Willie Santonio Manders v. Thurman Lee

While enhancement 2A8.2(b)(2)(B) is not at issue in this case

(because Panfil given was not an enhance- section),

ment under this the district court

could properly have considered Panfil’s toto,

conduct, to find that unduly Panfil

influenced the victim. The district court

properly applied compute 2A3.2 to Pan- Thus,

fil’s sentence. we find no error in application district court’s of the

Guidelines.

V. CONCLUSION

We hold 18 U.S.C. 2422 is not

unconstitutionally vague overbroad or

we also hold that the district court did not

err applying USSG 2A3.2 to compute

Panfil’s sentence.

AFFIRMED. MANDERS,

Willie Santonio

Plaintiff-Appellee, LEE,

Thurman individually and as em

ployee City Homerville, Alan

Brown, individually employee and as City

of the Homerville, Crews, Bart

individually employee and as

City Homerville, City of Homer

ville, County, Georgia, Defen

dants, Peterson, individually

Winston employee of Clinch

Georgia, Defendant-Appellant.

No. 01-13606. States

United Court Appeals,

Eleventh Circuit.

July Brown, Whelchel, Strickland, K.

Richard Brunswick, Bumgartner, Readdick & GA Defendant-Appellant. for Lackland, & Lackland H. Theodore Atlanta, GA, Plaintiff-Appel- for Heyward, lee. EDMONDSON, Judge, Chief

Before ANDERSON, BIRCH, TJOFLAT, BLACK, CARNES, DUBINA, HULL, BARKETT, MARCUS WILSON, Judges. Circuit HULL, Judge: Circuit case, Wh- force 1983 excessive Sheriff Winston sued Manders ile Santonio injuries for capacity in his official Peterson use-of- the Sheriffs caused allegedly train and failure policy force regard. deputies his discipline func- Peterson that Sheriff We conclude in establish- State” an “arm the tions as jail and at the policy ing use-of-foree disciplining deputies training that regard, and is entitled to Eleventh Sheriff responded Peterson to her con- immunity these cerns this way: happens “[T]hat some- Thus, functions. we reverse the district they times when bite and scratch.” Sher- court’s denial of summary judgment for iff Peterson did not investigate the beating Sheriff Peterson. In deposition, incident. his Manders later testified that Sheriff Peterson and another

I.BACKGROUND officer forced him to write his statement. A. Facts Manders’s evidence also included the sheriff, As the elected defendant Sheriff (the Policy and Procedure Manual “Manu- Peterson is responsible for the operation al”) of the Sheriffs Office containing the Georgia, for Sheriffs policy. use-of-force Sheriff Pe- establishing policy jail, use-of-force at the published terson the Manual in 1989 or and for hiring, training, and disciplining 1990, drafting policies some himself and deputies jail. who work Sheriff adopting some policies. The Manual deputy jailer Peterson’s and chief Alan “[ejach requires that case involving physi- Brown. May In police from officers cal or defensive force reported be in writ- the City of plaintiff Homerville arrested ing to the Sheriff:”2 Manders and transported him jail.1 (A) Notification of Supervisor Because Manders had punched police officer, arresting 1. The officers shall charged him Sheriff be immediately in- with felony officer, an obstruction of formed of each incident involving the violation Georgia law, O.C.G.A. 16- use of force officers of this De- 10-24(b). partment. Such notification shall be on the same date of the incident.

As Manders was jail’s escorted into the cell, holding a City police officer stated 2. Each case involving physical or de- “hit him” Manders earlier. According fensive shall force be reported in Manders, to Deputy Brown City and a writing to the Sheriff. police officer then repeatedly struck him 3. Each present officer or assisting in head, neck, across the and face and banged an arrest or incident requiring force his head against a wall. Manders suffered shall prepared be to report submit a bruised, swollen beating face. The af- supplement describing the incident fected him emotionally, resulting in a men- requested. if tal hospital stay. report addition to the requirement, The morning after beating, Manders Manual both discusses non-deadly and wrote a jail officials, statement for wherein deadly force an officer perfor- he stated: “They had to rough be with me mancе of his duties. provides Manual to let me know that they mean business.” that non-deadly may force used That day, same Manders was released officer these situations: jail. Afterwards, from Manders’s mother met with Sheriff Peterson 1. discuss the When necessary preserve beating. According to mother, Manders’s peace,’ prevent of of- commission 1. We recount light evidence in the Deputy most Brown never submitted a written Manders, favorable to nonmoving party, report indicating used he force with Manders. summary on a judgment motion. Harbert Sheriff required Peterson never Brown to do Int’l, James, (11th Inc. v. 157 F.3d so even having after met with Manders's Cir.1998). mother. Peter- him, County and Sheriff and Clinch or self- suicide

fenses, prevent or use of excessive Brown’s permitted son injury. inflicted also asserts jail. Manders force at a' interrupting or preventing 2. When Peterson County and Sheriff that Clinch crime attempted or crime training deputies proper provide failed to property. force at use of supervision regarding arrests lawful making 3. When adequate promulgate failed jail and searches, overcoming resistance at the regulate deputies’ conduct rules to searches, pre- such arrest failures these asserts that jail. custody. Manders escapes venting dam- sought Manders beating. caused his defense, defense in self 4. When County and Sheriff ages against Clinch violence against unlawful another capacity.4 in his official Peterson person. his deadly force when also details Manual The defen court denied The district has no other Peterson justified. Sheriff is judgment on summary for motion dants’ procedures operating or standard written against damage claims 1983 Manders’s jail. at the of force for the use Peterson his Sheriff County and Clinch Complaint Amended B. policy the use-of-force for capacity official training disciplining and the the jail at case, amended Manders’s § 1983 In this Peter Sheriff regard.5 in that deputies Clinch that defendants complaint claims interlocutory appeal, filed this son alone Peterson, in his official County and Sheriff actor and that he is a state claiming that use-of-force for responsible capacity, are him denying court erred the district disciplin- training and jail, for at the policy This immunity.6 Amendment Eleventh for jail, and at the who work deputies the individual not does address appeal Ac- followed.3 policy is ensuring that deputies Peterson or his of Sheriff Manders, liability Brown beat Deputy cording injunctive relief on Manders’s litigated iff Peterson court district parties and the The 3. appeal cross- not or Manders did all claims. against Peterson if Sheriff this lawsuit rulings. appeal these against Clinch § 1983 claims Manders’s against Sheriff Peter- County were made also Thus, County also asserts 6.Although we decide Clinch capacity. official son in his a is not the State and for Peterson acts the amended com- Sheriff in which as one the case County did not county policymaker, his Peterson in purports to sue Sheriff plaint time. not at this it could policy appeal for because capacity for use-of-force official asserting a sheriff appeals Deputy discipline Brown When failing to train 1983, County, county policymaker under Butler v. not regard. See Marsh in that Cir.2001) liability for issue 1014, (11th a defense presents 4 1023-24 n. 268 F.3d not have inter- we do banc). over which (en v. Chambers jurisdiction. Swint locutory 43, 35, Comm'n, S.Ct. 115 U.S. County 514 claim made a Manders 4. At no time contrast, (1995). bond, 1203, 60 L.Ed.2d 131 Peterson’s official Sheriff appeals capacity official a sheriff his post, when O.C.G.A. requires Georgia law asserting Amendment interlocutorily Eleventh 15-16-5, address such do and we immuni- presents a threshold immunity, this claim. juris- we have over which 1y-from-suit issue v. Aqueduct Auth. & Sewer P.R. See summary judg- diction. granted court The district 147, 139, Inc., 113 Eddy, 506 U.S. & (1) individually Sheriff Peterson ment Metcalf Swint, (1993); 121 L.Ed.2d S.Ct. claims, (2) and Sheriff to Clinch all 1203; 42-43, Grech S.Ct. 514 U.S. capacity on Manders’s in his official Peterson WL F.3d Clayton Depu- hiring of negligent for the 1983 claim Cir.2003) (en banc). (11th Brown, County and Sher- to Clinch ty using Instead, Health, excessive force.7 (11th 261 F.3d Cir. appeal only involves the immunity of Sher- 2001).

iff Peterson capacity. official It is also well-settled that Elev enth immunity Amendment bars suits II. THE ELEVENTH AMENDMENT brought in federal court when the State itself is sued and when an “arm of the A. Immunity Suit Federal Court State” is sued. See Mt. Healthy City Sch. The Eleventh pro Dist. Bd. Doyle, Educ. v. 429 U.S. immunity vides by restricting federal S.Ct. 50 L.Ed.2d 471 judicial courts’ power: To receive Eleventh Amendment immuni power Judicial United States ty, a defendant need not labeled a be shall not be construed extend to any officer” official,” “state or “state but in suit in law equity, or commenced or stead need acting as an “arm of prosecuted against one of the United State,” which includes agents and in States State, Citizens of another strumentalities of the State. Regents Subjects Citizens or Foreign Doe, the Univ. Cal. v. 519 U.S. State. 429-30, 117 S.Ct. 137 L.Ed.2d 55 Const, U.S. (1997). amend. XI. The Eleventh Whether a defendant anis “arm of protects Amendment a from being the State” must light be assessed in sued in federal court without the particular State’s function which the defendant result, consent.8 As a parties with claims engaged was when taking the actions out against a non-consenting State must resort of liability which is asserted to arise. See to the State’s own courts. The Eleventh Shands Hosp. Teaching & Clinics v. Beech Amendment is “a recognition states, (11th St Corp., 1308, 208 F.3d Cir. though part union, of a 2000) (“The retain attributes of pertinent inquiry is not into sovereignty, including immunity from be- the nature of entity’s] [an status ing compelled appear in the abstract, courts of but its function or role in a par another sovereign against context.”). their will.” ticular The particular functions McClendon v. Dep’t Cmty. at issue are Sheriff force policy Peterson’s of 7. It is argued that majority opinion 1986) "badly ("[T]he Eleventh provides Amendment law,” subverts the makes sheriffs "immune no bar to adjudication federal court of suits suit,” and renders a "substantial blow” against state officers individually.”). being to citizens able to hold officials ac (Dis countable for constitutional violations. "Although the express language of the sent, Barkett, J., 1332, 1347). pp. As noted [Ajmendment [Eleventh] does not bar suits above, this only case involves the sheriff "in against citizens, a state its own the Su capacity” and does not affect in official preme Court held unconsenting that an any way against claims depu sheriffs or their is immune from brought lawsuits ties in their capacities. individual See Hafer federal court the state's own citizens.” Melo, 21, 30-31, v. 358, 502 U.S. 112 S.Ct. Florence, City 1521, Carr v. 916 F.2d of (1991) ("[T]he 116 L.Ed.2d 301 Eleventh (11th 1990) Louisiana, Cir. (citing Hans v. Amendment does not against erect barrier 1, (1890)). U.S. 10 S.Ct. 33 L.Ed. 842 impose suits to personal 'individual and liabil consent[,] the absence "[I]n of a suit in ity' 1983.”); state officials under Hobbs Roberts, the State or agencies one of depart v. or (11th 999 F.2d Cir. 1993) ments is (noting named as the pro defendant Eleventh Amendment im " munity does not scribed the Eleventh extend to Amendment.” Penn 'individual' personal’ capacity court”); Halderman, hurst State Sch. Hosp. suits federal & Gamble Dep’t v. Fla. Health & Rehabilita U.S. 104 S.Ct. 79 L.Ed.2d 67 Servs., (11th tive 779 F.2d 1512-13 Cir. must law and the rela- training disciplining examine at regard.9 Peterson, among in that Sheriff deputies tionship of his State, County. and Clinch The issue of Amendment Factors B. Eleventh entity “arm of whether an is an the State” cases, In Eleventh purposes for is ulti- Eleventh Amendment factors to determine uses four Court mately law. But the question federal entity is an “arm of State” whether question federal can answered af- (1) function: carrying out considering provisions ter law. (2) entity; defines the what state law how Thus, journey through Georgia’s now we maintains over of control the State degree legal length.10 terrain at some (3) entity derives its entity; where funds; responsible judg who is III. GEORGIA LAW entity. Miccosukee ments governmental We examine the Fla. v. Fla. State Ath first Tribe Indians (11th Comm., 226 F.3d 1231-34 structure of Sheriff Peterson’s office vis-a- letic Shands, 1311; Cir.2000); Tu 208 F.3d vis the State Fla. Council Indian veson v. Governor’s Next, Georgia law. we outline the func- (11th Inc., F.2d Cir. Affairs, performs they tions Sheriff Peterson 1984). reflect of his office. Then character we factors apply Eleventh Amendment factors, the resolution

Given these promul- in issue: sheriffs functions issue in this case Eleventh Amendment Therefore, policy training and disci- gating force in part, on state law. depends, test, regard. plining deputies we applying the four-factor before broad; question is whether the relevant not See Tuveson v. Fla. Governor's Council 9. of 730, (11th Inc., Affairs, the Clinch 734 734 Sheriff Peterson acts for State or Indian F.2d nothing Cir.1984) categorical all County in some or (noting the "the functions of Coun county jail. the manner in connection with significant are to Eleventh Amendment cil” Instead, inquiry Sheriff proper the is whether analysis): McMillian v. Monroe cf. 1734, County 781, 785-86, or Peterson acts the State Clinch 117 S.Ct. 138 U.S. 520 today. particular at issue (1997) in the functions (instructing ques the L.Ed.2d 1 the acts for the is not whether sheriff tion law, opposed to as 10. We focus on categorical, or or state "in some ‘all other how circuits treat sheriffs under manner!; nothing’ question rather the 1” laws, extremely have because states states’ county or the acts for the whether determining wide their forms latitude role requires to the sheriff's "in attention per government and how state functions area, issue”); particular or on formed, significant case for our and because Corp., v. Port Auth. Trans-Hudson 513 Hess Georgia Supreme has treat is how the Court 30, 45, L.Ed.2d 245 U.S. 115 S.Ct. 130 interpreted and the ed (1994) (noting Authority "Port functions are Re provisions Georgia law in issue. See readily typically state or un classified Doe, gents Cal. v. 519 U.S. the Univ. of local”). questionably 900, 137 L.Ed.2d 55 429 117 S.Ct. n. (1997) (noting that Eleventh Although majority opinion only focuses after consid question "can answered particular function of Sheriff Peterson on the ering provisions law that define of state establishing policy at the and force character”); Healthy City Mt. deputies, agency’s training disciplining dis- Doyle, U.S. v. 429 approach Sch. Dist. Bd. criticizes this functional sent of Educ. (1977) L.Ed.2d 471 higher S.Ct. 50 conduct at a level defines Sheriff’s entity (stating is entitled "jail operation per- as the that whether of abstraction Barkett, J., (Dissent, immunity "depends, at p. Eleventh Amendment tinent function.” entity 1337). upon part, least the nature of disagree We because dissent’s law"). created of the function at issue is too characterization A. Georgia’s Structure employee Governmental commission.”); of the county see Calhoun, 202, 203, 262 Ga. Chaffin Georgia’s Constitution has created the (1992); Walton, S.E.2d 906 Warren v. sheriffs office as an elected constitutional 495, 499-500, (1973). Ga. 202 S.E.2d 405 office in Georgia’s governmental hierarchy. Const, ¶ IX, 1,§ Ga. art. 1. The In contrast to the State’s office is not a division or subunit of sheriffs, over control Georgia’s Constitu- County or and, its governing body, grants tion legislative counties no power or thus, it is not a part structural of Clinch authority over sheriffs and expressly pre- Const, County government. id.; Ga. vents counties from controlling or affecting ¶ IX, 2, 1(c)(1). art. Rather, the sheriffs the sheriffs office personnel or the there- Const, office separate is a ¶ constitutional office IX, 2, 1(c)(1). of.12 Gá. art. independent from Clinch this regard, the Georgia Supreme Court Const, governing body. IX, See Ga. art. has concluded that this constitutional re- ¶2, 1(c)(1). striction on legislative power granted to counties-home rule-prevents counties Further, Georgia’s grants Constitution taking action affecting the sheriffs legislature the exclusive authori Warren, office. atGa. 202 S.E.2d ty to establish control a sheriffs 405;13see Stephenson v. Bd. Const, Comm’rs powers and IX, duties. Ga. art. Cobb County, 401-02, Ga. ¶ 1, 3(a)-(b).11 Interpreting this consti result, S.E.2d 488 aAs counties tutional provision, the Georgia Supreme exercise no authority or control over the explained Court has that sheriffs are sub sheriffs force policy, whether in making ject to the control of the Georgia legisla arrests on the streets or in quelling dis- ture and are not employees. Bd. of ruptive jail. inmates Comm’rs Randolph Wilson, County v. 482, 482, 396 S.E.2d 903 Further, in Georgia, counties also do (“The elected, sheriff ... is an constitu not delegate any of governmental officer; tional subject ishe charge police powers to Instead, sheriffs. of the General Assembly and is not an sheriffs’ authority and duties are derived Georgia's provides Constitution that sher- affecting office, tion elective iffs by "shall be qualified thereof, elected the voters of thereof, salaries personnel or the ex- respective counties for cept personnel terms four the subject jurisdiction years and qualifications, shall have pow- such county the governing authority.” Ga. ers, Const, provided and duties by general IX, as 2, ¶ law.” 1(c)(1). § art. Georgia The Const, IX, 1, ¶ Ga. 3(a). art. para- Attorney that, That General has stated under Geor- graph provides also that "[c]ounty Constitution, gia’s officers county governing authori- basis, may basis, ... be on a fee salary or fee ties lack authority even the supplement supplemented basis by salary,” but that salary sheriff's "unless by authorized local compensation "[m]inimum county for said of- by law enacted Assembly General sup- may ficers by established plement General As- salary.” Op. Atty. Ga. Gen. No. sembly by general supplemented law” (1997); and by U97-19 see note 36. infra local law or "if authority delegated such by is law, by local county action governing 13.Although prior Warren a involved version Const, authority.” IX, 1, ¶ 3(b); Ga. art. Constitution, Georgia of the the same relevant see note legislature 12. The State thus language infra is in the current version of the Geor- also qualifications controls sheriffs' and mini- gia Warren, 499, Constitution. See 231 Ga. at salary. mum 202 plain S.E.2d 405. language The of Geor- gia’s powers Constitution makes the and Georgia's provides Constitution duties of the constitutional sheriff’s office al- legislative "power granted to counties ... terable legislature and unalter- shall not be construed to extend to ... [a]c- able county or its governing body.

