### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 7, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 01-13151

________________________ D. C. Docket No. 99-01332-CV-CC-1 BRIAN L. GRECH, Plaintiff-Appel lant,

versus CLAYTON COUNTY, GEORGIA, Defendant-Appellee.

________________________ Appeal from the United States District Court for the Northern D

istrict of Georgia

_________________________ (July 7, 2003) Before EDMONDSON, Chief Judge, and TJ OFLAT, ANDERSON, BIRCH, DUBINA, BL

ACK, CARNE S, BARKETT , HULL, MA RCUS, WIL SON and KRAVITCH*,

Circuit Judges. HULL, Circuit Judge: This appeal presents the question of whether a sheriff in Georgia acts as a

_______________________ *Senior United Stat

es Circuit Judge Phy

llis A. Kravitch el

ected to particip

ate in this matter pursuant to 28 U.S.C. § 46(c).2

county policy

maker for pur

poses of the county ’s liability un der 42 U.S.C. § 1983. After review,

we conclude that the

defendant Clay

ton County has no aut

hority to direct or control th

e Sheriff in his la

w enforceme

nt function, that the

Sheriff is not a county policy

maker for tha

t function, and thus,

that Clayton Coun

ty has no § 1983 liability for

the Sheriff’s law enforcem ent policies and conduc

t regarding warrant inform

ation on the CJIS sy

stems or the tr

aining and supervision of his employees in that regard. W e affirm the

entry of judgm

ent in favor of the defend ant Cla yton Cou nty. I. BACKGROUND Plaintiff Brian G

rech (“Gre

ch”) brought this § 1983 a ction solely agai

nst Clayton County

, Georgia (“

Clayton County

”). Grech’s

complaint asse

rts that he was falsely a

rrested on an expire

d bench warrant be

cause of the Sheri

ff’s policy o f permitting inval

id warrants to rem

ain on certain com

puter databases and of inadequa tely trainin g and supe rvising h is employees. We d iscuss bo th Grech’s 1985 arrest, whic

h resulted in a bench w

arrant, and his 1998

arrest on that wa

rrant. A. Grech’s 1985 Arr est In 1985 , Grech wa s arrest ed for DU I and sp eeding in Clayt on Coun ty, Georgia. The following morning, he was released from jail on bond and was given a court date of

June 13, 1985, for bot

h charges. On tha

t date, Grech f

ailed to3

appear in the State

Court of Clayto

n County. Gre

ch mistakenly

believed that he could h andle t he char ges fro m his resi dence i n Kentu cky. On June 24, 1985, the State Court of Cla

yton County iss

ued a bench warra

nt that revoked Gre

ch’s bond and authorized law

enforcement

officers to arre st him. That b ench warrant referenced the case numbers for the DUI and speeding charges and stated that Grech had failed to app ear in State Court. On June 24, 1985, the bench warrant was entered into the local computer database shared by

the courts and the She

riff’s Office in Clayton Count y. On July 5, 1985, employees of the Clayton County Sheriff’ s Office entered the bench warrant into a sta

tewide compute

r database of crim

inal informati

on, which is organized and regula

ted by the Geor

gia Crime Inf

ormation Cente

r (“GCIC”

). The GCIC’s state wide d ataba se is c alled the “Cr iminal Just ice In format ion Sy stem” (“CJIS”) and is accessible b y law enforcement agencies throu ghout Georgia. As detailed later, the Sheriff’s Office refers to its local database as the CJIS sy stem and uses the same local ter minal to access the GCIC’s state wide CJIS system. Both the statewide and the local CJIS d atabases contain w

arrant inform

ation on “wanted” individuals wh o may be arrested by law enforcement officers. In addition to issuing the bench warrant,

the State Court of Clayton County sent Grech a letter notifying him that he had missed his court date. Grech4

voluntarily returned to Georgia and entered a nolo contendere plea to the speeding ticket and a guilty plea to DUI on July 12, 1985. The State Court judge sentenced Grech and reprimanded him for missin g his previous cou rt date. Grech alleges that he was not informed that the State Court earlier had issued a bench warrant. Grech assumed that the charges against him were resolved after he pled to them, was convicted, and paid his fine. The State Court reported the pleas o

n the local CJIS sy

stem but never r

emoved its bench

warrant from that sy

stem. The S

heriff’s Off

ice never rem

oved it from eit

her the local or statewide CJIS systems. Instead, the bench warrant rem ained active for thirteen years on both sy

stems until July

3, 1998. B. Grech’s 1998 Arr est On July 3, 1998,

a City of Fay

etteville police of

ficer stopped Gre

ch because one of his car’s t

ail lights was not func

tioning. The City

of Fayettevill

e is in Fayette County

, Georgia, whi

ch neighbors Clay

ton County, Geo

rgia. When the city police officer ran a routine c heck on Grec h’s driver’s license, th e GCIC’s CJIS records revealed an outstanding bench warrant dating back to 1985. Grech tried to explain to the

city police off

icer that there w

as a mistake in the records because he had taken care of the 1985 charges. The city police officer requested advice from the Clayton County Sheriff’s O ffice on how to proceed. After1 The bench warrant, referencing the DUI and speeding charges, was not removed from the local CJIS until after Grech was arrested on July 3, 1998. But, back in 1985, that Gre ch had entered pleas to

those charges

was noted on the loc

al CJIS syste

m. Both Capt

ain Tommy

Glaze and Warrant Officer Melba Hensel testified that there may ha ve been an error in that CJIS entry because the entry date shown for the pleas was Marc h 16, 1985 (when the ticket was issued) and not July 12, 1985 (when Grech actually pled).

2 Grech’s complaint sued for false arrest and denial of his due process rights in violation of both the Georgia Constitution and the United States Constitution. 5 verifying its records, the Sheriff’s Office responded that Grech’s 1985 bench warrant was stil

l active. There

after, the city

police officer ar

rested Grech. Initially transported to the jail in Fayette County, Grech later w as transferred to the

jail in Clayt

on County and then r

eleased on bond. Grech spent nine hours in jail. On August 17, 1998, a judge on the Stat

e Court of Clay

ton County returned

the posted bond to Gre

ch. Clayton Co

unty emphasi

zes that, prior to Grech’s arr

est, the State Cou

rt never withdrew

its 1985 bench warra

nt for Grech, and thus,

that the Sheriff’ s Office did not er r in not removing that warrant from the GCI

C’s CJIS sys

tems. 1 C. Procedural History In 1999, Grech bro

ught a § 1983 action nam ing Clayton County

as the sole defendant. Grech’s complaint alleged that his constitutional rights were violated when he was a rrested in 1998 purs uant to a 1 985 bench warrant tha t the Sheri ff’s Office failed t

o remove from

the CJIS syste

ms. 2 According to Gre

ch, defendant3 Grech’s complaint also contained state law claims for intentional infliction of emotional

distress, false a

rrest, and false

imprisonment. I

n its summary judgment motion, Cla yton County argued that all state law claims were barred by sovereign immunity. In his briefs in the district court and on appeal, Grech did not oppose judgment for Clayton County on the state law claims. Thus, we do not discuss those claims further.

4 Clayton County’s motion also argued that, in any event, Grech failed to produce evidence of an unconstitutional policy or custom which was the moving force behind a ny alleged constitutional violation. The district court did not address this issue. 6 Clayton County ’s “failure to ensure adequate t

raining, policies,

procedures, practices, and customs regarding the use of the GCIC Computer Sy stem constituted a patter

n or practice of de

liberate indiffer

ence and led direct

ly and foreseeably t

o the arrest of the Plaintiff.” In a ddition, Grech cla

imed that Clay

ton County had a custo

m and policy

of permitting e

rrors in warrant

information to occur and to remain on the CJIS systems and of failing to prevent invalid criminal warrants from

being on those syste

ms. In 2000, Clayton

County moved

for summa

ry judgme

nt on all claims. 3 Clayton County

asserted that it had

no § 1983 liability f

or the acts of the S

heriff or his deputies because the Sheriff was an agent of the state , not a policym aker for the cou nty. 4 The district court

granted summ

ary judgm

ent in favor of defe

ndant Clayton County on all claims. The district court concluded that the Sheriff was not a7

§ 1983 policym

aker for Clay

ton County when pe

rforming his la

w enforceme

nt duties. The distri

ct court empha

sized that under Ge

orgia law, Clay

ton County does not control or dir

ect the Sheriff i

n the performa

nce of his law enfo

rcement duties. No r does Clayto n County hav e policymakin g authori ty for the She riff’s Office’s com

pliance with the G

CIC’s regulati

ons or the training and

supervision of the Sheriff’ s employee s in that regard. G rech timely

appealed. II. SECTION 1983 LIABILITY A. County Authority and Policy Required The Supreme Court has placed strict limitations on municipal liability under § 1983. A county’s li

ability under § 198 3 may not be b ased on the doctrine o f respondeat superi or. City of Canton v.Harris , 489 U.S. 378, 385 (1989); Monell v. Dep’t of Soc . Servs. , 436 U.S. 658, 694 (1978) . A county is “liable under section 1983 only for acts for which [the county] is actually responsible.” Marsh v. Butler County

, 268 F.3d 1014, 1027 (11th Cir. 2001) ( en banc ). Indeed, a county is liable only when the county’s “official policy ” causes a constitutional violation. Monell , 436 U.S. at 694 . Thus, Grech must “identify a municipal ‘policy’ or ‘custom’ that caused [his] injury.” Gold v . City o f Miami , 151 F.3d5 “[I]t is when execution of a [county’s] policy or custom, whether ma de by its lawmakers or by those whose edicts or acts may f airly be said to represent official policy , inflicts the [constitutional] injury that the [county] as an entity is responsible under § 1983.” Monell , 436 U.S. at 694. This “‘official policy’ requirement [is] intended to distinguish acts of the municipality

from acts of employees

of the municipality, and thereby make c lear that municipal liability is limited to action for which the munic ipality is ac

tually resp

onsible .” Pembaur v. City of Cincinnati , 475 U.S. 469, 479-8 0 (1986) (third em phasis added); Brooks v. Scheib , 813 F.2d 1191, 1193 (11th Cir. 1987) (int erpreting “ Monell as requiring that ‘[t]he municipality must be at fault in some sense for establishing or maintaining the policy which causes the injurious re sult . . .’”).

6 A custom or practice, while not adopted as an official formal policy, may be so pervasive as to be the functional equivalent of a formal policy. Monell , 436 U.S. at 690-91; Church v. City of Huntsville , 30 F.3d 1332, 1343 (11th Cir. 1994). A single incident would not be so pervasive as to be a custom or practice. City of Oklah oma v. Tuttle , 471 U.S. 808, 823-24 (1985) 8 1346, 1350 (11th Cir. 1998) (quotation m arks omitted) (

alteration in origina

l) (citing Bd. of County Comm’rs v. Brown , 520 U.S. 397, 403 (1997). 5 A plaintif f, like Grech , has two metho ds by which t o establi sh a count y’s policy: identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the coun ty. Monell , 436 U.S. at 690 -91, 694; Brown v. Neumann , 188 F.3d 1289, 1290 ( 11th Cir. 1999) (cit ing City of St. L

ouis v. Praprotnik , 485 U.S. 112, 121 (1988)). Because a county rarely w ill have an officially-a

dopted policy of pe

rmitting a part

icular constitutiona

l violation, most plaintiffs, and G

rech, must show

that the county ha

s a custom or pra

ctice of permitting it and that the county’s custom or practice is “the ‘ moving force [behind] th e constit utional v iolation .’” 6 City of Canton , 489 U.S. at 389(plurality) (stating that whe

n establishing lia

bility for a c

ustom or practice

, “[p]roof of a sing

le incident of unconstitutional activity is not sufficient to impose liability under Monell .”) 9 (alteration in orig

inal) (citing Monell , 436 U.S. at 694 and Polk County v. D odson , 454 U.S. 312, 326 (198 1)). Under either avenue, a plaintiff (1) must show that the local governmental entity, here the county, has authority and responsibility over the governmental function in issue and (2) must identify those officials who speak with final policymaking authority for that local governmental entity concer ning the act alleged to have caus ed the particular con stitutional vio lation in issue. Jett v. Dallas Indep. Sc

h. Dist. , 491 U.S. 701, 737 (1989); Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996) (

citing Pembaur v. C

ity of Cincinatt

i , 475 U.S. 469 (1986)). In this case, the pa

rties do not dispute tha

t a Georgia sherif

f acts as a policymake

r; instead, their d

ispute is over whethe

r the Sheriff her

e acts as a policymake

r for the defendan

t Clayton County. We thus revie w several recen

t decisions which instr

uct us how to determ

ine whether a sher

iff acts as county policymake

r for purposes of § 198 3. B. McMillian

and Turquitt In McMillian v. Monroe County , 520 U.S. 781, 784 (1997), the United States Supreme C ourt co nclude d that, when act ing in a law enf orcement capacit y,7 In McMillian v. Johnson , 88 F.3d 1573 (11th Cir. 1996), aff’d sub nom McMillian v.

Monroe County

, 520 U.S. 781 (1997), we similarly determined that the Alabama Constitution’s designation of a sheriff as a state official was relevant, but not dispositive, in determining whether a sheriff exercises state or county power. Id. at 1580-81. We viewed the designation of the sheriff as a state official as evidence of the county ’s lack of law enforcement power. Id. at 1581 n.4 (“We base our decision not on a sheriff’s ‘label,’ but on the county’s lack of law enforcement power, of which a sheriff’s designation as a state official is evidenc e.”). 10 Alabama sher

iffs are § 1983 policy

makers for the

state, and not the county . Under McMillian , the determi

nation of the policy

maker issue unde

r § 1983, although a federal question, is guided by state law. Id. at 786. McMillian further teaches that state law cannot answer the § 1983 policymaker question by “sim ply labeling” an official as a county or sta te official. Id. at 786. Instead, c ourts must focus o

n control over the off

icial. For example,

although the Alabam

a Constitution provided

that the state executive department includes “a sheriff for each county” and, in eff ect, labeled the sheriff as a state ex ecutive officer, see id. at 787, the Suprem e Court in McMillian did not end its analysis there. 7 Instead, it exam ined Alabama Code provisions and noted that the county had no control over the sheriff’s law enforcement duties, whereas the Governor and the Attorney General had such control under an Alab ama statute. Id. at 789-91. Even though Alabama law suggeste d that the county had s ome influenc e over the s heriff (suc h as the cou nty’s payment of his salary and purchase of his equipment), a nd even though the sheriff11

was elected loca

lly by county

voters, the Supre

me Court in McMillianindicated that such factors di d not amount to contro l over the sheriff’s oper ations. See id. at 791-92. I n Turquitt v. Jeffe

rson County , 137 F.3d 1285 (11th Cir. 1998), this Court sitting en banc explained how to dete rmine whethe

r an official act

s as a policymake

r for a county or

the state. In Turquitt , we con clud ed tha t “Alab ama sheriff[s] ac

t[] exclusively

for the state rath

er than for the count

y in operating a county jail.” Id. at 1288. Although notin g that Alabama ’s Constitution “sends a clear message that a sheriff is a state officer,” id. at 1289, we, too, focused on control in deciding the

§ 1983 policym

aker issue. Rathe

r than relying on the “state offic

ial” label, our an

alysis in Turquitt

went beyond Ala

bama’s Const

itution and examined the

sheriff’s perf

ormance of his

duties in operating the

county jail and the lac k of contro l that the c ounty gove rnment had ov er the sheri ff’s performance

of such duties. Central to the McMillianand Turquitt decisions is the principle that “ local governments [suc

h as counties] can

never be liable unde

r § 1983 for the acts o f those [officials] whom the local government has n

o authority to cont

rol .” Turquitt 137 F.3d at 1292 (em

phasis added). Inde

ed, in Turquitt , this Court en banc emphasized the

importance of

control by char

acterizing the inqui

ry in McMillian8 In Turquitt , we explained that “because counties have no control over sheriffs, allowing

county liability for a sheriff’s ac tions would ignore Monell ’s conception of municipalities as corporations and substitute a conception of municipalities as mere units of geography . . . [and] would impose even broader liability than the respondeat superior liability rejected in Monell .” 137 F.3d at 1 291 (quoti ng McMillian v. Johnson , 88 F.3d at 1577). 12 as asking “whic

h government body

, under state law

, had direct contr

ol over how the sheriff fulfilled [the duty at issue].” Turquitt , 137 F.3d at 1292. H olding counties liable in the absence of control over sheriffs would ignore Monell ’s conception of counties as corporations, would substitute a conception of counties as mere units of

geography, and

would impose eve

n broader liability

than the respondeat superior

liability rej ected in Monell

. Turquitt , 137 F.3d at 1291

. 8 Therefore, our

examination of Georgia law m ust center on whethe

r counties in Georgia have contr

ol over sheriffs. A sheriff’s pol icy or act cann

ot be said to speak for the county if the county has no say in what policy or action the sheriff takes. Both McMillianand Turquitt further rem

ind us that, in exam

ining control, we must consider the particular area or function for which the government official was alleged to be the fi nal policymaker. McMillian , 520 U.S. at 785 (law enforcement duties); Turquitt , 137 F.3d at 1287 (operation of the jail). In other words, for § 1983 lia

bility, a deter

mination mus

t be made as to “

who the policymaker is and in which particular area that policym aker acted.” Turquitt , 1379 In McMillian , the Supreme Court instructed that the policymaker question is not

whether the sheriff acts for the state or county “in some ca tegorical, ‘all or nothing’ manner” but whether the sheriff is a final policymaker for the state or c ounty “in a particular area, or on a particular issue.” 520 U.S. at 785.

