff and his employees in this law, agents are for the case. counties, state or the and it does ap not

pear parties raised the question. Fur ther, B. in Vineyard Prior Decisions v. County Murray, (11th 990 F.2d Cir.1993), the parties This Court has never before decided en did not challenge on appeal the district banc whether Georgia policy- sheriffs are jury court's instruction that the sheriff had makers for counties whén performing their authority to make policy for Murray Coun law enforcement function. We think that ty, Georgia, in the area of law enforce panel actually no question decided the ment. id. Thus, we not did before this case. In prior § cases, in Vineyard decide issue either.49 accepted we official capacity suits against Georgia sheriffs as against suits their re- To the extent that Grech argues that our spective counties. See Alexander v. Ful- prior decisions decide that Georgia sheriffs ton County, 207 F.3d 1322 n. 14 policymakers under U.S.C. (11th Cir.2000) (stating “[plaintiffs’ suit we reject argument. Alexander, plaintiff employees capacity against claim the Sheriff.” Id. at brought VII Title against 1983 claims 1105. As to the Sheriff's Department, we the defendants Fulton County and Sheriff observed "[t]he district court noted that Barrett, individually and in capac- her official law, 'under County Dekalb Sher- ity. 207 F.3d at 1313-14. After discussing Department iff’s legal not a entity that can whether Sheriff Barrett in " her individual ca- apart sued from the County.’ Id. But pacity qualified was entitled to immunity, this we "[r]egardless concluded that of whether Court did not address whether the County or correct, that is Wayne's because official ca- the Sheriff in her capacity official were liable pacity against claim against Jarvis is a claim "[bjecause under provide[d] Title VII the County, against his claim the Sheriff's an alternative basis liability.” See id. at Department County of the is redundant.” Id. footnote, In a 1321-22. we did note that "[plaintiffs' against suit Sheriff Barrett her Vineyard, plaintiff, 49.In alleging that the capacity official is the equivalent functional him, deputies sheriff's suing beat sued County.” Murray Id. at 1322 n. 14. County and the sheriff in his official capacity, Wayne, plaintiff 48. In brought, inmate in- others, among 1983 because of inad- alia, § ter a 1983 against claim the defendants equate policies supervision, training Sheriff Jarvis in his official capacity and the and disciplining deputies, which caused the Department Sheriff's based on their failures plaintiff’s violation of the rights. 990 F.2d at provide adequate care pro- medical 1209. After jury against verdict the sheriff tect him from other inmates. 197 F.3d at in his official capacity Murray 1100-02. Dekalb was named as a they asserted errors appeal, on but did not "proceed[ed] defendant. We to address the challenge jury instruction as error. See merits of the grant district court's of summary id. judgment in favor of the County, which was

properly sued in this through case the official (in a sheriff Georgia general to convert CONCLUSION

VI. functions) into law enforcement a state affirm the district Accordingly, we agent performing into a state a officer or summary judgment granting court’s order Rather, I think that a state function.1 County. Clayton defendant in favor of the Georgia independent sheriff is an constitu- AFFIRMED. level, a county tional officer at the local which, position with governmental respect ANDERSON, Judge, concurring Circuit functions, many independent of the is WILSON, in which BIRCH and specially, county government branch of main join: Judges, Circuit county commission. Al- by headed concur- join Judge I Part I of Barkett’s though Judge I with most of Bark- agree that, respect I with ring opinion. agree II, I analysis ett’s in her Part have some case, in this particular function at issue that implication doubt about her the coun- state, acting on behalf of the the Sheriff is ty, county treasury and thus the which is Clayton that easily thus I can conclude commission, county controlled liable in this case. County is not responsible judgment would be for a Judge with Barkett that the agree I also rights the sheriff in a civil action. against entity issue of the for whom broader It that this issue would possible is general Georgia sheriff acts his more Georgia that hold controlled cases functions is not an issue law enforcement county that the commission is not liable for to resolve this that must be addressed judgments against a sheriff in a state law is wrong, If I am and the issue case. possible But it also that cause of action. us, I Barkett’s Judge before believe plaintiff rights against in a civil action Constitution, analysis stat- Georgia sheriff would have more limited accurately law reflects utes and case more any judg- sources for the satisfaction of sheriff,2 the status into which law has against e.g., ment the sheriffs bond, I do not placed proceeds- the sheriff. believe or the insurance if the general delegations county provided commission had insurance general provisions coverage and the for the sheriff.3 Because the legislature county liable in event in the concerning qualifications, respon- is not case, sibilities, I salary instant need not resolve issues training, and are sufficient out, arising alleg- (holding, in claim out of Judge points most of the 1. As Barkett provisions upon Judge goods general edly wrongful relied Hull’s at sheriff's auc- sale of tion, opinion parallels respect to other "may have with assert the defense governmental clearly local officials. sovereign immunity may be held liable in deputies' negli- capacity his official for his Indeed, may probable be the more situ- gence only to the extent the has waived ation, light precedent suggesting of our added); sovereign immunity") (emphasis such that a cannot be liable trader Section Columbus, Ga.App. City Howard v. who is not 1983 for the actions of an official (1999) (citing Seay in case 521 S.E.2d subject to the control of the commis- jail involving in- provision of health care sion, in turn controls the fisc. mate, capac- "the sheriff in his official County, See v. Butler 268 F.3d Marsh liability performing ity is immune from tort Cir.2001) (en banc); (11th Turquitt v. only be liable an official function (11th F.3d Jefferson had waived sover- the extent that Cir.1998) (en banc). statute.”). eign immunity by As made clear cases, act, county's abil- in the aforementioned may, by legislative 3. A waive the immunity is not limit- ity to waive the sheriff’s sovereign immunity. Seay sheriff’s Cleveland, ed to automobile claims. 508 S.E.2d respect sheriffs status with to func- question discrete raised in this case and particular tions other than the function suggests sheriffs are state case, is, involved in this that whether with officers for law purposes gen- enforcement respect to such functions the other sheriff erally, rather than in just their GCIC role. state, acting is for the or the county, or as This erroneous characterization of Georgia independent an constitutional officer at the compels a response. county level. Nor need I resolve the issue county’s liability the when the sheriff is I. DETERMINING FINAL acting solely in his indepen- status as an POLICYMAKING dent constitutional officer at the AUTHORITY level, i.e., fisc, whether the which is question The sole before us is whether commission, only by controlled the the sheriff acts as a final policymaker for liable, would be whether the sher- Clayton in County maintaining the GCIC bond or iffs other assets under the sher- required records Georgia. the State of iffs control would In my judg- be liable. ment, A government local day entity is wiser to leave to is liable another issues which need not be decided to re- 1983 for violations of federal law caused solve the instant case. by the conduct of an individual acts who as (i.e., policymaker a final establishes the BARKETT, Judge, Circuit concurring custom, ordinance, policy, regulation, or result, in which TJOFLAT and decision) “in particular area or on a KRAVITCH, join full, Judges, Circuit particular issue.” McMillian v. Monroe ANDERSON, WILSON, BIRCH and 1734, 520 U.S. 117 S.Ct. Judges, join Circuit Part I: (1997); 138 L.Ed.2d 1 see also Monell v. case, In this Brian L. Grech Clay- sued City Servs., New York Soc. Dept. ton under 42 U.S.C. 1983for the U.S. 98 S.Ct. 56 L.Ed.2d 611 actions of its in maintaining sheriff (1978). Whether a government local rep recalling criminal warrants for a statewide resentative is a policymaker par final in a computer operated database created and ticular area or a particular on issue for by the state of Georgia. ques- The narrow purposes §of 1983is determined exam tion presented Clayton is whether McMillian, ining state law. 520 U.S. at County Sheriff policymaker final 1734; 117 S.Ct. Jett v. Dallas Indep. the county when performing these func- Dist., Sch. U.S. S.Ct. I agree tions. activities of this (1989); 105 L.Ed.2d 598 St. Louis v. Pra county sheriff in particular area of protnik, 485 U.S. 108 S.Ct. maintaining recalling criminal war- L.Ed.2d 107 rants for a state implicate database did not constitution, policymaking Georgia’s statutes, on behalf of county. and case Thus, I concur that the designate bears no law county, state, sheriffs as not liability for the actions the sheriff here. Nevertheless, officials.1 although As Judge Hull in her plurality opin- function, or local making his state