1311 sheriff, authority over the includ ing any That counties the State. directly from budget. spends how the sheriff authority to sheriffs or power no delegate ¶ 1(c)(1); IX, 2,§ art. Const. Ga. have no au- Chaffin counties why explains further 203-04, Calhoun, 202, 415 262 Ga. v. why over them or control thority Bramlett, (1992); v. 906 see Boswell S.E.2d of coun- or division a subunit is not 52, 50, 100 549 S.E.2d 274 Ga. ty government. nature of and distinct separate county makes the likewise Georgia law and Clinch Coun Peterson’s office Sheriff sepa- a itself, here Clinch entity from each oth independence and their ty, of- of the sheriffs entity independent rate er, by how further demonstrated are law, County is Under fice. employees. Georgia law treats sheriffs’ ‍​‌​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌‌‌​​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌​‌‍suing capable “body corporate” deputies. fire their alone hire and Sheriffs county by the and is headed being Deputies, sued in 15-16-23. O.C.G.A. Const, IX, jailers, art. are em authority. serving as cluding those governing county. ¶ (“Each body ployees sheriff and shall be 1, county Warren, 499, 202 S.E.2d 231 Ga. governing politic with such corporate “[djeputy (recognizing law.”); provided ... of the sher jailors employees are deputy (“Every county is §§ 36-1-3 O.C.G.A. iff, are entitled to whom the sheriffs alone or be power to sue corporate, with body (quotation marks appoint discharge”) l-3-3(7) court.”), (defining sued Robinson, omitted); 194 Ga. Drost v. authority” as “the “County governing (1942); 710, 22 Brown v. Jack S.E .2d 475 commissioners, the sole board of son, 470 S.E.2d 786 Ga.App. commissioner, au- governing or the “were em (noting deputy sheriffs government”). thority of a consolidated not Peach Coun of the sheriff and ployees County is entity, Clinch separate As a Herrin, v. 210 Ga. Wayne County ty”); Commissioners, Board of by its headed (1993); Pet 437 S.E.2d App. over jurisdiction given “exclusive 587, 588, Smith, Ga.App. tus Ga. Laws affairs.” and control Boswell, (1985); atGa. sеe S.E.2d contrast, § 29. p. of con (“[Ejmployees 549 S.E.2d 100 Constitution, ex- the State has Georgia’s of a elected officers stitutionally control over authority and clusive the elected employees considered sheriffs office. affairs of the duties county, as employees of the and not officer county to requires the the State author Although governing represented by local County, 242 Ga. Georgia’s Consti- budget, Mobley v. Polk ity.”); the sheriffs fund (1979).14 798, 801-02, 251 S.E.2d 538 county from exereis- precludes tution County, 210 Ga. Wayne § 36-1-21. Deputy O.C.G.A. Sher- acts of 14. This case involves the 793; 752-53, Brett v. see Brown, App. at 437 S.E.2d Sheriff Peterson's who served as iff (11th 123 F.3d deputy may assign their jailer. Sheriffs chief Jefferson 1997) Georgia (stating deputy sheriffs Cir. jail. See O.C.G.A. to work sheriffs and con- employees the sheriff at-will Herrin, are 15-16-23; 210 Ga. Wayne v. § satisfy the statu- cluding sheriff had failed (1993); Ken- App. 437 S.E.2d nec- § 36-1-21 tory requirements in O.C.G.A. Adamson, Ga.App. S.E. v. drick employees place his essary for the sheriff to Georgia (1935). Wayne County, the In system). civil service under to hire and fire power sheriff's court read the 15-16-23, persons to serve may § appoint also under Sheriffs deputy sheriffs O.C.G.A. 36-1-21, See deputy sheriffs. jailers § to mean who are not together O.C.G.A. as with Ga.App. Corp., "at may deputies v. Nat’l Sur. appoint his Tate the sheriff that "[tjhere (1938) (noting was no will,” writing to make 200 S.E. may but also elect deputy”). jailer was also evidence that subject civil appointments their "By virtue of provides: § 42-4-1 O.C.G.A. by law in system prescribed as service Because by sheriffs are elected Instead, sheriffs’ duties. the State voters, it is not surprising Georgia’s alone has delegated to specific sheriffs Constitution labels sheriffs as “county offi- (a) duties in three main areas: law en- Const, ¶ IX, 3(a). cers.” Ga. 1,§ art. (b) forcement; (c) courts; and cor- But, given Georgia’s how also Constitution rections. While we ultimately decide to- makes sheriffs office a constitutional day only whether Georgia sheriffs wear a office independent from the county entity “state hat” prescribing use-of-force poli- itself, precludes control, all county and cy, we outline the duties the State has grants only the sheriffs, State control over assigned to sheriffs they as reflect this “county officer” nomenclature neces- character of the sheriffs office under sarily geographic reflects a label defining Georgia law. What duties the State as- territory sheriff is elected signs sheriffs is indicia of how the State and mainly operates. It entirely consis- defines that entity. tent sheriffs to be independent of the government subject to be 1. Law Enforcement State, not county, control but to be called In Georgia, the office sheriff is as old “county officers” to reflect their geograph- as the State of Georgia itself and jurisdiction ic carries in the State. with it the common law duties sheriffs Having established that Sheriff Peter- to enforce the preserve laws and the peace son’s office is independent from Clinch on behalf of State, the sovereign as well as County and its governing authority and other specific statutory duties imposed by that only the State grants controls and the State lеgislature. § O.C.G.A. 15-16- powers and sheriffs, duties to we next 10(a)(1) (8); State, Hannah 212 Ga. examine the functions of — the sheriffs office (1956) (“The 92 S.E.2d 89 office of sheriff law. The specific tasks carries with it ... all of perform sheriffs also common-law shed considera- light ble duties powers, on the except character of the as modified sheriffs statute.”) (citation office under Georgia law. quotation marks omitted).15 Given the sheriffs continuing B. Functions Sheriff’s duties, common law legislature above, As noted cannot, counties mandates it is express and do duty of the not, grant any law power enforcement sheriff to perform not “such ... sheriffs do assign or control any of duties as may are or law,” be imposed by offices, jailers of the counties statutory duties and all of also their common and have the authority to appoint jail- powers law duties and unless modified ers, subject supervision of the county statute, and that these duties include enforc- governing authority, prescribed as by law.” ing the and conserving peace. laws We likewise read O.C.G.A.§§ 42-4-1 36- Op. Atty. Ga. (1977); Gen. No. 77-83 Op. together 1-21 to mean that the may Atty. (1969) (both Gen. No. U69-385 constru- appoint non-deputy jailers "at will” under ing former (1933), Code 24-2813 42-4-1, O.C.G.A. may but also elect in writ- 15-16-10). now addition, O.C.G.A. In appointment to make their subject to the officers, must peace state-certified county civil system service and thereby sub- who are ... "vested to enforce ject county supervision prescribed the criminal or traffic through laws power law event, in O.C.G.A. 36-1-21. of arrest charged [are and preserva- with the] case does not jailer involve who is order, public tion of protection the life and deputy sheriff. property, prevention, detection, the and Georgia The Attorney investigation 15. General also ex- has § crime.” O.C.G.A. 35-8- plained law, Georgia 2(8)(A). sheriffs have (internal footnote Id. at 117 S.Ct. 1734 necessarily “which those duties but also omitted). Indeed, conserving pub- “in the O.C.G.A. or her office.” to his appertain law, in vindicating in the and peace, lic 15-16-10(a)(8). rights government, of the preserving the provides also Georgia’s Constitution sovereignty the represents sheriff] [the the care that shall take “[t]he Governor superior in his the and he has no State executed and shall faithfully laws are Anderson, A county.” 1 Treatise W. throughout peace of the the conservator Sheriffs, and Consta- the Law of Coroners Const, ¶ V, 2,§ 2. In art. the state.” (1941), approval in bles 5 cited with conserving the and enforcing the laws McMillian, 794, 117 1734. 520 U.S. at S.Ct. act does not Georgia Governor peace, the noted, in already have As we alone, through state necessarily acts but power and duties Georgia derive for certain include sheriffs agents, State, State, by the from the are controlled States Su- functions.16 The United state not, cannot, delegate and counties and do acknowledged that recently preme Court power or duties to any law enforcement restric- historically geographic had role Georgia, sheriffs.17 In this historical the State reality “represented in tions but day the thus continues duty keep peace.” fulfilling [their] in directly represents the sover- the sheriff County, 520 U.S. v. Monroe McMillian State, in superior his eignty of the no 781, 793, 138 L.Ed.2d 117 S.Ct. performs state functions county, and that Alabama sheriffs (concluding and sovereign enforcing in laws as to the law enforcement act for the state peace. keeping issue). Supreme Court in function entirely Georgia It consistent for is also longstanding historical on the reflected by county voters and sheriffs to be elected sheriffs, as follows: role to reflect their “county be called officers” English govern- As the basic forms for them still jurisdiction, but geographic transplanted [the United ment were enforcing to act on behalf of the State un- States], the common it also became peace in that keeping the laws sheriff, derstanding here Cooley, Handbook on jurisdiction. See R. jurisdiction to his though limited Municipal Corporations the Law of by county generally elected county (1914) (“Sheriffs other so- ... clerks and voters, of the reality an officer properly was are county called officers State, ultimately represented functions county. Their officers for the affairs of chiefly duty keep pertain and duties fulfilling State county.”).18 peace. county county may create a quired before a for law en- actors available