10 The arguments in Judge Barkett’s concurring opinion erroneously reject the relevance of McMillian ’s functional and control analy

sis to this case. L

ike Georgia la

w, Alabama law a

lso characterizes the sheriff as a county official. I ndeed, the plaintiff in McMillianstressed that Alabama statutes and court rulings refer to the sheriff as a county official. McMillian , 520 U.S. at 798. Nonetheless, the McMillianmajority examined both the sheriff’s function and the county’s lack of control and broadly concluded that Alabama sheriffs, when acting in a law enforcement capacity, are § 1983 policy makers for the state, and not the county. McMillian , 520 U.S. at 784, 791. Although the Supreme Court in McMillianemphasized that co urts should 13 F.3d at 1287-88. 9 Thus, the appropri ate § 1983 inquiry u

nder federal law

is whether defendan

t Clayton County

, under Georgia l

aw, has control ove

r the Sheriff in his law

enforcement

function, particul

arly for the e

ntry and validati

on of warrants on the CJ

IS systems

and the training and su

pervision of his em

ployees in that regard. III. GEORGIA LAW In this appeal, plai

ntiff Grech’s

main argum

ent is that sheriffs

are county policymakers under § 1983 because Georgia’s Constitution characterizes sheriffs as “county officers.” Grech contends that Georgia’s statutory and decisional law supports this “cou

nty officer” classification. T he insurmountable

hurdles for Grech are that, under McMillian, we must focus o

n control, not labels , and that, under Georgia law, counties lack authority and control over sheriffs’ law enforcement functions. 10 This is because the sheriff occupies a

separateconsider the particular area or function in issue, it did not restrict its inquiry to whether the

sheriff acted for the State or county in intimidating witness and suppressing evidenc e–the specific conduct in issue. Instead, the Supreme Court defined the area or function in issue as whether the sheriff “represents the State or the county whe n he acts in a law enforcement capacity” and answered that question. Id. at 785-86. 14 constitutional offic e independent from the defendant Clay

ton County. To t

he extent control ov er the sheriff exists, o nly the State has such aut hority and control. The sheriff receives his law enfor cement power

directly from

the State. The defendant Clay

ton County does not de

legate any of it

s governmental powers to the sheriff as a su bunit of the d efenda nt Clayt on Coun ty. To show the independe

nce of the sheriff

’s constitutional of

fice from the defendant Clay

ton County and this S

tate control and cor

responding absence of county control, we review the relevant Georgia constitutional and statutory provisions as well as applicable case law. A. Georgia’s Constit ution At the outset, it is important to note that the only def

endant in this case is the defendant Clay

ton County. Thus , we examine the governmenta

l structure of the sherif f’s office vi s-a-vis th e defendan t Clayton Co unty in Georg ia’s Constitution. Georgia’s Constitution designates the sheriff as a “county officer” but, in the same

paragraph, grant

s the state legislatu

re the exclusive aut

hority to establish and control a sheriff’s pow ers, duties, quali

fications, and m

inimum11 Georgia’s Constitution provides that sheriffs “shall be elected by the qualified voters of

their respective counties for terms of four years and sha ll have such qualifications, powers , and duties as provided by general law .” Ga. Const. art. IX, § 1, ¶ 3(a) (emphasis added). That paragraph also provides that the “[c]ounty officers . . . may be on a fee basis, salary basis, or fee basis supplemented by salary,” but that “[m]inimum compensation for said county officers may be established by the General Assembly by general law” and supplemented by local law or by action of the county governing body . Ga. Const. art. IX, § 1, ¶ 3(b) (emphasis added).

12 Georgia’s Cons

titution provides tha

t the legislative

“power grante

d to counties . . . sha

ll not be construed to extend to . . . [a]ction affecting any elective county office, the salaries thereof, or the p

ersonnel thereo

f, except the pers

onnel subject to the

jurisdiction of the

county governing authority.” Ga. Const. art. I X, § 2, ¶ 1(c)(1). 15 salary. Ga. Const. art. IX, § 1, ¶ 3(a)-(b). 11 Interpreting this constitutional provision, the Georgia Supreme Court has explained that county sheriffs are subject to the control of the Georgia legislature and are not county employees. Bd. of Comm’ rs of Randolph County v. Wilson , 260 Ga. 482, 482 (1990) (“The sheriff . . . is an elected, constitutional officer; he is subject to the charge of the General Assembly a

nd is not an employ

ee of the county

commission. ”); Chaffin v. Calhoun , 262 Ga. 202, 203 ( 1992); Warren v. W alton , 231 Ga. 495, 499 (1973). In contrast to the co

ntrol it gives the Sta

te, Georgia’ s Constitution does not grant counties legisl

ative power or aut

hority over sher

iffs and expressly

prevents counties from controlling or affecting the sheriff’s elective county office. 12 Ga. Const. art. IX, § 2, ¶ 1(c)(1). In this regard, the Georgia Suprem e Court has concluded that this con

stitutional restric

tion on the legislative

power granted to counties (that is, H

ome Rule) pre

vents counties from

taking action affe

cting the13 Although Warren involved a prior ve

rsion of the Geor

gia Constitution, th

e same relevant language is in the present version of the Georgia Constitution. See Warren , 231 Ga. at 499. The plain language of Georgia’s Constitution provides that the powers and duties of the sheriff’s office are established by the State legislature by general law. See supra note 11. Georgia’s Constitution goes further and precludes counties from taking any action to affect the sheriff’s office. See supra note 12. Contrary to the position in Judge Barkett’s concurring opinion, the plain language of Georgia’s Constitution makes the powers and duties of the constitutional sheriff’s office alterable by the Georgia legislature and unalterable by the county or the cou nty go vern ing b ody.

14 Other state actors available for law enforcement activity include the Georgia Bureau of Investigation and the Georgia State Patrol. See O.C.G.A. § 35-3-3 et seq . (GBI); § 35-2-30 et seq . (GSP). 16 sheriff’s office. Warren , 231 Ga. at 499; see Stephenson v. Bd. of Comm’r s of Cobb County , 261 Ga. 399, 401-02 (1991). 13 Thus, Georgia’s Constitution has created the sheri

ff’s office a

s a separate consti

tutionally protec

ted entity independent from the de fendant Clayton Count y. B. Sheriffs Perform Law Enforcement Funct ion for the State The sheriffs’ independence from counties is further shown by how sheriffs act as agents for the st ate in enforcing the laws and in keeping t he peace. Georgia’s Constituti on provides that “[t]he Gov ernor shall take care th at the laws are faithfully

executed and shall be

the conservator of the peace throughout t he state.” Ga. Const. art. V, § 2, ¶ 2. In enforcing the laws and conserving the peace, the Governor does not act alone, but necessarily acts through state agents such as sheriffs. 14 In Georgia, the office of sheriff carries with it both the comm on law and statutory duti

es of sheriffs to e

nforce the laws a

nd preserve the pea

ce, as well15 See Hannah v. State , 212 Ga. 313, 321 (1956) (“The office of sheriff carries with it . . .

all of its common-la

w duties and power

s, except as modifie

d by statute. ”). The sheriff ’s office is as old as the State of Georgia, administers the law enforcement powers of the State, and is a constitutionally protected office independent from county government. See infra

Section III(J). The Georgia Attorney General has explained that under Georgia law, sheriffs have statutory duties and also all of their common law duties and powers unless modified by statute, and that these duties include enforcing the laws and conserving the peace. See Ga. Op. Atty Gen. No. 69- 385 (1969); Ga. Op. Atty. Gen. No. 77-83 (1977) (both construing former Ge orgia Code § 24- 2813 (1933), now O.C.G.A. § 15-16-10). In addition, sheriffs must be state-certified peace officers, who are “vested . . . with authority to enforce the c riminal or traffic laws through the power of arrest and [are charged with the] preservation of public order, the protec tion of life and property, and the prevention, detection, or investigation of crime.” O.C.G.A . § 35-8-2(8)(A).

16 Regarding the historical evolution of sheriffs, McMillian stated that: As the basic forms of English government were transplanted in [the United States], it

also became the common understanding here that the sheriff, though limited in jurisdiction to his county

and generally elect ed by co unt y vot ers , wa s in real ity an officer of the State, and ultimately

represented the State in fu lfi lling his duty to keep the peace. 520 U.S. at 794 (internal footnote omitted).

17 as additional statutory duties imposed by the State. O.C.G.A . § 15-16-10(a)(1)- (8). 15 The Georgia legi slature mandat es that it is the expre ss duty of the sher iff “to perform such du

ties as are or m

ay be impose

d by law or whic

h necessarily appertain to his or her office.” O.C.G.A. § 15-16-10(a )(8). In McMillian , the Supreme Court pointed out that historically a sheriff had geographic restric

tions but in reality

“represente

d the State in fulfi

lling his duty to keep the peace.” 16 McMillian , 520 U.S. at 794 . Indeed, “ in conserving the public peace, in vindicat

ing the law, and in p

reserving the rights

of the governme

nt, [the sheriff] repr

esents the sovereignt

y of the State a

nd he has no superior in his17 In Georgia, superior courts of the county are the State’s courts of general jurisdiction. See Ga. Const. Art. 6, § 4, ¶ 1; O.C.G.A. § 15-6-8. 18 county.” 1 W . Anderson, A T reatise on the Law

of Sheriffs, Co

roners and Constables 5 (194 1), cited with approval in McMillian , 520 U.S. at 794 . Thus, it is entirel y consisten t for sheri ffs to be la beled as “cou nty officers ” in Georgi a’s Constitution to refle

ct their geographic

territory, b

ut for them still

to act on behalf of the State in enforci ng the laws and keepi ng the peace. See R. Coole y, Handbook on the Law

of Municipal Corpor

ations 512 (1914) (“ Sheriffs . . .clerks and other so-called

county officer

s are properly

state officers f

or the county. T

heir functions and duties pertain chiefly to the affairs of state in the county.”). In addition to their general law enforcement duties, the Georgia legislature prescribes and cont

rols other law enf

orcement dutie s of sheriffs. Fo r example, th

e State requires that sh eriffs perform specific dut ies relating to stat e courts. The Georgia legislature mandates that it is the duty of sheriffs “[t]o exec ute and return the processes and o rders of the courts an d of officers of competent au thority . . . with due diligence.” O.C.G.A. § 15-16-10(a)(1) (Supp . 2002). The State mandates that s

heriffs, in their

respective countie s, have a duty to attend all sessio ns of th e super ior cou rt of th e count y, 17 to publish sales, citations, and other proceedings as required by law, to keep an execution docket, and to keep other18 Unless the issue of unsafe jail conditions is properly before a trial court, only sheriffs have authority to order such prisoner transfers. In re Ir vin , 254 Ga. 251, 253-54 (1985). 19 specified records. O.C.G.A. § 15-16-10(a)(2)-(6). T his same statute provides that “[i]f any sheriff or deputy

fails to comply

with any provisi

on of [O.C.G. A. § 15- 16-10(a)], he shall be fin ed for a contempt.” O.C.G.A. § 15-16-1 0(a)(8), (b). The State furthe

r empowers sh

eriffs to act bey

ond the boundaries of th

eir counties of election

in certain circum

stances. Sherif

fs may tra nsfer prisoners to another county jail if the jails in their counti es are in an “unsafe condit ion.” 18 O.C.G.A.§ 42-4-4(a)(3). In addition, the Sta te authorizes sheri

ffs to exercise the

ir discretion to “transfer[] a prisoner to another jail in another county if the sheriff concludes that such transfer is in the best interest of the prisoner or that such transfer is neces sary for the or derly admi

nistration of the ja

il.” O.C.G. A. § 42-4- 4(b). Georgia la

w also empowe

rs sheriffs to m

ake arrests for t

raffic violations outside their cou nties. SeeO.C.G.A.§ 40-13-30; City of Winte rville v. Strickland , 127 Ga. App. 716, 718-19 (1972). In sum, under G

eorgia law, the s

heriff’s funct

ion, both under his com

mon law heritage and as supplemented by state statute, is to enforce the laws and keep the peace o n behalf of

the State i n his geog raphical t erritory. Thu s, Georgia’s Constitution has m

ade the sheriff a constitutionally p rotected office i

ndependent20

from the defe

ndant Clayton Coun

ty and prevented

the defendant Clay

ton County from taking any action to affect the sheriff’s office. C. State Controls Qualifications, Salary and Training The Georgia legi slature also has dec lared that “pr

oper qualifications

and standards be requir

ed of the . . . she

riff so as to increase the effective ness of the several sheriffs of th is state as law enforcement o fficers to combat crime.” O.C.G.A.§ 15-16-1(a). Th e State manda

tes a detailed set of

qualifications that a person must satisfy to be a can didate for the sherif f’s office in any county. See O.C.G.A. § 15-16-1(a)-(c). For exam ple, the State requires that a sheriff be at least twenty- five years old, not have a felony

record, be a re sident of the county for at least two years prior to offering candidacy, and be a registered or certifie d peace officer or

complete the r

equirements of

being a certified p eace officer w ithin six months after taking office. O.C.G.A.§ 15-16-1(c)(1)(B ), (D), (F) , (J). The State sets the sher

iffs’ minim

um salary and requires that it be paid from co

unty funds based on the county’s population. O.C.G.A. § 15-16-20(a)(1). In addition, the Sta

te fixes the trainin

g requirements

for sheriffs-el

ect and existing sheriffs in all counties. O. C.G.A. § 15-1 6-3. Notably, if a sheriff fai

ls to comply wit

h the annual training r

equirements,

the Governor m

ay suspend the sheriff without pay for ninety days. O.C. G.A. § 15-16-3(e)(4). Newly-elected19 The Governor ma y determine

that an investiga

tion of a sheriff “

should be made as a result of criminal charges, alleged misconduct in office , or alleged inc apacity of the sheriff to perform the func

tions of his office .” O.C.G.A. § 15-1 6-26(a) (empha sis added). This investigation-suspension statute addresses the Governor’s authority and control over only the sheriff and grants broad investigation-suspension powers regarding a sheriff’s misconduct in the performance of

his duties. This statu

te does not cover

county commi

ssioners, and we c

an locate no parallel state statute granting the Governor the same express broad authority and control over county commissioners. Instead, a wholly distinct statute, O.C.G.A. § 45-5-6, addresses the removal of public officials, including county commissioners, but only in this limited situation: after a grand jury’s indictment for a felony criminal charge and only if that the felony indictment relates to the performance or activities of the public official’s office. O.C.G.A. § 45-5-6(b). 21 sheriffs must c

omplete specia

lized training provid

ed by the Georg

ia Sheriffs’ Association with th e assistance of the Geo rgia Public Safety Training Center. O.C.G.A.§ 15-16-3(b). The reafter, sheri

ffs must com

plete at least twe

nty hours of training annually . O.C.G.A . § 15-16-3(e)(1) . The Georgia S heriffs’ Assoc

iation uses state or federal fu nds to cover all trai ning costs. O.C.G.A.§ 15-16-3(d). The State further m

andates that a sheri

ff’s failure t

o complete tra

ining requireme

nts will result in the lo ss of arrest powers. O.C.G.A. § 15-1 6-3(b), (e)(4). D. State Investigati

on and Suspension The State, not counties, has the right to investigate and suspend sheriffs. If a sheriff is suspected of any misconduct, the Governor may initiate an investigation and may suspend the sheriff. O.C.G.A. § 15-16-26(a), ( c). 19 The investigation is conducted by a committee, composed of two sheriffs, w ho are selected by the

Governor, and the

State Attorney

General, and is f

unded by the20 The Governor al so may requi

re further inve

stigation “by

the committee, by

the Georgia Bureau of Investigation, by othe r law enforcement agencies of this state, or by a ny special committee appointed by the Governor for such purpose.” O.C.G.A. § 15-16-26(c ). The judicial proceedings for removal of a sheriff are conducted in an manner identical to those for the removal of a clerk of the superior court under O.C.G.A. § 15-6-82. O.C.G.A. §§ 15-16-10(b) (Supp. 2002) & 42-4-4(c). Judge Barkett’s concurring opinion mistakenly relies on Cole v. Holland , 219 Ga. 227 (1963), which involved whether a criminal conviction must precede a petition to remove a sheriff from office. The

Georgia Supre

me Court rejecte

d this argument th

at a conviction wa

s a condition precedent to removal proceedings. Id. at 229. If anything, Cole illustrates the point that the county governing authority has no control over the sheriff. When the sheriff is suspected of misconduct in the performance of his duties, the Governor may initiate an investiga tion funded by the State government, and the Governor has the authority to suspend the sheriff. O.C.G.A. § 15-16-26. Significantly, no county g overning authority has such power. The same concurr ing opinion also errs in how it relies on Gipson v. Bowers , 263 Ga. 379 (1993), for the proposition that the Governor “can take no official action against a sheriff unless there ha s been a criminal indictment” first. Id. at 379. This is because a wholly separate statute, O.C.G.A., § 45-5-6, does provide for removal of public officials, including the sheriff, upon a grand jury ’s indictment for a felony. The above Georgia statutes, however, inde pendently address only the sheriff a nd the Governor’s investigation and suspension of the sheriff for any misconduct in off ice or the alleged incapacity of the sheriff, which do not require a criminal indictment. Compare O.C.G.A. § 15- 16-26 with

§ 45-5-6. 22 State. O.C.G.A. § 15-16-26(a). Within thirty days, the com mittee provides

the Governor a report of its investigation. O.C.G.A. § 15-16-26(b). If the comm ittee

recomme nds suspension, the Go

vernor may

suspend the sheriff f

or up to sixty days and ma

y extend that suspe

nsion for thirty a

dditional days. O .C.G.A. § 15 -16- 26(c). The Gove

rnor also is “au

thorized to request t

he district attorne

y of the county of the sheriff’s residence to bring a removal petition against the sheriff.” Id. 20
E. Lack of County Control over Sheriff and Deput ies23