to this jus- plurality asserts a false Initially, the must An official irrelevant.2 affiliation beyond plain the lan- looking tification law particular area of a have discretion Georgia based guage of the Constitution au policymaking exercise final in order to the badly on a distorted reference to subject and not thority that area “label- use of the term McMillian Court’s This has review. significant This misstatement McMillian ing.” policymak- that ... “squarely ‘[f]inal held support plurality’s not substitu- does subject area authority particular over a ing express for the di- tion of its views own in an official whose decisions does not vest Georgia rective of the Constitution.4 subject meaningful ad in the area are ” Den Denno ex rel. ministrative review.’ then error plurality compounds this (11th Bd., 218 F.Bd no v. School mistaken re- by drawing two inferences Cir.2000) City Winter (quoting Scala v. control, upon garding concept (11th Cir.1997)). Park, F.3d First, heavily. relies analysis its so GCIC, ap regard to the With Georgia because the plurality reasons that official pears simply government to be legislature to en- permits Constitution which, in this a ministerial task performing aspects some general governing act rules instance, performed negligently. he office, of the sheriffs the sheriff must be But, fully officer. as I discuss more state MISTAKEN II. THE PLURALITY’S below, significant is no distinction there OF GEORGIA DISCUSSION regulating the Georgia kind laws between LAW training, qualifications, responsibilities, inquiry is sufficient to foregoing salary parallel provi- of sheriffs However, case. because resolve this regulate the of the state’s code which sions sweeping propositions not plurality adds respect quin- with same attributes com- relevant to the case before us that county officers: commis- tessential law, I am Georgia pletely misconstrue officeholder whose If local sioners. the remainder of its compelled to address are defined in some powers privileges opinion. a state thereby law becomes sense state actor is a final To whether an determine officers, be no agent, could there 1983 we must exam- policymaker is a government since all local creature law, which with the originates ine state authority.5 correct- plurality constitution. The state’s Second, infers erroneously plurality general discussion of ly begins officers because are state acknowledging law Plurality Opinion among things, at 1332. example, the state 2. For other auditing charged the GCIC and itself is with entries to correct erroneous II, B. 4. See Part infra non-compliance. impose sanctions 2—.19(1) Regs. § Comp. R. & See Ga. 140— II, C, 1. 5. See Part infra provides they are not history of Alabama sheriffs was unique in employees of the board of county commis- that it had left imprints on several versions sioners. It is true that sheriffs are not state’s constitution, evolving each of employees of commission, but which manifested a stronger resolve is completely irrelevant. Georgia has discipline sheriffs who tolerated or encour established monolithic structure of aged lynchings. See id. at 787-89, 117 county government with the county com- S.Ct. 1734. early As the Court head, mission at its but rather has chosen noted, a new Alabama Constitution includ to establish several independent county ed sheriffs for the first time among offices which share equally in the responsi- officials comprising the “state executive bilities powers of county governance. department.” Id. at 117 S.Ct. 1734 No constitutional officer is “em- (internal quotation omitted). marks Two ployed” by any Therefore, other. amendments subsequently incorporated in mere fact that sheriffs are not employed the 1901 Alabama Constitution still went the county by commission neither has further in transforming sheriffs from coun bearing on whether sheriffs are state offi- ty into First, state officials. the constitu cers, nor leads to that erroneous conclu- tion’s framers it made an impeachable of sion.6 I each address of the plurality’s fense for sheriffs to lynch allow mobs to arguments after first setting an out appro- abduct and prisoners. kill Second, they priate constitutional analysis under Geor- authorized the governor to initiate im gia law. peachment proceedings in the su preme court instead of local county courts. A. in the Georgia Constitution Sheriffs In making these changes, the framers Georgia’s highest unequivocal law is in aimed to remedy the “failure of county designation of sheriffs as county, not courts punish to sheriffs neglect for state, officials. It specifically enumerates duty,” in part by “augmenting] power sheriffs under the heading, “County .Offi- of the Governor.” Id. at 117 S.Ct. cers; Election; Term; Compensation.” 1734 (quoting Parker Amerson, Const, IX, 111(a). art. para. Sher- So.2d (Ala.1987)). 443-444 appear IX, iffs in Article which addresses It “Counties and was this unique Municipal Corporations,” constitutional history, V, and not Article underscoring the language addresses the of the constitu- tion, state’s Hence, “Executive Branch.” that the Supreme sher- Court found deci- iffs’ status as county officers clearly is sive in its determination that Alabama reflected the very organization of Geor- sheriffs today act as state rather than gia’s political fundamental charter. county officials when engaged in the law enforcement functions Supreme investigating Court underscored the im crimes and collecting portance of state evidence constitutions trial. in McMilli point, At no McMillian, however, In an. did 520 U.S. at McMillian suggest S.Ct. Court Court the history relied most heavily found on Alabama compelling in Constitution in determin Alabama was likely to be ing that duplicated sheriffs in that state had other Indeed, become states. state officials through a protracted emphasized Court strug that variation among gle in the late century nineteenth different pre states’ sheriffs could expected renegade vent local sheriffs from abusing light of states’ “wide authority to up set their office. As the described, Court their state and governments local as they II, C, 6. See Part infra Third, government. there addressing local 117 S.Ct. Id. at