16. Other state passes, Bu- activity police include the Id. If the referendum forcement force. Investigation and the hiring governing body reau controls the county seq.; §§ et See O.C.G.A. 35-3-3 including Patrol. county police, and removal of its seq. §§ et chief, 35-2-30 may "abolish a county police any time.” O.C.G.A. county police force at part policing of its the State fulfills While subject County police officers 36-8-2. office, the through the sheriff's functions and control of to the "direction Georgia legislature authorizes body.” § 36-8-5. governing O.C.G.A. county po- through a policing fulfill functions may cre- County governing bodies lice force. assigned sher- example, the State has 18.For through a resolu- county police force” ate "a entering maintaining war- iffs the task of tion or ordinance the statewide criminal into rant information approval of governing body followed 35-3-36; O.C.G.A. information database. 36-8- qualified electors. O.C.G.A. Thus, Clayton County, 335 F.3d 1(b). re- see Grech v. county-wide referendum is ¡2. State Courts for a contempt.” 16—10(b). § O.C.G.A. 15— Thus, the State directs sheriffs to enforce In addition to imposing certain law en- state court punishes orders and them if duties, forcement has assigned they do not. superior The court clerk also specific duties in the supe- State’s delivers to the sheriff or deputy rior courts.19 Superior courts are the “precept containing the names of per- trial general State’s courts of jurisdiction. sons drawn grand jurors,” as and the sher- Const, ¶ VI, 4, 1; See Ga. § art. O.C.G.A. iff or his deputy serves summons on § 15-6-8.20 That perform an inte- each grand juror in person or by mailing, gral role judicial in the state system is as by determined the sheriff. O.C.G.A. further indicia of how sheriffs act for the § 15-12-65.21 State. The State also has assigned sheriffs the The State mandates that sheriffs must function of determining which companies attend “all sessions” of superior courts may make jurisdictions. bonds their their respective counties and “never ... § O.C.G.A. 17-6-15. judges While state leave [court] without the presence him- decide whether a county jail inmate, self or his deputy.” § O.C.G.A. 15-16- charged with a felony, bond, is entitled to 10(a)(2). The State also mandates that sheriffs approve bonding companies in sheriffs must execute and return pro- their counties for the State’s criminal cesses orders the state courts. cases. Sheriffs must “publish and make 15-16-10(a)(l). § O.C.G.A. Sheriffs also available written regulations rules and de- publish sales, must citations, and other fining acceptable sureties and prescribing proceedings required law, keep an under what conditions sureties may be ac- docket, execution keep a book of all sales cepted.” 17-6-15(b)(l). § O.C.G.A. by process made courts, of state and keep State also prescribes the qualifications of other many specified records. O.C.G.A. “professional bondspersons.” O.C.G.A. § 16—10(a)(4)—(6).This same statute 15— § 17-6-50. The State in effect “places the provides that any “[i]f deputy authority to accept sureties in felony cases fails to comply any provision of in the office of the sheriff and not in the [O.C.G.A. § 15-16-10(a)], he shall be fined superior court.”22 Jarvis J&J Bonding (11th 2003 WL Cir.2003) (en banc) Although presiding courthouses, su- (concluding "as function perior judges perform court judicial [entry issue maintenance warrant in- functions. formation], acting sheriff is behalf the State and thus ... Clayton County is not Superior judges 21. court "are authorized and [for liable issue]”). sheriff's conduct at empowered to investigation transfer grand jury from the where the crime 19. Throughout opinion, the term "state was grand committed to the jury courts” refers Georgia’s superior county in the State” in certain circumstances. courts, which have jurisdiction exclusive over 15-12-82(a). § O.C.G.A. When this transfer cases, felony cases, divorce cases re- occurs, "[t]he sheriff clerk land, specting title to arising cases superior court of the Const, equity. VI, 4, ¶ Ga. art. Georgia's § 1. crime was qualified committed shall be superior courts also jurisdic- have concurrent perform authorized to the duties of such offi- tion over misdemeanors and other civil cases. cers in the same manner Const, as if there had been VI, 4, ¶ 1; art. §§ O.C.G.A. 15- change no of venue.” O.C.G.A. 15-12- 6-8(1), 15-7-4. 82(d). county jails Just as 20. house state criminal offenders, courthouses, cases, funded and In criminal require state courts may county, built state superior house post witnesses to bonds ap- to ensure their judges. courts and O.C.G.A. pearance, 17-7-26, 15-6-24. O.C.G.A. and the sheriff the ... take from (1977) [t]o of the sheriff duty 215, 213, 236 S.E.2d Co., 239 Ga. the custody of the (1933), outgoing § 27-418 Georgia Code (construing are confined persons as of such bodies § 17-6- to O.C.G.A. precursor is the which “medical furnish inmates to therein” 15). if blankets, reimbursed heat, to be aid, to “de sheriffs requires also The State treasury.” necessary from in one the sheriff bonds held cash posit 42-4-4(a)(l)-(2). Pe- Sheriff § O.C.G.A. accounts,” interest-bearing trust more duty to administer аuthority and terson’s that 15-16-27(a), to remit § O.C.G.A. from the flows jurisdiction jail in Georgia agency, a state interest to Irvin, In re State, County. See not Clinch O.C.G.A. Council. Defense Indigent (“It (1985) 253, 251, 328 S.E.2d That Council 15-16-27(b), 17-12-32. §§ legislature vested that is clear indi money to local redistributes then to of sheriff authority in office broad §§ 15- programs. O.C.G.A. defense gent re- jails.”). Sheriffs who administer 16-27(b), seq.23 et 17-12-30 may be inmate custody of an to take fuse and bond-related court state These O.C.G.A. a misdemeanor. charged general laws of from stem do not duties § 42-4-12. whereby the statutes but from application, how to outline State important It is specific perform requires sheriffs State state jails to incarcerate uses the State’s functions that are state tasks turn, and, sheriffs requires offenders These statutes system. justice criminal with, sheriffs begin To them. administer control. regulatory general not mere arrested custody inmates must take delegat- Instead, the State they represent superior courts state awaiting trial in the State’s state functions ing discrete charges.24 misdemeanor felony and to sher- specifically system justice criminal For ex- required. is approval No sheriffs iffs. police officer Homerville City ample, ob- felony Manders plaintiff arrested 3. Corrections violation an officer—in struction specific sheriffs assigns also The State 16-10-24(b) took law, O.C.G.A. —and offend- regarding state duties corrections County jail. Manders the sheriff requires The State ers. pre-trial detainees As custodians jail in his in the custody of all inmates take felonies, trans- charged with state Georgia § 42-4-4. The county. O.C.G.A. superi- State’s from the to and fer inmates shall be “[i]t mandates legislature Council, agency, for a state Standards fender and ensur- accepting bonds responsible for is of- public defender circuit to the distribution bonding company they come from ing that De- Indigent of to fices instead § 17-7-27. O.C.G.A. by the approved sheriff. Council. fense signed the the Governor May On Wilson, 213 Ga. (“the Howington v. 24. See Indigent Act of Defense ("It (1957) apparent is 100 S.E.2d Act"), Chapter 17-12 O.C.G.A. amends of a custody [Georgia] statutes 147th H.B. 15-16-27. and O.C.G.A. defendant, indict- pending his trial (Ga.2003). Assem., The Act Reg. Sess. Gen. offense, in the sheriff for a criminal ment requirement in O.C.G.A. change the does not was commit- the offense wherein “deposit 15-16-27(a) cash that sheriffs Middlebrooks, ...”); 236 Ga. ted. or more by the sheriff one bonds held (defendant orig- 52-53, However, 222 S.E.2d interest-bearing accounts.” trust jail trans- City of Atlanta 15-16-27(b), inally detained ef- pursuant amended County Sheriff custody of the Fulton ferred re- must fective December indictment). upon Georgia Public De- interest mit the pre-trial courts for proceed- and trial maintaining felony prisoners county jails in ings, as well as attend all of sessions those after conviction and sentencing until their courts. If a change venue for the trial appeals are concluded. Ga. R. Comp. & granted is by the state trial judge, 125-2-4-.02(d).27 § Regs. sheriff must transport the person to the Second, prison due to overcrowding, the county to which the change of venue is DOC has broad discretion assign con- directed and person deliver that victed felons tо serve their state sentences county. of that § 42-4- O.C.G.A. in county jails and to reimburse counties 11. for their daily incarceration at a rate.28 Another class of inmates in the county The state trial court must notify the DOC jails are those serving state sentences for person that a is convicted of a felony with- When felonies. convicted of felony a of- in thirty days. 42-5-50(a). § O.C.G.A. fense, the felon operation of Georgia The then days DOC has fifteen to elect to law is committed to the custody of the transfer the inmate or to start paying for Georgia Department of Corrections 42-5-51(c). § incarceration. O.C.G.A. (“DOC”), which determines place No approval sheriffs required. is §§ confinement. 5—50(b), O.C.G.A. 42- 42— Third, if a convicted felon’s proba- state 51(b).25 In at situations, five least con- 5— revoked, tion is a judge state has discre- victed felons serve their state sentences in tion to sentence felon to serve his state county jails. sentence in county jail in certain cir- First, felon, a convicted although in 17-10-l(a)(3)(A). § cumstances. O.C.G.A. custody, DOC serves felony his state sen- No sheriffs approval required. is tence in the jail county pending appeal if his attorney Fourth, presence certifies his is convicted neces- felons serving pa- sary the appeal. sentence, § roled O.C.G.A. 42-5- state under the DOC’s au- 50(c). No sheriff or thority, DOC approval is re- who parole violate may be held in quired.26 The regulations DOC’s pro- county even jails until judge a state formally vide State pay will for the cost of revokes parole. their state Op. Atty. 25. superior state The court has no authority Department "The pro- Corrections will person sentence a convicted of a felony vide reimbursement for cost counties custody than to the of the commissioner maintaining felony prisoners the county Department Corrections, jails after sentencing conviction and and be- State over the inmate prisoners fore such are place transferred to a place on the of confinement and on the com- confinement as directed the Commis- putation State, of sentence. See Eubanks v. sioner, Department of Corrections.” Ga. 667, 667-68, Ga.App. 494 S.E.2d 564 Comp. Regs. 125-2-4-,02(d) (describ- R. & § (1997). may The State allow felons to remain procedure reimbursement and including county and reimburse the county. remaining felons county jail during appeal (b)-(c). § O.C.G.A. 42-5-51 as inmates for which may reimbursement obtained). State, 26. See Helmeci v. 230 Ga.App. (1998) 498 S.E.2d 326 (stating that O.C.G.A. 42-5-50(c) § clearly "is couched in Evans, mandato Clayton 28. See 258 Ga. ry language, indicating that a trial court has S.E.2d (noting "the Gen- no denying discretion in request to remain Assembly eral problem of the —aware pending appeal”); O.C.G.A. existence of prisons overcrowded —made 42-5-50(b) (stating except as pro otherwise provision 42-5-51(c) O.C.G.A. for the 42-5~50(c), vided in O.C.G.A. the DOC shall reimbursement to the ... for the cost assign place of confinement for convicted of incarcerating prisoners”). felons). arrested persons to take quires ap- No sheriffs No. 82-33 Gen. if jail of another required. is proval “unsafe condition.” in an county jail custody- in DOC Fifth, felons convicted 42-4-4(a)(3).31 O.C.G.A. state sentences may serve exer- sheriffs to permits also in a state- participating they if jails a pris- “transfer[ ] discretion ap- the sheriff cise their project sponsored if 5—51(d). county in another jail to another § oner proves. O.C.G.A. 42— is transfer that such concludes the sheriff county inmates class of Yet another or that the prisoner in the best interest state misdemeanor serving jails are those orderly necessary for the transfer is such of a is defendant convicted If a sentences. § 42- jail.” the O.C.G.A. administration offense, judge state the misdemeanor state “[wjhen vein, is 4-4(b). there In a similar the defendant to sentence has discretion it is county when or jail in no secure locations, “county the to, among sheriff, any per- necessary by the deemed 10—3(a)(1)—(3). § jail.”29 O.C.G.A. 17— county in the committing an offense son the statewide uses the State Because jail in another may sent be incarcerate jails network of by the sheriff.” suitable to be determined offenders, it is misdemeanor felony and § 17-7-1.32 O.C.G.A. expressly the State that surprising not corrections significant sheriffs’ Given their re- beyond act sheriffs to authorizes offenders, further the State state role for prisoners transfer and to spective counties records keep detailed sheriffs requires In sheriffs.30 jails of other county jails. committed to persons re- the State changes, venue addition to bodies. governing not and "county cor- include a locations 29. The other to our consider- relevant background is institution;” This probation de- a "state rectional an arm of center;” is sheriff of whether or a ation diversion center tention policy establishing force county in or the the "crime state if institution” "state correctional of a to Manders. the confines ... within was committed O.C.G.A. institution.” correctional state transfers, 42-4-4(a)(3) § respect to law, 31. With 17-10-3(a)(l)-(3). Under § Supreme instructs Court "coun- separate facilities county jails are alone the sheriff vested legislature has "[t]he O.C.G.A. See ty institutions.” correctional order the ... administrative § 42-5-53. superior court transfers” such sponte, sua a transfer may order such also not jail, Sheriff Peterson operating In 30. required car- would be policies although the sheriff how many state carry out must issue of court if the operated. of the jails ry an order out are treated inmates service, properly jail were of the preparation, regulates conditions unsafe The State Irvin, 254 Ga. jail re inspects In the court. before meals and number 253-54, presence against the S.E.2d 215 periodically "to ensure § 42-4- O.C.G.A. unsanitary conditions.” jailer that a 32(a)-(c). prescribes right felony The State has a Although a inmate inhumanity or willful "guilty appeal during county jail shall not in the to remain care 42-5-50(c), may under oppression to inmate § the sheriff O.C.G.A. State sets § 42-4-5. custody.” O.C.G.A. if the to another inmate transfer require- security Helmeci, safety and the minimum jail is unsafe. sheriff's 42-4-31(a). jails. (concluding O.C.G.A. ments for S.E.2d 326 App. authorizing transfer [under statutоry jail "conditions that these not contend We do 42-4-4(a)(3) present” were] themselves, duties, O.C.G.A. sheriffs into transform denying Helme- erred in trial court Instead, "the these we mention state officials. pend county jail to remain ci’s motion the duties how evidence as further statutes appeals”). disposition of his governed Georgia are of sheriffs O.C.G.A. 42-4-7. These records include where incarcerated, state offenders are sex, race, “age, process under what designating that certain state offenders person such was committed and from what serve state time in county jails, and then issued, process court the the crime with assigning specific corrections which the person was charged, date of duties regarding those state offenders.33 person’s such jail, commitment to the day contrast, counties have no authority of such person’s discharge, under what over what corrections duties per- order such person was discharged, and the form, or which state offenders serve time court from which the order issued.” in county jails, or who in charge 42-4-7(a). O.C.G.A. The State man- inmates in county jails.34 dates that a or a deputy who fails to comply requirements with these state IV. shall APPLYING ELEVENTH contempt fined for subject and to re- AMENDMENT moval 42-4-4(c). from office. O.C.G.A. FACTORS sum,

In requirements these are Having Georgia’s not examined law general state laws of application but repre- governing sheriffs, we specifically now ap sent the State’s managing and controlling ply the Eleventh Amendment factors to 33. Sheriffs’ incarceration of offenders in the medical necessities to inmates does not di- county jail, Manders, such as who are important minish the state functions that charged with state being prose- felonies and performs Sheriff Peterson relative to state of- by cuted Georgia State superior of in state fenders, Manders, such as county jail. in the courts is a state requires function. State The that only transport sheriffs not state offenders County, Chatham 244 Ga. Griffin to and superior from state courts and attend (1979), 261 S.E.2d 570 underscores how courts, all sessions those of state but also take authority counties lack opera- over sheriffs’ custody of state county jails offenders in be- county jails. tion of Griffin, In the Georgia tween superior state those court sessions. Supreme Court concluded the sheriff The Georgia State Department of has a city must accept prisoners only because a Corrections, a state agency, operates legislature local act granted State Chat- prisons state and felony incarcerates offend- County power ham county jail over the and ers after conviction. But existence County’s had commission contracted Department of Corrections preclude does not City with the city Savannah maintain the State utilizing from law enforce- prisoners Id. at 629-30. jail. in agencies, sheriffs, ment such perform as legis- involved local act the State Griffin part of the State's incarceration function for lature thаt applicable was only to Chatham above, state offenders. As detailed the State County. granted That local act the Chatham requires sheriffs to take custody of state of- County commissioners power considerable fenders, pre- post-conviction, both and in over county jail as follows: “Said Com- county jails, and counties have no law en- missioners [of County] Chatham shall have forcement or other authority corrections over power proper regulations make rules and county jails. in offenders government for the and jail control said fact, In it makes sense State to Chatham prisoners and the and in- utilize the network jails to incarcer- therein, and, mates except as hereinbefore ate state offenders in the location of the state provided, hereby are invested with the superior man- only during pre-trial courts not agement trial, jail.’’ and care of Griffin, said but also while the inmates serve state Ga. at 630 n. during Indeed, (quotation sentences S.E.2d 570 appeals. above, omitted) (alteration explained marks original). Department of Correc- In case, present tions can elect have state there is no similar offenders serve local act entire legislature state sentence county jail. in the State regarding the Clinch That the operates prisons County act, State also jail. Absent such a local counties requires precluded to build and fund a are power authority or over food, county jail provide and to clothing, and sheriffs. duties the Although specific functions particular Peterson’s Sheriff assigns light to sheriffs shed considerable not, not, do decide need We issue. office, the character of the sheriffs we on' sheriffs wear Georgia today whether nature of the must focus on the pur- Eleventh hat” for “state policy. function at issue here: force many duties specific for all of poses to use force or tools have by the State. We assigned directly violence, deadly non-deadly whether as relevant these duties recounted force, obligation to admin- and the sheriffs nature and charac- reflects on the law that jail directly ister the are derived from the however, We, the sheriffs office. ter of through the coun- delegated State and not Pe- here whether Sheriff must decide addition, of force and ty entity. use in estab- an “arm of the State” terson is creating policy quintessential po- force in train- at the lishing policy force functions, licing exercised in that deputies disciplining arrests, subduing initial inmates ses- courts, quell- or in superior sions of state regard. county jails. ing disruptive inmates Entity A. How State Law context, the lo- Defines While we must consider policing the sheriffs function cation where in the Eleventh Amend- The first factor automatically trans- performed does law defines analysis is how ment a mute the function into a state function or Georgia, the office office. In the sheriffs jail, administering county function. constitutional office. is an elected sheriff pow- not check his arrest the sheriff does his duties Although performs a sheriff authority at the door. In- ers or force always, within the mainly, although not stead, deputies bring he them into and his county, a the es- confines of geographical jail jail exercise them in the set- and office is governmental nature of his sential feeding, This case is not a case of ting. (a) historical perform continue to to in- medical care to clothing, providing or the law and law duties to enforce common mates, necessarily which occur within on behalf of sover- peace preserve Instead, Peterson’s jail. it involves Sheriff (b) specific stat- eign perform happens to be issue policy, State force in case. jail in the context this duties, assigned by the directly utory it like- jail important, context is While courts, enforcement, State, in state in law force significant that the sheriffs wise of those duties and in corrections. Most many settings in and that at issue policy is criminal integral part are an State’s It is also does not control. location alone functions. justice and are state system jail material that the State uses the Moreover, sepa- a the sheriffs office is only pretrial detainees to incarcerate not office from both independent rate and offenses, such as Man- with state charged body. County governing and its ders, serving state offenders but also state powers no or duties delegate Counties conviction. sentences after deputies Peterson and his sheriffs. Sheriff law, we Based on our review employees of Clinch at the a “state conclude that the sheriff wears Indeed, Georgia’s Constitution County. force implements hat” when he creates having any Thus, precludes Clinch first factor jail.35 this policy immunity. weighs heavily favor office. control over the sheriffs Barkett, J., 1334). (Dissent, does p. Nowhere hypothetical parade 35. The dissent raises way suggest imply that opinion or of the Atlanta Police from the Chief scenarios city security guard’s or watching private security guard Department to a power arrest or use force police officer’s department store. counter at a cosmetics B. Where State Law Control Vests iff in the several counties of this state.” 15-16-3(a). § O.C.G.A. The “purpose of The second factor of the Eleventh this Code § section [O.C.G.A. 15-16-3] is analysis examines where to promote professionalism within the of- Georgia law vests control. In addition to fice sheriff by ensuring highest pos- mandating and controlling specific sheriffs’ quality sible of law enforcement training is above, duties as outlined only the State offered each sheriff an annual basis.” possesses control over policy sheriffs’ force 16—13(a). O.C.G.A. It is reasonable 15— significant control is direct and to assume that such training includes in- areas, many including training disci- struction on policy force and hiring and pline. training deputies. Sheriff Peterson testi- in preparing fied policy force his Manual adopted he some policiеs. Requires Annual Training of Furthermore, Sheriffs’ Associ- Sheriffs (or ation uses state funds federal funds The State requires annual State) specialized distributed to the to cover all train- training of 16—3(d). all costs. counties O.C.G.A. 15— Georgia Sheriffs’ Association with the as- Notably, if a sheriff fails to comply with sistance of the Georgia Public Safety the annual training requirements, the Gov- Training Center.36 O.C.G.A. 15-16-3. ernor —the State’s may suspend the chief — The annual training of sheriffs “shall be pay without for ninety days. generally devoted to contemporary law en- 16—3(e)(4). O.C.G.A. The State also 15— forcement, investigation, judicial process, mandates that a sheriffs failure to com- practices corrections and specifically plete annual training requirements will re- germane shall be ... office of sher- in the sult loss powers. of arrest O.C.G.A. entitles that officer to Eleventh above, functions. As perform detailed sheriffs immunity. All peace certified variety specific officers in state functions in the Georgia have certain arrest and powers force justice State's system, criminal from attend- granted by the State. key question ing every court, The is not session of state superior to what have, taking offenders, and powers custody arrest force of state pre sheriffs both and but post-conviction, whom power. county jails. sheriffs exercise A Sheriff for Peter- city delegates authority and son’s policing over exercises its inmates the duty func- and through State, tion city police jail administer the flow officers from the and a not county through officers, County, county police Clinch those functions and and duties pertain city chiefly thus county police and to affairs of the State officers act for Clinch represent city and the and plainly county, and respective- has no contrast, ly. control or In over delegates the Sheriff per- State Peterson’s and policy force deputies forms the or his policing certain at the and corrections jail. through functions several law enforcement agencies, sheriffs, including and sheriffs act 36. prescribes The State qualifications the for for represent and the assigned State in those Georgia legislature sheriffs. The has declared explained tasks. As previously, under Geor- "proper qualifications and standards be gia law power counties lack in the area of law required of the ... sheriff so as to increase except operate enforcement police a county the effectiveness ... of the several sheriffs of supra force. See note 17. this state as law enforcement officers to com- What additionally makes sheriffs distinct 16—1(a). § bat crime.” O.C.G.A. The 15— city from county police officers is that the State mandates qualifications a detailed set of expressly State has vested in specific sheriffs person that a satisfy must abe candidate state functions and that sheriffs utilize their for the office any county. sheriff's powers arrest and force in executing 16—1(a)—(c). § O.C.G.A. 15— for investigation Governоr. rules these 16—8(e)(l),(4).Again, § 15— 15-16-26(a). The funds State but are O.C.G.A. application, general laws direct- State Id. whereby investigation. statutes specific sheriffs, of all training annual ly requires recom- committee If the Governor’s matter, pays subject training controls Governor, the suspension to mends for and sanctions training, sixty the sheriff for may suspend Governor contrast, counties In non-compliance. thirty suspension for days and extend that train- over sheriffs no control have 15-16-26(c). days. additional O.C.G.A. ing. direct, sub- procedure is disciplinary This over stantial, state control and immediate Disciplines 2. Governor Sheriffs per- If Peterson sheriffs acts. Sheriff in- addition, has broad the Governor force, must all the excessive Governor mits regard- suspension powers vestigation inves- immediately do is have committee in the by a ing any misconduct can the Governor tigate report, and duties. any of performance suspend him.38 policy If a sheriffs § 15-16-26.37 O.C.G.A. Moreover, believes if the Governor county jail, force in excessive permits office, the be removed sheriff should discipline may plainly Governor the dis- request is “authorized Governor custody of take fails to If a sheriff sheriff. attorney of the trict county jail, plainly in the state offenders petition bring a removal discipline the sheriff. residence may the Governor upon the evi- based made the sheriff’ expressly The legislature to the Gover- investi- by the Governor’s reported answerable Peterson dence Sheriff policies. The conduct Id. Governor nor for his committee.39 gation investigation “by may order additional may initiate the Governor Specifically, In- committee, Georgia Bureau by the miscon- any suspected investigation of enforcement law by other vestigation, may suspend any sheriff duct committee by any special ... or agencies (c). 15-16-26(a), sheriff. O.C.G.A. pur- for such by the Governor sheriffs, appointed along who two selects Governor 16—26(c). General, pose.” O.C.G.A. conduct Attorney 15— with the State any suspected criminal or even in- indictment activity. Compare may that an determine The Governor 15-16-26, § with O.C.G.A. made as vestigation a sheriff "should of alleged charges, § misconduct of criminal 45-5-6. result office, incapacity of the alleged or O.C.G.A. of office.” perform the functions through necessarily oth- acts Governor 39.The 16—26(a). § district petitions, 15— and filing removal ers in filing petition State in attorney for the acts statute, § 45- O.C.G.A. wholly separate 38. A Fulton See Owens a sheriff. to remove 5-6, any public of offi- provides for removal Cir.1989) (11th 951-52 877 F.2d Gipson v. felony upon a indictment. cial attorney (concluding acted district Bowers, 434 S.E.2d 263 Ga. County in Fulton Georgia not of and no "can take offi- (stating the Governor that decisions, though elected even prosecution there has unless a sheriff cial action although his and voters only Fulton first). The above indictment” been criminal part by large budget provided was office’s 15-16-26, statute, § howev- O.C.G.A. Georgia funds). proceedings judicial county er, all general application to a law of is not to those are identical of a sheriff for removal independently addresses public but officials superior of a clerk removal for the investigation the Governor's and § O.C.G.A. 15-6-82. O.C.G.A. court under any misconduct suspension sheriffs for and 42-4-4(c). 15-16-10(b) & §§ office, require a criminal do not which 3. Counties Lack Control policy force jail at the training and his and disciplining deputies in that regard.40 contrast, counties authority, have no over, control or involvement in Sheriff Pe- Because the State’s direct and sub- terson’s force policy jail, at the or his stantial control duties, over the sheriffs training and disciplining deputies in that training, and discipline and the county’s regard. While counties have obli- thereof, total lack this control factor also gations involving jail structure and in- weighs heavily in favor of food, Sheriff Peter- clothing, mates’ and necessi- medical ties, son’s such duties entitlement to wholly separate involve Eleventh Amendment and distinct matters from the sheriffs immunity.41 suggested It has quires been have grand counties juries year "inspect each oversight more than the State the sher- over operations the condition and of the county operation iff's "county gov- because jail,” (b)(1), § O.C.G.A. 15—12—71 and "the of- erning have disposal authorities at their fices of the attorney district at least once in investigative powers grand juries, see every years.” three calendar grand Id. The 15-12-71(c) (2001), § [O.C.G.A.] which must jury "may prepare reports present- or issue inspect jails annually appropriate and make upon ments based inspections,” then filed recommendations to the commission. superior §§ court. O.C.G.A. 15-12- (Dissent, Barkett, [O.C.G.A.] 15-12-78.” 71(b)(3), 15-12-80. At each annual 15—12— J., 1341). p. suggestion misapprehends This 71(b)(1) inspection, O.C.G.A. 15-12-78 re- these statutes and the well-established func- quires grand that the jury make recommenda- grand juries tion of sys- in the justice State's ventilation, regarding heating tions and tem. enforce,” strictly pres- "shall law, Under Georgia grand jury has two as entments to the "treatment of the in- First, principal grand jury duties. histori- mates.” cally functionally wholly independent is a investigating accusing body in the State’s reject (a) arguments 41. We felony 15-12-61, §§ cases. O.C.G.A. 15—12— represents State’s control over sheriffs noth- 71, 15-12-74, 15-12-82, Second, 15-12-100. ing more than "its legisla- role seat of the State grand vests in the jury the civil power Georgia” tive "sovereign and its power and inspecting function of and investi- prerogative to government,” structure local gating just county jail, any county but (Dissent, Barkett, J., 1337-1338) pp. (b) building, itself, governing body or that the State's control over sheriffs is "the any county commissioner. O.C.G.A. 15- kind of indirect and ultimate control ... re- 71(b)(2). grand jury Because the is inde- 12— respect served the state every with state- pendent equally county govern- oversees (Dissent, Anderson, entity.” created p. J. ing authorities, fairly it cannot be said that 1331). fullyWe recognize that ultimate con- grand juries work at the disposal counties’ every trol entity state-created resides with act for investigating counties in sheriffs or the State and may that the State destroy or county jails. reshape any political fit, subdivision as it sees Instead, grand sheriffs, jurors, like including the key sheriff's office. The differ- county, paid drawn from the here are funds, ences that the State of perform but discrete functions in the structured Sheriff Peterson’s office as inde- justice system. State's To the supervi- extent pendent exists, of Clinch County, that the State sion superior judges court the state in vested judicial specific in Sheriff system Peterson state supervise func- grand juries. tions, that (a), most of 15-12-80, §§ O.C.G.A. Sheriff Peterson's duties 15-12-71 15-12- to, 100(a), directly of, relate and Superior integral part 15-12-101. are an judges court impanel them, justice draw the grand jurors, system, and State’s criminal charge and that oaths, administer the discipline directly and State can select their fore- Sheriff Peter- person any or jury direct the son for misconduct. itself select a That to sheriffs act as foreperson. 15-12-62, (and §§ O.C.G.A. to 15-12- state matters govern- not as to local is, matters) counties, ment part, why and many too, Given that state offenders time cities power, serve have authority, no or con- county jails, legislature the State also re- trol over sheriffs.