In contrast to the St

ate, counties have

no authority or control over, and no role in, Georgia

sheriffs’ law

enforcement

function. Counties do not grant sheriffs their law enforcement powers, and neither prescribe nor control their law enforcement duties and policies. Counties also have no r ole in the training or supervision of the sher

iff’s deputies.Instead, sheriff s exercise authorit

y over their deputies indepen dent from the county. Sheriffs al one hire and fire thei r deputies. O.C.G.A.§ 15-16-23; Wayne County v. Herrin , 210 Ga. App. 747, 751 (19 93). Georgia courts hav

e concluded that sher

iffs’ deputies a

re employe

es of the sheriff and not the co unty. Warren v. W alton , 231 Ga. 495, 499 ( 1973) (recognizing that “ [d]eputy sher iffs . . . are

employees

of the sheriff, w

hom the sheriffs alone ar

e entitled to appoint or

discharge”) (inte

rnal quotation ma

rks omitted); Drost v. Robinson , 194 Ga. 703, 710 ( 1942); Brown v. Jackson, 221 Ga. App. 200, 201 (1996) (noting deputy sheriffs “were em ployees of the sheriff and not Peach County

”); Herrin , 210 Ga. App. a t 751; Pettus v. Smit

h , 174 Ga. App. 587, 588 (1985); cf. Boswell v. Bram lett , 274 Ga. 50, 51 (

2001) (“[E]mployee s of constitutionally elected officers of a county are considered employees of the elected officer and not employ ees of the county, as represented by the local governing authority.”).21 Lowe , Brown , and Pettus involve responde at superior liabil

ity of the she

riff for his deputies’ acts. The Chadwick court also cited former Georgia Code § 24-201 (1933), which provided: “All sheriffs, deputy sheriffs, coroners, jailers, constables, and othe r officers of court shall be liable to a

ll actions, suits, an

d disabilities whate

ver, which they

, or either of the

m, shall incur in respect of any matter or thing whatever r elating to or concerning their respective offices.” This se

ction is now codifie

d in O.C.G.A. § 15-1 3-1, which similar ly provides:“All sheriffs, deputy

sheriffs, coron

ers, jailers, co

nstables, and othe

r officers of c

ourt shall be liable

to all actions and disabilities which they incur in respect of any matter or thing relating to or 24 Georgia courts al so speak with unanim ity in concluding th

at a defendant county cannot be he

ld liable for the tor

tious actions of the she

riff or his deputies

in performing the

ir law enforcem

ent activities. Wayne County Bd. of Comm ’rs v. Warren , 236 Ga. 150, 152 ( 1976) (“[A] county has no liabi lity in connection

with the violations of the c

ivil rights of any

person by a county

officer.”); Brown , 221 Ga. App. at 201 (

affirming sum

mary jud gment for Pea

ch County because

the Peach County sheriff, not Peach County, was the proper party to sue) ; Lowe v. Jones County , 231 Ga. App. 372, 373 (1998) (concluding “deputy sheriffs are employees of the sheriff, no t the county , and the county c annot be held vicario

usly liable as their prin

cipal”) (emp

hasis added); Pettus , 174 Ga. App. a t 588 (affirmi

ng summary judgment for county board of commissioner s and concluding, “ [a]s the county commissioners had no control over the official duties of the deputy sheriff . . . , they had no duty to determine whether a high-speed driving course rather than a defensive driving c

ourse was reasona

bly required to be

supplied to deputy sheriffs”); Chadwick v. Stewart , 94 Ga. App. 329, 329 (1956). 21 In two of theseconcerning their respective offices.”

22 The statute quoted in Warren is former Georgia Code § 23-1502 (1933), which is now O.C.G.A. § 36-1-4. In the subsequent decision of Chatham County Commissioners v. Rumary , 253 Ga. 60 (1984), the Georgia Supreme Court held that the Chatham County Board of Commissioners was required to pay a judgment against a deputy sheriff for damages in an automobile collision because Chatham County’s own Code provided for the defense of the deputy at trial and payment of final judg ments awarded in courts. Id. at 60-61. The Geo rgia Supreme Court emphasized that “[t]he nature of the Board’s liability here is not that of respondeat superior , but exists solely by virtue of

its voluntary

and self-imposed

obligation to provide indemnifi

cation for the ac

ts of its employ

ees committed duri

ng the performa

nce of their duties.” Id. at 61. There is no e vidence in this ca

se that Clayt

on County volun

tarily has a

greed to provide indemnifi

cation. To the con

trary, Clay

ton County con

tends that it is not lia

ble because 25 cases concluding that

the county was n

ot liable, the plain

tiffs brought actions against the sheriff

as a defendant in his

official and individu

al capacities and separately against the co unty as a defendant. Brown , 221 Ga. App. at 201 (Peach County sheriff,

not Peach County

, was the proper party to sue); Lowe , 231 Ga. App. at 373 (noting that plaintiff brought action against county as well as sheriff in official capacity). Likewise, Georgia courts have concluded that counties are not liable for, and not required to give

sheriffs mone

y to pay, j udgments against sheriffs in civil rights actions. See Wayne County Bd. of Comm ’rs v. Warren , 236 Ga. 150, 152 (1976) (stating a cou

nty has no liabilit

y for the violati

ons of the civil rights of any person by a county

sheriff). The

Georgia Suprem

e Court in Warren

quoted a Georgia statute st

ating that “[a]county is not liabl e to suit for any cause of action unless made so by statute.” Id. at 151 (quotation marks omitted). 22 Thus, bythe she rif

f is not a po lic ymak er fo r th e cou nty. 26 statute, the county was not liable. In addition, the Georgia Supreme Court concluded that “

there is no duty of

the county to fur

nish the sheriff wi

th money to settle a civil rights judgment against him.” Id. at 152. F. County C ivil Se rvice Sy stems The independence of

sheriffs from

counties is further

shown by Georgi

a law’s treatment of sheriffs and county civil service system s. Although counties may adopt c

ivil service sys

tems, sherif

fs have independent a

uthority to hire t

heir deputies and to decide

whether their dep

uties are placed und

er a county civi

l service system. See O.C.G.A.§ 15-16-23; 36-1-21(S upp. 2002); Brett v. Jeffer son County , 123 F.3d 1429, 1434 (11th Cir. 1997); Herrin , 210 Ga. App. 74 7, 753 (1993); cf. Gwinnett County v. Yates , 265 Ga. 504, 508 ( 1995) (concluding that a county “ca

n take no action aff

ecting” the em

ployees of an el

ected official,

unless the elected official h as placed his office u nder a county’s civil servi ce system). For example,

in Herrin , the Georgia Cour t of Appeals exam

ined O.C.G.A . § 36-1- 21, which allows counties to create a civil service sy

stem and to includ

e employm ent positions with ele

cted county offi

cers in that syst

em “‘upon the written applicati

on of the elected cou

nty officer. ’” 210 Ga. App . at 748-5023 In Herrin , when his term was about to end, the Wayne County sheriff applied to have positions in the sheriff’s office made subject to the Wayne County pe rsonnel system. 210 Ga. App. at 748. Both Wa

yne County

and Sheriff Warr

en “fully c

omplied with all [the] r

equirements set forth in O.C.G.A. § 36-1-21(b) necessary to bring employ ees of the sheriff’s office within the personnel system.” Id. at 750. Reconcilin g O.C.G.A. §§ 15- 16-23 and 36-1-21 , the Georgia court held “that o

nce positions in a sh

eriff’s office

have been made s

ubject to a person

nel or civil service sy stem, a sheriff’ s authority to appoint deputies pu

rsuant to O.C.G.A.

§ 15-16-23 is limited to vacanci

es” created by

resignation, re

tirement, or remo

val under the app

licable personnel or civil service system. Id. at 753. This same O.C.G.A. § 36-1-21(b) was examined in Brett , 123 F.3d at 1434, i n which this Court concluded that deputy sheriffs are “at-will” employ ees of the sheriff. We agreed with the district court tha

t “the former de

puty sherif

fs had no protecte

d property i

nterest under Ge

orgia law because [Sheriff] Compton’s efforts to place deputy sheriffs under the civil service system failed to satisfy the statutory requirements of O .C.G.A. § 36-1-21(b).” Id. Sheriff Compton had made an oral request, but had not completed the required written application. Id. In this case, there is no indication in the record that Clayton County has a civil servic e system or that the sheriff has take

n any action

to have his deputie

s subject to a count

y personne

l system. 27 (quoting O.C.G.A. § 36-1-21(b)). 23 The Georgia cour t concluded (a) that

“deeply embedded in our case law is the notion that the sheriff a

lone has the authority

and power to appoint and fire deputies,” but (b) that “the General Assembly has defin itely and po siti vely p rovid ed for the cr eatio n of co unty c ivil servi ce syst ems and conferred on el

ected officials [ such as the Way ne County Sherif

f] the ability to bring all employees in their office into the system.” Id. at 751, 753. G. County Police Department The counties’ la

ck of authority a

nd control over sheri

ffs starkly con

trasts with the counties’ powers over their own county police

department. Georgia counties have law enforcement power only to the exte nt delegated by the State

. The Georgia legi slature authorizes county governing bodies to create a county28

police force throug

h a resolution or ordin

ance of the partic

ular county gover

ning body followed by the approv al of qualified coun ty electors. O.C.G.A. § 36-8-1(b). The county governing body controls the hiring and removal of its county police and may “

abolish a county pol

ice force at any

time.” O. C.G.A. § 36-8 -2. County police officers a

re subject to the “

direction and control

of the county gove

rning body.” O.C. G.A. § 36-8-5.County police of ficers have “ [t]he same

power to make arrests

and to execute and re

turn criminal w

arrants and proces ses in the county of their election or appointment . . . as sheriffs have.” O.C.G.A.§ 36-8- 5(1). The net result is tha t, under Georgia law, the county police departm

ent is the vehicle th rough whic h a county fu lfills it s policin g functio ns, but th e sheriff’s office is a vehicle thr ough which the State fulfills part of its policing functio ns. The Clayton County Sheriff does not receive any of his law enforcem ent powers from the d efenda nt Clayt on Coun ty. H. County Treasury We acknowledge

that Georgia law

grants the county

significant control o f the “purse stri

ngs” of the sheriff

’s office. T

he county governin

g body sets the total a mount of

the she riff’s o perati ng bud get, pa ys the sh eriff’s salary, a nd pays the premium for the sheriff’s offici al bond. SeeO.C.G.A.§§ 36-5-22.1, 15-16- 20,24 In Chaffin , the county, over the sheriff’s objection, shifted the responsibility for patrolling and drug enforcement to the new county police department and reduced the sheriff’s budget by forty-seve

n percent. 262 Ga. at 202, 204. The trial court g

ranted the county

’s request for an injunction requiring the sheriff to cooperate in the implementation of the plan to transfer personnel and equipment to the newly created county police department. Id. at 202-03. The Georgia Supre

me Court affirmed

, holding that the t

rial court had not

abused its discre

tion in finding that the remaining budget was sufficient to allow the sheriff to perform his duties. Id. at 204. In doing so, the Georgia Supreme Court reaffirmed that: (1) “ Sheriff Chaffin is an elected constitutional officer,” Chaffin , 262 Ga. at 203 (citing Ga. Const. art. IX, § 1, ¶ 3(a)); (2) “[t]he sheriff is not an employee of the county commission,” Chaffin , 262 Ga. at 2 03 (citing Board of Commissioners of Randolph County v. Wilson , 260 Ga. 482 (1990 )); and (3) altho

ugh the county commission has the p

ower to create

a county pol

ice force, “‘t

he commissioners c

ould not divest the sheriff of his power and duty to enforce the laws and pre serve the peace,’” either directly or indirectly by exercise of their fiscal a uthority or control of county property , Chaffin , 262 Ga. at 203 (quoti ng Wolfe v. Huff , 232 Ga. 44, 45 (1974)). In another budget battle between the sheriff and county commission in Board of Commissioners of Randolph County v. Wilson , 260 Ga. 482, the sh eriff requeste

d $70,000 to pay deputies, but the county commission budgeted a lump sum of only $60,080. Id. at 482. The Georgia Supreme Court held that the county commission did not abuse its authority, vie wing the case as “involving the power of the commission to approve the sheriff’s budget rather than the power of the sheriff to hire deputies.” Id. at 484. 29 45-4-7, 15-16-5; Chaffin v. Calhoun , 262 Ga. 202, 203 (1992). This financial control, nonetheles s, is attenuated bec ause (a) the Stat

e mandates the

minimum salar y and t he mini mum bon d amoun t for s heriffs, an d (b) t he Geo rgia S upreme Court has held that the

budget “must

provide reasonably

sufficient funds to a

llow the sheriff to disch

arge his legal duties ,” and that “th e county com

mission may

not dictate to the sheriff how that budget will be spent in the exercise of his duties.” Chaffin , 262 Ga. at 203-04 ; 24 cf. Boswell v. Bram lett , 274 Ga. 50, 52 (

2001) (concluding county

government appr

oves the superior cour

t clerk’s budget bu

t does not control h ow that constituti onally elected officer sp ends the budget).25 Alabama sheriffs are elected by county voters and paid from county funds, but the Supreme Court in McMillianfound these factors insufficient to establish county control over sheriffs. See McMillian , 520 U.S. at 791 (“The county’s payment of the sheriff’s salary does not translate into con

trol over [the sher

iff], since the cou

nty neither

has the authority

to change his salary nor the discretion to r

efuse pay ment completely

.”). The Supreme

Court also concluded that the ability of the county governing body to reduce the sheriff’s budget so long as it rema ins reasonable results in “attenuated and indirect influence over the sheriff’s operations.” See id. at 791-92.

26 While we discuss sovereign immunity solely for the sheriff ’s policymaker function under Georgia law, state sovereign immunity has no applica tion in federal court in § 1983 cases. Instead, the Eleventh Amendment grants immunity to states from suits in federa l courts. See, e.g. , Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm’n , 226 F.3d 1226, 1231 (11th Cir. 2000); Hufford v. Rodgers , 912 F.2d 1338, 1340-41 (11th Cir. 1990). In addition, when parties raise federal claims under § 1983 in state courts, federal law must determine whether particular governmental entities are subject to suit. See Howlett v. Rose , 496 U.S. 356, 375-78, 383 (1990). 30 Georgia’s Const

itution further prev

ents counties from

taking any action

affecting any elective county office or t he personnel thereo f. Ga. Const. art. IX, § 2, ¶ 1(c)(1). Pay

ment of a sheri

ff’s salary and for equipme

nt from county

funds, when required by

the state legislatur

e, does not establish

county control ove

r the sheriff’s law

enforcement

conduct and policies. 25
I. State Sovereign Immunity That Georgia law

extends the State’ s sovereign imm unity to sheriff

s is further indicia that sheriffs act on behalf of the State. 26 The Georgia Cons titution specifically p

rovides that “sov

ereign imm

unity extends to the

state and all of its departments an

d agencies.” Ga . Const. art. I , § 2, ¶ 9(e). G eorgia courts have interpreted this p rovision to grant sovereign immunity to sheriffs

. Cantrell v.27 But see City of Thomaston v. Bridges , 264 Ga. 4, 7 (1994 ) (holding that th

e phrase “state and all its d

epartments and a

gencies” does

not include municip

alities); Thomas v. Hosp. Auth. of Clarke Cou

nty , 264 Ga. 40, 42 (1994) (concluding hospital authority–although a governmenta l instrum entality–is n ot an agency or dep artment of t he state ent itled to s overeign immunity). 31 Thurman , 231 Ga. App. 51 0, 514-15 (1998) (con cluding that although she riff is entitled to sovereign

immunity

under Article I,

§ 2, para. 9(e),

that immuni

ty is waived in any a

ction against the sher

iff’s official

bond, as the bond falls under the written contracts exception to state sovereign immunity in Article I, § 2, para. 9(c)). 27 The argu ment is mad e that t he sher iff’s immun ity stems from the c ounty, not the state, that the county’s immunity controls when the sheriff is sued, and that the county defen

ds the sheriff. T

he decisions relied u

pon for this argum

ent involve t he county’s p urchase of motor vehicl e insuranc e and the sh eriff’s immunity being waived to the e

xtent that the county

purchases motor

vehicle insurance and defen ds the claim. See, e.g. , Cameron v. L ang , 274 Ga. 122, 126 (2001); Gilbert v. Richa

rdson , 264 Ga. 744, 747 (1994). But this waiver occurs only because a Georgia statute grants counties limited authorit

y to waive sher

iffs’ imm unity with respe

ct to motor vehic

le liability. See O.C.G.A.§ 33-24-51 (granting th e county discret

ion to purchase motor vehicle i

nsurance and providin

g immunity

is waived to the exte

nt of the28 See, e.g. , Cameron , 274 Ga. at 126-27 ; Gilbert , 264 Ga. at 748-51 ; cf. Woodard v.

Laurens Count

y , 265 Ga. 404, 405 (1995). Cameron and Gilbert

treated the off

icial capacity claims against th

e sheriff as cla

ims against the c

ounty, dete

rmined that the she

riff sued in his official capacity was entitled to the benefit of the county’s sovereign immunity, and concluded that the sheriff’s immunity was waived to the extent the county had purc hased insurance. County immunity stems in large part from O.C.G.A. §§ 33-24-51(a ) and 36-1-4, which provide that a county is not liable to suit for any cause of action unless made so by statute.

29 In ad dit ion , th e Geo rgia Con sti tut ion pro vid es t hat “[n ]o w aiv er of sov erei gn im mun ity . . . shall be constru

ed as a waiver of

any immunity

provided to the sta

te or its departme

nts, agencies, officers, or employees by the United States Constitution.” Ga. Const. art. I, § 2, ¶ 9(f).

