*

Honorable Robert B. Propst, Senior U.S. District Judge for

the Northern District of Alabama, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6123.

Walter McMILLIAN, Plaintiff-Appellee,

v.

W.E. JOHNSON, Tommy Herring, Tom Allen, in their individual

capacities, et al., Defendants,

Thomas Tate, Simon Benson, Larry Ikner, in their individual

capacities, Defendants-Appellants,

Association of County Commissioners of Alabama Liability Self

Insurance Fund, Intervenor-Defendant.

Dec. 3, 1996.

Appeals from the United States District Court for the Middle

District of Alabama. (No. CV-93-A-6990N), W. Harold Albritton, III,

Judge.

ON PETITION FOR PANEL REHEARING AND SUGGESTION OF REHEARING EN

BANC

Before COX and BARKETT, Circuit Judges, and PROPST*

, Senior

District Judge.

PER CURIAM:

The opinion reported at 88 F.3d 1554 (11th Cir.1996), is

amended by substituting the following for section "F", under part

IV of the opinion, pages 1571-73.

IV. Discussion

F. Tate's Sovereign Immunity From State Law Claims

The district court found that McMillian had presented

sufficient evidence to create a genuine issue of material fact on

three state law claims against Tate, Ikner, and Benson: malicious

prosecution (Count Twenty); abuse of process (Count Twenty-One);
 1

We have jurisdiction over this appeal from the district

court's denial of state law immunity because the state law

immunity asserted is an immunity against suit. See Griesel v.

Hamlin, 963 F.2d 338, 340-41 (11th Cir.1992). 

 2Quoting Parker v. Amerson, 519 So.2d 442, 442-43

(Ala.1987), Tate argues that a sheriff is immune from suit under

Article I, § 14, Alabama Constitution of 1901, in the execution

of the duties of his office, except for actions brought (1) to

compel him to perform his duties, (2) to compel him to perform

ministerial acts, (3) to enjoin him from enforcing

unconstitutional laws, (4) to enjoin him from acting in bad

faith, fraudulently, beyond his authority, or under mistaken

interpretation of the law, or (5) to seek construction of a

statute under the Declaratory Judgment Act if he is a necessary

party for the construction of the statute. 

and outrage (Count Twenty-Six). In addition, the court found that

a genuine issue exists as to a state law outrage claim against Tate

and the DOC defendants (Count Twenty-Five). The court rejected

Tate's state law sovereign immunity and state law discretionary

immunity defenses, holding that neither form of state law immunity

shields officials sued for intentional or malicious wrongdoing in

their individual capacities.

 On appeal,1 Tate contends that Alabama sheriffs are protected

by sovereign immunity under § 14 of the Alabama Constitution, even

when they are sued in their individual capacities for malicious or

intentional wrongdoing. According to Tate, a suit may be

maintained against a sheriff only if it falls within one of five

limited categories.2

 It is undisputed that McMillian's claims do

not fall within any of the five categories.

We find in decisions by Alabama's appellate courts no clear

answer to the question presented. Some Alabama decisions,

including the most recent ones, seem to support Tate's position.

Karrick v. Johnson, 659 So.2d 77 (Ala.1995)(deputy sheriff immune
from suit for malicious prosecution and false imprisonment); Drain

v. Odom, 631 So.2d 971 (Ala.1994)(sheriff is immune from suit in

his official capacity for negligent performance of his statutory

duties); Parker v. Amerson, 519 So.2d 442 (Ala.1987)(sheriff is an

executive officer of State of Alabama and is immune from suit under

Article I, § 14, Alabama Constitution of 1901, in the execution of

duties of his office); Alexander v. Hatfield, 652 So.2d 1142

(Ala.1994)(deputy sheriffs are immune from suit to the same extent

as sheriffs). Some Alabama decisions point in the other direction.