1323 subdivision, agency having the physical Funds C. in- custody of an inmate to maintain the Amend- in the Eleventh The third factor mate, food, furnishing him clothing, and entity where the derives analysis ment hospital needed medical and atten- funds the annual funds. The State tion.”43 But Manders does not allege that sheriffs, training of funds Governor’s him Sheriff Peterson denied necessities in for use procedure over sheriffs disciplinary Rather, § 42-5-2. O.C.G.A. Manders force, pays and for certain of excessive challenges Sheriff Peterson’s force jails county assigned offenders to state policy jail training at the and the and Thus, supervision.42 the sheriffs disciplining deputies. of his are involved to some extent state funds Furthermore, County’s Clinch financial Peterson functions Sheriff (a) control is attenuated because the State at issue. mandates Sheriff Peterson’s minimum sal major County Clinch bears While (b) amount, ary and official bond funding Peterson’s office burden of Sheriff County budget sets total but jail, it is because the State so cannot dictate how Sheriff Peterson statutes, By mandates. Clinch Coun- spends Georgia Supreme it. The Court (2) (1) structure, must maintain the ty provide has held that counties “must rea in- for to appropriate funds necessities sonably sufficient funds allow the sheriff (such food, clothing, bedding, mates duties,” discharge legal his and that sanitation) and the salaries electricity, and county may “the commission not dictate to deputies, Peterson and his of Sheriff budget the sheriff how that will spent (3) offi- pay premium for the Sheriffs the exercise of his duties.” v. Chaffin 36-9-5, 42-5-2(a), §§ cial bond. O.C.G.A. Calhoun, 202, 203-04, 262 Ga. 415 S.E.2d 15-16-20, 45-4-7. Bramlett, (1992);44see Boswell v. 274 906 42-5-2(a), 50, 52, relies on O.C.G.A. Manders 549 100 Geor Ga. S.E.2d provides, part, prevents that “it shall be further coun gia’s Constitution unit, taking any affecting any ties from action responsibility governmental ling drug county pays per diem enforcement to the new 42. The State department police in the coun- and reduced the sheriff's rate for convicted state offenders turn, county, ty jail, budget by forty-seven percent. and the funds the 262 Ga. at 5—50(d); budget. granted sheriff's O.C.G.A. Ga. 415 S.E.2d 906. The trial court 42— 125-2-4.02(d). Comр. Regs. ‍​‌​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌‌‌​​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌​‌‍§ The county’s request injunction requir- R. & for an pre-trial requires pay cooperate implemen- the sheriff to in the offenders, but, convicted, personnel once the State plan tation of the to transfer pays. county police equipment newly created 202-03, department. Id. at 415 S.E.2d 906. 43. We stress that this case does not involve affirmed, Georgia Supreme holding Court care, statutory have medical which counties the trial court had not abused its discre- obligation provide to inmates in finding remaining budget was tion in that the See, e.g., Epps jails. O.C.G.A. 42-5-2. perform sufficient to allow the sheriff County, Ga.App. Gwinnett doing duties. Id. at so, 415 S.E.2d 906. (1998) (Gwinnett County S.E.2d contract Georgia Supreme reaffirmed Court Services, Inc.); Chero ed with Prison Health elected, Chaffin is an consti- that: "Sheriff Assocs., County Surgical kee v. North Cobb officer," Chaffin, tutional 262 Ga. at 496, 499, (1996); Ga.App. 471 S.E.2d 561 Const, IX, 1,§ (citing S.E.2d 906 art. County Hosp. Auth. v. Houston Macon-Bibb ¶ 3(a)); (2) employee sheriff is not "[t]he 530, 531-32, Ga.App. 428 S.E.2d commission,” Chaffin, Ga. at (1993) (concluding owed Houston (citing Commis- 415 S.E.2d 906 Board of hospital provided for medical care to inmate Wilson, Randolph County 260 Ga. v. sioners of county jail). (1990)); and al- 396 S.E.2d 903 though power county commission has the Chaffin, county, the 44. In the over the sheriff's " force, county police ‘the objection, responsibility patrol- to create its own shifted the for county elective office or personnel parity. factor, the applying Before this we Const, ¶ 1(c)(1). IX, 2,§ thereof. Ga. art. discuss three recent addressing cases it. Payment of Sheriff In budget, Peterson’s Hess v. Authority Port Trans-Hud State, required by when the 30, 35-39, does not es- son Corf., U.S. 115 S.Ct. County tablish control (1994), over 130 L.Ed.2d 245 Supreme the policy jail his force at the or how he trains Court denied Eleventh Amendment immu disciplines and deputies.45 By nity virtue of to interstate railway-port an authori mandates, ty, both state created county under the U.S. Constitution’s are funds involved Interstate Compact func- Clause and controlled tions issue. This state involvement the federal government is and two states. sufficient to tilt government third factor of the Because the was one federal analysis Eleventh Amendment “multiple creator-controllers,” toward im- munity. five-justice majority in Hess concluded that the states had portion ceded a of their D. Liability and Payment Adverse for sovereignty to Congress and having Judgments the “Compact entity Clause” respond in The fourth factor is the source of the federal court did not affront “the dignity” pay any funds that will judgment adverse of the Id. at states. 394. S.Ct. against Sheriff Peterson in his official ca- Hess further concluded that legally “both sheriff], commissioners could not divest sheriff of county since the neither has the au- power his duty to enforce the laws and thority change salary nor the discretion ” preserve peace,' directly either or indi- payment completely.”). refuse The Su- rectly by exercise of their fiscal preme Court concluded ability that the of the county properly, Chaffin, control of 262 Ga. county governing body to reduce the sheriff's at 415 S.E.2d (quoting Huff, v. budget long budget as as the Wolfe remains reason- 44, 45, (1974)). 232 Ga. 205 S.E.2d 254 able results "attenuated and indirect influ- ence operations.” over sheriff's budget another See id. at battle between the sheriff 791-92, Although 117 S.Ct. county analy- 1734. commission in Board Commis- sis Wilson, required on the Randolph Eleventh sioners $70,000 question requested pay deputies, different from that but claim, county policymaker budgeted lump commission the issue sum of control under $60,080. only 260 Ga. at law is a inquiries. 396 S.E.2d relevant factor to both 903. Georgia Supreme Court held that noting After that Alabama law cut both county commission did not abuse its au- ways, Supreme Court in McMillian con- thority, viewing the case "involving cluded that Alabama sheriffs act for the State power of the approve commission to the sher- Alabama, county, not the and then made budget iff’s power than rather of the sher- law, apt observation about Alabama deputies.” iff to hire Id. at 396 S.E.2d applies equally regulat- law 903. not, course, "We pre- sheriffs: are dicting always that state law speak Alabama are will elected vot- ers, perfect budgets funds, clarity.... their paid may It not be possible jurisdiction elegant draw is limited line that will borders resolve this McMillian, respective of their Supreme counties. The conundrum.” 520 U.S. at Court found these (quoting Praprotnik, factors S.Ct. 1734 insufficient to estab- 485 U.S. 125, 126-27, lish 915). control over sheriffs and decided S.Ct. This case axiom, that Alabama exemplifies sheriffs act represent for and explains and it also the State in why their law narrowly enforcement duties. we decide See McMillian v. Monroe 520 U.S. sheriffs in capacity their official act for the 781, 791, 117 S.Ct. establishing L.Ed.2d 1 State in policy force in the (1997) ("The county's payment training sheriff’s and in dep- disciplining their salary does not translate into control over regard. [the uties in that

1325 and “the risk of adverse legal liability” obligat- state was neither practically” and that opposed requiring entity. judgments,” as the any judgment pay toed Rather, In actually pay judgment. the the funds 51-52, 394. 115 S.Ct. Id. at indemni- Regents, government the federal independent, financially entity was fees, investors, tolls, litigation university, and the fied a state private from funds Id. 49-50, treasury. Id. at on the state impact” had “no income. investment Nevertheless, this deter- Although weighing Supreme the Court 394. S.Ct. 115 heavily, Hess indemnity factor full did not af- that source-of-payment mined Id. The Amend- immunity. for Eleventh suggests university’s that never fect the is treasury drain immunity a “[t]he emphasized ment Supreme Court 1326

Thereafter, applied corporations this Court these private indemnify would the state was immaterial. Id. at 1313. principles in Teaching Hospital Shands Clinics, Corp., Inc. v. Beech Street Applying case, principles these to this granting immunity private to corporations we first determine that Georgia law that contracted with the state to County adminis- pay damages Clinch would not a award against Georgia ter Sheriff Peterson. program its health insurance and to speak unanimity courts in concluding provide a network medical services. that county a defendant cannot be held 1310-11, 208 F.3d at 1313. We stated that liable for the tortious actions or miscon- “although private corporations these are duct of deputies the sheriff or his and is that are by neither controlled nor funded required to pay resulting judg- the state, they the protected by govern- are Likewise, Georgia ments.48 courts have immunity mental they clearly when for, concluded that counties are not liable acting agents of the state.” Id. at 1311. and not required give to money Noting that other adopted circuits had not pay, judgments against civil approach immunity, of total or no rights Wayne County actions. See Bd. of Shands looked to the relief sought and Warren, 150, 152, Comm’rs v. 236 Ga. 223 judgment whether the against private (“[A] (1976) S.E.2d 133 county has no lia- corporation implicate “would the state bility in connection with the violations of treasury or interfere with the administra- the civil rights any person by county a tion of ... program.” [a] state Id. Given officer.”). Georgia Supreme Court that the State could be sued for negli- quoted Georgia Warren a stating statute gence of agent corporations in untime- county that “[a] is not hable to suit for claims, ly paying we determined that the cause of action unless made so statute.” judgment against private corporations Id. at (quotation S.E.2d 133 marks implicate omitted).49 “would Thus, statute, funds” that the county Wayne Warren, County 48. Bd. Comm’rs v. quoted 49. The statute in Warren is former 150, 152, (1976) 236 Ga. 223 S.E.2d 133 (1933), Code 23-1502 which is (concluding county that a liability has no for now O.C.G.A. subsequent 36-1-4. In the rights any person violations of the civil County decision of Chatham Commissioners v. sheriff); Brown, Ga.App. at Rumary, (1984), 253 Ga. 315 S.E.2d 881 (reversing 470 S.E.2d 786 denial of sum Georgia Supreme Court held that mary judgment County for Peach because the County Chatham Board of Commissioners sheriff, Peach County, not Peach was required pay judgment was proper party noting to sue deputy deputy damages sheriff for in an automobile employees sheriffs "were of the sheriff and collision because County’s Chatham own County”); not Peach Lowe v. Jones provided Code deputy for the defense of the at 372, 373, Ga.App. (1998) 499 S.E.2d 348 payment trial judgments of final awarded (concluding "deputy employees sheriffs are 60-61, in courts. Id. at 315 S.E.2d 881. The sheriff, county, not the and the Georgia Supreme emphasized Court vicariously cannot be held prin liable as their [county] "[t]he nature of the liability Board’s Smith, cipal”); Pettus v. Ga.App. respondeat here is not superior that of [for (affirming S.E.2d 735 sum acts], deputy sheriff’s solely by but exists vir- mary judgment board of commis tue voluntary of its self-imposed obli- concluding, sioners and "[a]s the com gation provide indemnification for the acts had missioners no control over the official employees during perfor- committed ..., deputy duties of the they had no mance of their duties.” Id. duty 315 S.E.2d to determine high-speed whether a driv suggests No evidence in this case course rather than driving a defensive County voluntarily agreed reasonably pro- course required was sup to be sheriffs”); plied deputy vide Chadwick v. Stew indemnification to Sheriff Peterson or his art, 329, 329-30, Further, Ga.App. deputies. Supreme S.E.2d 502 Court has instructed that indemnification does not re- addition, was not liable. implicated because Sheriff Peterson would Supreme Court concluded that “there is no need to seek a grеater budget total duty of the to furnish the for his office greater and a money rights judg- to settle a civil daily rate from the State felony offend- 152, ment against entered him.” Id. at 223 serving ers their state sentences S.E.2d 133.50 county jail.