32 amount of insurance). 28 In Georgia, sovereign immunity m ay be waived only if a statute expressly provides that sovereign im munity is wa

ived and the extent of such waiver. Ga. Const. art. I , § 2, ¶ 9(e); see, e.g. , Cameron , 274 Ga. at 126 n. 25; Woodard v. Laur

ens County , 265 Ga. 404, 405 (1995). 29 While this waive

r statute ties the she

riff’s soverei

gn immunity

to the county’s for motor vehicles, the sheriff’s general sovereign im munity granted under Georgia’s Consti tution is indepe ndent from the county’s immunity. See Cantrell , 231 Ga. App. a

t 514-15 ; Seay v. Cleve

land , 270 Ga. 64, 65-66 (199 8). For example,

in Seay , the pl aintif fs sued the she riff in his off icial c apacit y, alleging (1) that the

sheriff was liable for his deputies’ negligent disbursem ent of funds at a sheriff’s sale and (2) that the sheri ff negligently supervi sed his deputies. 270 Ga. at 65-66. In Seay , the Georgia Sup reme Court co

ncluded that the plaintiffs’ “claims against [Sheriff] Se ay in his official capacity are precluded under the doctrine of

sovereign imm

unity and it has not been established in thi s30 Judge Barkett’s concurring opinion also relies on Haywood v. Hughes , 238 Ga. 668

(1977), for the proposition that counties, by statute, are authorized to pay for the sheriff’s legal costs in civil rights suits by third parties against sheriffs. See O.C.G.A. § 45-9-21. In Haywood , however, the Ge

orgia Supreme Co

urt emphasized tha

t the statute author

izes counties to do so

“in their discretion” and “give[s] the county considerable latitude in determining what ac tions will be defended.” Id. at 669 (citi ng Ga. Code A nn. § 8 9-945 , whic h is no w O.C. G.A. § 45-9- 21). In Haywood , the Glascock Cou nty Commissione

rs had adopted, a

t a special meetin

g, a policy

to pay attorney’s fee

s in two specific actions by third parties against the sheriff. Id. If any thing, this case demonstrates that the defendant Clayton County is not required to pay the sheriff’s attorney’ s fees in actions b y third part

ies. 33 case that such immunity has been waived.” Id. at 65. Nor has it be en established, or even claimed, in the present case that the sheriff’s sovereign imm unity has been waived as i t relates t o his gene ral law enfo rcement funct ion or his office’s involvement in the CJIS systems in issue. 30
J. Defendant Clayton County Judge Barkett’s concurring opinion actually acknowledges that under Georgia law a she

riff (1) is not an e

mployee of

the Clayton Count

y Comm ission; (2) is not subject t

o any control by

that County Com

mission; and (3) is independent from

that County Com

mission. (Conc

urring Opinion, Ba

rkett, J., pp. 54, 68, 73- 77). This co ncurring o pinion at tempts to cir cumvent the s heriff’s independence from

the defendant Clay

ton County by r

eframing the issue as “not whether a county comm

ission controls the sheriff’s office but whether the county controls the sheriff

’s office.” (

Concurring Opinion,

Barkett, J., p. 74). It argues (1) that the defendant Clayton County is not one “m

onolithic structure o f county34

government wit

h the county com

mission at its hea

d,” (2) that the she

riff and the county commission serve as subunits of the defendant Clayton County, each sharing equally i

n the government

al powers of the defendant Clayton County, and (3) that the sherif

f is the final policy

maker for the

defendant Clay

ton County in the area of law enforcement. Id. at p.55. Thus, this concurr

ing opinion raises this s

tructural issue: w

hether (1) the sheriff’s consti

tutional office is a

separate entity

independent from

the defendant Clayton County, or (2) whether the sheriff’s office and the Clay ton County Board of Commissioners, as subuni ts, share the powers of t he defendant Clayton Co unty. The answer is the

sheriff’s offi

ce is an independent e

ntity and not a subuni

t of the defendant Clay

ton County for tw

o reasons. First,

Georgia law prov

ides that the sheriff’s offi

ce derives its law

enforcement

powers only fr

om the State a

nd not the defendant Clay

ton County, and th

at the sheriff’ s constitutional office is independent from the defendant Clayton County. Georgia’s Constitution even precludes the defe

ndant Clayton Coun

ty from ta king any action af

fecting the sheriff’s office. Second, contrary

to this concurring opini

on, the defendant Clayton County is headed by

its Board of Com

missioners. U

nder Georgia law

, the defendant Clayton County

is a “body corporate” capable of suing and being sued a nd is31 O.C.G.A. § 36-10- 1 (“All contract s entered into by

the county g

overning author

ity . . . in behalf of the cou

nty shall be i

n writing and ent

ered on its minutes. ”); Ogletree v. Chester , 682 F.2d 1366, 1370 (11th Cir. 1982) (“Under Georgia law, any c ontract entered into with other persons in behalf of a county must be in writing and spread on the official minutes of the [County] Commission

. Where that proce

dure is not followe

d, there is no enfo

rceable agreement.”

) (internal cita

tion omitted); Smith v. Murrath Enterprises, Inc. , 243 Ga. App. 856, 857 (2000) (“No party is entitled to the benefits of an alleged contra ct with a county unless there has been a full compliance with [O.C.G.A. § 36-10-1].”); see also Waters v. Gly nn County, 237 Ga. App. 438 (1999

); Deason v. DeKal

b County, 222 Ga. 63, 65 (19 66); Graham v. Beacham , 189 Ga. 304, 305-06 (1939); Carolina Metal Pro ducts Co.v. Taliaf

erro County

, 28 Ga. App. 57 (1922). 35 headed by the cou

nty governing body

, the Clayton County Board of Commissione

rs. Ga. Const.art. 9, § 1, par a. 1 (“Eac h county shall be a

body corporate and politic with such governing authority . . . as provided by law.”); O.C.G.A.§§ 36-1-3 (“Ev ery county i s a body corporat e, with power to s

ue or be sued in any court. ”); 1-3-3(7) (def ining “County

governing authority

” as “the board of county commissioner s, the sole county

commissione

r, or the governing authority of a consolidated governm ent”). For exam

ple, the Clayt

on County Board of Comm

issioners is “ex

pressly given com

plete power, aut

hority, and control relative to all county m atters of Clay

ton County.” Ga. Laws 1983, p. 4509, § 3. As example of

the county govern

ing body’s head r

ole, only the co

unty
govern ing bo dy may enter into co ntract s for th e count y entity. 31 The defendant Clayton County is not con tractually bound by contr acts entered into by the sheriff.32 See, e.g. , Boswell v. Bram lett , 274 Ga. 50, 51 (20

01) (“[E]mploy

ees of constitution

ally elected officers of a county are consider ed employees of the elected officer and not employ ees of the county

, as represente

d by the loca

l governing au

thority.”) (emphasis added) ; Lowe v. Jones County , 231 Ga. App. 372, 373 (1998) (concluding “deputy sheriffs are employees of the sheriff, not the county

, and the county

cannot be held vic

ariously lia

ble as their princ

ipal”) (emphasis added); Brown v. Jackson , 221 Ga. App. 200, 201 (1996) (noting deputy sheriffs “were employees o

f the sheriff an

d not Peach County

”) (emphasis add

ed); Chaffin v. Calhoun , 262 Ga. 202, 203 (1992); Mobley v. Polk County , 242 Ga. 798, 801- 02 (1979); Warren v. Walton , 231 Ga. 495, 498-500 (1973). Judge Barkett’ s concurring op inion gives the mis

taken impression th

at, under Georg

ia law, the county entity, here the def endant Clayton County, may be liable for the torts of a sheriff and his dep uties. The re is not a s ingle Georgia case, howeve r, holding a county liable for the torts of a sheriff or his deputies. The concurring opinion cites, for example, Feise v. Cherokee County , 207 Ga. App. 17 (1992), but the Georgia Supreme Court granted certiorari and remanded Feise , and on remand the Georgia Court of Appeals entered summary judgment in favor of the defendant county. Feise v. Cheroke e County , 209 Ga. App. 733, 733-34 (1993). Instead, as explained above a

nd in Section II

I(E), Geor

gia courts spea

k with unanimity

in concluding tha

t a county cannot be held liable for the actions of the sheriff or his deputies.

33 O.C.G.A. § 36-1-5 ; see Board of Comm’rs of Newton County v. Allgood , 234 Ga. 9, 14 (1975); Clayton County v. Sarno , 112 Ga. App. 379, 379-80 (1965). 36 As noted earlier,

the defendant Clay

ton County also has

no tort liability for the conduct of the sherif

f and his deputies. 32 The fact that the defendant Clay ton County is heade

d by its Board of Commissione

rs also is shown by

how service of process in an action aga inst Clayton County

is sufficient under

Georgia law only

if served upon a m

ajority of the county com

missioners or upo

n the chairman

of the board of county commissione

rs. 33 That the defendan

t Clayton County

is headed by its county governing body, the Clayton County Board of Commissioners, is dem onstrated forcefully by

the fact that the pl

aintiff Grech ac

tually served pr

ocess on the34 Pembaur v. City of Cincinnati , 475 U.S. 469, 479-8 0 (1986) (“[M]unicip al liability is limited to action for which the municipality is actually responsible.”); Marsh v. Butler Co unty , 268 F.3d 1014, 1027 (11th Cir. 2001) ( en banc ) (stating that a county is “liable under section 1983 only for

acts for which [the

county] is ac

tually resp

onsible”); Turquitt v. Jeffer son County

, 137 F.3d 1285, 1292 (11th Cir. 1998) (“[L]ocal governments can never be liable under § 1983 for the acts of th

ose whom the local

government has

no authority

to control.”); Brooks v. Scheib , 813 F.2d 1191, 1192-93 (11th Cir. 1987). 37 defendant Clay

ton County by se

rving Crandall Bra

y, the Chairm

an of the Clayto

n County Board of Commissioner s. Our precedent, as well as Monell , instructs that a local governmental entity–here the defendant Clayton County as headed by the Clay ton County Board of Commissioners–is not liable f or § 1983 violations exce pt for those policies and

customs for whic h the co unty ent ity has s ome cont rol and respon sibili ty. 34 Holding the defendan

t Clayton County

entity liable he

re, in the absence

of any corporate control over the sheriff by that county entity, would ignore Monell ’s and Georgia law’ s conception of countie s as corporations tha t act through a govern

ing body, would substi

tute a conception of c

ounties as mere

units of geography

, and would impose even broader liability than the respondeat superior liability rejected in Monell

. Turquitt , 137 F.3d at 1291. I ndeed, holding the def

endant Clayton County liable for

the law enforcem

ent actions of the she

riff over whom

it has no control would impose s trict liability on tha t defendant county ent ity. K. Geographic Label35 The district courts in our circuit have reached similar conclusions in holding that

Georgia sheriffs are not county policy makers under § 1983. See Fletcher v. Scr even County

, 92 F. Supp. 2d 1377, 1379-80 (S.D. Ga. 200 0) (concluding

in a § 1983 action th

at although Geor

gia law declares sh

eriffs to be coun

ty officer s, and directs tha

t counties elect a

nd pay their

sheriffs, it cedes to counties no meaningful level of control over a sheriff’s law enforceme nt activities); Frazier v. Smith

, 12 F. Supp. 2d 1362,

1369 (S.D. Ga. 1998

) (declining to d

ismiss action aga

inst the sheriff in his official capacity as redundant to the action ag ainst the county because “Sheriff Smith acts independently of Camden County, except for the County’s fiscal review and support of the Sheriff’s department” and “[t]here is no evidence . . . to support the conclusion that Sheriff Smith is an agent of Camden County, or that the County ultimately is liable for his misconduct”); Duffey v. Brya

nt , 950 F. Supp. 1168, 1174-75 (M.D. Ga. 1997) (reviewing a § 1983 action against the sheriff and his deputies for the wrongful death of a county jail inmate and granting summary judgment for the defendant Cook County B oard of Commissioners and its chairman because “[i]t is well-settled law in Georgia that a county and its commissioners are without authority ov

er the sheriff o

r his deputies” an

d that its chairman

“had no responsib

ility or autho

rity for supervising or training officers”).

36 Judge Barkett’s concurring opinion asserts that many Geor gia cases refer to sheriffs as county offi

cers. (Concurr

ing Opinion, Bar

kett, J., p.61). The G

eorgia Constituti

on itself refers

to the sheriff as a

“county of

ficer,” and tha

t title never has be

en in dispute. The c

rucial fact, however, is that the sheriff’s primary function under Georg ia law is to administer the law enforcement and peacekeeping business of the State. While this concurring opinion argue s that law enforcement is a county matter, it acknowledges that Ge orgia sheriffs “sometimes act on state matters” and at times “function with reference to State matters.” (Concurring Opinion, Barkett, J., p.60 (citations omitted)). This same concurring opinion also relies heavily on Truesdel v. Freeney

, 186 Ga. 288 (1938) and describes Truesdel as a “foundational case.” Id. The issue in Truesdel , however, was whether the county board could fix the salary of the clerk of 38 All of this Georgia

law points to the conc

lusion that sheriffs are not county policymake

rs as to their law e

nforcement f

unctions. 35 Georgia’s Const itution, statutes, and decisional law evince state empowerment of and control over sheriffs and a notable absence

of county control . This absence re quires our conclusion that the “county

officer” nom

enclature containe

d in Georgia’s Co

nstitution reflects a geographic label d

efining the territo

ry in which a she

riff is elected a

nd mainly operates and it does not make a sheriff a county policymaker. 36the municipal cour t. Id. Addressing the clerk’s argument that he was a state offic

er, the Georgi

a Supreme Court noted that the clerk (1) is selected by the judge of the municipal cour t, (2) serves in a ministerial function in the municipal court, and (3) “has no responsibility, so far as representing the State is concerned, in any matter in which the State is primar ily interested.” Id. at 292. Based on these factors, the Georgia Supreme Court concluded that the clerk of a municipal court was not a state officer. Truesdel , a case about the clerk of a municipal court, has no relevancy

to this case. More

over, not a singl

e case cited in th

is concurring o

pinion, or in footnote 12 thereof, holds a county or a county commission liable for the tortious acts of a sheriff or his deputies. (Concurring Opinion, Barkett, J., p.61, n.12). 39 Nonetheless, under McMillian , we still must consider the particular law enforcement conduct of the sherif f in issue, which is

the sheriff’s e

ntry and validation of warr

ants on the CJIS sy

stems and his tra

ining and supervision of employees in that regard. W e now review how this particular law enforcement function is contr olled by the State, not co unties, under Georgi a law.

IV. WARRANT INFORMATION A. Georgia Crime Information Center The Georgia legislature established the Georgia Crime Information Center (“GCIC”) to create a “ system for the intrastate com

munication of vit

al information relating to crim

es, criminals, and crimina l activity.” O .C.G.A. § 35 -3-31(a). The GCIC is a division of t he Georgia Bureau of Inv estigation, a state a gency. O.C.G.A. §§ 35-3-2; 35-3-31 (a) . Responsibility fo r the GCIC is vest

ed with the37 The GCIC Council is a state regulatory body chaired by the Governor. O.C.G.A. § 35- 3-32(c) (designating state Board of Public Safety as GCIC Council); O.C.G.A. § 35-2-1 (prescribing composition and appointment procedures for the Board of Public Safety ). 40 “Director”

of the center, w

ith the guidance of the

GCIC Council. 37 O.C.G.A.§ 35- 3-31(b). The GCI C is ch arged with o perat ing an infor mation syste m for al l crime and offender data, including warrant information. O.C.G.A.§ 35-3-33. The GCIC has developed the “

Criminal Justice Information System” (

“CJIS”), w

hich is defined as “[a]ll of those agencies, procedures, mechanism s, media, and forms, as well as the inform

ation itself, whic

h are or which become involved in the organization, transmittal, storage, retrieval, and dissemination” of crim e-related information. Ga. Comp. R. & Regs. r. 140-1 -.02(2)(b). T he GCIC Direct

or and the GCIC Co

uncil promulgate

extensive rules and regulations (the “GCIC Cou ncil Rules”) for the o peration of the CJIS s ystem. See O.C.G.A.§ 35-3-32(b)(2), ( 3), & (5). GCI

C Council Rules gover

n the conduct of the Clayton County Sheriff’s Offi ce relating to the CJIS system. Ga. Comp. R. & Regs. r. 140-2-. 01(1). As a parti cipant in the CJIS sy

stem, the sher

iff’s office i

n each Georgia county enters and removes warrant inform ation on the local CJIS terminal, which is in turn c onnected with the GCIC’s s tatewide CJIS network. Indeed, within the

Clayton County

Sheriff’s Of

fice, employ

ees enter data fr

om the38 Although the focus of our inquiry is warrant data, the GCI C Council Rules govern virtu ally ev ery aspe ct of p artic ipati on in a nd use of the GCIC’s CJIS i nform ation and lo cal CJ IS terminals. See O.C.G.A. § 35-3-33(a) (11) (manda ting the GCIC t o cooperate i n creating a uniform interstate, national, and international system of crime information and criminal records). For example, the Ru

les prescribe ho

w criminal informa

tion should be store

d, who may re

ceive it, and how it must be sent. See Ga. Comp. R. & Regs. r. 140-2-.02. The Rules also enumerate the physical security requirements for criminal information, including requiring secure areas out of public view for network access, secure areas for local CJIS network ter minals, and requiring adequate backup for criminal information data. Ga. Comp. R. & Regs. r. 140-2-.08.

39 A TAC is considered a “CJIS network agency e mployee, designated by the a gency head” (here the sheriff) and is “responsible for ensuring compliance with state a nd federal policies, regulations and laws, established by the Georgia Crime I nformation Center (GCIC), the National Crime Information Center (NCIC), and the National L aw Enforcement Telecommunications System (NLETS).” Ga. Comp. R. & Regs. r. 140- 1-.02(2)(k). 41 local CJIS system onto the GCIC’s CJIS network from the same local CJIS computer term

inal. The GCIC

Council Rules regula

te every aspec

t of warrant information, from the em ployee training t

o when and how a sher

iff’s office m

ust enter and validate warrant data. 38
B. GCIC’s Required Training The GCIC Counci

l Rules establish tra

ining requireme

nts for employ

ees in each sheriff’s office. SeeGa. Comp. R. & Regs. r. 140-2-.16. A Terminal Agency Coordinator (“

TAC”) is an em

ployee of the she

riff’s office , designated by t he sheriff, to serve

as a liaison betwee

n the sheriff and the

GCIC for CJIS n

etworkrelated matte

rs. 39 This TAC employee is trained by G CIC personnel and is subject to certification te sting. Ga. Com p. R. & Regs. r.