wish.” the evolution a marked contrast between created is inconsistency no “[T]here in the to be of the office of sheriff Alabama that declare court decisions consistency State, and the with not in Constitution in one county officers provided for sheriffs of sheriffs which “both the role another” because from act as officials. As McMillian vary counties importance and the designation as explained, sheriffs’ Id. State State.” in the state officers Alabama Constitution regard- remarks Supreme Court’s effort to reme- emerged out of sustained provide ing states’ duty by dy previous their dereliction in mind stripes must be borne of different directly accountable to the making them Alabama to the turning from the when Georgia’s history, governor. constitutional important Several Georgia Constitution. contrast, untempered an reveals the two state constitu- differences between to enshrine sheriffs’ status as coun- resolve First, language pertinent. tions are ty consequent indepen- officers and their Constitution, in- expressly dence from state lawmakers. “County heading under the cluding sheriffs writing Officers,” present Constitu- plainer answer provides tion, to eliminate the drafters undertook state or local status of sheriffs’ question by previous created charters’ ambiguity Ala- an counterpart provisions of the than do county Second, designate exactly which whereas the failure bama Constitution. legislature’s the state beyond officers were includes sheriffs Alabama Constitution end, they this to abolish.7 Toward power the executive addressing an article within among the included sheriffs specifically government, Georgia’s branch of the state pará- named in a new county in an article four officers sheriffs constitution discusses by in the sense that spoke directly to is mentioned reference drafters 7. The constitution’s county that the officers shall it now states ambiguity the 1983 constitution the elected, by judicial decision it has rectify. the Members of subcommit- aimed to superior determined that clerks of been proposing pertinent revi- charged tee with others— court and about six following regarding colloquy sions had the How about REPRESENTATIVE EVANS: systematic enumeration the absence of probate court? they set out county in the constitution officers Yes, forget six others—I MR. HILL: about to amend: they all are. who COVERDELL: Just take the CHAIRMAN judicial by All those are MR. CARLYLE: sheriff, got we've him enumerated. county officers in the decision because only one. MR. HILL: He is the county who officers Paragraph 8 doesn't list He is the one. MR. BURGESS: county up may commissioners are. It list receiver, got You’ve the tax MR. HENRY: say Paragraph but it doesn't here under collector, officers; tax treasurer. county court has they are they Are not CHAIRMAN COVERDELL: way county trea- same with said that. The thought they I were. enumerated? surer. county treasurer and the MR. The HILL: Constitutional Revi- Select Committee on receiver, are Meetings tax tax collector mentioned To Revise the Committee sion: 23, 1980) IX, (Ga. Paragraph the General 6 which authorizes Jul. vol. Article Assembly meeting). of trea- (transcript to consolidate the offices subcommittee by tax into light and tax collector of the confusion created surer receiver coun- systematic enumeration of office of tax commissioner. of a the new absence officers, Georgia's present ty EVANS: What about the drafters of REPRESENTATIVE gap. See id. be another article? undertook to fill the clerk? That would constitution ("Mr very I think it would be is not men- at 72-73 Hill: MR. HILL: The clerk of court to have a clear state- specifically. helpful to all concerned He tioned in the constitution graph clearly- of Article IX. The framers the Georgia Constitution took present doing intended in so to make form, status, and in constitutionalizing this county constitutional status as a officer clearly the framers understood themselves by inalterable General Assem- to be formalizing existing law rather than bly.8 breaking ground.9 new As early as Furthermore, Georgia Georgia’s supreme court long courts had assumed that recognized sheriffs as Massenburg officers when were officers. "powers ment of who constitutional officers and duties of the constitutional sher- are.... fact that there are certain rec- by [T]he iff's legisla- office” inalterable ognized Opinion elected constitutional Plurality officers ture. at 1333 n. I 13. do present at the time we suggest don't know Georgia's who not Assembly General constitution, they something regulate it’s we may, the office of sheriff. It does, rectify....”). adopted, ultimately just can As regulates Ar- and it as it office IX, I, Paragraph II, ticle Section III of Geor- commissioner. See C. Part infra gia names as point Constitution officers The here is that the constitutional fram- court, judge superior clerk of the specifically rejected "[t]he of the ers opportunity court, sheriff, receiver, probate tax tax collec- commit the sheriff's office the General As- tor, commissioner, and tax sembly’s authority such where office and instead chose to make replaced one, the tax receiver and tax collec- it a limiting constitutional legis- thus tor.” ability changes lature's to make in the sher- iff’sstatus. resoundingly rejected sugges- The drafters given Georgia legis- that would have following tion exchange shows the drafters power lature to decide whether attending judicial precedent the sheriff's regarding office would exist and identity whom could be officers: following exchange amply filled. demon- REPRESENTATIVE EVANS: ... are we presumption strates drafters’ that the of- going to name the constitutional officers? independent of sheriff fice would be MR Yes. HILL: Assembly: General They CHAIRMANCOVERDELL: would be possibly MS. GREENBERG: Could we named. change radically by making very this flex- REPRESENTATIVE EVANS: Which ones providing and ible that the going General Assem- are we to name? bly provide county shall officials and judi- MR. The ones HILL: that have been provide they ap- cially either be elected or determined to be offi- constitutional pointed, seven, Assembly also the General cers. There are and I don’t know—I provide shall for their top duties their can’t list them off the my of head. eligibility terms of office and their and their MR. FINDLEY: I can tick them Sher- off. iff, just qualifications, very court, collector, a flexible kind superior of clerk of the tax commissioner, statement in the away constitution and take tax or judge receiver tax officers, court, mention of all these probate other and that I treasurer —did mention also govern- would ments, cover consolidated surveyor. him? —coroner and always You those, counties and cities. forget they're but in there too. that, you MR. CARLYLE:I’m sure could Although do Id. at 75. ques- drafters never problem but the is it's— propriety tioned including wild-eyed officers, FINDLEY: MR. It's a idea. their list of not all of the office CHAIRMAN COVERDELL: That they would holders ultimately discussed were includ- have to come wild-eyed under schemes I’m ed in the enumeration that now appears at I, IX, afraid. Paragraph Article Section III. Omitted coroners, REPRESENTATIVE EVANS: That has that county surveyors, were getting through. snowball’s chance Clearly, Georgia's treasurers. drafters of Id. at 71. present constitution made a deliberate choice plurality opinion appears my preserve The to read sheriffs' status as one of select a argument plain discussion here as an that the group formally recognized officers language Georgia's constitution makes the the state’s constitution.