Although County required is not Never has Supreme Court required pay to and although Sheriff ar- Peterson an actual drain on the state treasury as a gues ‘legal liability’ that “the for sheriffs per se condition of Eleventh Amendment Georgia rests with the Georgia, State of immunity.51 Regents the Univ. counties,” Doe, not individual we can locate 425, no Cal. v. 519 U.S. 117 S.Ct. expressly law requiring 55; Hess, the State 137 L.Ed.2d 513 U.S. 115 pay to an adverse judgment against 245; Sher- S.Ct. Shands, L.Ed.2d iff Peterson in capacity. his official Sheriff F.3d 1308. This is because the Eleventh Peterson apparently thus would to have Amendment “is rooted in a recognition pay any judgment States, adverse federal court that the union, although a maintain against him in capacity his official out of certain attributes of sovereignty,” and a budget turn, of the sheriffs office. In purpose of the Eleventh Amendment is to payment budget, would reduce his and “accord[] the States respect owed practical reality is that Sheriff Peter- them as members of the federation” and son recoup money must from some- not to affront the “dignity” or “integrity” If a significant where. judgment adverse of a by requiring a respond state to occurs, both and state funds are Hess, to lawsuits in federal courts. immunity. Regents, move the cloak immunity and make consideration of the oth- 430-31, U.S. at Thus, 117 S.Ct. 900. unnecessary. er factors why this is some treasury decisions focus on the factor. Haywood Hughes, 50. 238 Ga. here, If the State footed the entire bill there (1977), propo- S.E.2d 2 has been cited for the would be no issue to decide. counties, statute, by sition are authorized Amendment, however, The Eleventh does pay legal for the sheriff's costs in civil eye not turn blind sovereignty state’s rights parties against suits third sheriffs. simply treasury because the state is not direct- Haywood, See O.C.G.A. 45-9-21. In how- Moreover, ly affected. the United States Su- ever, Georgia Supreme emphasized Court preme Court has never said that the absence that the statute authorizes counties to do so treasury immunity of the factor alone defeats ”give[s] "in their discretion” and factors, precludes consideration of other determining considerable latitude in what ac- such as how state entity law defines the tions will be defended.” Id. at degree what of control the State has over the 89-945, (citing S.E.2d 2 Ga.Code Ann. earlier, entity. As although mentioned 45-9-21). Hay- which is now O.C.G.A. affected, treasury wood, was not the Hess County the Glascock Commissioners spent pointing Court considerable time out adopted policy pay attorney's fees in two how that lawsuit in federal court did specific Hay- suits the sheriff. Id. dignity affect the States two because wood demonstrates that Clinch is not they part ceded required sovereignty had pay attorney's the sheriff's fees government the federal unless it elects to do as one of the creator- so. Compact controllеrs of the entity Clause says treasury state-treasury-drain Hess that the state issue. If the factor is a element itself, juris- always "core concern” of were Eleventh determinative this dis- cussion, prudence. 513 U.S. at 115 S.Ct. 394. It as well as the other control discus- sion, presence treasury is true that the of a state would unnecessary. have been See su- may trigger drain alone pra Eleventh Amendment note 46. (citation 115 S.Ct. 394 that he does as to the limited functions at

U.S. 39— issue in this case. omitted). quotation “[C]urrent marks em- jurisprudence Eleventh Amendment weigh heavily The first two factors immunity, favor of and the third factor retained each phasizes integrity way tilts as well. Sheriffs’ duties and system.” in our federal Id. at directly functions are derived from the “integrity” 394. The State’s S.Ct. State, State, performed for the and con- bill, and, foots at a not limited who trolled the State. The State of Geor- minimum, liability-for-adverse-judg- gia managerial preroga- has exercised its not Peter- ment factor does defeat Sheriff (a) offenders, tive: to incarcerate state immunity claim. son’s in pretrial post-conviction, and locations; (b) jails, among assign other to specific sheriffs certain state functions in V. CONCLUSION enforcement, courts, law state and correc- tions, in including making charge sheriffs Having applied the Eleventh Amend (c) jails; in county of state offenders to factors, ment we conclude that Sheriff Pe duties, control sheriffs’ train in capacity terson in his official is an arm of (d) duties, sheriffs; discipline those State, County, in not Clinch establish preclude any county control over sheriffs jail policy use-of-force at the and in require but nonetheless counties to fund training disciplining deputies structure budgets; and sheriffs’ Therefore, regard.52 that Sheriff Peterson (e) for the pay State to for sheriffs’ is entitled to Eleventh immu Amendment training and discipline, as well as certain answer, nity this case.53 We need not state county jail. offenders Given answer, today and do not whether Sheriff law, principles these of Georgia we con- any Peterson wears a “state hat” for State, clude that sheriffs act for the counties, performs. functions he We conclude as to the functions in issue.54 765, 779, 52. Never before has this Court discussed or U.S. 120 S.Ct. 146 L.Ed.2d particular decided en banc the issue in this (emphasis original). If sheriffs panel case. We actually think that no capacity in their official are arms of the state question decided the before this case. In functions, exercising when certain then an cases, prior merely accepted § 1983 we offi- issue arises whether Manders’s 1983 suit is capacity against Georgia cial suits sheriffs as subject independent dismissal on the See, against respective suits counties. ground they "persons” pur- are not e.g., Alexander v. Fulton 207 F.3d poses Michigan Dep't §of 1983. See Will v. (11th Cir.2000); Wayne 1322 n. 14 Police, 58, 71, State 491 U.S. 109 S.Ct. Jarvis, (11th Cir.1999). F.3d statutory 105 L.Ed.2d 45 This cases, whether, In these we did not decide issue, however, is not before us as it was law, agents sheriffs are for the argued appeal. neither briefed nor counties, appear State or the and it does not parties question. raised the To the extent suggеsted 54.It has been the sheriff's prior imply that our decisions state or constitutional, independent, office is elect- regarding sheriffs act for counties ed office that is neither the State nor the policy functions in issue—force (Dissent, Anderson, J., county. pp. 1331— training disciplining deputies in that 1332). Throughout litigation parties regard overrule those decisions. —we legal have briefed and framed the issue in this solely case as whether Sheriff Peterson in his Supreme 53. We are mindful of the Court's capacity official acts on behalf of the State or that, reaching instruction before an Eleventh in the context of the Eleventh issue, Amendment a court should address Thus, Amendment. we decide that controver- question "the [of] whether the statute itself addition, sy. No permits other issue is before us. In the cause of action it to be creates agree Agency asserted while we that the States.” Vermont sheriff's office is inde- Stevens, Nat. Res. v. United pendent States ex rel. from and not controlled the coun- point against Elev- tors Eleventh factor Amendment to the final fourth As immunity: analysis, although geographic the sheriffs limita- enth required single county, are not tion to a the sheriffs ac- and the judgment against countability single the sher- to the electorate of a an adverse pay indirectly iff, county and state funds county, both the state constitution’s treatment event, the State’s implicated. as officers and not as remain integrity officials, and thus its sovereignty delegation state the state’s law- when federal court directly affected policymaking autonomy broad to the sher- program interfere with suits iff opposed retaining as hands-on con- minimum, this final factor function. At a trol, and the fact that the state has no immunity. not defeat does legal liability potential liability and no legal respect judgments against a sher- reverse the district Accordingly, we Hess, iff. As the functions of the sheriff denying Peterson’s court’s order Sheriff readily “are not typically classified summary judgment and remand motion for unquestionably or local.” Id. at 115 proceed- district court for this case to the municipali- at 403. Both states and S.Ct. opinion. this ings consistent with activities, in engage ties law enforcement AND REMANDED. REVERSED in in particular jailing the function. ANDERSON, Judge, dissenting, Circuit my In the judgment, second Eleventh TJOFLAT, in BIRCH which immunity Amendment factor —control—is WILSON, Judges, join: Circuit only one of the four indicators1 that the provide major- might support some for the that the dissent. I submit respectfully

I ity position.2 assuming arguendo Even appro- for court the opinion misapplies the immunity point- that there are indicators In analysis. Amendment priate Eleventh directions, Supreme in different the favorable face that my judgment, most guidance has ms clear given Court such put on this case would might the sheriff immunity situations: “When indicators of to Hess v. Port paint this case as similar directions, the Eleventh point different 513 U.S. Authority Corp., Trans-Hudson being twin reasons for re- Amendment’s 245 130 L.Ed.2d S.Ct. Hess, “[ijindicators at Hess, prime guide.” main our 513 U.S. immunity In or 47, 115 at 404. The of the twin ... S.Ct. first point thereof do not all the absence asked whether it would be “disre- at at 402. reasons way,” the same id. S.Ct. case, immunity spectful” dignity” indica- or a “threat to the following In this Amendment, points the Eleventh ty, today we that the sheriff concern of conclude words, strongly against immunity. I performing acts for the State in agree Judge Barkett has with most of what at issue in this case. functions written, specifically join but I decline to her county governing body respect implication indicator —how the that the 1. With first respect liability actions of the the Sheriff's Office with for state defines would bear jail agree of what we decide in this case is that function —I with most All need sheriff. state; Judge says we in her dissent. See Bark- sheriff is not an arm of the need Barkett J., ett, dissenting, respect county's liability I. With decide the vel non. at Part not the third indicator —the source of defendant's Ultimately, I believe even the control factor funding again agree with most of what —I majority support Judge at fails to offer much for Barkett has written. Id. Part III. by the state is position. The control exercised respect With to the fourth indicator —the judgments simply too indirect and too limited. brief liability adverse one state’s for —no liable, below, and the fuller discussion in suggested would be discussion J., factor, Barkett, dissenting, important Part II. and thus most this core every But ultimate control of state-cre- require the state to answer course, State, entity with the court. it is ated resides complaint federal Of may destroy reshape any that an identical claim the State well established it city county i.e., “[Political or a Manders’ unit creates. subdivisions against — violating solely at the and behest of force claim for exist whim 1983 excessive State,” yet him by beating Amendment cities counties do Eighth enjoy Eleventh immuni- not be barred Elev- not Amendment while —would I no immunity. ty- see enth dignity the state in

greater threat to the (citation Id. at 115 S.Ct. at omit- the instant suit the Sheriff ted). significant, Even more the Court County. held: Moreover, rendering dispositive twin control The second reasons in Hess held should Supreme impetus Court does home on the for the Supreme char- guide us is what the Court Eleventh Amendment: the prevention impetus as “the for the Eleventh judgments acterized federal-court ‍​‌​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌‌‌​​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌​‌‍that must be prevention Amendment: of federal- treasury. out of a paid State’s judgments paid court that must be out of a Id. at at 404. The fact that S.Ct. treasury.” at State’s Id. S.Ct. control factor was discounted Hess added). (emphasis Supreme particularly significant for the instant Court also characterized this state trea- case because the state control in Hess was sury factor “the Eleventh Amendment’s significant much more direct and than the concern,” core id. at 115 S.Ct. at by control in the in- exercisable the state approval and cited with the fact that the stant case. At issue in Hess was the Elev- majority of vast the circuits have conclud- enth Amendment of a port status bi-state treasury ed that the state factor is “the authority. governing body port important most factor” to be considered. commissioners, authority, twelve were ap- 49,115 Id. at S.Ct. at405.3 pointed, by six each state. Id. at In applying analysis, Supreme Any this the at 399. or by S.Ct. vote action expressly the signifi- subject by Court discounted commissioners was to a veto factor, stating cance of the in governor respective control rele- states. Id. at part: vant 115 S.Ct. at 399. control was Other exer- Hess, Following uniformly weighs against the cases have enth Amendment decisions a treasury (internal continued to consider the state factor finding immunity”) quotes omit- Comm’rs, Vogt as dominant. See v. Board ted); Denver, v. 100 F.3d Sonnenfeld (5th Cir.2002) (following 294 F.3d Cir.1996) Hess, (10th (citing most im- "[t]he Hess, significant “[the] most factor in assess- portant determining gov- factor in whether a entity’s judgment an status is whether a entity ernmental is entitled to Eleventh funds”) (cita- against paid it will be with state immunity judgment is whether omitted); Angeles, tion Streit v. Los against paid it would be from the state trea- (9th Cir.2001) (applying 236 F.3d sury.”); Christy Pennsylvania Turnpike v. Hess, financially whether state is liable for Comm’n, 1140, 1145, (3rd 54 F.3d 1149-50 judgment against operation sheriff's office for Cir.1995) Hess, (quoting important "the most county jail important is "the most factor in judgment against is factor whether the enti- state”); identifying an arm of the Harter ty question paid ... would be out Vernon, Cir.1996) (4th F.3d 338-39 treasury,” holding that there was no (observing, holding that North Carolina immunity despite Eleventh Amendment con- immune, deputies sheriff and are not (internal control) quotes siderable state omit- treasury pay "when the state will not ted). judgment ... the most salient in Elev- factor latter, Id. In it is clear that the state legislatures. treasury the state cisable words, Hess, obligated pay judgments is not adverse in other there was direct too, the sheriff. In respect and all decisions. On the control over the instant case is even clearer than Hess.6 hand, instant the state control other delega- It clearly indirect. includes case is sum, that, best, In I submit at the other authority; provides general it for tions of immunity point indicators different di- it for inspections; standards and reserves Hess, rections. As in we should therefore power temporarily the Governor look guidance. to the “twin reasons” for I for misconduct suspend specified submit these point against reasons incapacity, participation pro- or immunity, Eleventh Amendment and in- office, again spec- strongly of removal from deed more so than in cess Hess. Moreover, incapacity. or ified misconduct In inappropriate empha- addition to the in the case the state control instant above, sis discussed I respectfully also dis- city equally applicable either agree opinion for the court in jails, analogous to state control over respect. my another In it judgment, asks short, local In the state other officers. wrong It question. asks who has the precisely control here is the kind of indi- control, most county. state or the I rect and ultimate control which the Su- proper question submit that the is whether being in Hess discounted as preme Court the sheriff has carried his of prov- burden every respect reserved the state with ing that he is of the state. arm 47,115 entity. state-created Id. S.Ct. at words, the issue is not the state (“But every ultimate control of state- rather, county; versus thе issue is State.”).4 entity created resides with the an arm whether sheriff is of the state Thus, if state control was not sufficient to vel non. The mere fact that the sheriff is immunity in warrant Eleventh Amendment policymaker not the for the com- Hess, I conclude that it is the mission, cannot is not controlled I respectfully commission, instant case.5 submit and the fact that the overemphasizes for court opinion superior liability no for respondeat sheriff, not, underemphasizes judgments against the control factor and do ei- combination, treasury respect singly go very factor. to ther or in far the state With 47-48, (discounting in would 115 S.Ct. at 404 the con- 4. Justice O’Connor's dissent Hess discussed). placed greater weight have on the control trol factor as above For this rea- factor, "real, only son, but immediate control primacy as well as the for the Eleventh oversight, potentiality rather on the factor, than treasury Amendment of the state taking of a action to seize the reins.” § 1983 caselaw should be used cautious- J., (O’Connor, at at 411 See id. 115 S.Ct. ly analysis. an Eleventh Amendment dissenting). the state’s It is doubtful that satisfy case would Jus- control in the instant 6.Nothing Regents Calif, the Univ. v. tice O’Connor's standard. Doe, 117 S.Ct. 137 L.Ed.2d 519 U.S. (1997), contrary suggests a result here. In Although the control factor is relevant both Doe, the core Eleventh the Court framed pur policymaker inquiry for in the question as whether an adverse inqui poses and in the Eleventh Amendment "poten- judgment expose the would ry, significant control is a more factor in the coverage legal liability, tial” even if some Turquitt v. inquiry. Compare § 1983 Jefferson indemnify existed to the state mechanism Alabama, (11th County, 137 F.3d liability. against Id. at 117 S.Ct. actual Cir.1998) (en banc) (“Local governments can suggestion is no here that the at 904. There never be liable under 1983 for the acts of against judgments sheriffs in state is liable for government au those whom the local has no fashion, Hess, control.”) potential. or thority real 513 U.S. under Peter- establishing that a sheriff tained when officers Sheriff toward him supervision repeatedly son’s struck arm of the state. The Seventh Cir is an Zaruba, a wall in Franklin v. the face and bashed his head recognized cuit (7th Cir.1998). There, According in in the Clinch Jail. 150 F.3d 682 testimony, the beat- deposition an was not Manders’s holding that Illinois sheriff upon he sustained his arrival at the Eleventh Amendment immuni entitled to county jail eventually resulted in his ad- ty, the court said: hospital. to a mental mission defendants, According to if sheriffs agents county Illinois are not of the county jails In the one Georgia, such as county purposes holding hable quintessen- where Manders was held are respondeat superior, then sheriffs tially separate local institutions that exist agents must therefore be of the state. sys- apart integrated from the state’s argument This overlooks a crucial third prisons. operation among tem of Their is namely, that the possibility and, county responsibilities spe- ...— an de- agent county is cifically, Longstanding sheriff. partment, independently-elected of- authority clearly gov- establishes that local subject to the control fice may ernments such as counties be held respects. in most under 42 policies liable U.S.C. 1983 for they adopt customary practices they Id. at 685. The court held that the fact operating governmental tolerate in local respon- that “the is not liable under facilities. v. See Jinks Richland superior deat for the actions of the sheriff — —, 1667, 1673, U.S. 123 S.Ct. necessarily does not entail that the sheriff (2003) (unanimous opinion); L.Ed.2d 631 necessarily agent must be an of the state.” City Dep’t Monell New York Social Hess, Similarly, Id. at 686. there was Servs., 436 U.S. 98 S.Ct. attempt assign responsibility no for the (1978).1 L.Ed.2d 611 past, there- authority to govern- bi-state some level of fore, plaintiffs such as Manders could be ment other than the It was state. suffi- confident that violations of their constitu- here, there, say cient as it should be rights county jails go tional would not that defendant is not an arm of the state. unremedied. reasons, foregoing respectfully For the I however, Today, dissent. the majority badly sub- governmental verts the law of local liability BARRETT, Judge, dissenting, Circuit in by holding in Georgia TJOFLAT, WILSON, BIRCH and state, act for the and thus are immune join, Judges, Circuit and in which by operation from suit of the Eleventh ANDERSON, joins Judge, part: Circuit Amendment, they policy- when exercise making authority Willie Santonio Manders Clinch county jails. sued over It County Sheriff Winston Peterson 42 by determining reaches this conclusion § injuries 1983 for U.S.C. Manders sus- that even if policies Sheriff Peterson’s previ- County Angeles, Thus we and our sister circuits have see also Streit v. Los 236 of held, view, ously correctly my 552, (9th Cir.2001); claims F.3d 564 DeGenova v. against capacity sheriffs in their official for 973, DuPage County, 209 F.3d 977 Sheriff of county jails constitutional at violations (7th Cir.2000); By Through Doe Doe v. See, against county. e.g., claims the relevant 920, Washington County, 150 F.3d 923-24 Jarvis, 1098, (11th Wayne v. 197 F.3d 1105 Chester, (8th Cir.1998); Dotson v. 937 F.2d Cir.1999) (stating jail inmate’s 1983 (4th Cir.1991); Snow, 934 Blackburn v. against "claim Sheriff Jarvis in his official (1st Cir.1985). 771 F.2d 571 capacity County”); is a claim DeKalb