140-2-.16(3)-(4) . The TAC is40 A Terminal Operator is a “full-time or part-time employee of a CJI S network terminal agency with one or more CJIS network terminals who per forms services which include the operation of a CJIS network terminal as an integral part of assigned job duties.” Ga. Comp. R. & Regs. r. 140-1-.02(3)(e).

41 The GCIC Council Rules require the Sheriff’s Office to respond to “hit confirmation request messages” within specific, prescribed time frames depending on the priority of the request. Ga. Comp. R. & Regs. r. 140-2-.13(f). 42 responsible for record validations, hit confirmations, and training of Terminal Operators. Ga . Comp. R. & Regs. r. 140-2-. 16(3) A Terminal Operator 40 is also an employee of the sheriff’s office who enters data in the GCIC’s CJIS network. Terminal Oper ators must complete GCIC training workbooks an

d certification re

quirements. G

a. Comp. R.& Regs. r. 140- 2-.16(5)-(6). Terminal Operators enter criminal warr ants into the CJIS network and annually vali

date them. I

n the Clayton Coun

ty Sheriff’ s Office, these employees use the local CJIS system to gather warrant information and then enter it into the GCIC’s CJIS system thro ugh the local CJIS ter minal. C. Data Entry and Maintenance To facilitate the sharing of criminal information, GCIC Council Rules specify the code s, formats, and operating proce

dures that must be

used in entering records, including warrants, into the CJIS n etwork terminals. Ga. Comp. R. & Regs. r. 140-2-.13(a). 41 To ensure its procedures are followed, the GCIC provides procedural ma

nuals and operations bu

lletins, which cont

ain the necessary

codes,42 The GCIC Council Rules specify which data entry forms must be used, who is permitted to collect criminal information, and who has the duty to report information to the GCIC. See Ga. Comp . R. & R egs. r . 140- 2-.03 . When the Sh eriff ’s Off ice de sires to di verge f

rom GC IC standards, it must receive approval from GCIC. See Ga. Comp. R. & Regs. r. 140-2-.03(1) (alternative fi

ngerprinting

cards); Ga. Comp.

R. & Regs. r. 140-

2-.03(3) (plans f

or automatic disposition reporting). 43 proced ures an d guid ance fo r record entry. 42 Ga. Comp. R. & Regs. r. 140-2-.13(a). The State publishes a CJIS Manual, which the Clayton County Sheriff’s Off ice lists in its Standard O

perating Procedur

es as a manual r

equired to be kept at its Warrant Office computer terminal. Due to the interdepe

ndence of the statew

ide and local CJIS n

etworks, the local CJIS terminals in the Clayton County Sheriff’s O ffice are subject to GCIC security requi

rements. T

he Standard Opera

ting Procedure m

anual for the Clay

ton County Sheriff

’s Office prov

ides that “[a] ccess control to both t he local level and GCIC [stateside CJIS] . . . is an aut omated function of the l ocal CJIS system.” An operator must have a user account and password for access to the local CJIS system. The operator also must have a user acc ount and a password that will clear them for access to the GCIC’s statewide CJIS network or the local CJIS te rminal will not allow access t o the statewide networ k. D. Validation of Warrants Sheriff’s off

ices are require

d to participate in th

e GCIC’s record verification program, whi

ch prescribes the pr

ocedures for revie

wing the validity

of warrant43 In Clayt on County, the

courts also reco

rd entries on the l

ocal CJIS sy

stem and update them. Thus, the Sheriff’s Office contends that it checked with the State Court about bench warrants by

comparing the G

CIC’s CJIS ent

ries with the State

Court’s local CJIS entries.

44 Defendant Clayton County asserts that the 1985 bench w arrant was facially valid and properly remained outstanding because that warra nt was sufficient under Georgia law for a separate substantive charge of failure to appear, and this failure-to-a ppear charge never was resolved. See O.C.G.A. §§ 40-13-63; 16-10-51. In reply, Grech contends tha t the bench warrant effectively was resolved when he pled to the DUI and speeding charges, that the bench warrant should have been recalled at that time, and thus, that he was falsely arr ested. The district court did not address the merits of Grech’s constitutional claims, and we need not decide these issues to resolve the § 198 3 county polic ymaker que

stion in this appeal. 44 entries contained on the GCIC’s CJI S network. Ga.Comp. R. & R egs. r. 140-2- .14. These proc edures include revi ewing monthly

validation listings sen

t out by the GCIC and chec

king in some m

anner with the issuin

g authority to ver

ify that a warrant has not bee

n recalled or with

drawn. 43 Ga. Comp. R. & Regs. r. 1 40-2- .14(1)(b)-(c) . Warrant re cord entries that a

re no longer valid m

ust be cancelled, and warrant record entries containi ng erroneous inform

ation must be supplemented or corrected. Ga. Comp. R. & Regs. r. 140-2-.14(1)(c)(1)-(2). 44
E. GCIC Audits and Sanctions The GCIC Council

Rules require a bia

nnual audit of the Cla

yton County Sheriff’s Of

fice. The GCI

C Council Rules expli

citly make

warrant “va

lidation procedures, records, and supporting documents . . . subject to GCIC and NCIC audits.” Ga. Co

mp. R. & Regs. r. 140-2-.07( 1); 140-2-.14(2).Auditors obtain a statistical sam

ple of active want

ed, missing per

son, and stolen vehicl

e files from45 We address only the sanctions in the GCIC Council Rules. The Governor also has

investigative and suspension powers over sheriffs for non-performance of their duties. See O.C.G.A. §15-16-26. 45 the Sheriff’s Office and review its files for com

pliance with the G

CIC rules and regulations, inclu ding a review of its tra ining records and v alidation procedu res. See Ga. Comp. R. & Regs. r. 140-2-.07(2). I f the Sheriff’s Office violates GCIC Council Rules or netw

ork policies, then it

is subject to a broa

d array of sanc

tions, including susp ension or revocatio n of GCIC network access. Ga. Comp. R. & Regs. r. 140-2-19(1). Such disciplinary action may be instituted and implem ented only by the GCIC. 45 This review of G

eorgia law dem

onstrates not only

an absence of county control, but also that sheriffs act for and are controlled by the State in their law enforcement function relating to c riminal inform

ation on the CJIS sy

stems in issue and in their training and supervision of thei r employee s in that regard. V. SHERIFF IS NOT A COUNTY POLICYMAKER A. Absence of County Control In Georgia, a county has no authority and control over the sheriff’s law enforcement function. Clayton County does not, and cannot, direct the Sheriff how to arrest a cr

iminal, how to

hire, train, supe

rvise, or discipline

his deputies, what polices to adopt, or how to operate his office, much less how to record46 Judge Anderson’s concurring opinion more narrowly conc ludes that as “to the particular function at issue in this case, the Sheriff is acting on behalf of the state, and thus . . . Clayton County is not liable in this case.” (Concurring Opinion, Anderson, J., p.47). Because no opinion obtained a majority of the Court, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest g rounds.” Marks v. United States , 430 U.S. 188, 193 (1 977) (internal qu otation marks and c

itation omitted); see also Redner v. Dean , 29 F.3d 1495, 1499 (11th Cir. 1994) (“

When faced with a

fragmented [Supr

eme] Court, we may distill the various opinions down to their narrowest grounds of concurrence to derive any binding precedent.”). 46 criminal information on, or remove i t from, the CJIS systems involved in this case. Instead, the sheri

ff acts on behalf of

the State in his func

tion as a law enfor

cement officer and keepe

r of the peace in ge

neral and in relati

on to the CJIS sys

tems in particular. 46 The counties’ la

ck of authority a

nd control over sheri

ffs explains why counties have no § 1983 liability for their conduct. For example, if a rogue sheriff adopted an unconstitutio

nal law enforcem

ent policy or pra

ctice, the county

has no authority to prevent o r alter it and, in turn, i ncurs no § 1983 li ability for it. A sheriff’s policy

or practice canno

t be said to speak for

the county becau

se the county has no say about th at policy or practice. As we hav e stated before, a county is liable un

der § 1983 only for

acts for which the

county is actual

ly responsible. See Marsh v. Butler County , 268 F.3d 1014, 1027 ( 11th Cir. 2001) ( en banc ).47 In Alexander , the plaintiff employees brought Title VII and § 1983 claims against the defendants Fulton County and Sheriff Barrett, individually and in her official capacity. 207 F.3d at 1313-14. After

discussing wheth

er Sheriff Bar

rett in her individu

al capacity

was entitled to qualified immunity, this Court did not address whether the County or the Sheriff in her off icial capacity were liable under § 1983 “[b]ecause Title VI I provide[d] an alternative basis for liability.” See id. at 1321-22. In a footnote, we did note that “[p]laintiffs’ suit against Sheriff Barrett in her official capacity is the functional equivale nt of suing the County.” Id. at 1322 n.14. 47 Thus, we conclude

today that the Cl

ayton County S

heriff is not a count

y policymake

r under § 1983 for his la

w enforceme

nt conduct and policies

regarding warrant inform

ation on the CJIS sy

stems or the tr

aining and supervision of his employees in that regard. A ccordingly, the

defendant Clay

ton County has no § 1983 liability for

the acts and policie s of the sheriff and his employees in this

case. B. Prior Decisions This Court has never

before decided en banc

whether Georgia sheriffs are policymakers for counti es when performing thei r law enforce ment functio n. We think that no panel act

ually has decide

d the question before

this case. In prior § 1983 cases, we ac

cepted official capacity suits ag ainst Georgia sher

iffs as suits against their respe ctive counties. See Alexander v. Fult on County , 207 F.3d 1303, 1322 n.14 (11th Cir. 2000) (stating “[p]laintiffs’ suit against Sheriff Barrett in her official capacity is the functional equivalent of suing the County”); 47 Wayne v. Jarvis , 197 F.3d 1098, 1105 (11th Cir. 1999) (stating that “[a]lthough [plaintiff]48 In Wayne , the plaintiff inmate brought, inter alia , a § 1983 claim ag ainst the defenda

nts Sheriff Jarvis in his

official capac

ity and the She

riff’s Departme

nt based on their f

ailures to provide adequate medical care and to protect him from other inmates. 197 F.3d at 1100-02. Dekalb County was not named as a defendant. We “proceed[ed] to address the merits of the district court’s g

rant of summary

judgment in favor

of the County

, which was prope

rly sued in this case through the official capacity claim ag ainst the Sheriff.” Id. at 1105. As to the Sheriff’s Department, we o

bserved that “[t]he

district court note

d that ‘under Geo

rgia law, the De

kalb County Sheriff’s Department is not a legal entity that can be sued apart from the County.’” Id. But we conclude

d that “[r]egard

less of whether th

at is correct, be

cause Wayn

e’s official ca

pacity claim against Jarvis is a claim against the County, his claim against the Sheriff’s Depa rtment of the County is redundant.” Id.

49 In Vineyard, the plaintiff, alleging that the sheriff’s deputies beat him, sued Murray County and the

sheriff in his off

icial capacity

, among others, u

nder § 1983 beca

use of inadequat

e policies of the supervision, training and disciplining of deputies, which caused the violation of the plaintiff’s rights. 990 F.2d at 1209. After a jury verdict ag ainst the sheriff in his official capacity and Murray

County, they asserted errors on a ppeal, but did not challenge this jury instruction as error. See id. 48 Wayne did not s

ue Dekalb County

itself, his claim

against Sheriff Ja

rvis in his official capacity is a claim against Dekalb County”). 48 In these cases, w e did not decide whether,

under Georgia law

, sheriffs are a

gents for the state o

r the counties, and it does not appear

the parties raised

the question. Furthe

r, in Vineyard v. County of Murray , 990 F.2d 1207 (11th C ir. 1993), the par

ties did not challenge on appeal the distric

t court’s jury

instruction that the sh

eriff had authorit

y to make policy for Murray County, Georgia, in the area of law enforcement. See id. at 1210. Thus, we did

not decide the issue in Vineyard either. 49 To the extent that G

rech argues that our

prior decisions deci

de that Georgia sheriffs are coun

ty policym

akers under 42 U.S .C. § 1983, we r eject that argum

ent.49 VI. CONCLUSION Accordingly, we affirm the district court’s order gra nting summary judgment in favo r of the defend ant Cla yton Cou nty. AFFIRMED.1 As Judge Barkett points out, most of the general provisions relied upon in Judge Hull’s

opinion have para

llels with respec

t to other clearly

local governme

ntal officials. 50 ANDERSON, Circuit Judge, concu rring specially, in which BIRCH and WILSON, Circuit Judges, j oin: I join Part I of Judge Barkett’s concurring opinion. I agree that, with respect to the particular f

unction at issue in this case, the Sheriff is acting on behalf of

the state, and thus I can easily conclude that Clayton County is not liable in this case. I also agree with Judge Barkett that th e broader issue of t

he entity for w

hom a Georgia sheriff acts in his more general law enforceme nt functions is not an issue that must be

addressed to resolve

this case. If I a

m wrong, and t

he issue is before us, I belie

ve that Judge Barket

t’s analysis o f the Georgia Const itution, statutes and case law more accurately reflects the status into which Georgia law has placed the sheri

ff. I do not believe

that the general de

legations from the Georgia legislatur

e and the general pr

ovisions of state law

concerning qualifications, re sponsibilities, trai ning, and salary

are sufficient to convert a Georgia sheriff

(in his general law

enforcement

functions) into a sta

te officer or into a state agent pe

rforming a sta

te function. 1 Rather, I think tha t a Georgia sheriff is an independent constitutional officer at the county level, a local governmental pos

ition which, with r

espect to many

functions, is indepe

ndent of the main branch of the cou nty government headed by the cou nty commission.2 Indeed, this may be the more probable situation, in light of our pr ecedent suggesting that a county ca

nnot be liable unde

r Section 1983 for

the actions of an o

fficial who is not s

ubject to the control of the county commission, which in turn controls the county fisc. See Marsh v. Butler County

, 268 F.3d 1014, 102

7 (11th Cir. 2001) (

en banc); Turquitt v. Jeffer son County

, 137 F.3d 1285, 1292 (11th Cir. 1998) (en banc).

3 A county may, by

legislative act, waive the sheriff's sovereign immunity

. See Seay v. Cleveland , 270 Ga. 64, 65, 508 S.E.2d 159 (1998) (

holding, in claim a

rising out of alle

gedly wrongful sal e of goods at s heriff's auct ion, that s heriff “may asse rt the defen se of sovere ign imm uni ty an d ma y be h eld lia ble in h is o ffi cia l ca paci ty fo r hi s de put ies ' neg lig ence onl y to the extent the county

has waived such so

vereign immunity

.”) (emphasis ad

ded); Howard v. City of Columbus , 239 Ga. App . 399, 410, 521 S.E.2d 51 (1999) (c iting Seay in case involving provision of health care to jail inmate, “the county sheriff in his official capac ity is immune from tort liability in pe

rforming an off

icial function an

d may be liab

le only to the

extent that the coun

ty had waived sovereign immunity by statute.” ). As made clear in the aforementioned cases, the county's a bility to waiv

e the sheriff' s immunity is not limited to automobile

claims. 51 Altho ugh I a gree w ith mo st of J udge Barke tt’s a nalys is in her Pa rt II, I have some doubt about her im

plication that the cou

nty, and thus the c

ounty treasury

which is controlled by the

county comm

ission, would be res

ponsible for a judgm

ent against the sheriff in a ci

vil rights action. I

t is possible that this is sue would not be controlled by the

Georgia cases tha

t hold that the county

commission is not liable for judgments

against a sheriff in a state law cau se of action. But it

is also possible that a plainti

ff in a civil rights a

ction against a Geor

gia sheriff would ha

ve more limited sources for the satisfaction of any judgm ent against the sheriff, 2 e.g. , the sheriff’s bond, or the insurance proceeds if the county commission had provided insurance coverage for the sheriff. 3 Because the county is not liable in any event in the i

nstant case, I nee

d not resolve issues of

the sheriff’s st

atus with52

respect to functions

other than the parti

cular function involve

d in this case, that i s, whether with res

pect to such other fun

ctions the sheriff i s acting for the stat e, or the county, or a

s an independent consti

tutional officer a

t the county level . Nor need I resolve the i ssue of the county ’s liability w hen the sheriff is a

cting solely in his status as an independent constitutional officer at the county level, i.e., whether the county fisc,

which is controlled only by the co unty comm

ission, would be liable, or whethe

r only the sherif

f’s bond or other a

ssets under the sheri

ff’s control would be liable. In my judgment, it is wiser to leave to another day issues which need not be decided to resolve the instant case.53