1355 614, holding that sheriffs need Comm’rs, cited Truesdel’s 23 96 Ga. Bibb v. even as State officers” “regarded Free not be Truesdel v. 998, 999 In S.E. (1938), on “state mat 783, though they sometimes act 288, 786 197 ney, 186 Ga. S.E. Best, at 497. See also ters.” 136 S.E.2d addressed the Georgia Supreme Court Weeks, 472, S.E.2d Fortson v. 232 Ga. 208 holding explicitly, more matter State, 509, 68, (1974); v. 219 Ga. 71 Wood and tax-receiver “tax-collector (1963).11 8, Not is the 134 S.E.2d 9 to State reference function with matters; language, constitutional structure but matters, well as as clear, making further consider history officers.” regarded as State they are not unnecessary, status Truesdel, ation of sheriffs’ Truesdel 197 S.E. 786.10 thirty-one Georgia least cases there are at case for deter a since become foundational sheriffs as offi specifically recognize which a state public official is mining whether marking a State, county.12 Far from 109 cers of the Best v. county officer. or in these 496, with the tradition reflected 553, break 497 Ga.App. 136 S.E.2d cases, revi the most recent constitutional Appeals Court of example, serving as member of distinguish sheriff from plurality opinion seeks 10. board). recog- facing has also been school rule issue because main Truesdel opinions of the nized in a series of a munici- Georgia Supreme concerned Att'y However, Op. Ga. Attorney 1997 holding is General. See the Truesdel pal clerk. 129-30; 18; Op. Att’y Ga. Gen. Gen. 1965-66 purposes. The actually quite relevant for our Op. Att’y 29-30. municipal Ga. Gen. 1958-59 whether question in Truesdel was a state officer. a local officer or clerk was a local offi- figure twenty-three to be cases not The court found the clerk 12.This includes cer, we opinion to those relying on similar where factors discussed elsewhere in McMillian, plays such a role in county-officer consider status must sheriff's salary paid Lang, 274 Ga. state v. whether the the decision: See Cameron (2001); offi- reported Seay v. Cleve- he S.E.2d 341 and whether 549 (1998); land, as a touchstone It treated the sheriff Ga. cials. 508 Clarke, by reasoning governing local Atlanta Journal v. municipal (1998); Concerning Inquiry clerks In re those attributes S.E.2d weighed of find- in favor S.E.2d Judge, with sheriffs Ga. shared Madden, ing (1995); In addition clerks to be local officials. Hart sheriff, (1986); News- the court referenced Southeastern judge, probate Griffin, the clerk papers Corp. status of the court, others); very (1980) superior (citing tax officials—the two Griffin 628, in County, the sheriff is now listed 261 S.E.2d officers with whom Ga. v. Chatham 244 Georgia (1979) (county Constitution. Com- contract article IX of the 570 commission Bussell, Truesdel, (Ga.1938) sheriff); 242 S.E. at 786 with v. pare 197 Lovett on behalf of IX, I., 405, (1978); Huff, III. v. Art. Par. Ga. Const. Sect. Ga. 249 S.E.2d 86 Wolfe Warren, 44, (1974); 205 S.E.2d 254 232 Ga. 409; Worley, 223 Ga. v. S.E.2d at Kiker offi- 202 as 11. That the status (1967); 745, 736, v. Reed 746 designation is 157 S.E.2d more formal cers is than 523, Co., 150 Publishing 222 Ga. Southland this status con- from cases in which clear 817, (1966); Veal, Gay, 215 Ga. Lewis v. 817 42 S.E.2d In Carter v. the outcome. trolled 268, (1959); 90, Davis v. 88, 275 Georgia S.E.2d 109 Ga.App. S.E. 155 64 568, 524, S.E.2d 569 Logan, 57 206 Ga. person not Appeals held could Court of 18, Mills, (1950); 30 v. 198 Collins simultaneously serve coroner 866, (1944); Air-Line R. Seaboard S.E.2d 866 of the deputy 45-2-2 Section 35, 722, S.E. 36 Code, Wright, 122 holding Co. v. 157 Ga. more which forbids 697, State, (1924); 33 S.E. Rose v. rule’s at a time. This than one office 190, Joiner, (1899); 28 Brady 439 v. in Black application reaffirmed to sheriffs was Kimball, (1897); County Dist., Ga.App. S.E. 679 Haralson 213 v. Catoosa Sch. (2000); 559, 762 Ga.App. deputy (enjoining 445 S.E.2d 340 sion elevated the doctrinal bility consensus into that a might state improperly shield an organizing principle state’s most counties from 1983 liability by deliber political ately mislabeling charter. The what pres were really county fundamental ent officials as state language constitution’s officials. emerged Accordingly, from, Court wanted restated, turn ensure that well-settled Alabama state law.

Constitution’s labeling of sheriffs as state officers was not simply a device avoid B. Georgia’s Constitutional Designation ing liability by masking what were, in real Cannot Be Dismissed as a Mere ity, government local representatives. Id. “Label” 786, 796, 117 at S.Ct. 1734. plurality resists concern, both the plain however, This lan- is irrelevant (as here) guage and the where structure there is no contention that Constitution, state has as well as mislabeled an Supreme officer to avoid Indeed, liability. possible no precedent, by relying on incentive ex- phrase ists for states designate what are really McMillian which misunderstands and state officials, officials as county since such which does not apply Specifi- this case. a mis-designation would actually create lia- cally, it states that “McMillian teaches bility that would not otherwise attach. that state law cannot answer the Certainly, when there is evidence that a policymaker question by ‘simply labeling’ state is attempting “to insulate counties an official as a county or and, state official” municipalities from Monell liability by therefore, we “must focus on control” over change-the-label devices,” id. at the official.13 But the plurality takes this S.Ct. 1734 (Ginsburg, J., dissenting), reference to “simply labeling” an official McMillian instructs courts to beyond look completely out and, of context in so doing, where the “purports,” Praprotnik, 485 forsakes law’s clearest and highest at U.S. 108 S.Ct. to locate final authority: the Georgia Constitution. policymaking authority. But this rationale McMillian, does not apply in Supreme situation, converse Court was such as the presented confronted with one case, unusual situation where where a “label” serves no purpose of constitution explicitly desig obfuscation or insulation.14 state, nated sheriffs as county, officers.