Phillips v. Thomas, 555 So.2d 81 (Ala.1989)(Clearly, a state

officer or employee is not protected by § 14 when he acts

willfully, maliciously, illegally, fraudulently, in bad faith,

beyond his authority, or under a mistaken interpretation of law);

Unzicker v. State, 346 So.2d 931 (Ala.1977)(State immune when

impleaded as defendant, but governor, commissioner of conservation,

and state highway director, in their respective capacities, were

not also immune where it was alleged that those officers acted

fraudulently, in bad faith, beyond their authority, or under a

mistaken interpretation of the law); Milton v. Espey, 356 So.2d

1201 (Ala.1978)(Section 14 does not necessarily immunize State

officers or agents from individual civil liability); DeStafney v.

University of Alabama, 413 So.2d 391 (Ala.1982)(defense of

sovereign immunity afforded university and its president did not

extend to employee whose alleged tortious act was the basis of the

claim); Lumpkin v. Cofield, 536 So.2d 62 (Ala.1988)(defense of

sovereign immunity does not bar suits against state officers and

employees for torts committed willfully, maliciously, and outside
the scope of their authority); See also Gill v. Sewell, 356 So.2d

1196 (Ala.1978).

 But a recent decision by this court, Tinney v. Shores, 77

F.3d 378 (11th Cir.1996), holds that under Alabama law a sheriff

and deputy sheriff are shielded by sovereign immunity against

claims based upon intentional torts. Some of the language in

Tinney is confusing; the court says that "[u]nder Alabama law,

sheriffs and deputy sheriffs, in their official capacities and

individually, are absolutely immune from suit when the action is,

in effect, one against the state." Id. at 383. The claim under

consideration in Tinney was against the sheriff and deputy sheriff

in their individual capacities. However, no consideration was

given to whether the action was, in effect, one against the state.

Federal law controls a determination relative to whether a state is

the real party-in-interest to the action, and under federal law the

claim in Tinney was not one against the state. See Kentucky v.

Graham, 473 U.S. 159, 167-68, 105 S.Ct. 3099, 3106-07, 87 L.Ed.2d

114 (1985); and Jackson v. Georgia Dep't of Transp., 16 F.3d 1573,

1577 (11th Cir.1994). Notwithstanding this confusing language in

Tinney, the holding of the case is clear: under Alabama law, a

claim against an Alabama sheriff in his individual capacity is

barred by the doctrine of sovereign immunity. We are bound to

follow Tinney, and do so. We hold that the district court erred in

rejecting Tate's sovereign immunity defense to the state law

claims.

The petition for panel rehearing is, except as granted hereby,

DENIED, and no member of this panel nor other judge in regular
 1

Ironically, the majority in Jenkins partially relied upon

this case in arriving at its holding. That opinion has now been

vacated because of the granting of an en banc rehearing by the

court. 

active service on the court having requested that the court be

polled on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion of

Rehearing En Banc is DENIED.

PROPST, Senior District Judge, specially concurring:

I join the court's opinion on petition for rehearing. I write

separately to address broader issues relating to qualified

immunity.

At a recent Eleventh Circuit Judges' Workshop, a speaker

remarked that "Keeping up with qualified immunity law is a

full-time job." As a trial judge, I can well see how one might

reach that conclusion. I concur in the denial of rehearing as to

federal qualified immunity asserted by the defendants in their

individual capacities. In doing so, I humbly make some suggestions

which may reduce the workload of the followers of this still

developing law. Although I, as a trial judge, granted qualified

immunity to the two individual defendants in Jenkins v. Talladega

City Board of Education, 95 F.3d 1036 (11th Cir.1996), and later

concurred in the denial of qualified immunity in this case, I

submit that there is no inconsistency.1

Our holding in this case is premised on the holding in Bell v.

Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Bell

clearly holds that "under the Due Process Clause, a detainee may

not be punished prior to an adjudication of guilt in accordance
with due process of law." Id., 441 U.S. at 535, 99 S.Ct. at 1872.