BARKETT, Circuit Judge, conc urring in result, in

which TJOFLA

T and KRAVITCH,

Circuit Judges, j oin in full, and AN DERSON, BI

RCH and WILSON, C

ircuit Judges, joi

n in Part I: In this case, Bria

n L. Grech sued C

layton County

under 42 U.S.C.§ 1983 for the actions of its sheriff in maintaining and recalling criminal warrants for a statewide com

puter database cre

ated and operated by

the state of Geor

gia. The narrow question presented is whether the Clayton County Sheriff is a final policymake

r for the county

when perform

ing these functions. I agree that the activities of this co

unty sheriff in t

he particular are

a of maintainin

g and recalling criminal war

rants for a state d

atabase did not im

plicate policym

aking on behalf of the county. Thus, I concur that the county be ars no liability f

or the actions of the sheriff here. A

s Judge Hull notes in he

r plurality opini

on, this is the narro

w holding of this case. See Plurality Opi nion at 43, n.46. No further determination a bout the status o f Georgia sheriffs is ne cessary. However, the pl

urality venture s far beyond the discrete question ra

ised in this case and suggests that Georgia sheriffs are state officers for law enforcement purposes generally, r

ather than just in t

heir GCIC role.This erroneous cha racterization of Georgia law compels a response. I. DETERMINING FINAL POLICYM AKING AUTHORITY1 See infra Part II. 54 The sole question before us is whether the sheriff acts as a final policymaker for Clayton Coun

ty in mainta

ining the GCIC rec

ords required by

the State of Georgia. A local government entity is liable under § 1983 for violations of federal law caused by the conduct of an individual wh o acts as a final poli cymaker (i.e., establishes the custom, policy, ordinance, regulation, or decision) “in a particular area or on a particular issue.” McMillian v. Monroe County , 520 U.S. 781, 785 (1997) ; see also Monell v. N ew York City Dept. of Soc. S ervs. , 436 U.S. 658 (1978). Whether a loca

l government re

presentative is a f

inal policym

aker in a particular area

or on a particular i ssue for purposes of § 1983 is determine d by examining state law. McMillian , 520 U.S. at 785 ; Jett v. Dallas Ind ep. Sch. Dist. , 491 U.S. 701 (1989) ; St. Louis v. Pra protnik , 485 U.S. 112 (1988). Georgi a’s cons tituti on, sta tutes, and cas e law des ignate sheriffs as co unty, not state, officia

ls. 1 Nevertheless, a

lthough the sheriff ge

nerally acts a

s a county officer, the specific program at issue here charges the sheriff, as one of several local officers, with a well -defined record-keep ing function on b ehalf of the state. Thus, the particul

ar area involved in this case did not im plicate a county

area of responsibility. Indeed, although the parties before us a

greed otherwise,

and thus have not litigated the

issue, the sheriff

’s duties in subm

itting informat

ion for the2 For example, among other things, the state itself is charged with auditing the GCI C and has the authority to correct erroneous entries and impose sanctions for non-c ompliance. See Ga. Comp. R. & Regs. § 140-2-.19(1) (2001). 55 state GCIC datab ase suggest that the sh eriff may not be a final policy

maker at all with respect to this

function, maki

ng his state or local a

ffiliation irrele

vant. 2 An official must have discretion in a particular area of law in order to exercise final policymaking authority in th at area and may not be subject to si gnificant review. This court has “squarely held that . . . ‘[f] inal policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review.’” Denno ex rel. De nno v. School Bd. , 218 F.3d 1267, 1276 ( 11th Cir. 2000) (quoti ng Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th Cir. 1997)). With regard to the GCIC, the sheriff appears to be sim

ply a governm

ent official perf

orming a mi

nisterial task whic

h, in this instance, he pe rformed negligently. II. THE PLURALITY’S MISTAKEN DISCUSSION OF GEORGI A LAW The foregoing inquir

y is sufficient to resolve this case. However, beca

use the plurality adds sweeping propositions not relevant to the case before us that completely

misconstrue G

eorgia law, I a

m compelle

d to address the rem

ainder of its opinion.3 Plurality Opinion at 12.

4 See infra Part II, B. 56 To determine

whether an actor

is a final policy

maker under § 19 83 we must examine state

law, which origi

nates with the state ’s constitution. T he plurality correctly beg

ins its general discus sion of Georgia law by acknowledging

that the Georgia Constitution

designates sheriff

s as county , not state, officers. However, the plurality then dis regards this desig nation with the pro nouncement that “we must focus on control, n ot labels.” 3 With these few words, the plurality illustrates its misapprehension o f this case. Initially, the

plurality asser

ts a false justifi

cation for looking bey

ond the plain language of the

Georgia Constitutio

n based on a badly d

istorted referen

ce to the McMillian Court’s use of the term “labeling.” This m isstatement of McMillian does not support the plur ality’s substit

ution of its own views

for the express directive of the G

eorgia Constitution. 4 The plurality then compounds this error by drawing two mistaken inferences regarding the conce

pt of control, upon w

hich its analysis relies so heavily . First, the plurality reasons that because the Georgia Constitution permits the legislature to enact general rules governing some aspects of the sheriff's office, the sheriff must be a state officer. But, as I discuss mor e fully below,

there is no significa

nt5 See infra Part II, C, 1.

6 See infra Part II, C, 2. 57 distinction in kind betw

een Georgia law

s regulating the responsibilities, qualifica tions, tra ining, and salary of she riffs and p arallel pro visions o f the state ’s code which regulat

e the same att

ributes with respec

t to the quintessential

county officers: county

commissione

rs. If any local officeholder w hose powers and privileges are def

ined in some sense

by state law th

ereby becom

es a state agent, there could be no count

y officers, since all local gover nment is a crea

ture of state author ity. 5 Second, the plurality erroneously infers that sheriffs are state officers because Georgia l

aw provides that the

y are not em

ployees of the boa

rd of county commissione

rs. It is true that

sheriffs are not e

mployees of

the county commission,

but this is comple

tely irreleva

nt. Georgia has not

established a monolithic struc

ture of county gov

ernment with t

he county com

mission at its head, but rather ha

s chosen to establish se

veral independent

county offices which share equally in the resp onsibilities an d powers of county gover nance. No constitutional county officer is “employed” by a ny other. Therefore, the mere fa ct that sheriffs are

not employe

d by the county

commission neither has any bearing on whether sheriff

s are state officers, nor leads to th at erroneous conclus

ion. 6 I58

address each of the

plurality’s a

rguments afte

r first setting out an

appropriate constitutional analysis under Georgia la w.

A. Sheriffs in

the Georgia Cons

titution Georgi a’s high est law i s unequ ivocal in its d esigna tion o f sheri ffs as co unty, not state, officia

ls. It specifica

lly enumer

ates sheriffs under

the heading, “County Officers; Election; Term; Compensat ion.” Ga. Const. art. IX, § 1, para. III (a). Sheriffs appear in Article IX, which addresses “Counties and Municipal Corporations,” and not

Article V, which addresses the state’s “Executive Branch.” Hence, sheriffs’ status as county officers is clearly re flected in the very organization of Georgia’s fundamental political charter. The Supreme

Court underscored t

he importance of state constitutions in McMillian . In McMillian , 520 U.S. at 795 , the Court relied most heavily

on the Alabama Const

itution in determ

ining that sheriffs i

n that state had becom

e state officials through a p

rotracted struggle

in the late nineteen

th century to pre

vent renegade local she

riffs from a

busing their office.

As the Court descr

ibed, the history of Alabama sheriffs was unique in that it had left imprints on several versions of the state's evolving constitution, each of which manifested a stronger resolve to discip line sheriffs who tol erated or encouraged l ynchings. See id. at 787-89. As early as 1875, the Court noted, a new Alabama Constitution included59

sheriffs for the f

irst time am

ong the officials com

prising the “sta

te executive department.” Id. at 787 (internal quota tion marks om

itted). Two am

endments subsequently incor

porated in the 1901 Al

abama Constitut

ion went still furthe

r in transformin g sheriffs from county in to state of ficials. Fi rst, the con stitutio n’s framers made it an impeac hable offense for sheriffs to allow lynch mobs to abduct and kill prisoners. Second, they a uthorized the governo

r to initiate im

peachment proceedings in the sta

te supreme cour

t instead of local co

unty courts. In

making these changes, the

framers aim

ed to remedy

the “failure

of county courts to punish sheriffs for neglect of duty,” in part by “augm ent[ing] the power of the Governor.” Id. at 788 (quoting Parker v. Am erson , 519 So. 2d 442, 443-444 (Ala. 1987)). It was this unique con

stitutional history

, underscoring the l

anguage of the constitution, that the Supreme Court found decisive in its determination that Alabama sher

iffs today act as state rather tha n county officia

ls when engaged in the law enforcem

ent functions of invest

igating crimes

and collecting evide

nce for trial. At no point, however, did the McMillianCourt suggest that the history it found compelling i

n Alabama wa

s likely to be dupli

cated in other state s. Indeed, the Court empha

sized that variation

among differe

nt states' sheriff

s could be expected in light of states’ “wide authority to set up their state and local governments as they wish.” Id. at 795. “[T] here is no inconsistenc y created by60

court decisions that d

eclare sheriffs

to be county offi

cers in one State,

and not in another” because “both the role of sheriffs and the importance of counties vary from State to State.” Id. The Supreme

Court’s rem

arks regarding stat

es’ authority

to provide for sheri ffs of

diffe rent s tripe s must be bor ne in mi nd whe n turn ing fr om the A labama to the Georgia Const

itution. Several i

mportant diffe

rences between t

he two state constitutions are per

tinent. First, the

language of the Geo

rgia Constitution, in expressly includ

ing sheriffs under th

e heading “Count

y Officers, ” provides a plainer answer to the question of sheriffs’ state or local status than do counterpart
prov isio ns of t he Ala bama Co nsti tuti on. Se cond , wher eas th e Alab ama Constitution includes she riffs within an ar

ticle addressing the

executive branch of the state governm

ent, Georgia’ s constitution discusses sheriffs in an art

icle addressing local gove

rnment. Thir

d, there is a m

arked contrast betw

een the evolution of the office of sheriff in the Alabama Constitution and the consistency with which Georgi

a has provided for she

riffs to act as cou

nty officials.As the McMillian

Court expla ined , sher iffs’ desig natio n as st ate officer s in t he Ala bama Constitution eme

rged out of a sustaine

d effort to rem

edy their previ

ous dereliction of duty by making them directl y accountabl e to the go vernor. Geo rgia’s constitutional history

, by contrast,

reveals only an

untempered re solve to enshrine7 The constitution’s drafters spoke directly to the ambiguity which the 1983 constitution aimed to rectify. Members of the subcommittee charged with proposing pertinent revisions had the following co

lloquy reg

arding the abse

nce of any

systematic e

numeration of cou

nty office rs in the constitution they set out to amend: CHAIRMAN COVERDELL: Just take the sheriff, we’ve g ot him enumerated. MR. HILL: He is the only one. MR. BURGESS: He is the only one. MR. HENRY: You’ve got the tax receiver, tax collector, treasurer. CHAIRMAN COVERDELL: Are they not enumerated? I thought they were. MR. HILL : The county

treasurer and t

he tax receiver,

tax collector are

mentioned in Paragraph 6 which authorizes the General Assembly to consolidate the off ices of treasurer and tax receiver and tax collector into the new office of tax commissioner. REPRESENTATIVE EVANS: What about the clerk? That would be another article? MR. HILL : The clerk of co urt is not mentioned i

n the constitution sp

ecifically . He is mentioned by reference in the sense that it now states that the county officers shall be elected, and by judicial decision it has been determined that clerks of superior c ourt and about six others – REPRESENTATIV

E EVANS: How about p

robate court? MR. HILL: Yes, about six others – I f orget who all they are. MR. CARLYLE : All of those are b y judicial de

cision because th

e county of

ficers in Paragraph 8 doesn’t list who county officers are. I t may list county commissioners up here under Para

graph 6, but it doe

sn’t say tha

t they are c

ounty offic

ers; the court ha

s said that. The same way with county trea surer. See Select Committee on

Constitutional Revisi

on: Meetings of th

e Committee To Revise

Article IX , vol. 1, at 69 (Ga. Jul. 23, 1980) (transcript of subcommittee meeting). In light of the

confusion crea

ted by the absence of a sy stematic enumera

tion of county officers, the drafters of Georgia’s present constitution undertook to fill this gap. See id. at 72-73 (“Mr Hill: I think it would be very helpful to all concerned to have a clear statement of who the county cons

titutional office

rs are. . . . [T]he fa

ct that there are

certain recog

nized elected cou

nty constitutional officers at the present time and we don’t know who they are by the constitution, 61 sheriffs’ statu

s as county officers and their conseq uent independence fr

om state lawmakers. In writing the pres ent Georgia Constit ution, the drafter

s undertook to eliminate an a

mbiguity cr

eated by previou

s charters’ fa

ilure to designate ex

actly which county off

icers were bey

ond the state legislat

ure’s power to a

bolish. 7it’s s ometh ing we can re ctify. . . .”) . As ul timat ely ado pted, Artic le IX, S ectio n I, Par agraph III

of the Georgia Constitution names as county officers “[t]he clerk of the superior cour t, judge of the probate court, sheriff, tax receiver, tax collector, and tax commissioner, where such office has replaced the tax receiver and tax collector.”

8 The drafters re

soundingly

rejected a sug

gestion that woul

d have given the

Georgia legislature power to decide whether the sheriff’s office would exist and by whom it could be filled. The following exchange amply demonstrates the drafter s’ presumption that the office of she rif f wo uld be i nde pen den t of the Gen eral Ass emb ly: MS. GREENBERG: Could we possibly change this radically by making it very flexible and provid

ing that the Gene

ral Assembly

shall provide for

county officials and provide that they either be elected or appointed, and a lso the General Assembly sha

ll provide for the

ir duties and their

terms of office a

nd their eligibility and their qualifications, just a very flexible kind of statement in the constitution and ta

ke away me

ntion of all these o

ther officers,

and that would also cover consolida

ted government

s, counties and cit

ies. MR. CARLYLE : I’m sure y ou could do that, but

the problem is it’s – MR. FINDLEY: It’s a wild-ey ed idea. CHAIRMAN COVERDELL: That would have to come unde r wild-eyed schemes I’m afraid. REPRESENTATIVE EVANS: That has that snowball’s chance of getting through. Id. at 71. The plurality

opinion appears to

read my disc

ussion here as an

argument that th

e plain language of Georgia’s constitution makes the “powers and duties of the constitutional sheriff’ s office” inalterable by the Georgia leg islature. Plurality Opinion at 15 n.13. I do not suggest that Georgia’s Ge

neral Assembly

may not reg

ulate the office

of sheriff. I

t may, and it d

oes, just as it regulates the office of county commissioner. See infra Part II, C. The point here is that the constitutional framers specifically rejected the opportunity to commit the sheriff’s office to the General Assembly’s authority and instea d chose to make it a constitutional one, thus limiting the legislature’s a

bility to make

changes in the s

heriff’s status. 62 Toward this end, they specifically included sheriffs among the four county officers named in a new

paragraph of Art

icle IX. The f

ramers clea

rly intended in doi

ng so to make a sheri

ff’s constitutiona

l status as a county

officer inalter

able by the Georgi a Genera l Assembl y. 89 The following exchange shows the drafters attending to judicial precedent reg arding the identity of c

ounty offic

ers: REPRESENTATIVE EVANS:. . . are we going to name the constitutional officers? MR HILL : Yes. CHAIRMAN COVERDELL: They would be named. REPRESENTATIVE EVANS: Which ones are we going to name? MR. HILL: The ones that have bee n judicially determined to be constitutional officers. Ther

e are seven, an

d I don’t know –

I can’t list the

m off the top of my head. MR. FINDLEY: I can tick the m off. Sheriff, clerk of the superior court, tax collector, tax receiver or tax commissioner, judge of the probate court, treasurer – did I mention him? – coroner and surveyor. You alway s forget those, but they’re in there too. Id. at 75. Although the drafters never questioned the propriety of including sheriffs in their list of county officers, not all of the office holders they discussed were ultimately included in the enumeration that

now appears at A

rticle IX, Se

ction I, Para

graph II I. Omitted wer

e county coroners, county surveyor s, and treasurers. Clearly, drafters of Georg ia’s present constitution made a deliberate choice to preserve sheriffs’ status as one of a select g roup of county officers formally recognized by the sta te’s constitution. 63 Furthermore, Georgia courts had long recognized sheriffs as county officers when the Georgia Constitution took its prese nt form, and in

constitutionalizing this status, the fra

mers clearl

y understood them

selves to be form

alizing existing law rather than br

eaking new ground. 9 As early as 1895, Georgia’s supreme court assumed that sheriffs were co unty officers. Massenburg v. Bibb County Comm’rs , 23 S.E. 998, 999 (

Ga. 1895). In Truesdel v. Freeney , 197 S.E. 783, 786 (Ga. 1938), the Georgia

Supreme Cour

t addressed the m

atter more e

xplicitly, holdin

g that the “tax-c

ollector and tax-r

eceiver and the she

riff function with

reference to State matter

s, as well as count

y matters ; but they are not regarded as State10 The plurality opinion seeks to distinguish Truesdel because the main issue facing the

Georgia Supreme Court concerned a municipal clerk. However, the Truesdel holding is actual ly quite relevant for our purposes. The question in Truesdel was whether a mun icipal clerk was

a local officer or a state officer. The court found the clerk to be a local off icer, relying on factors similar to those we must consider under McMillian , such as whether the county o

r state paid his salary and whether he reported to any state officials. It treated the sheriff as a touchstone of local governing authority by

reasoning that those attributes which municipal clerks shared with sheriffs weighed in favor of finding clerks to be local officials. In a ddition to the sheriff, the court referenced the county status of the probate judge , the clerk of the superior court, and the tax officials – the ve

ry office rs with whom the she

riff is now listed in

article IX o

f the Georgia Constitution. Compare Truesdel , 197 S.E. at 786 (Ga. 1938) with Ga. Const. Art. IX, Sect. I., Par. III.