McMillian, 786, 117 U.S. S.Ct. 1734. There is no reason go beyond The Court was concerned with possi constitution Georgia, where the constitu- Malcom v. County, Newton Ga.App. insulate liability themselves from for uncon (2000); 535 S.E.2d 824 Mayo v. Fulton Coun- policies stitutional precluded....’’ Pra ty, Ga.App. (1996); 470 S.E.2d 258 protnik, (in U.S. at 108 S.Ct. 915 Landis Rockdale Ga.App. omitted). ternal citations In McMillian v. (1992); 427 S.E.2d 286 Feise Cherokee Johnson, (11th Cir.1996), F.3d 1573 aff'd 207 Ga.App. 427 S.E.2d 294 McMillian, sub nom U.S. at (1992) (examining the county’s liability when S.Ct. we also labeling addressed the the tortfeasor sheriff). deputy was a emphasized concern hut that a state constitu designation tion’s of a sheriff as a or 13. Plurality Opinion at 1330. state official should not cast lightly; be aside 14. The Court’s change-the-label concern with recognize We that a designation sheriff’s as devices traces Praprotnik, to where Justice a state dispositive, official is not but such a explained O’Connor that analysis designation "whatever is relevant to whether a sheriff is used identify to municipal policymakers, exercises power. state or county McMillian egregious attempts by government local to would disregard have us Alabama’s deci- subject regulation by to the are sheriffs the basis establishes language tional (2) that sheriffs government; state Thus, the McMillian liability. local county commission. “employees” of the not (mis)labehng inap- over concern Court’s demonstrate of these observations Neither to this ease.15 posite are state officers. that sheriffs Conception Mistaken Plurality’s The C. Regulation Under Sheriffs’ Actors as State Georgia Sheriffs Law Georgia regu- Subjecting an official state-law lan- Constitution’s Georgia Because the into a turn that official lation does structure, dem- history plainly guage, agent. plurality opinion The over- precisely meant that its framers onstrate and structure of language the clear rides “labeling” Georgia sher- they said what a on the basis of Georgia Constitution officers,” accord we should “county as iffs Georgia law provisions of few scattered meaning. The plain designation its are, fact, re- either neutral with this most easts aside nonetheless plurality inquiry actually supportive spect to our search state-law fundamental county offi- that sheriffs are of the view conclude that basis to of some other cers.16 Specifically, for the state. sheriff acts argues that example, plurality For express consti- ignores Georgia’s plurality sheriffs the au- Georgia law gives because grounds: language on two tutional official, Constitution over Alabama statutes char- Alabama a a state to make sheriff sion acknowledgment nothing despite a label. its acterizing more than remained firm it as Instead, Supreme admo- statutory provisions Court's were we heed these that some of way respect the courts nition that evidence in Ala- "important” and that "some federal government. to structure state chooses supported sheriffs the view that bama law” McMillian, (emphasis 88 F.3d at 1580-81 were officers. Id. added). plurality opinion cites the first contrast, justifi- plurality's By S.Ct. 1734. ignores the under- passage but part of this Georgia discarding Constitu- cation for Opinion n. warning. Plurality at 1330 lined designation of unequivocal tion's frag- weight places undue on officers provisions of the mentary peripheral emphasis my plurality 15. The characterizes Georgia Code. rejection Georgia's text as a on constitutional functional of "the relevance of McMillian’s State, Plurality analysis this case.” plurality and control cites Hannah 16. The sug- do believe we Opinion seemingly n. 10. While I at 1332 strong to the state consti- give origins deference must law gesting common ig- plurality’s language, statement tution’s a state offi- make him sheriff's office analysis my thorough functional nores noting worth -that cer. It is law, Georgia's history, case constitutional themselves, through the speaking plurality opinion misreads the also code. Association, see their common Sheriffs' Supreme of Alabama law. Court’s treatment differently: heritage Supreme is true that in McMillian It Georgia, is both constitu- the Sheriff controlling give force Court declined to county officer. The constitu- and a tional tending statutory provisions Alabama certain primarily from tionality of the derives office might suggest as a The status English Common Law. officer, light did "in but it so because a number is drawn from office conclusion that Supreme Alabama Court's relating to provisions general constitutional according to the are not state officials office. any contrary we think State Constitution ... cite, web Georgia Sheriffs' Association to little implication in the is entitled code . 7, McMillian, www.georgiasheriffs.org/offsheriff.html at n. weight.” U.S. privileging of the S.Ct. 1734. The Court’s thority to arrests for sheriffs, make traffic viola- McMillian, see 788, 520 U.S. at counties, tions outside they their 1734, must be 117 S.Ct. but the Georgia provisions state But the provision officers. same by cited the plurality hardly of compa- authorizes sheriffs to make these arrests Indeed, rable character. provisions these counties, outside their see Ga.Code Ann only grant governor no removal § 40-13-30 grants county and city power, but also forbid governor police analogous See, powers. officers e.g., suspending a longer sheriff for than ninety Heredia, State v. Ga.App. 555 days. 15-16-26(e). See Ga.Code Ann. (2001) (county police); Poss v. governor The may not suspend even State, Ga.App. 305 S.E.2d 884 sheriff without appointing and receiving (1983) (city police).17 Surely this grant of the affirmative recommendation of an in- power does not make city vestigatory committee. See Ga.Code Ann. policeman a officer. (c). § 15-16-26(a), pro- Outside this cess, “the Governor and the Attorney Gen- The opinion’s plurality reliance on Geor- eral can take no official action against a gia suspension sheriffs’ procedures as evi- sheriff unless there has been a criminal dence of state-officer status is also mis- Bowers, indictment.” Gipson v. 263 Ga. placed. It is true that the Governor has (1993).19 434 S.E.2d The some role the suspension of sheriffs.18 governor’s real but limited suspension However, the plurality opinion fails to ex- power and his lack of removal power are plain why it focuses on governor’s pow- readily viewed as evidence of a lack of er suspend the sheriff rather than the control as of control.20 governor’s power lack of to remove the McMillian, sheriff. the Supreme Likewise, the plurality’s discussion of impressed was by the State of Ala- the county direct commission’s control bama’s amendment of its constitution over police departments is irrele- augment the governor’s power to remove vant to this case.21 Just because a 17. The sheriff has Moreover, also discretion to transfer 20. Georgia courts have made clear prisoners jails to safer county, outside the but sheriff's removal gov- from office is only county jails to other prisons. not state by erned status as a officer under Holland, state law. Cole 18. Plurality Opinion at (citing Ga.Code (1963) 132 S.E.2d (stating that a (2002)). §Ann. 15-16-26 sheriff's removal from governed office plurality suggests misinterpret that I provision "the constitutional which declares Gipson by failing to read init the context of a county officer shall be removed for the limited suspension power granted gov- malpractice office”); Devinney, Walker v. ernor Ga.Code Ann. 15-16-26. While 149 S.E.2d the state Gipson court have spoken (holding that a punishing statute bribery of broadly somewhat stating governor that the applied local officials sheriffs be- “can take against no action” a sheriff absent a "[t]he cause Sheriff of Fayette County is an indictment, criminal Gipson indisput- remains political officer of a subdivision of this able governor's for the lack of Best, State”); 136 S.E.2d (holding at 496-97 power. removal plurality fails to come to that a sheriff could not be indicted under a law, aspect terms with prefer- governing code section bribery "any ring instead treat governor's suspen- State”). ... officer of this power sion as the relevant consideration in the gubernatorial assessment of "control” over sheriffs. Opinion See Plurality at 1338-39.