1333 contexts, variety of danger inmate Manders’s we face the of a responsible for were polices adopted sprawling inquiry spanning Peterson these cor- beating, whole carrying out jailer, in his role as but of pus state law. unknown “functions” of “es- previously bottom, At Such is case here. jail policy at the tablishing use-of-force majority’s newly invented “function” is training disciplining deputies ... nothing more than the sheriffs lawful au- regard.” Majority Opinion in that thority impli- to use force. This power is 1305-1306. cated, greater at a degree or lesser past in the with 1983 When confronted remove, virtually all of a sheriffs areas on a inmate’s treatment claims based official responsibility. It is not a func- custody, always have defined while we tion but a general rather attribute of the coun “operating relevant function as a sheriffs office. jail.” Turquitt County, v. ty Jefferson By defining “function” in unprece- (en (11th Cir.1998) 137 F.3d 1288 fashion, majority dispenses dented banc); v. Butler see also Marsh guidance with the in Georgia be found (en (11th Cir.2001) F.3d 1028 clearly directing statutes that Sheriff Pe- banc) (quoting Turquitt); Lancaster v. manages terson the Clinch for Jail County, 116 F.3d Monroe County.2 It then fails to locate practice This has been our equally authority addressing clear point identifying goоd reason. question today. guid- we must decide No function in each pertinent governmental identify- ance is to in the be found statute analysis keep case is to our focused on ing circumstances under which sheriffs law authori positive discrete set of force, may deploy because this enactment area of offi ties that define the the same establishes responsibility cial at issue. McMillian Cf governmental extends to state and local 781, 786, County, 520 U.S. v. Monroe alike. Ann. 17-4- actors See Ga.Code (1997) 1734, 138 (requiring L.Ed.2d S.Ct. 20(d) (prohibiting a enforce- either “law analysis “particular area” at issue agency any politi- ment of this state or of “categorical, ‘all contrasting it with a ” limiting cal subdivision this state” from nothing’ approach); City St. Louis (em- force) authority to peace officers’ use 112, 125, Praprotnik, v. 485 U.S. 108 S.Ct. State, added); Perry Ga.App. phasis (1988) (expressing 99 L.Ed.2d (defining S.E.2d provide confidence that state law will suffi power by way of scope of sheriffs arrest guidance inquiry cient when is focused 17-4-20). Instead, Ann. Ga.Code “given government’s area of a local busi majority through rest of the rifles ness”). analytical purpose This is inevita Code, drawing indirect inferences if bly frustrated the notion of function is addressing everything from statutes properly is more conflated what registration of bail-bond sureties to execu- general attribute of the defen deemed process. tion of court the course of its office, range dant’s incidental to a of offi integrate these state laws into a effort inquiry cial functions. our becomes Once sheriffs, theory to an attribute that is at issue of unified tied sort 1863, (1997). Moreover, provided have the it is counties that 2. Since Code are Ga. that sheriffs "Jailers of the counties.” jails "physical custody” of inmates in their (1863). Today, provides § that Code 331 it them, and are therefore bound "maintain” jailers of the counties and have "sheriffs “food, furnishing clothing, by authority jailers, subject appoint hospital attention.” Id. needed medical and supervision county governing to the 42-5-2(a). § (a) authority.” Ga.Code Ann. 42-4-1 1334 city department’s arguments (striking police that down majority deploys two governing discharge officers’ implications policy the law and have

misstate of conflict with breadth. their firearms on basis tremendous 17-4-20); Ann. Ann. Ga.Code Ga.Code First, majority suggests that sheriffs county (authorizing by po arrest 36-8-5 im- are entitled to Eleventh Amendment lice); (authorizing by arrest id. 17-4-60 authority because their to use force munity State, 136 private parties); Cash v. Majority by is conferred the state. See (1975) 63, 221 App. (approv S.E.2d logic This marks a bla- Opinion at 1319. security shop arrest of ing store officer’s function-by-func- tant end-run around our lifter). city po it is settled law that Yet majority itself approach. tion As lice, security guards county police, and out, “in may force points exercise by are not private hired entities entitled arrests, subduing inmates in initial ses- immunity. City Eleventh Amendment courts, quell- or in superior sions of state Harris, 378, 388, Canton v. 489 U.S. ing disruptive county jails.” inmates in Id. (1989); Pemb S.Ct. 103 L.Ed.2d simply If agents sheriffs are state because Cincinnati, City aur v. U.S. authоrity originates to use force 473-74, 484-85, 106 S.Ct. 89 L.Ed.2d law, they then it must be act as state (1986); Hicks, Farred v. 915 F.2d agents engaged capacity in a whenever Cir.1990). (11th major 1532-33 deployment that of force— requires the ity proffers distinguish no test these say, virtually every which function officers and individuals from the traditionally have served. newly it sheriffs whose exercise of force radically, im- argument Even more designates a state function.3 plies immunity that Eleventh Amendment argument The second untenable offered beyond city police extends sheriffs to offi- cers, officers, by majority is that the sheriff is enti- county police pri- and even security immunity All tled to Eleventh Amendment guards. vate of these individ- uals, simply Assembly from the Chief the Atlanta Police because General de- Department employee keeping powers fines the and duties of his or her depart- theory watch over the cosmetics aisle of a office. Yet on this of what makes a store, public ment act office an “arm of the vested state” immune suit, by using Healthy City them state law when force to from Mt. Sch. Dist. Bd. 274, 280, Doyle, effectuate Educ. v. arrests violations of state 429 U.S. Atlanta, (1977), City law. Allen v. 50 L.Ed.2d 471 there can S.Ct. Ga.App. thing government, 510 S.E.2d be no such as local be- sure, majority part 3. To be endeavors to articu- affirmative answer rests on an attrib- peace Georgia— ute common to all officers in by stating city late such distinction that ''[a] namely, the conferment state law of a delegates policing and exercises its function power to effect arrests force.—it would through city police officers and a seem to follow not sheriffs but also officers,” through county police "the whereas city county police officers be re- could delegates performs certain garded Apparently as state actors. this is policing through and corrections functions majority's escapes so. While the me, distinction agencies, including several law enforcement certainly agree city I Majority Opinion sheriffs....” at 1319-1320 police generally officers do not act as arms of purported presup- n. 35. This distinction state, by today’s and thus I am reassured poses very question an answer to the at issue promise "hypothetical scenarios” appeal, namely, in this whether sher- majority's reasoning raised will re- main, all, iffs in act for the state. Because the merely hypothetical. Majority after analysis by majority Opinion reaches its at 1319-1320 n. 35. cause all local government is by definition its history at length some in Grech v. a creature of the state’s Clayton attach 335 F.3d 2003 WL powers (11th and duties to particular Cir.2003) offices. 21521761 (Barkett, J., con- Indeed, as I greater shall discuss at length curring). Rather than revisit that discus- below, Georgia full, Constitution authorizes sion in I here note simply that legislature powers define language, structure, and history of the very duties of the officials most readi- Georgia Constitution overwhelmingly dem- ly in Georgia associated with policy-mak- onstrate an on intent part framers’ ing on behalf of governments: local county ratify more than one years hundred commissioners. To hold that county com- Georgia case recognizing law the sheriffs missioners entitled to Eleventh independence from state lawmakers. In- immunity deed, Amendment plainly flouts estab- the drafters rejected resoundingly Nonetheless, lished law. precisely suggestion this is that would given have the state implies what the majority today. legislature power to decide whether the sheriffs office would exist and by end, In the identifying policy” “force as it (Bark- whom could be filled. Id. at n. 8 the function at issue this case so broad- ett, J., concurring). designation This inquiry required ens the applying sheriffs as independent county officers mi- Eleventh Amendment that majority’s litates considering them arms of opinion largely becomes a survey ad hoc the state in of their any official functions. Code. When we instead rec- ognize operation as respect focus of With proper to the our inquiry, every relevant function straight- factor we must case, consider in this forwardly weighs against statutory jails law defining conclusion as insti- Peterson, that Sheriff tutions carrying complements out this perfectly the consti- function, acts as an “arm of the such tution’s state” definition the sheriffs office. that the “By Eleventh Amendment offices, immunizes virtue of their sheriffs are jailers him from suit in federal court. of the counties and have the author- ity to appoint jailers, subject I. DEFINITION OF SHERIFF’S supervision of governing au- OFFICE AND JAILS UNDER thority, prescribed as by law.” Ga.Code STATE LAW 42-4-l(a). Ann. A county “having the The first factor relevant in applica- our physical custody an inmate” has the of the tion Eleventh is how responsibility:

state law entity defines the or official sued inmate, to maintain the him furnishing aas defendant. We have previously found food, clothing, and any needed medical this factor to holding favor unpro- hospital attention; any defend tected the Eleventh Amendment when corpus habeas or other proceedings in- constitution, the state interpreted as inmate; stituted behalf of the court, supreme the state established that and to bear expenses all relative to and, the “sheriff is a ‘county official’ escape and recapture, including the ex- ” such, an integral is part of the ‘county.’ penses of extradition. v. Rodgers, 912 F.2d Hufford 42-5-2(a). Id. governmental As units (11th Cir.1990) (citation omitted). charged custody of persons ac- Constitution unequivocal crimes, cused of counties maintain their designation “county jails sheriffs as through the efforts of their sheriffs. Const, ¶ officers.” Ga. art. I function, performing sheriffs cannot have discussed the relevant provision and decreed the arms state. conclusion, to use force no contrary thorizing to sheds In order reach n light on whether the sheriff whatsoever necessary it aside majority

the finds to set doing for the state or the so. acts charac- Georgia general the Constitution’s county officers and majority compensates terization of sheriffs as for lack this guidance by turning spe- of direct to “the jails Code’s identification of as sheriffs,” assigns cific duties the State to end, deрloys To it county institutions. this regards “integral” “most” of which it as concept of “function” to distin- novel Id. justice system.” criminal “State’s present involving case from one guish the connection, In at 1315-1319. the ma- specifically enumerated in Sec- the duties jority “state court and bond-re- discusses 42-5-2(a), namely, “feeding, clothing, tion duties,” id. at “the lated as well as medical care to inmates.” providing or common law duties of sheriffs to enforce majori- at In the Majority Opinion 1319. preserve peace the laws and on behalf view, ty’s and the these duties State.” Id. sovereign at 1312.4 The of maintain” in- responsibility broader “to problem approach with this is that law implicated mates are not in this case be- enforcement, court, bond-related jail oper- cause here we consider not must nothing duties to do function have with the se, per ation but rather “Sheriff Peterson’s case, majority’s at issue in this even on the happens to be at issue policy, force of “establishing definition that function as Id. at 1319. A context....” policy jail.” use-of-force at the The beat- however, policy,” focus on “force does not alleges to which Manders he sub- was identify any state law that illuminates the jected was neither connected with his ar- state or local character of this “function” rest, already which had been effected clearly vesting as as do statutes counties County the time he entered the Clinch Rather, responsibility jails. for Jail, with transport nor incident to his to or discussed, already statute au- from a courtroom.5 majority points duty category prisoners specially 4. The also one of sheriffs’ sin- prisoners jails gled detain for a majority: persons certain out whom the period they limited after have been Georgia Department tempo- committed of Corrections 1319; Opinion custody. Majority to state at rarily pays per counties diem fee to house Assuming purposes id. at 1315-1316. for overcrowding prisons. due to in state argument that to this extent state law does 11. note infra state," define sheriffs as "arms of the Remarkably, goes majority so far as to all, point little force in this case. First of suggest point detaining at one accused custody Manders was not committed to state always everywhere criminals is a "state any point during at detention the Clinch charged function” whenever offenders are Second, special categories Jail. Majority Opinion with "state felonies.” See prisoners majority discussed —consist- reasoning appears at 1318 n.33. The to be conviction, ing mainly persons appealing defining that the of state sentence, enactment laws felo- awaiting imposition suspended ny persons charged offenses makes all serving previously probated re- sentences offenders,” felony the commission of a "state voked on the basis minor offenses—are accordingly clearly entitles their custodians to exceptions general minor rule. protection Eleventh Amendment at least opеrating jail, the sheriff exercises custo- logic some suits. dy primarily pretrial This infirm marks a varia- per- over detainees and argument tion on the that Sheriff Peterson sons convicted of misdemeanors. re- With spect immunity categories to these much entitled Eleventh Amendment broader prisoner, it is the than whenever he exercises his rather responsible making that is detention and well- law use force in arrests. Just being persons majority’s Georgia’s custody. in the sheriff’s as the reliance on use-of- sheriff, Code implies every city Ann. 42-5-51. I discuss below force statute