11 That the status of sheriffs as county officers is more than a formal desig nation is clear from cases in which this status controlled the outcome. In Carter v. Veal , 155 S.E. 64 (Ga. App. 1930), the Georg

ia Court of Appeal

s held that a perso

n could not simultane

ously serve

as county coroner and deputy sheriff under Section 45-2-2 of the Ge orgia Code, which forbids holding more than one county office at a time. This rule’s application to sheriffs was reaffirmed in Black v. Catoosa County

Sch. Dist. , 445 S.E.2d 340 (Ga. App. 1994) (enjoining deputy sheriff from serving as member of county school board). The rule ha s also been recognized in a series of opinions of the Georgia Attorney General. See 1997 Op. Ga. Att’y Gen. 18; 1965-66 Op. Ga. Att’y Gen. 129-30; 1958-59 Op. Ga. Att’y Ge n. 29-30. 64 officers.” Truesdel , 197 S.E. at 786

. 10 Truesdel has since become a foundational case for determ

ining whether a publi

c official is a sta

te or county off

icer. In Best v. State , 136 S.E.2d 496,

497 (Ga. 1964), f

or example, t

he Georgia Court of Appeals cited Truesdel ’s holding that sher iffs need not be “

regarded as State officers” even though they sometimes act on “state m atters.” Best , 136 S.E.2d at 497. See also Fortson v. Week , 208 S.E.2d 68, 71 (Ga. 1974); Wood v. State , 134 S.E.2d 8, 9 (Ga. 1963). 11 Not only is the Georgia constitutional language, structure and histor

y clear, m aking further conside

ration of its sherif

fs’ status
unnecessary,

there are at lea

st thirty-one G

eorgia cases whic

h specifically12 This figure includes twenty-three cases not discussed elsewhe re in this opinion where the sheriff’s co

unty-offic er status play

s a role in the dec

ision: See Cameron v. Lang , 549 S.E.2d 341 (Ga. 2001); Seay v. Cleveland , 508 S.E.2d 159 (Ga . 1998); Atlanta Journal v. Clarke , 497 S.E.2d 358 (Ga. 199 8); In re Inquiry Concern ing a Judge , 454 S.E.2d 780, 783 ( Ga. 1995); Hart v. Madden , 349 S.E.2d 737, 738 ( Ga. 1986); Southeastern New spapers Corp. v. G

riffin , 267 S.E.2d 21 (Ga. 1980

) (citing two othe

rs); Griffin v. Chatha

m County, 261 S.E.2d 570 (Ga. 1979) (county co

mmission may c

ontract on behalf

of sheriff); Lovett v. Buss ell , 249 S.E.2d 86 (Ga. 1978); Wolfe v. Huff

, 205 S.E.2d 254 (Ga

. 1974); Warren , 202 S.E.2d at 409; Kiker v. Worley , 157 S.E.2d 745, 746 (

Ga. 1967); Reed v. Southland Publishing Co. , 150 S.E.2d 817, 817 (Ga. 1966) ; Lewis v. Gay

, 109 S.E.2d 268, 275 (

Ga. 1959); Davis v. Logan , 57 S.E.2d 568, 569 (Ga. 1950); Collins v. Mills , 30 S.E.2d 866, 866 ( Ga. 1944); Seaboard A. L. R. Co. v. Wright , 122 S.E. 35, 36 (Ga. 192

4); Rose v. State , 33 S.E. 439 (Ga. 18 99); Brady v. Joiner , 28 S.E. 679 (Ga. 1897); Haralson County

v. Kimball , 533 S.E.2d 762 (Ga . App. 2000); Malcom v. Newton Cou nty, 535 S.E.2d 8 (Ga. Ap p. 2000); Mayo v. Fult

on County, 470 S.E.2d 258 (Ga. App. 1996); Landis v. Rockd

ale County

, 427 S.E.2d 286 (Ga. App. 1992); Feise v. Cheroke e County, 427 S.E.2d 294 (Ga. App . 1992) (examining the county’ s liability whe n the tortfeasor

was a deputy sheriff). 65 recogn ize she riffs as officer s of the county. 12 Far from m arking a break wit

h the tradition reflected in these cases, the most recent constitutional revision elevated the doctrinal consens

us into an organizing pr

inciple of the state ’s most fund amenta l pol itica l char ter. Th e pres ent co nsti tuti on’s l angu age eme rged f rom, and in turn restated , well-settled state law.

B. Georgia’s Constitutional Desi gnation Cannot Be Dism

issed as a Mere “Lab el” The plurality r

esists both the plain la

nguage and the structu

re of the Georgia Constitution, as we

ll as Supreme Court precedent, by relying on

a phrase in McMillianwhich it misunderstand s and which does not apply to this case. Specifically

, it states that “

McMillian teaches that state law cannot answer the §13 Plurality Opinion at 9. 66

1983 policyma

ker question by ‘ simply labe ling’ an officia

l as a county or st

ate official” and, th

erefore, we “

must focus on cont

rol” over the offic

ial. 13 But the plurality takes

this reference t

o “simply labeling” an offic

ial completely

out of context and, in so doing , forsakes Geor gia law’s clea

rest and highest author

ity: the Georgia Constituti on. In McMillian , the Supreme Court was confront

ed with the unusual sit

uation where a s tate co nstitu tion ex plicit ly desig nated s heriffs as stat e, not co unty, officers. McMillian , 520 U.S. at 786 . The Court was concerned with the possibility that a state might im properly shield c

ounties from § 198 3 liability by deliberately mislabeling what were really county officials as state officials. Accordingly,

the Court wanted to

ensure that the Ala

bama Constitutio

n’s labeling of sheriffs as stat

e officers was no

t simply a de

vice for avoiding lia

bility by masking what were, in reality, local government representati ves. Id. at 786, 796. This concern, how

ever, is irrele

vant where (as he

re) there is no cont

ention that the state has m

islabeled an offic er to avoid liability. Indeed, no possibl e incentive exists for states to designate what are really state officials as county

o fficials, since s

uch a mis-design

ation would actually

create liability

that would not otherwise attac

h. Certainly,

when there is evide

nce that a state is a

ttempting14 The Court’s concern with change-the-label devices traces to Praprotnik, where Justice

O’Connor explained

that “whatever

analysis is u

sed to identify

municipal policy

makers, egregious attempts by local government to insulate themselves f rom liability for unconstitutional policies are precluded . . . .” Praprotnik , 485 U .S. at 127 (i ntern al cit ation s omi tted) . In McMillian v. Johnson , 88 F.3d 1573 (11th Cir. 1996), aff’d sub nom McMillian , 520 U.S. at 781, we also addressed the labeling concern but emphasized that a state constitution’s designation of a she rif f as a cou nty o r st ate off

ici al s hou ld n ot b e cas t as ide lig htl y: We recognize that a sheriff’s designation as a state official is not dispositive, but such a designat

ion is relevant to w

hether a sherif

f exercises state

or county power. McMillian would have us disregard Alabama’s decision to make a sheriff a state official, characterizing it as nothing more than a label. Instead, we heed the Supreme

Court’s admonition t

hat federal cou

rts respect the w

ay a state chooses to structure its government

. McMillian , 88 F. 3d at 1580-81 (emphasis added). The plurality opinion cites the first part of this passage but ignores the underlined warning. Plurality Opinion at 9 n.7.

15 The plurality characterizes my e mphasis on Georgia’s constitutional text as a rejection of “the relevance of McMillian’s functional and control analysis to this case.” Plurality Opinion at 12 n.10. While I do believe we must give strong deference to the state constitution’s lang uage, the plurality’s statement ignores my thoroug h functional analysis of Georgia’s constitutional history, case law, and code. T he plurality opinion also misreads the Supreme Court’s treatment

67 “to in sulat e coun ties a nd mun icipa liti es fro m Monell liability by change-the-label devices,” id. at 805 (Ginsburg, J., di ssenting), McMillian instructs courts to loo k beyond where the law “purports,” Praprotnik , 485 U.S. at 126, to locate final policymaking authority. But this rationale doe s not apply in the converse situation, such as the

one presented in this case, where the “ label” serves no purpose of obfuscatio

n or insulation. 14 There is no reason to go beyond the cons titution in Georgia,

where the constitutional language establishes the basis for local l iability. Thus , the McMillianCourt’s concern over (mis)labeling is inapposite to this case. 15of Alabama law. It is true that in McMillianthe Supreme Court declined to give controlling

force to certa

in Alabama statuto

ry provision

s tending to sugg

est that the sherif

f might be a coun

ty officer, but it did so because “in light of the Alabama Supreme Court’s conclusion that sheriffs are not state off

icials accordin

g to the State Const

itution . . . we think a

ny contrar

y implication

in the code is entitled to little weight.” McMillian , 520 U.S. at 792 n.7. The Court’s privileging of the Alabama Constitution over Alabama statutes remained firm despite its acknowledgment that some of these statutory provisions were “important” and that “some evidence in Alaba ma law” supported the view that sheriffs were county officers. Id. at 791, 793. By contrast, the plurality’s justification for discarding the Georgia Constitution’s unequivocal designation of sheriffs as county offi

cers places und

ue weight on fra

gmentary and peripheral p

rovisions of the Ge

orgia Code.

16 See Plurality Opinion at 12-13. 68

C. The Plural

ity’s Mistake

n Conception of Georgia Sheriffs as State Actors Because the Geor

gia Constitution’s la

nguage, structure , and history pla inly demonstrate tha

t its framers

meant precise

ly what they

said in “labelin

g” Georgia sheriffs as “county officers,” we sh ould accord this d esignation its p lain meaning. The plurality n

onetheless casts asi

de this most funda

mental state-law authority i n search of some other basis to conclude that th e sheriff acts for the st ate. Specifically

, the plurality

ignores Georgia’ s express constitutiona l language on two grounds: (1) that

sheriffs are subj ect to regulation by the state governm

ent; and (2) that sherif

fs are not “em

ployees” of the county comm ission. 16 Neither of these observations de

monstrate that

sheriffs are sta

te officers. 1. Sheriffs’ Re

gulation Under Ge

orgia Law17 The plurality cites Hannah v. State , 212 Ga. 313 (1956), seemingly suggesting that the common law origins of the Georgia sheriff’s office make him a state officer . It is worth noting that Georgia sh

eriffs themselve

s, speaking thro

ugh the Georg

ia Sheriffs’ Asso

ciation, see thei

r common law herita

ge differentl

y: InGeorgia, the Sheriff is both a constitutional and a county officer. The constitution ality of the office derives p rimarily from English Common Law. The sta tus as a c oun ty o ffice isdrawn from a number of general constitutional provisions relating to the office. Georgia Sheriffs’ Association web cite, at www.georgiasheriffs.org /offsheriff.html (2003).

18 The sheriff has discretion also to transfer prisoners to safer jails outside the county, but only to other

county jails

not state prisons. 69 Subjecting an off

icial to state-law

regulation does not tur

n that official into a state agent. T

he plurality opini

on overrides the cle

ar language and stru

cture of the Georgia Constitution on the basis of a few scattered provisions of Georgia law which are, in fa

ct, either neutra

l with respect to our

inquiry or actua

lly supportive of the view that she

riffs are county

officers. 17 For example,

the plurality ar

gues that because G

eorgia law gives she

riffs the authority to m

ake arrests for t

raffic violations ou

tside their counties,

they must be state officers.But the same pr ovision that authorize s sheriffs to m ake these arrests outside their cou nties, see Ga. Code Ann § 40- 13-30 (2002), grants county and city police officers analo gous powers. See, e.g., State v. Heredi a , 555 S.E.2d 91 (Ga. App. 2001)

(county police) ; Poss v. State , 305 S.E.2d 884 ( Ga. App. 1983) (city police). 18 Surely this gra nt of power does not m

ake a county or c

ity policeman a state officer.19 Plurality Opinion at 20-21 (citing Ga. Code Ann. § 15-16-26 (2002)).

20 The plurality

suggests that I

misinterpret Gipsonby failing to read it in the context of the limited suspension power granted the governor by Ga. Code A nn. § 15-16-26. While the state court in Gipsonmay have spoken somewhat broadly in stating that the governor “can take no action” against a sheriff absent a criminal indictment, Gipsonremains indisputab le authority 70 The plurality opinion’s reliance on Georgia sheriffs’ suspension procedures as evidence of state

-officer status is

also misplaced. It is true that the Governor has some role in the suspension of sheriffs. 19 However, the pl urality opinion fa

ils to explain why it

focuses on the governo

r’s power to suspend

the sheriff rather than the governor’ s lack

of power to remove

the sheriff. In McMillian , the Supreme Court

was impresse

d by the State of

Alabama’ s amendme

nt of its constitution to augment the governor’s po wer to remove sheriffs, see McMillian , 520 U.S. at 788 , but the Georgia p rovisions cited by

the plurality ar

e hardly of comparable ch

aracter. Indee

d, these provisions not

only grant the gove

rnor no removal power, but also forbid the governor from suspending a sheriff for longer than ninety days. See Ga. Code Ann. § 15-16-26(c). The governor may not even suspend the sheriff w

ithout appointing and re

ceiving the affirm

ative recommendation of an investi gatory committee. See Ga. Code Ann. § 15-16- 26(a), (c). Outside of this process, “the Governor and the Attorney General can take no official action against a sheriff unless there has been a criminal indictment.” Gipson v. Bowers , 434 S.E.2d 490, 491 (Ga. 1993). 20 Thefor the govern or’s lack of any

removal power. T

he plurality

fails to come to ter

ms with this aspect of Georg

ia law, preferr

ing instead to tre

at the governor’s suspension powe r as the only relevant conside

ration in the asse

ssment of gubern

atorial “contro

l” over sheriff

s.

21 Moreover, Geor

gia courts have

made clear that

a sheriff’s rem

oval from office

is governed by his status as a county officer under state law. See Cole v. Holland , 132 S.E.2d 657, 660 (Ga. 1963) (stating that a sheriff’s removal from office is governed by “the constitutional provision which declares that a county officer shall be removed f or malpractice in office”) ; Walker v. Devinney , 149 S.E.2d 657, 658 (Ga. 1966) (holding that a statute punishing bribery of local officials applied to county sheriffs because “[t]he Sheriff of Fay ette County is an officer of a political subdivision of this State”); Best , 136 S.E.2d at 496-97 (holding that a sheriff could not be indicted under a code section governing the bribery of “any. . . officer of this State”).

22 See Plurality Opinion at 26.

23 See Plurality Opinion at 26 (citing Ga. Code Ann. § 36-8-1, et seq. ). 71 governor’s real but limited suspension power and his lack of removal power are as readily viewe

d as evidence of a la

ck of control as of control. 21 Likewise, the plurality’s discussion of the county comm ission’s direct control over county police departments is irrelevant to this case. 22 Just because a county is responsi

ble for one entity

does not preclude its r

esponsibility for another. Accor

dingly, the exist

ence of county police departme nts (whose office

rs’ minimum qualifications are

set by Georgia

state law and not

by the county commissio n) has n o beari ng on wh ether t he sher iff repr esents the cou nty. 23 If it did, the sheriff coul d not be a state officer either, because the sta te also has its own police force. Ga. Code Ann. § 3 5-2-30, et seq. (2002). The statu te authorizing24 Plurality Opinion at 21-25.

25 Plurality Opinion at 22-24.

26 See Plurality Opinion at 23 n.21.

27 See Plurality Opinion at 11.

28 The plurality’s treatment of Wayne is misguid ed for two major reasons . First, th ough the party at issue in Wayne was a sheriff, the actual holding and the cases the court cited concerned all county officers qua county officers. See, e.g., id. at 134 (“Except for the payment 72 county police depa

rtments does not a

id us one way or a

nother in answering

the
presen t inqu iry. Similarly, the plurality gains no ground by showing that deputy sheriffs are neither employ

ees of the county

commission nor automatica lly subject to t

he

coun ty civ il ser vice s ystem. 24 There is no question that deputy sheri ffs are not employees of the county comm ission. They are instead employees of an independent county officer: the sheriff. The plurality cites five cases holding that the county is not li

able for the torts of

deputy sheriff

s performing la

w enforceme

nt functions, 25 but as the plurality concedes, 26 three of these cases involved respondeat superior

liability, whi

ch is not applicable in

this context. 27 The fourth

case, Chadwick v. Stewart , 94 S.E.2d 502 ( Ga. App.1956),

says nothing about county liability at all. The fi nal case cited, Wayne County Bd. of Comm ’rs v. Warren , 223 S.E.2d 133 (Ga. 1976), is inapplicable, primarily because it has been

overru led by Monell

. 28 Further, the fa ct that deputy she

riffs are not autom

aticallyof the premiums above mentioned, a county has no liability in connec tion with the violations of the civil rights of

any person

by a county

officer.”); Bailey v. F

ulton County

, 36 S.E. 596, 596 (Ga. 1900) (“Th

e principle [that a

municipal corpor

ation is not liable f

or the acts of its of

ficers] is obviously applicable to like torts committed by county officials.”). Wayne

did not decide who is a county officer, but rather when a county is li

able for the torts

of officials whos

e status as county officers was not disputed. If Wayne supports the conte

ntion that a sherif

f is a state offic

er, it equally supports the contention that all Georgia county officers are, by definition, state officers. Second, Wayne’sholding that coun ties are not liable

for the civil rig

hts violations of the

ir officers is in direct conflict with Monell . This is not surprisin g, because the

Georgia Supre

me Court decided Wayne

in 1976, two years before Monell . Under the previous doctrine of Monroe v. Pape , 365 U.S. 167 (1961), local governments could not be sued for the constitutional torts of their officers under § 1983. Id. at 187-93. To the e xtent that Wayne’sholding applies to federal caus es o f act ion , it wou ld h ave b een o verr ule d by Monell , which would explain why no cases since have relie

d on it for this proposition. And to the exte nt that Wayne’sholding applies to state law claims, it is no more than a statement of Georgia’s state sovereign immunity la w – that local governme

nts can only b

e sued when the Ge

neral Assembly

has waived the loc

al entities’ sovereign immunity – as stated in Gilbert v. Richardson , 452 S.E.2d 476, 479 n.4 (Ga. 1994), and its pro geny.