1359 in They are county commission. the pre- of not entity does for one responsible is county independent anof employees stead Ac- another. for responsibility its clude officer; cites plurality The the sheriff. county police of existence the cordingly, is not county that the holding five cases (whose minimum officers’ departments per deputy sheriffs torts of liable for the law Georgia state by are set qualifications functions,24 but enforcement forming law commission) has no county by the not concedes,25 these three of plurality the as represents the sheriff whether bearing on liabili superior respondeat cases involved did, could the sheriff If it county.22 in this context.26 applicable is not ty, which either, because officer a state not be Stewart, case, v. 94 Chadwick The fourth Ga. force. police its own also has state (1956), says 502 Ga.App. 94 S.E.2d 35-2-30, seq. et Ann. Code liability at all. county nothing about depart- county police authorizing statute cited, County Bd. Wayne final case of way or another one not aid us ments does Warren, 150, 223 v. Comm’rs inquiry. answering present (1976), primarily inapplicable, is 133 S.E.2d ground gains no plurality by Monell.27 Similarly, overruled it has been because nei sheriffs are deputy Further, deputy that showing that the fact by county commission under the coun covered automatically employees not ther import;28 county of no system is subject ty civil service automatically nor civil by the state covered ques they no are not There is system.23 civil service Ann. See Ga.Code system either. service employees are not deputy sheriffs that tion officer, supports the conten equally (citing state Ga. Opinion at 1336 Plurality 22. See are, by 36-8-1, officers seq.). tion that all et Code Ann. Second, definition, Wayne’s officers. Plurality Opinion 1336. at 23. for not liable holding counties are is in their officers rights violations of civil Plurality Opinion 1335-37. sur This is not with direct conflict Monell. Supreme Court prising, because Opinion n. 21. Plurality at 1337 25. See years Mo two before Wayne in decided Monroe doctrine of previous nell. Under Plurality Opinion at 1331. 26. See 5 L.Ed.2d S.Ct. Pape, U.S. Wayne mis- is plurality’s treatment 27. The not be (1961), governments could local First, though major reasons. guided two offi torts their constitutional sued for the sheriff, Wayne a was party at issue 187-93, 81 S.Ct. Id. at cers under cited holding cases court and the actual holding ap Wayne’s extent that 473. To the qua offi- county officers all concerned action, have it would causes plies to federal See, ("Except e.g., id. at cers. Monell, would ex by been overruled mentioned, a premiums above payment of it for on have relied why cases since plain no with the liability connection no has the extent proposition. And a rights person of the civil violations claims, it holding applies to state Wayne’s officer.”); Bailey v. Fulton Georgia's state a statement than is no more ("The Ga. S.E. govern local immunity law—that sovereign corporation is not municipal principle [that the General when be sued ments can obviously officers] the acts of its liable for sover entities' local Assembly waived the committed applicable to like torts Rich immunity in Gilbert stated eign —as officials.”). who is Wayne decide did not 4n. ardson, officer, county is when a but rather progeny. status whose the torts of officials liable for Wayne disputed. If was officers Plurality Opinion at 1337-38. is a 28.See supports the contention 1360