1337 ty requires or state attention to the recog- refusal to sher- majority’s Hence area, “in particular iffs role a or on a function pertinent as the jail operation nize issue”). to ultimately becomes a license case this function-by- entirely with the dispense to majority The also seeks minimize the apply deciding approach function we of importance making statutes sheriffs re- immunity. of Eleventh Amendment claims county jails for sponsible by emphasizing Instead, an ad hoc majority offers responsibility upon that this devolves sher- Georgia pertaining laws not to collection of by way iffs of state law. Majority function it jail nor even to the operation, Opinion (discussing statutory at 1315 invented, rather to the sher- newly has but authority that establishing doctrinal governmental nature.”6 iffs “essential required by jails). law administer very at 1319. This looks Majority Opinion connection, it this contrasts the General nothing” approach like the “all or much Assembly’s authority legislation to enact Const, Supreme sheriffs, 9, which the Court against see pertaining Ga. art. ¶ McMillian, 785, 1, 3(a), 520 U.S. at county warned. See with the commission’s (instructing ques- enlarge that of authority 117 1734 lack or restrict S.Ct. Const, charge.7 art. a sheriff acts for the coun- See Ga. tion of whether officer, security guard ing aspects jail must out of certain of administra- police and store actor, a “state Majority Opinion so its discernment of tion. See at 1323 & of state function” from the mere existence (distinguishing n. 43 Manders’s suit from one every penal implies that one of this "food, codes clothing, involving provision of units, holding country’s jails, detention hospital needed medical and attention” to impli- be a state institution. That cells must detainees, required Ga.Code amenability longstanding of cation defies 42-5-2(a)). agree I Ann. While violating governments to suit for local majority responsible pro- that counties are rights persons of held in local constitutional necessities, viding prisoners with these basic I See, Jinks, e.g., charges. jails on state responsibility believe their extends much (stating arising out at that of S.Ct. claim broadly aspects operating more to all of coun- county facility prisoner’s death in detention ty jails. political lay "a subdivision” of itself, state, prisoner rather than state when emphasizes majority 7.The likewise failing pay child had been arrested for stating the sheriff is "not an em- cases Atlanta, City 763 F.2d support); Goodson v. of county ployee commission." Board of of (11th Cir.1985) (uрholding 1387-88 Wilson, Randolph Comm’rs of $45,000 damages against city of award of (1990) (empha- 396 S.E.2d Ga. of confinement suffered Atlanta for conditions Bramlett, added); sis see also Boswell v. City by plaintiff detained in Atlanta Jail while (2001) (explain- 549 S.E.2d charge rape). of on "constitutionally employees elected sheriffs, county,” such as are not officers of then, majority’s 6.Plainly baffling, is the represented employees "as of the dissent, taking jail opera- charge that this authority”). governing It then reads the local function, pertinent "defines the tion as the authority very rule that for the different higher at a level of abstrac- Sheriff's conduct county. employee the sheriff is not majority Majority Opin- tion” than the itself. Opinion Majority at 1319-1320. That inter- at 1309 n. 9. Divination of the sheriff's ion leap support Georgia law. pretive no finds would seem involve abstraction “essence" below, 15, Georgia contrast, As I discuss see note very high By order. the con- infra sheriffs are constitutional law establishes that jail operation focuses our crete function independent com- legal authority officers inquiry positive direct- case, independence does not unfas- namely, missions. This ly relevant to this "jailers government, but rather ten sheriffs from local statute that makes sheriffs (a). policy-making 42-4-1 counties.” Ga.CodeAnn. vests them with final entrusted to their may over those functions majority recognizes that counties employees deprivations office. That sheriffs constitutional aris- be liable for ¶ 1(c)(1). solely Assembly’s “political The General au- subdivisions exist (inter- thority powers to alter the and duties at- the whim and behest of State” however, office, in- taching to the quotation nal alteration marks omit- nothing more than its role as the dicates ted)); City Jersey, Trenton v. New legislative power Georgia. Put seat 182, 187, 534, U.S. 43 S.Ct. 67 L.Ed. 937 way, Assembly’s general au- another (1923) (“A municipality merely depart- is thority to define the sheriffs office is a state, may ment of the and with- present matter from our concern separate hold, grant powers privi- or withdraw and it with whether the laws has enacted do (footnote it leges as sees fit.” and citation fact define the sheriff as an arm of omitted)). state.8 Indeed, Assembly may the General en- majority’s neglect of this distinction large powers or contract the and duties argument proves is at the core of an that sheriff, only very not but also of the only far too much. Not all but readily institution most conceived as a re- county “elective forms of office” are sub pository of policy-making authority local ject sovereign prerogative state’s Georgia: county authority, governing Const, government. structure local Ga. County which is its board ¶2, 1(c)(1); also, e.g., § art. 9 see Ga.Code § See commissioners. 1933 Ga. Laws § (requiring Ann. 36-64^5 that local parks p. Georgia 467. Article Nine of the Con- body governing boards established “the stitution, county which vests commission- any county municipality or ... shall ers with certain powers, “home rule” persons consist of a minimum of five delegation makes clear that this “shall not maximum persons, serving of nine without restrict of the General As- pay,” generally and that the “terms of sembly by general law further define office of the members of the shall board be broaden, limit, power or to or other- § years”); (setting for five id. 36-74-5 regulate wise the exercise thereof.” See requirements forth appointment, mem Const, ¶ 1(a). 9, 2,§ Ga. art. Accordingly, bership, compensation, organization Assembly the General has created numer- boards). local code enforcement is This ous part duties on the of commissioners. government true of local not in Geor satisfy commissioners must mini- gia country. but across this Hess v. Port 30, mum Corp., training requirements, Auth. Trans-Hudson avoid U.S. conflicts (stating S.Ct. 130 L.Ed.2d 245 of interest purchasing goods when (2) county nothing commissions reflects county more fice of sheriff and commissions separation powers. than this may legislate. not Majority Opinion so See Const, (citing § 1309-1310 Ga. art. majority explicitly recognizes 8. The that "ulti- ¶ 3(a), sheriffs, provides along which that with every entity mate control of state-created re- officers, county qualifi- "shall have such may with sides the State and that the State cations, powers, provided by and duties as destroy reshape any political subdivision as law”); general id. at 1323-1324 Majority Opinion it sees fit.” at 1322 n. 41. Const, 2, ¶ 1(c)(1), (citing Ga. art. which It then maintains that this elemental form of provides county powers commissions' sovereignty is sole basis for its "shall not be construed to extend to ... [a]c- conclusion that law defines Sheriff office”). affecting any tion elective majority's Peterson as a state officer. Yet the articulate, provisions first, Those do foremost, no more than through- discussion relies offices, respect pre- with to elective out on the clauses Constitution above, cisely sovereignty the elemental provide simply cited form state legislate majority Assembly may state’s General which the insists not the basis of pertaining argument. matters to the elective of- county, comply argument that the mere property for the existence of state and recusal rules when certain disclosure tasking specific laws sheriffs with duties them. zoning actions come before favors Eleventh immunity. 36-20-4, 36-1-14, §§ Ann. 36-67A-2. Code sum, majority’s designation of Myriad other duties structure the policy” “force as the function to consider in discharge of official commission’s collective fatally this case culminates in a flawed See, (requir e.g., functions. id. 36-1-25 analysis of how state law defines the de- minutes of all kept that official Among fendant. the casualties of the ma- meetings); (requiring id. 36-67-3 jority’s misguided discussion are the func- zoning proposals official review of address tion-by-function approach that our law matters); statutorily specified id. 36- six compels and the well-established notion (requiring property 9-3 that sales of real entities, governmental local despite highest responsible made to “the bid law, by being indepen- defined state are der, by sealed bids or auction either given”). Finally, after has been dent of the state. due notice county commis the matters over majori- Neither of the infirmities of the legislative powers are those sions exercise ty’s approach operation would arise were which state law entrusts to the counties’ county jail recognized of a appropri- as the authority. v. Stephenson home rule ate function to in consider this case. County, Board Cobb Ga. of of Comm’rs Rather, the question of how state law de- (1991); Mobley v. 405 S.E.2d fines the in carrying out this func- Polk 251 S.E.2d readily tion upon resolves itself consulta- (1979) (“Neither the of counties this jails tion of defining Georgia statutes act, any can state nor their officers do county institutions. The first factor our contract, incur any liability make nor analysis strongly and unequivocally thus legislative act ap not authorized some favors the conclusion that Sheriff Peterson thereto.”). plicable not, operating county jail, a an arm of making If the enactment of laws protection the state entitled to the jails responsible for entitles the sheriff to Eleventh Amendment. protection, logical Eleventh Amendment imposing inference is that state laws duties county bring commissioners likewise II. INDEPENDENCE FROM STATE locally representatives

these elected within IN OF CONTROL OPERATION the amendment’s ambit. This is result COUNTY JAILS starkly prece to the of opposition line The second factor our Eleventh holding governments dent local of inquiry degree is the con- sovereign immunity entitled maintains over the trol defen- the Eleventh Amendment. See Mt. dant. Unlike other correctional facilities 568; at Healthy, 429 U.S. 97 S.Ct. managed by a state Georgia, which are Luning, Lincoln 133 U.S. board, department and overseen a state 10 S.Ct. 33 L.Ed. 766 It jails Georgia’s are the domain of exclusive local likewise undermines the rule that sheriffs, manage who scores governments may be liable under of virtual- independently these institutions customary practices that policies or ly oversight. proper all state A examina- rights. federal deprive individuals of Mo jails sheriffs’ role in tion of nell, 690-91, U.S. S.Ct. running gives them no indication majority op fails to reckon with this control. position between established law and its charges authority, each the Board of Corrections

Georgia’s specifically Code adopted regulations governing everything duty taking with the county’s sheriff personal hygiene from inmates’ to the size jail the bodies of such “custody of the therein, disciplinary isolation cells the fre- along with persons as are confined quency inspections. Comp. See Ga. R. cause of commitment.” Ga. the warrant or (hygiene); r. id. r. 42-4-4(a)(l). Regs. & 125-2-3-.04 §Ann. Incident to this Code facilities); (disciplinary id. r. 125-3-2-.09 responsibility is the sheriffs fundamental (inspections). 25-3-1-.04 confined in obligation persons to “furnish aid, heat, with medical and blan- regulation applies to sher None 42-4-4(a)(2), kets,” id. as well as com- iffs, key indicator of the state of Geor jails persons nearby mit counties gia’s lack of immediate control over sher facility local unsafe. Id. prove should the iffs’ exercise of custodial 42-4-4(a)(3). The counties themselves jails. See Ga.Code Ann. 42-5- jails operated by their sheriffs. build 51(a) (stating Department of Correc 36-9-5(a). §Id. authority, jurisdiction, have no tions “shall responsibility” respect to offenders contrast, the state maintains a net jails). sentenced to confinement in work of correctional facilities that exists Although carry a sheriff who fails to out jails. separate apart This state statutory responsibilities certain faces the system encompasses “state correctional in possibility contempt of fines for or remov “county stitutions” and correctional institut office, 42^-4(c), § imposition al from id. ions,”9 both of which are distinct from requires pro of these sanctions formal jails prisoners only they and receive after in ceedings Gipson courts of law. v. Bow 42-5-30; §§ are convicted. See id. 42-5- ers, 379, 490, 263 Ga. 434 S.E.2d 491 53; 42-5-51; In re Awaiting Prisoners ‍​‌​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌‌‌​​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌​‌‍(1993). Accountability judicial to enforce 516, 905, Transfer, 236 224 S.E.2d 906 Ga. ment establishes sheriffs’ offices (1976). jails, county both Unlike state Georgia possess legal personality, in correctional institutions must answer to that the pur state controls sheriff for authorities: their state wardens serve poses analy of our Eleventh Amendment of the of pleasure Georgia Board Cor sis. rections, appointed by whose members are 42-2-2(a), governor. §§ Ga.Code Ann. Moreover, whereas the state can order Moreover, oper

42-5-30.10 such facilities county correctional institutions to take cus “supervision ate under the and control” of tody prisoners, generally it au lacks Corrections, Department pur the state thority prisoners county jails to house in suant to promulgated by rules the board. approval without the of the local sheriff. 42-2-5, 5—53(b); §§ County Id. Wilkes The chief administrative officer the De 42— Arrendale, 289, 548, v. 227 Ga. 180 S.E.2d partment “may designate Corrections (1971). available, 549 In exercising rule-making place any of confinement suit Georgia’s "county 9. ("County Code uses the term cor- at 1-2 correctional institu- entirely rectional institutions” to refer not to correc- tions are different facilities from generic county jails.”). specifi- tional facilities in a sense but cally camps to work that are distinct from county jails municipal detention units. county In the case of correctional institu- Op. tions, Att’y (identifying Ga. Gen. 117 appointed by county gov- wardens are "county county correctional institutions” as erning "subject approval” authorities of the corrections, public camps). recog- they works Sheriff Peterson board of serve "at the pleasure county nizes the distinction in a brief filed with this of the or the board.” Ga. Reply Appellant, Sept. § Court. See Brief of Code Ann. 42-5-30. able, county state or cor ter of the Code titled appropriate “Jails” be operated in “sheriffs gins institution this state with the mandate that rectional jurisdiction supervision jailers of the under the of the counties and the author have Neither male nor female department.... ity appoint jailers, subject to the assigned to inmates shall be serve supervision county governing au county jail [upon] manner unless 42-4-l(a); § thority.” Id. v. Chat Griffin ... sheriff or the approval ... ham Ga. 261 S.E.2d county.” jail administrator of the Ga.Code (1979) (citing predecessor 571-72 provision 42-5-51(d).11 judges Ann. State court upholding county authority commission’s authority compel likewise lack the sher compel accept prisoners sheriff to whom prisoner by way iff to transfer a of a sua detention). county agreed had to hold in that a sponte determination function, In aid of this supervisory Irvin, re is insecure. See In Ga. governing dispos authorities have at their (1985); Howington 328 S.E.2d investigative powers grand juries, al the Wilson, S.E.2d 15-12-71(c), see Ga.Code Ann. contrast, By sheriffs themselves jails must inspect annually ap and make under certain conditions have propriate recommendations jails persons custody to commit commission. Id. Notably, 15-12-78. Ann. adjoining counties. See Ga.Code grand juries regularly advise com § 17-7-1.12 regard missions with to “the treatment of inmates,” 15-12-78, oversight substantial to which id. as well as the most subjects jail’s general “operations.” law sheriffs involves not Id. 15-12- 71(b)(1).13 chap- jails but other officers. The oversight temporarily majority exception county jail, identifies 11.The one incarcerated in the categorical statutory command. Under provided this with the reimbursement 42-5- Georgia exchange per law and for a 51(c)/ in diem space until such time as could be fee, temporary custody sheriffs maintain a made available for their transfer to state prisoners Department whom the of Correc- institution”). arrangement correctional The prisons tions is unable to transfer to state through which state local authorities in overcrowding due to in these facilities. See Georgia cooperate purpose for the of reliev- Evans, Clayton County v. 258 Ga. ing overcrowding prisons in state fails to Depart- S.E.2d 282-83 Yet the state control demonstrate that the exercises enjoys authority ment of Corrections no more over sheriffs. respect custody with to these inmates’ than respect custody to the sheriff’s of all Complementing authority is this the obli- 12. persons county jails. in confined The gation accept prisoners of sheriffs to regulations promulgated ad- detailed for the receipt upon of an advance other counties prisons wholly ministration of state remain payment Ga.Code Ann. of fees and costs. Moreover, inoperative. very fact that the § 17-7-2. department pay per a must diem fee in this connection, 42-5-51(c), see Ga.Code Ann. majority grand jury’s 13. characterizes demonstrates that state law does not trans- jails inspection as incident to the prisoners maintaining the sheriff such form grand juries function of in "well-established agent, into a state but rather continues to justice Majority Opinion system.” the State’s recognize jails entities as local with which general n. 40. That role is at 1322-1323 essentially the state enters into contractu- case, present simply immaterial relationship. Clayton County, al Accord jail function of ad- addresses the pris- (rejecting proposition S.E.2d at 283 acknowledges, majority ministration. As the county jail per fee onеrs housed in diem grand juries inform commissions ‘assigned’ "were to serve sentences in the generally. county's jail county's approval” about the "treatment of inmates” without the advisory characterizing “merely The breadth function co- them instead as jails the other are the broadly than felons. On Georgia sweeps thus more counties, Turquitt, primarily which exist state’s explained Alabama. As we persons awaiting trial or convicted of Constitution hold 137 F.3d at “Alabama’s integrated The state has is a minor offenses. message a clear sends officer, own correctional institutions within respect actions with to its whose subject to the control of jail system are most unified well-being of inmates officials,” agencies, ap- which direct statewide controlled appropriately wardens, super- and removal of primarily pointment counties are whereas Alabama institu- jail’s operations, and decide which only “physical for the vise responsible custody prisoners. of which Id. Georgia counties’ tions will take plant.” contrast, county jails By Georgia’s exist complements role supervisory broader run by Each is an inde- expansive responsi- relative isolation. correspondingly of a only jails supervision sheriff under the bility pendent maintain not them- authority, with no insti- county governing also the inmates their custo- selves but 42-5-2(a). for state over- dy. Ann. Counties tutionalized mechanism Ga.Code sight.14 may generally for the health and The sheriff refuse responsible prisoners, inmates to house state and inasmuch as humane treatment of but also bearing exceptions for certain a more attenuat- law carves out certain costs rule, it relationship upon ed to the maintenance of cus- to this never intrudes custody per- over all tody: they corpus independent must defend habeas ac- sheriffs’ county jails. ex- pay any escape tions and for the cost of sons confined Sheriffs id. authority recapture prisoners. operate 42- ercise this undiluted 2(a). indubitably county what are institutions. 5— sum, Eleventh application has created two differ- As first factor, custody majority slights ent of facilities for the of Amendment sorts persons alleged weight vesting detained as result of of state laws counties jails proven crimes. On the one hand is the set and their sheriffs with over directly by facilities relying maintained on its unorthodox definition of custody state for the of most convicted “force as the “function” at issue in policy” general responsibility merely incides with counties’ function because the of felo- elements management county jails. for sheriffs' of ny penal offenses are found in state codes. supra note 5. Even were this mistaken majority 14. The seeks to minimize the im- conceded, premise point the relevant with portance independence from sheriffs' respect to the control would remain factor Georgia’s integrated system by corrections discharge that a in- "State[] remarking that of a the existence statewide independently carceration function” Department pre- Corrections "does not only agency supervisory authority state with utilizing the State [also] clude from Thus, over state correctional facilities. the sheriffs, agencies, law enforcement such as control would factor continue to militate perform to the State’s incarceration function the extension of Eleventh Amend- Majority Opinion for state offenders.” at immunity. majority’s ment The elision of may, only 1318 n. 33. Be this as it the point ultimately argument this consists in the given by majority regarding reason for (1) independent that because sheriffs exercise all, acting Sheriff Peterson as for the state at actors, custodial are state respect prisoners with to such as Willie self-control, Manders, independence their own if pronouncement is its that sheriffs —their you will—should be considered "state con- engage they in a state function whenever de- tautology trol.” The persons charged belabored of this rea- tain with felonies. Id. As above, however, soning illuminating respect than with operation is less discussed regarded inquiry. county jails present be as a cannot our Georgia responsibility it characterizes that the sheriffs custodial case. Thus this to “the obligations regard jails, with for in- including counties’ treatment of food, clothing, mates, and ... jail structure subject oversight is not involving “wholly as necessities” medical correctional agencies. from the and distinct matters” separate majority’s The discussion also falters be- Majori- involved in this case. See