29 See Plurality Opinion at 24-25.

30 See Ga. Const. Art. I

X, Sec. I, Par

. IV; Wayne County

v. Herrin , 437 S.E.2d 793 (Ga. App. 1993).

31 Plurality Opinion at 28-31. 73 covered under the county civil service system is of no import; 29 they are not covered by the state civi l service system either. See Ga. Code Ann. § 45-20-1 et
seq. (2002). That deputies may be covered by the county c ivil service system at all 30 (and not the state sy

stem) only s

trengthens the conclu

sion that their government affiliation is local. These two showings do not advance the idea that sheriffs are stat

e officers. The plurality’s state-law sovereign immunity argument fares no better. 31 As the plurality concedes, this doctrine simply does not control our analysis under §32 See Plurality Opi nion at 28 n.26 (“[S]ta

te sovereign imm

unity has no a

pplication in federal court in § 1983 cases.”)

33 The plurality’s response to this argument misunderstands my point. I am not concerned with wheth er any entity, be it county or sheri ff, has or ha s not waive d its stat e-law sovere ign immunity. These are state-law issues, and we are ruling on a f ederal cause of action. The relevant point is that Georgia law accords sovereign immunity to the she riff in his capacity

as a representative of the county . In Gilbert , the Georgia Supreme Court allowed the sheriff to assert the defense of st

ate-law sovere

ign immunity b

ecause, and only

because, he wa

s sued as a representative of the county. See Gilbert v. Richardson , 452 S.E.2d 476, 484 (Ga.1994) (“Because he is being sued in his official capacity , [Sheriff Millard] is entitled to the benefit of Walker County ’s sovereign imm unity defen

se.”). The plura

lity attempts t

o circumvent this language an

d argues that the

cases Cameron v. Lang , 549 S.E.2d 341 (Ga. 2001), Seay v. Cleveland , 508 S.E.2d 159 (Ga. 1998), and Cantrell v. Thurman , 499 S.E.2d 416 (Ga. App. 1998) demonstrate that sheriffs draw their state-law immunity from a source other than the county. See Plurality Opinion at 29-31. However, Gilbert is the lead case in this line of precedent, and it makes clear that sheriffs are immune from Georgia ca uses of action only as beneficiaries

of their counties ’ immunity. Th e fact that Gilbert

and Cameron

involve motor vehicle insurance does not change this analysis. Seay does not change it either, because the Seay court explicitly based its finding of immunity on Gilbert

. Cantrell v. Thurman , 499 S.E.2d 416 (Ga. App. 1998) a

lso does not chang

e the analy

sis, because the i

mmunity provis

ion to which it refers is considered “a constitutional reservation of sovereign immunity to the c ounties of the State of Georgia” as well as to the state itself. Toombs County v. O’Neal , 330 S.E.2d 95, 96 (Ga. 1985). Moreover, it is noteworthy that none of these decisions even consider the possibility that the plaintiffs had sued the wrong government for the sheriffs’ actions. I n all of these cases, if the state, rather tha

n the counties, we

re the real par

ty in interes

t, the plaintiffs wo

uld have had to pursue their claims under the State Tort Claims Act, Ga. Code Ann. § 50-21-22, et seq. , which covers “the State

of Georgia and

any of its of

ficers, agen

cies, authorities , departments, commissions, board

s, divisions, instrume

ntalities, and insti

tutions,” but not “c

ounties, 74 1983. 32 It is no more relevant than any other piece of Georgia la w from which we can glean evidence

of the sheriff’ s state or county affiliation. Mor

eover, to the extent the state sove

reign immu

nity doctrine ca

n aid us by analogy

, its application in Georgia law supports the position that th e sheriff is a count

y officer. A

s is the case with claims against county comm issioners, it is the county’s immunity that controls when the sheriff is sued, and it is the county that defends the sheriff. 33municipalities, school districts, other units of local government, hospital authorities, or housing

and other local authorities.” Ga. Code Ann. § 50-21-22(5).

34 The Georgia Sup

reme Court relie

d on the same consti

tutional provision a

pplied in Gilbert , and on Gilbert

itself, to extend sta

te-law sovereig

n immunity to co

unty commissio

ners in Woodard v. Lau

rens County

, 456 S.E.2d 581, 582 (Ga. 1995).

35 The plurality’s attempt to distinguish Haywood fails. Haywood

concerned a statute now found at Ga. Code Ann. § 45-9-21, which allows counties and other local governmental entities to set aside funds to defend their own officers. The c

ounty could n

ot have relied on t

his statute to justify paying for the sheriff ’s defense were the sheriff not one of the county’s of ficers. Further, the statute specifically states that the term “county officer” as used therein “means the sheriff” and the other three constitutional county officers. Ga. Code Ann. § 45-9-21(e) (1). 75 See, e.g. Gilbert v. Richa rdson , 452 S.E.2d 476,

479 n.4 (Ga. 1994)

(“Although Walker County

is not a named defendant in this action , Millard was sue

d in his capacity as W

alker County she

riff. Accordi

ngly, the Gilbe

rts’ claims

are, in essence, claim

s against Walker

County and Millar

d may rais e any defense available to the county, including sovereign immunity.”); 34 Logue v. Wright , 392 S.E.2d 235 (Ga . 1990) (holding that i t is county

liability defen

ses which apply t

o actions against sher

iffs); Haywood v. Hughes , 235 S.E.2d 2 (G a. 1977) (holding that the statute whi

ch is now Ga. Code

Ann. § 45-9-21 (2002)

authorized Georgi

a counties to pay fo

r their sheriffs’ legal costs in civil r ights suits against the sheriffs); 35 Haralson County v. Kimball , 533 S.E.2d 762 ( Ga. App. 2000) (

holding that Ga. Code Ann. § 45-9- 21(2), which allows a “count y officer” to hire his own attorney at the

county’s expe

nse when the county

attorney has a c

onflict of76

interest, applies to sheriffs). St ate-law soverei

gn immunity

is inapplicable to our inquiry and in no w

ay suggests that sh

eriffs are state

officers. The plurality’s final remaining contention – that because sheriffs are subject to various state rules, this form of “control” renders them state officer s – proves far too much. In fact, a consistent application of the plurality opinion’s approach would effectively transform not just Georgia’s sheriffs, but all of its local governmental a

uthorities into state o fficers. This w ould obliterate the di stinction which underlies both Monell and McMillian

. Even assuming arguendo that this approach was a valid one, every regulation (or “

control”) that the pl

urality cites t

o show that sheriff

s are state officers has a parallel provision that applies to county commissioners, who are indisputably county

officers. For e

xample, whil

e it is true that the G

eorgia Code establishes certai n uniform powers and duti es for sheriffs throu ghout the state, see Ga. Code Ann. § 15-16-10 (2001 & 2002 Supp .), a parallel state-law provisi

on establishes the “powers and duties” of coun ty commissioners. See Ga. Code Ann. § 36-5-22.1(a) (2000). Likewise, in addition to requiring sheriffs to complete a training course admini stered by the Georgia Sherif fs’ Association, see Ga. Code Ann. § 15-16-3(b) (

2001), the state pre scribes compar able training for county commissione

rs, all of whom

must comple

te at least eightee

n hours of training on36 However, in Georgia, unlike in Alabama, the county ca n supplement this base salary. Ga. Code Ann. § 15-16–20(a)(3) (2001). 77 matters pertaining to th e administration of cou nty governments. See Ga. Code Ann. § 36-20-4 (2000). Similarly, the Georgia Code establishes a m inimum salary for sheriffs, see Ga. Code Ann. § 15-16-20(a)(1) (2001), 36 but also contains an analogous provi sion limiting the sal aries of county commissioners. See Ga. Code Ann. §§ 36-5-24(b)( 1) (2002 Supp.); 36- 1-11.1 (2000) (lim iting commi ssioners’ power to raise the

ir salaries and pen

sions). Finally

, Georgia’s e stablishment of minimum qualifications for sheriffs must be view ed in concert with similar minimum qualifications for woul d-be county commissioners. See Lucas v. Woodward , 243 S.E.2d 28, 31 (Ga. 1978) (hold

ing commissi

oners subject to the constitutional provisio

n setting minim

um requirem

ents for all county

officers, including sheriffs). In sum, while Georgia statutes o

utline sheriffs’ duties, salaries, accountability, and minimum qualifications, the existence of parallel legislation regardi

ng county com

missioners m

ilitates strongly

against construing these provisions as an indication of state control.

2. Sheriffs Are Independ ent Constitutional County Officers, Not Employees of the Cou nty Commission In addition to its m

isunderstanding of the

import of state

regulation, the plurality m

isinterprets the she

riff’s relati

onship with the county

commission by37 The plurality is mistaken in its con

tention that the Ge

orgia cases Board of Comm’rs of Randolph County v. Wilson , 396 S.E.2d 903 (Ga. 1990), Chaffin v. Calhoun , 415 S.E.2d 906 (Ga. 1992), and Warren v. Walton , 202 S.E.2d 405 (Ga. 1973), stand for the proposition that “county sheriffs are subject to the control of the Georg ia legislature.” Plurality Opinion at 14. As the plurality

correctly notes, these case

s do hold that sherif

fs are not employ

ees of the county commission, and I do not contend otherwise. But the fact that the sheriff is not an employ ee of the county commission does not make him a state officer. See, e.g., Coffey v. B rooks County

, 500 S.E.2d 341, 351 (Ga. App. 1998), rev’d in part, on other grounds , Rowe v. Coffey , 515 S.E.2d 375 (Ga. 1999), discussed infra note 39. Moreover, these three cases do not support the plurality’s argument of state control; rather, they refute it. Two of them explicitly state that sheriffs are county officers. See Randolph County , 396 S.E.2d at 904; Warren , 202 S.E.2d at 409. In the third, the Georgia Supreme Court described the sheriff as “a n elected, constitutional officer” and upheld the county commission’s authority to remove about forty-seven percent of the sheriff’s budget. Chaffin , 415 S.E.2d at 907. A ll three of these c

ases represent

the Georgia Supreme Court’s effort to strike a balance between the commission’s budgetary power and the sheriff’s independence, which I discuss in greater de tail below. 78 contending that § 1983 lia bility depends upon t

he subservience of o

ne constitutional offic er to another. Ge orgia’s sheriff

s are not employ

ees of the County Comm

ission. Nor are th

ey employ

ees of the state. In fact, they are not “employ ees” at all. The

y are independe

nt constitutional offi

cers. 37 The question here is not whether a county comm ission controls the sherif f’s office but whether the county controls the sheri ff’s office. The distinction is important, because when the sheri ff exercises his ow

n discretionary

authority he is, by definitio

n, exercising fina

l authority on beha

lf of the county.As the Fifth Circuit has stated: In premising the county’s liability on whether its governing body had ratified the alleged actions of these officials, i.e., whether they had acted pursuant to an official county policy or custom, the district court inadvertently overlooked the possibility that the sheriff and district attorney79

were themselves the final policymakers with respect to the m atters under their jurisdiction

whose actions, to t

he citizens of Upton

County, were

the actions o f the count y itself. Two co nfigurati ons can lea d to a munici pality’s liability under secti on 1983 for the acts of its officials. In th e first . . . a municipality’s final policymakers a re held effectively to have made policy or condoned creation of a custom by ratifying the unconstitutional or illegal actions of subordinate

officers or em

ployees. In the

second, the mun

icipality may be held liable for the illegal or unconstitutional actions of its final policymake

rs themselves a

s they engage in t

he setting of goals and

the determination o f how those goals wil l be achieved. W

e find the latter,

not the former, to be applicable in the instant case. Turner v. Upton County , 915 F.2d 133, 136 (5 th Cir. 1990). In Praprotnik , the Supreme Court clearly recognized the viability of such a structure of co-equal departments or officials as final policymakers. See Praprotnik , 485 U.S. at 126

. Specifically

, the Court stated t

hat “there w

ill be cases in whic

h policymaki

ng responsibility is shared among more than one official or body.” Id. When one county institution cannot review another, and vice versa, each is a final policymake

r for the county : Assuming that ap

plicable law does no

t make the deci sions of the Commission reviewable by the Mayor and Alderman, or vice versa, one would have to conclude

that policy deci sions made eithe r by the May

or and Alderman or b

y the Comm

ission would be attrib

utable to the city

itself

. Id. (emphasis adde

d). Thus, courts

have credited the po ssibility that § 1983 liability ma

y obtain because

an official outside

the county legisla

tive body38 The plurality addresses this argument by discussing the county commission’s “head role” in the county government, based on factors such as its ability to enter into contracts for the county and its receipt of process served on the county

. See Plurality Opinion at 32-34. The county commi

ssion may ver

y well be the

final policy

making body

for the county

with respect to these functions. F

or instance, ther

e is no question that

the county c

ommission has final a

uthority regarding county fiscal policy , and its contractual prerogatives are but one facet of this power. However, this does not answer the question of whether the sheriff is the final policyma ker for the county with respect to law enforcement or other policy making areas. As the Supreme Court stated in Pembaur v. City of Cincinnati , 475 U.S. 469, 484 (1986), “the power to establish policy is no more the exclusive province of the legislature at the local level than at the state or national level.” The Georgia Court of Appeals has explained the complicated relationship between the sheriff and the c

ounty commiss

ion: [T]he sheriff is not an employee of a county , because his or her duties are separate and indepen dent from t he county as a go vernmen tal entity. The sheriff is n ot a n en tit y o f the Stat e, either as an agency or depar tment. The sher iff is a co unty officer; however, the sheriff is independent of and not ans wera ble to t he go vern ing a uth ori tie s of the cou nty. Coffey v. B

rooks County

, 500 S.E.2d at 351 (internal citations omitted).

80 nonetheless acts as t

he county’s fi

nal policym

aker in a particula

r area, or on a particular issue. This analysis a

pplies with particul

ar force here,

where the county

sheriff is recognized as an ind ependent county office r by the state constitu tion itself. See, e.g., Chaffin

, 415 S.E.2d at 907 (referring to the sheriff as an “elected constitutional offic er”). The sher iff is not an em

ployee of the Cou

nty because Georgia local gove

rnment operate s on a separation of po wers principle,

with the sheriffs serving a

s independent county

officers. 38 Though the plurality ’s analysis presupposes that sher

iffs must answ

er directly to some higher auth ority, Georg

ia has made them

independent county

officers answer

able to the voters of

the39 Thus, the plurality applies a sort of reverse “ respondeat superior ” test to determine liability: to wit, because the sheriff is not answerable to or “controlled” by the board of commissioners , the county cannot be liable for the sheriff’s constitutional violations. Of course, there is great irony in this holding because the Supreme Court has conve rsely held that local governments cannot be held liable for the actions of their officials who are employees without resorting to the “repeatedly rejected” respondeat superior doctrine. Praprotnik, 485 U.S. at 125, n.2.

40 The plurality ignores the reality that Georgia’s county government is structured differently

than Alabama’s.

Indeed, the A

labama Supreme Co

urt itself has rec

ognized this fact

, finding that Georgia has made its sheriffs county office rs. See Parker , 519 So. 2d at 445 (additionally

citing Illino

is, Tennessee, F

lorida, Georgi

a, and New York a

s “jurisdictions wh

ose constitutions, unlike Alabama’s, clearly make sheriffs county officers”).

41 See supra

note 38. 81 county. 39 A failure to recognize this salient fe ature of Georgia

law disrespects Georgia’s entit

lement to struc

ture its county gov

ernments as it s ees fit. 40 This separation of powers structure can be illustrated by a quick examination of the process by which counties appropriate and spend limited local resources. Wh

ile the county com

mission has full a

uthority to deter

mine the amount of the she

riff’s funding,

the sheriff has unf

ettered discretio

n to expend these resources in the performance of his duties. The Georgia Supreme Court has time and again t

aken care to prese

rve the delicate ba

lance of power be

tween these

two sector s of count y government, t hereby vind icating t he county co mmission’s general responsibility for the public fisc without endorsing any notion of direct control over the sh eriff in the executio n of his or her official duties. See, e.g., Randolph County, 396 S.E.2d at 9 03; Chaffin , 415 S.E.2d at 9 07. 41 The sheriff ’s42 The sheriff likewise represents the county if he chooses to provide ser vices for other entities. When a sheriff contracts to provide law enforcement, process service, and judgment execution to municipalities, compensation for these services goes to the county’s gene ral fund. Ga. Code Ann. § 15- 16-13 (2002 Supp.) ; City of Lithia Springs v. Turley , 526 S.E.2d 364 (Ga. App. 1999). A sher

iff also receive

s a small sum for summo

ning jurors to ser

vice in city

and state (but not county) courts, which also benefits the county c offers. Ga. Code Ann. § 15-16-21(a) (2001). These fe

es for summoning jurors to all courts other than those of the counties underscore sheriffs’ count

y status, pre

sumably ref

lecting the fac

t that the sheriff

’s general bud

get, since it is appropriated by

the county it

self, already

includes reasona

ble provision for s

ervices provide

d to the county c

ourts. 82 discretion in utilizin

g county funds does n

ot negate his position a

s a county official, any more than the independence of the President from the U nited States Congress negates his position as an officer of our federal gove

rnment. 42 The tension b etween the c ommission’s bu dgetary auth ority and th e sheriff’s entitlement to place certain condi tions on its exercise suggests a separatio n of powers akin to that of

the federal gover

nment: each se

ctor of the county government both r

etains complete

independence in its ow

n sphere and repres ents the county when it acts. III. CONCLUSION The sole issue before us in this case is whether a sheriff has final policymakin

g authority when

maintaining and r

ecalling crim

inal warrants in Georgia’s GCI

C database. On th

e particular fac

ts before us, I con

clude that the sheriff’s role in this c apacity was not a county area of res ponsibility. However, I83

find absolutely no

support for the plura

lity’s extra

neous suggestion that G

eorgia law designates sher

iffs as anything

other than county

officers.