§ 45-20-1 (2002). et seq. That deputies the state sovereign immunity doctrine can may be covered the county civil aid service us analogy, its application in Geor- system (and at all29 not gia system) state law supports position that the sher- only strengthens iff is conclusion that their officer. As is the case with government against affiliation is claims local. These commissioners, two it is showings county’s do immunity not advance the idea controls when the sheriff sued, sheriffs are and it officers. is the county that defends the See, sheriff.32 e.g. Gilbert The plurality’s state-law sovereign im- v. Richardson, 264 Ga. 744, 452 S.E.2d munity argument no fares better.30 As the 476, (1994) 479 n. 4 (“Although Walker plurality concedes, this doctrine simply County is not a named defendant in this does not control analysis our action, Millard was sued Ms capacity as § 1983.31 It is no more relevant any than Walker County sheriff. Accordingly, piece other of Georgia law from which we Gilberts’ are, claims essence, claims can glean evidence of the sheriffs state or against Walker County and Millard county affiliation. Moreover, to the extent raise any defense available to the county, 29. See IX, I, Ga. Const. IV; Art. Sec. Par. Opinion Plurality However, at 1339-41. Herrin, Wayne Countyv. 747, Ga.App. 210 437 Gilbert is the lead case in this line prece- (1993). S.E.2d 793 dent, and it makes clear that sheriffs are immune causes of action only 30. Plurality Opinion at 1339-41. as beneficiaries of their counties' immunity. The fact that Gilbert and Cameron involve 31. See Plurality Opinion at 1340 n. 26 motor vehicle insurance (“[S]tate does change not sovereign this immunity has applica- no analysis. Seay either, change does not it tion in federal be- cases.”) court 1983 Seay cause the explicitly court based its find- 32. The plurality’s response ing argument to this immunity on Gilbert. Cantrell v. Thur- my point. misunderstands man, I am not con- 231 Ga.App. (1998) 499 S.E.2d 416 cerned with any whether entity, be also does change the analysis, because the sheriff, or has or not waived its state-law immunity provision to which it refers is con- sovereign immunity. These are state-law is- sidered "a constitutional reservation of sover- sues, and we are ruling on a federal cause of eign immunity to the counties State of action. The relevant point is that Georgia Georgia” as well to the state itself. sovereign accords immunily to the sheriff County O’Neal, Toombs v. in his capacity as a representative of the S.E.2d Moreover, it is note- Gilbert, county. the Georgia Supreme worthy that none of these decisions even con- Court allowed the sheriff to assert the defense sider the possibility that plaintiffs had of state-law sovereign because, immunity sued wrong government sheriffs’ because, he was sued representative as a actions. In all cases, state, these if the county. Richardson, See Gilbert v. counties, rather than the were the real party Ga. 452 S.E.2d (1994) ("Be- interest, plaintiffs would have had being cause he is sued in his official capacity, pursue their claims under [Sheriff Millard] is State Tort entitled benefit of Act, Claims 50-21-22, Walker Ga.Code Ann. County’s sovereign seq., et immunity de- fense.’’). which covers "the State plurality of Georgia attempts circum- officers, vent agencies, language authorities, argues depart- the cases ments, commissions, Cameron Lang, boards, divisions, 549 S.E.2d instru- (2001), Seay Cleveland, mentalities, institutions,” but not "coun- ties, Thurman, municipalities, Cantrell v. districts, school other 231 Ga.App. units government, dem- local hospital authori- onstrate that sheriffs ties, draw their state-law im- housing and other local authorities.” munity from a source other than county. 50-21-22(5). Ga.Code Ann. are officers a state show that Logue immunity.”);33 sovereign including to applies that provision parallel 235 S.E.2d Wright, v. commissioners, indisputably coun- who are liability (1990) it is that (holding true while it is example, For ty officers. against to actions apply which defenses certain that the Code establishes Hughes, 238 Ga. sheriffs); Haywood for sheriffs powers and duties (1977) the uniform (holding 668, 235 S.E.2d state, Ann. the see Ga.Code throughout §Ann. 45- is now Ga.Code which statute (2001 parallel a Supp.), & 2002 § 15-16-10 to (2002) Georgia counties authorized 9-21 “powers the establishes provision civil state-law legal costs in sheriffs’ for their pay county commissioners. sheriffs);34 duties” Haral the against suits rights 36-5-22.1(a) (2000). Ann. Kimball, Ga.Code Ga.App. County v. son Likewise, requiring in to (2000) addition that Ga. (holding S.E.2d administered 45-9-21(2), training a course complete allows to which Ann. Code Association, see at Sheriffs’ attorney the his own “county officer” to hire 15-16-3(b) at Ann. when Ga.Code county’s expense interest, training for to applies prescribes comparable state torney has a conflict commissioners, sheriffs). immunity is of whom must sovereign all State-law way train- in hours of inquiry eighteen no at least complete to our inapplicable state officers. to the adminis- pertaining sheriffs are ing on matters suggests See Ga. county governments. tration of conten- remaining final plurality’s (2000). Similarly, § 36-20-4 Code Ann. subject because sheriffs tion—that a minimum Georgia Code establishes rules, form of “control” various § 15- sheriffs, Ann. see Ga.Code salary for too proves far them state renders officers— (2001),35 an 20(a)(1) also contains but 16—of fact, application In consistent much. the salaries of limiting provision analogous would ef- approach opinion’s plurality Ga.Code Ann. county commissioners. See Georgia’s sher- just fectively transform not (2002 5—24(b)(1) 36-1-11.1 Supp.); §§ 36— au- iffs, governmental all of local but (2000) power to (limiting commissioners’ This would into state officers. thorities Finally, pensions). salaries raise their which underlies distinction obliterate quali- minimum establishment of Georgia’s and McMillian. both Monell in be viewed for sheriffs must fications qualifica- minimum with similar concert ap- that this assuming arguendo Even county commissioners. one, tions for would-be every regulation was a valid proach Woodward, (or “control”) Lucas to See plurality cites justify paying for the sheriff’s this statute Georgia Supreme Court relied on 33. The one of coun- applied Gil the sheriff provision itself, defense were constitutional same Further, bert, specifically extend state-law statute and on Gilbert ty's officers. immunity sovereign commissioners "county officer" as used term states that County, 265 Ga. v. Laurens Woodard and the other "means sheriff” therein (1995). S.E.2d officers. Ga.Code three constitutional 9—21(e)(1). §Ann. 45— Hay- distinguish attempt to plurality’s 34. The Haywood concerned statute fails. wood Alabama, 35.However, Georgia, unlike 45-9-21, Ann. found Ga.Code now salary. supplement this base county can governmental other local counties and allows 15-16-20(a)(3) §Ann. Ga.Code to defend own aside their to set funds entities on could not have relied officers. (holding commission- sheriffs office. The distinction is impor- subject ers provision constitutional tant, because when the sheriff exercises setting minimum requirements for all his own discretionary is, authority he county officers, sheriffs). including definition, exercising final on be- sum, while statutes outline sher- half of the county. As the Fifth Circuit duties, iffs’ salaries, accountability, and has stated: minimum qualifications, the existence of In premising the county’s liability on

parallel legislation regarding county com- whether its governing body had ratified missioners militates strongly against con- alleged actions officials, i.e., these struing provisions these as an indication of they whether had pursuant acted to an state control. official county policy custom, the dis- trict court inadvertently overlooked the