function cause it cannot be said that sheriffs’ train- executing After this Opinion at 1304. ty is in fact ing administered the state. however, maneuver, majority once Rather, training is overseen fails to cite law which the again Association, private Sheriffs’ or- respect state does control sheriffs ganization comprising the state’s elected majority function policy” the “force sheriffs. See Ga.Code Ann. 15-16- Instead, majority newly defined. rests 3(e)(1); see also Sheriffs’ Associa- of the control factor on the application its tion, Welcome, www.georgiasheriffs.org undergo that sheriffs must observations (last 2003). visited Jun. Given the by a statewide associ- training coordinated it composition, begs ques- association’s may governor ation of sheriffs and the presently tion us before to characterize up days.15 to 90 suspend sheriffs training sheriffs’ state-administered weight points These cannot bear the as- program: sitting we are en banc for the signed them. very purpose determining whether the respect training, majority With design sheriffs who and conduct this train- rely hypothesis must on to relate its dis- are themselves state or offi- policy” to “force at all. Sheriffs cussion cials. required undergo twenty hours of Finally, majority inasmuch as the means contempo- training “generally devoted to mere to assert existence of a enforcement, investigation, judi- law rary training requirement establishes state con- correction process, practices.” cial trol, apprоach again proves too much. (e)(1). 15-16-3(a), Ann. Ga.Code Not the sheriff but also holders specific authority lack of more notwith- office, quintessential governmental local decrees it “reason- standing, majority commissioner, satisfy that of must training “in- able to assume” Ann. training requirement. See Ga.Code policy cludes instruction force (requiring 36-20-4 commissioners to deputies.” Majority hiring training not, complete training on matters Opinion at 1320. Reasonable or 18 hours may applied pertaining control factor much more to the administration by observing governments). city too must and coun- straightforwardly simply So Apart argument training explained my from its re- As I have concurrence in Grech, 335 F.3d 2003 WL quirements suspension and the state’s limited however, county the commission is not the control, power majority establish state the county. only institution that acts for the analysis by trying muddies its to establish the county govern- has structured its complementary proposition that authority ments to vest for different functions function at counties have no control over the different, coequal interacting offices in a Majority Opinion issue in this case. at 1321— government’s sep- manner to the federal akin Since is himself an Sheriff Peterson Thus, powers. sheriff's inde- aration of the independent county Georgia's officer under pendence should from the commission Constitution, only way to make sense interpreted independence be not as from premised this assertion is to read it as on the authority county, independent but rather as to county commission's lack of control over the respect to the functions act for sheriff. entrusted his office. governor with no 35-8-9, statutes vest the officers, §§ relevant 35-8- see id. ty police him or her 35-8-2(8)(A) training they also forbid power, basic removal (requiring training longer for than annual suspending to service and from prior course thereafter), lawyers. See Ga. Ann. 15-16- private days. See Ga.Code ninety 8-104(A) forth annual (setting 26(c). limited sus- Bar R. of even this St. Exercise requirement continuing legal education to governor power requires pension bar). Just as General members recom- and receive the affirmative appoint powers define the Assembly may committee, investigatory of an mendation office, may it attach to local duties which 15-16-26(c), see id. li- local office-holders

require majority. constitute a sheriffs themselves complete courses professionals censed 15-16-26(a). governor’s real The Id. sovereign of state training. This exercise limited and his lack suspension power but persons not mean that authority does readily are viewed as power removal as subject state “control” to regulated of control. of a lack of control as evidence Amendment should that the Eleventh such sum, majority’s conception flawed majority The immunize them suit. case leads it at issue in this of the function implica- this anomalous to reckon with fails statutory clearly ren- ignore a scheme to annual train- reliance on sheriffs’ tion of its indеpendent from dering Sheriff Peterson our second applying ing requirement in his administra- state corrections officials factor. Eleventh Amendment At the County Jail. tion of the Clinch majority’s component The time, majority’s discussion of same discussion analysis control is its relevant function policy” “force coun- power suspend Georgia governor’s üluminating stat- comparably it to no leads governor indeed has ty sheriffs. While the it in utory but rather involves guidance, by follow- suspend based on arguments flawed or tendentious it statutorily procedure, defined is ing a must attend training program be viewed why power not clear should power suspen- to order governor’s and the clearly decisive than the limits as more days. up of sheriffs for to 90 sions gov- circumscribing thing, it. For one remove a unilaterally act ernor cannot III. FUNDS S.E.2d at Gipson, sheriff. See Amendment factor is The third Eleventh that “the and the (stating Governor funding. Sher- the source of a defendant’s ac- Attorney can take no official General budget approp- is operating iff Peterson’s there has been tion a sheriff unless indictment”).16 County. See entirely riated only a criminal Not do the unsup- otherwise distinguishes Gipson as a cates its need rest an majority 16. The ported argument on inferences drawn from a construing the statute that defines the case easily interpreted to the that could as law any every governor’s power to remove opposite majority seems to effect. While the official, confer- public rather than the statute speaking Georgia Supreme fault the Court for power temporarily ring specific a more Gipson broadly explained in too when it Majority Opinion at suspend sheriffs. governor “can take no official action undisputed it that the 1321 n. 38. Yet indictment, against a sheriff” absent criminal governor power to remove sher- has no more might Majority Opinion at 1321 n. one see majority iffs than other officials. agree- regard high court’s unanimous also ex- ignore this instead focus chooses categorical language upon such as an ment clusively suspension. explain I in the As conception of sheriffs held indication of the text, significance majority which the as- by jurists than we in better trained governor's power law. signs suspension indi- 1345 — majority F.3d at- The also remarks that Clayton v. counties’’ Grech 15-16-20, 36-5-22.1, §§ Ann. (citing funding obligations, minimum including Ga.Code Calhoun, -4-7, 15-16-5; v. salary and bond requirements, are estab- 45 Chaffin (1992)). 202, 203, 415 S.E.2d 906 262 Majority Opinion lished under state law. other funds appropriates The also points at 1323. These are immaterial to case, function at issue in this related to the factor, application funding our of the namely, building operating the costs of simply origin addresses entity’s of an 42-5-2(a). 36-9-5, §§ jails. Ann. Ga.Code funding, not the law funding under which obligations arise. See Tuveson v. Florida majority recognizes that “Clinch major funding Affairs, burden of Governor’s Council on Indian County bears (11th jail,” Cir.1984) Peterson’s office and the Ma- Sheriff F.2d (stating rele- at but it nonetheless jority Opinion question vant as “where funds for the enti- argument funding derived”). ventures ty are In imрlying contrary ultimately factor favor of Elev- “tilt[s]” rule, majority’s analysis again conflates immunity. at enth Amendment Id. authority gov- the state’s to structure local of majority’s application is true of the As ernmental requiring entities —as each factors, the other relevant it reaches this county to appropriate funds for a sheriffs begins conclusion via a route that with its sovereign immunity office—with the ac- conception of the function at is- mistaken corded the Eleventh Amendment. majority on its sue this case. The relies Moreover, Georgia recog- courts have function to policy” novel notion of “force that county nized commissions act autono- requiring pay set aside statutes counties to mously in funding the sheriffs office so construction, jail’s upkeep, op- for the long appropriations preserve as their 36-9-5, §§ Ann. erations. See Ga. Code capacity to execute the basic func- 36-9-8, It then 42-5-2. addresses the Calhoun, tions of office. See Chaffin of way matter of who funds the sheriff 262 Ga. 415 S.E.2d highly removed from speculation of Review whether this minimum standard any positive authority. has been satisfied is for abuse of discre- majority reprises Specifically, tion, Randolph Board Comm’rs of assumptions same tendentious and infer- Wilson, County v. 260 Ga. 396 S.E.2d application ences set forth in its (1990), amply and the cases dem- points control factor. It out that the state very onstrate counties’ to make (which, twenty training it pays hours funding. substantial cuts sheriffs’ assumes, encompass must instruction Chaffin, (upholding 415 S.E.2d at 908 force), any the use of as well as for costs county commission’s reduction of sheriffs investigation incurred sheriffs. budget by percent); Board Comm’rs Although funding pertains no more to Randolph County, 396 S.E.2d policy” “force than to other function ap- commission’s decision not to (upholding office, majority the sheriffs chooses to pay deputy’s propriate funds needed regard particularly pertinent it as to this Bussell, salary); Lovett v. 242 Ga. explain ap- It does not how funds ease. (upholding commis- S.E.2d training for a course of several propriated appropriate decision not to funds sion’s days investigation possible and the rare six necessary supplement salaries of outweigh the obli- misconduct counties’ deputies). to finance and then gation construction Finally, majority asserts daily all of their pay operation costs maintenance, budget the total but year year out. “Clinch sets It con- wrongly at 1326-1327. Opinion Peterson how Sheriff

cannot dictate however, cludes, law also un- Opinion Georgia at 1323. that Majority it.” spends inapposite liability and mis- counties from argument equivocally protects This is both all, the control taken. First of it conflates actions. for their sheriffs’ importantly, it funding factors. More majority a number of cases cites to our only point relevant obscures has, as a showing that the state of analysis: Amendment whatever Eleventh matter, immunity general granted counties county commissioners’ con- the extent of arising under from suit on сauses of action trol, that the state exercis- undisputed it is it so under a Notably, state law. has done no control whatsoever over the sheriffs es provision apart that stands from statutory Finally, majority expenditures. the state’s own im defining the enactment “county,” of which wrongly equates §Ann. munity. Compare Ga.Code 36-1-4 of the Peterson and members Sheriff seq. im with id. 50-21-20 et Counties’ offi- coequal of commissioners are board many causes of munity state law cers,17 of commissioners with board action does not render them immune from alone. Because Sheriff Peterson is himself liability under 42 1983 for viola U.S.C. officer, say a it is incoherent to Rose, v. rights. tions of federal Howlett budget how his “cannot dictate” 2430, 356, 376-77, 110 S.Ct. 496 U.S. spent. (1990) (“[S]ince the L.Ed.2d 332 Court municipal corporations held that simi LIABILITY FOR IV. STATE’S ‘persons,’ lar entities are a governmental JUDGMENT ADVERSE §a entertaining state court 1983 action analysis The final factor relevant our interpretation. must adhere to that Mu legal liability judgment is the state’s for a nicipal including an assertion of. defenses— against showing the sheriff. A sovereign immunity right a federal —to mili judgment would be liable for are, course, action controlled federal force in of hold tates favor law.”) (citations omitted); Martinez v. Cal ing sovereign Eleventh Amendment immu ifornia, 444 U.S. 284 & n. 100 S.Ct. nity from suit in protect the defendant (state 553, 62 L.Ed.2d 481 law court; showing federal a the state granting immunity parole officers does strongly against would not be hable cuts question not control whether such officers immunity. Regents such the Univ. 1983). immunity have Doe, 425, 430, Cal. U.S. S.Ct. (1997); Auer v. Georgia’s recognized 137 L.Ed.2d Rob have own courts bins, 519 U.S. 456 n. 117 S.Ct. much. Lowe v. Jones (1997) (declining 137 L.Ed.2d 79 to extend (1998), App. 499 S.E.2d 350-51 immunity police Eleventh the court reached the merits of a claim commission, percent ap of which was training policies that a sheriffs had violat- pointed by governor, because “the rights ed the federal constitutional city responsible of St. Louis is for the had plaintiffs plaintiff decedent. The (internal financial cita board’s liabilities” named the sheriff and the as defen- omitted)). tion Thus, simply by dants. Id. at 349. reach- merits, § ing the the court treated

Here, majority is correct in conclud- against impli- suit sheriff as not law offers no indication cating. immunity from suit to threshold judg- that the state would be hable for Majority ment Sheriff Peterson. which state instrumentalities are entitled note 15. supra

1347 tion with judgments against county Eleventh Amendment. The sher- gov- explicitly stated “local simply ignored.18 court also iffs cannot be As with liable” for certain viola- may ernments the rest of the state we have law examined rights, thereby conveying tions of federal case, in this the state’s non-liability any for arising that a suit out of a sher- the view judgment against Sheriff de- Peterson implicates liability of the policies iffs mands that we allow Manders’s suit to county, not the state. Id. at 350. proceed. favoring

Also the conclusion that Clinch CONCLUSION satisfy judgment §a County would 1988 against Sheriff Peterson is the of case, In this each of the factors we attorney county pay commissions to fees normally apply to determine a whether defending incurred sheriffs civil defendant is entitled to Eleventh Amend- rights Hay actions in federal court. See immunity weighs against ment extending Hughes, wood S.E.2d protection such to Sheriff Peterson. Geor- majority While the is correct in gia law clearly defines Sheriff Peterson as required out that are not pointing counties county jails a county officer and institu- step, to take this no would have tions; the state’s corrections authorities against incentive to defend actions sheriffs exercise no control over Sheriff Peterson that a would judgment were it true be the operation county jail; of responsibility the state. County appropriates op- Sheriff Peterson’s may While a defendant be entitled to erating budget jail’s and pays for the con- immunity Amendment Eleventh even struction and upkeep; there is no judgment impli- will not when adverse judgment against indication that a Sheriff treasury, Regents cate the state’s operate against Peterson would the state Cal, Univ. at 117 S.Ct. U.S. Georgia. 900, liability for judgment remains the sin- By inventing previously a func- unknown gle important analysis. in our most factor purported analysis, tion as the focus of its Hess, 48-49, 115 513 U.S. at S.Ct. majority clarity trades be found (identifying “prevention of federal-court Georgia county jails law for blur judgments paid that must be out of a speculation. upshot of inference and treasury” “impetus for State’s as the is a blow to established law substantial Amendment,” citing ap- Eleventh assuring ability gov- citizens’ hold local proval appeals seven court decisions ernments accountable for violations of the recognizing “vulnerability of the State’s Jinks, United States Constitution. purse as the most salient factor in Elev- Monell, 1673; 436 U.S. at 690- S.Ct. determinations”). Thus, Amendment enth A reading 98 S.Ct. 2018. correct liability for a when state bears no law shows that actions, defendant’s this fact militates with operate county jails for the counties against allowing force the defen- sense, they every serve. In a suit dant to invoke the Eleventh Amendment. reason, against under 42 authority indicating For U.S.C. liability mistreatment in a alleging incurs no connec- drawing majority mitigate argument begs question.

18. The seeks to the force of non-liability pro- "a by speaking in broad connection between sheriffs and state’s gram,” presumes very point potential judgments against majority terms of the program application to “interfere with a state it has failed to establish in Majority Opinion at our first three Eleventh factors. function.” 1329. This government. a local jail is a suit Amendment, protects

The Eleventh

states, inapplicable, and the decision be af- district court should therefore

firmed. reasons, I foregoing

For the dissent.

In re PACER TECHNOLOGY.

No. 02-1602. Appeals,

United States Court

Federal Circuit. Aug.

DECIDED: Schatzel, E.

Thomas Law Offices of Schatzel, Gatos, CA, Thomas E. of Los argued for appellant. Solicitor, Chen,

Raymond T. Associate Solicitor, Office of the United States Pat- Office, Arlington, ent and Trademark VA, him argued appellee. With on the Whealan, Solicitor; M. brief were John Cynthia Lynch, C. Associate Solicitor. LOURIE, GAJARSA, Before LINN, Judges. Circuit GAJARSA, Judge. Circuit (“Pacer”) Technology appeals Pacer from decision of the United States Pat- (“PTO’s”) ent Trademark Office’s Trademark Trial Board Appeal (“Board”), which affirmed the PTO’s refus- rеgister al to as a trademark Pacer’s adhe- cap design ground sive container on the design inherently that the was not distinc- Tech., 75/477,- tive. In re Pacer no. Serial (TTAB 11, 2002). June Because the Hess notes that “cur- per se and required the protects State Eleventh Amendment jurisprudence Eleventh Amendment judgments rent even the risk of adverse from by each retained integrity the emphasizes by a may though be indemnified the State Hess, 513 system.” in our federal State entity’s poten- the and “it is party,” third 39,115 at S.Ct. U.S. ability or liability, rather than its legal tial reim- party a third inability require Re- Court in Supreme the The focus of in it, liability the the discharge or to burse University the gents California Id. at instance, that is relevant.” first Doe, 425, 430-31, 117 S.Ct. 519 U.S. 117 S.Ct. (1997), “potential 900.47 was on L.Ed.2d 55 41-42, Supreme S.Ct. The Id. at 394. opinion Hess that of its in is at the outset It 46. “current” Elev- courts are Supreme discusses Court further stressed that "federal Court the em- jurisprudence partici- and its entity Congress enth Amendment to a bistate not alien by each integrity retained phasis "the creating.” 115 S.Ct. 394. pated in Id. at Hess, system.” U.S. in our federal on the state in Hess focused The Court The Eleventh Amend- 115 S.Ct. 394. factor, it concluded treasury but after historically protect the was to role ment’s was sovereign integrity the State forcing treasury courts federal State’s entity Compact implicated Clause when not Court repay Id. The debts. the State to war contrast, court. In stark is sued federal treasury factor but discussed the state in Hess represent act for because sheriffs "[sjuit concluding that fed- only after first State, county, promulgating force not dignity of a is not affront eral court integrity is heavi- jail, the State’s policy at the court, entity, Compact for the federal Clause case. ly in this involved hardly enterprise, is to such an in relation distant, disconnected sover- instrument of Hess, only oth- Regents than 47. Other rather, court is ordained eign; the federal Supreme Court discussion er recent 41, 115 entity’s Id. at one of founders.” Eleventh in the of the State” doctrine "arm Court continued Supreme S.Ct. 394. in Auer v. a footnote context is Amendment sovereign in- importance of the on the focus Robbins, U.S. 117 ‍​‌​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌‌‌​​‌​‌‌​‌‌‌​​​​‌​‌‌‌‌​‌‍S.Ct. tegrity State under Eleventh Auer, Supreme In L.Ed.2d why pointed out the States' Board of Louis concluded that the St. Court compromised when a Com- integrity not was an arm of was not Police Commissioners court, entity in federal pact is sued Clause appointed four although the Governor state: stating: members, city Louis is of St. "the of the five compacting integrity of the is the Nor liabili- financial responsible for the board's Compact compromised when States subject to the not "the board is ties” and federal As entity is court. Clause sued other re- or control State’s direction prescribed by the plan part the federal n. S.Ct. spect.” Id. at 456 Constitution, agreed power States Auer, liable is not contrast to coordination, action sharing, and unified acts, required to Peterson’s for Sheriff Compact creations. typify Clause Sheriff, against the pay judgments re- Again, cannot be the federal tribunal many Sheriff and controls the State directs trigo- cooperative, garded as alien in this respects. arrangement. vemmental

Case Details

Case Name: Willie Santonio Manders v. Thurman Lee

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 14, 2002

Citation: 338 F.3d 1304

Docket Number: 01-13606

Court Abbreviation: 11th Cir.