2. Are Independent Constitu- Sheriffs possibility that the sheriff and district tional County Officers, Not Employ- attorney were themselves the final poli- ees the County Commission cymakers with respect to the matters jurisdiction their actions, whose In addition to its misunderstanding of the citizens of Upton County, were the the import of state regulation, the plurality actions of the county itself. Two config- misinterprets the sheriffs relationship urations can lead to a municipality’s lia- with the county commission contending bility under section 1983 for the acts of that 1983 liability depends upon the sub- its officials. In the first ... a munici- servience of one constitutional officer to pality’s final policymakers are held ef- another. Georgia’s sheriffs are not em- fectively to have made policy or con- ployees of the County Commission. Nor doned creation of a custom by ratifying they employees of the fact, state. In the unconstitutional or illegal actions of they are not “employees” at all. They are subordinate officers or employees. In independent constitutional officers.36 second, the municipality may be held question here is not whether a liable for the illegal or unconstitutional county commission controls the sheriffs actions of its final policymakers them- but office whether the county controls the selves as they engage in the setting of plurality is mistaken in its grounds, contention Coffey, Rowe v. 270 Ga. 515 cases Board Comm’rs S.E.2d (1999), 375 discussed note infra Randolph Wilson, Moreover, County v. these three 396 cases do not support (1990), the plurality’s Calhoun, argument control; v. of state Chaffin rather, they refute it. (1992), S.E.2d Two of them explicitly and Warren state that Walton, sheriffs are county v. officers. See 202 S.E.2d 405 Randolph County, 904; Warren, S.E.2d (1973), at stand for proposition "county third, S.E.2d at 409. In the the Georgia subject sheriffs are to the control of the Geor- Supreme Court described the sheriff as "an gia legislature.” Plurality Opinion at 1333. elected, constitutional officer” upheld As the plurality notes, correctly these cases do county commission's authority to remove hold that sheriffs are not employees of the forty-seven about percent of the sheriffs bud- county commission, and I do not contend get. Chaffin, 415 S.E.2d at 907. All three of otherwise. But the fact that the sheriff is these represent cases the Georgia Supreme an employee of commission does Court’s effort to strike a balance between the not make him See, a state officer. e.g., Coffey commission's budgetary power and the sher- Brooks 231 Ga.App. independence, iff’s which I greater discuss in part, rev’d in on other detail below. added). Thus, have courts (emphasis Id. of how determination goals liability possibility credited findWe will be achieved. goals those outside an official because former, obtain applica- to be latter, not the acts as body nonetheless county legislative case. in the instant ble in a particu- county’s policymaker final 133, 136 F.2d County, 915 Upton Turner area, issue. a particular or on lar Cir.1990). the Su (5th Praprotnik, the viabili clearly recognized particular applies with analysis preme Court This depart co-equal here, a structure where the ty of such force policymakers. county offi- as final independent officials an recognized ments or See, S.Ct. itself. 485 U.S. constitution Praprotnik, by the state cer stated (referring the Court 415 S.E.2d Specifically, e.g., Chaffin, policymaking in which cases “elected constitutional be as an “there will to the sheriff than among officer”). employee more is not an is shared The sheriff responsibility one coun gov- When body.” Georgia Id. local or one official the because of another, and pow- cannot review of separation on a ty operates institution ernment for versa, serving final as policymaker is a the sheriffs each with principle, vice ers Though the county: county independent the officers.37 sher- analysis presupposes plurality’s not law does applicable Assuming that higher directly to answer some iffs must the Commission of the decisions make them inde- made Alderman, Georgia has authority, by Mayor the renewable to the answerable county officers pendent to con- versa, have one would or vice recog- county.38 A failure to the voters of made decisions either policy clude that law of nize this salient feature by the or and Alderman Mayor the by struc- entitlement disrespects Georgia’s the be attributable to would Commission fit.39 as it county sees governments ture its city itself. county, employee of a an is not sheriff argument [T]he plurality addresses 37. The separate and her duties county "head his or because discussing the commission's govern- government, county on county based the independent the role” in con- ability enter into entity of as its not entity. factors such sheriff is an mental receipt process of county and its State, for the depart- tracts agency or an either as the Opinion Plurality county. the officer; served on how- is a The sheriff ment. county commission at 1341-43. ever, independent and not of is the sheriff body policymaking very well be the final of governing authorities answerable respect to these functions. county with the county. the instance, the question that there no For at 351 500 S.E.2d Coffey v. Brooks authority regard- has county commission final omitted). (internal citations policy, and contractual ing fiscal power. of this one facet prerogatives are but Thus, reverse applies a sort plurality of the However, of question this does answer ” liabil- superior test to determine "respondeat policymaker final sheriff is the whether the wit, answera- is not ity: because the respect to enforce- with for the commis- by the board "controlled” ble of policymaking areas. As other ment or sioners, for the be liable cannot City Pembaur v. Supreme stated in Court of course, violations. Of constitutional sheriff's Cincinnati, S.Ct. 475 U.S. because irony holding great in this there is power to “the estab- 89 L.Ed.2d conversely held Supreme Court has province exclusive more policy is no lish held liable be governments cannot local level than at legislature at local employees who are of their officials the actions level.” The state or national rejected” “repeatedly resorting to the without complicated rela- explained Appeals has Praprotnik, 485 superior respondeat doctrine. and the tionship the sheriff between S.Ct. 915. n. U.S. at commission: This separation powers structure government: can each sector of the county government quick illustrated both examination retains complete inde- pendence in its own sphere represents process by which appropriate counties when it acts. and spend limited local resources. While the county commission has full authority to

determine the amount sheriffs fund- III. CONCLUSION ing, the sheriff has unfettered discretion to The sole issue before inus this case is expend these resources in performance whether a sheriff has final policymaking of his duties. The Supreme Court authority when maintaining recalling again time and taken care to preserve criminal Georgia’s warrants in GCIC da- the delicate balance power between tabase. On the particular us, facts before these two sectors of county government, I conclude that the sheriffs role in this thereby vindicating commis- capacity was not a county respon- area sion’s general responsibility public for the sibility. However, I find absolutely no

fisc endorsing any without notion of direct support for the plurality’s sug- extraneous control over the sheriff in the execution of gestion that Georgia designates law sher- his or See, her official duties. e.g., Ran- iffs as anything other than county officers. dolph County, 903; 396 S.E.2d at Chaffin, at 907.40 The sheriffs discre-

tion in utilizing county funds does not ne-

gate his position official,

more independence than the of the Presi-

dent from the United Congress States ne-

gates his position as an officer of our fed- government.41

eral The tension between

the commission’s budgetary authority and

the sheriffs entitlement to place certain

conditions on its suggests exercise sepa-

ration of powers akin to that of the federal plurality 39. The ignores reality that Geor- tion goes for these services county's to the gia's county government is structured differ- general fund. Ga.Code Ann. 15-16-13 ently Indeed, than Alabama's. the Alabama (2002 Supp.); City Springs Turley, of Lithia Supreme fact, recognized Court itself has Ga.App. 526 S.E.2d 364 A finding has made its sheriffs sheriff also receives a small sum for summon Parker, officers. 519 So.2d at 445 jurors ing city (but to service in and state Illinois, Tennessee, Florida, (citing Georgia, courts, county) which also benefits "jurisdictions New York as whose consti- 15-16-21(a) (2001). coffers. Ga.Code Ann. tutions, Alabama’s, unlike clearly make sher- These fees for summoning jurors to all courts officers”). iffs other than those of the counties underscore 40. See supra note 37. status, sheriffs' presumably reflecting general the fact that the budget, sheriff's since 41. The represents sheriff likewise itself, appropriated by the county already if he provide chooses to services other includes provision reasonable for services entities. When a sheriff contracts provide provided courts. enforcement, service, process judg- ment municipalities, execution to compensa- notes generally county officer, acts as a ion, this is the holding narrow of this case. specific program at issue here charges Plurality Opinion at n. 46. sheriff, as one several local officers, No with a record-keeping further well-defined func- determination about the sta- tus of Georgia Thus, tion on necessary. sheriffs is How- behalf of the state. ever, the plurality beyond ventures far particular area involved this case did not 1. See Part II. infra county, designates sheriffs responsibility. Constitution county area of implicate However, state, us Indeed, parties plurality before although the not officers. liti otherwise, not and thus have agreed disregards designation then this with issue, in sub the sheriffs duties gated on that “we must focus pronouncement for the state GCIC information mitting control, few labels.”3 With these not the sheriff suggest database words, misap- illustrates its plurality respect with at all policymaker a final case. prehension

Case Details

Case Name: Grech v. Clayton County, GA

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 7, 2003

Citation: 335 F.3d 1326

Docket Number: 01-13151

Court Abbreviation: 11th Cir.