Having held that punishment of pretrial detainees violates the Due

Process Clause, the Court proceeded to determine what factors are

considered in determining whether conduct constitutes "punishment."

The Court, after stating that factors identified in Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9

L.Ed.2d 644 (1963), "[provide] useful guideposts in determining

whether particular restrictions and conditions accompanying

pretrial detention amount to punishment in the constitutional sense

of that word," concluded that, "A court must decide whether the

disability is imposed for the purpose of punishment or whether it

is but an incident of some other legitimate governmental

purpose.... Absent a showing of an expressed intent to punish on

the part of detention facility officials, that determination will

generally turn "on whether an alternative purpose to which [the

restriction] may rationally be connected is assignable for it, and

whether it appears excessive in relation to the alternative purpose

assigned [to it].' Kennedy v. Mendoza-Martinez, supra, at 168-69,

83 S.Ct. at 567-68 ...." (emphasis added). Id., 441 U.S. at 538,

99 S.Ct. at 1874. The Court added,

Thus, if a particular condition or restriction is reasonably

related to a legitimate governmental objective, it does not,

without more, amount to "punishment." Conversely, if a

restriction or condition is not reasonably related to a

legitimate goal—if it is arbitrary or purposeless—a court may

infer that the purpose of the governmental action is

punishment that may not constitutionally be inflicted upon

detainees qua detainees (emphasis added).

Id., 441 U.S. at 539, 99 S.Ct. at 1874.

Whether discussed in the context of "expressed intent" to

punish, or in the context of determining the existence of a
 2

In this case, the underlying issue is intentional or

purposeful punishment, vel non. The means of punishment, if it

occurred, would appear to be incidental. While perhaps not

raised by the plaintiff as a Fifth Amendment claim, one could

argue that the purpose of the death row placement was to induce a

confession. I will leave it to others to determine if a Fifth

Amendment inquiry is purely objective. 

legitimate governmental goal, the purpose of the conduct is

significant, and the purpose may be inferred from the total

evidence. Both purpose and intent are fact related and it is

difficult for me to see how such issues can be determined as a

matter of law; particularly when the claim is that it was

necessary to place a pretrial detainee on death row in order to

protect him. Such is the issue in this case.2

On the other hand, Jenkins, supra, is not a case involving the

Due Process Clause nor the subjective intent or purpose of the

alleged violators. The Jenkins claims are Fourth Amendment claims

which are properly analyzed under the Fourth Amendment's "objective

reasonableness" standard rather than under a subjective due process

standard. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104

L.Ed.2d 443 (1989). While the Bell Due Process Clause analysis

requires, as an essential element, proof of expressed intent or at

least circumstantial evidence of an unlawful purpose, the Fourth

Amendment analysis does not require any inquiry into subjective

state of mind or purpose. Graham, supra, 490 U.S. at 398, 109

S.Ct. at 1873.

Having noted this distinction, I further suggest that the

holding in Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150

(11th Cir.1994) (en banc), that "Courts must not permit plaintiffs

to discharge their burden by referring to general rules and to the
 3

See Foy v. Holston, 94 F.3d 1528 where the Court stated:

To prevail on a claim about family privacy, parents

need to prove that a state actor interfered with a

protected liberty interest without sufficient

justification. This constitutional tort requires no

element of intent.... Violations of the right to

family association are determined by a balancing of

competing interests ... so, state officials who act to

investigate or to protect children where there are

allegations of abuse almost never act within the

contours of "clearly established law."

The Jenkins majority would apparently require the

defendants, in the acknowledged absence of clearly

established Eleventh Circuit law, to, by inductive

consideration of a factually distinct Supreme Court case and

one Associate Justice's dicta, decide what the Eleventh

Circuit would likely hold. 

 4

"[w]hether there was a reasonable relationship between the

scope of the search (the measures adopted and the objectives of

the search"). 

violation of "abstract rights,' " is more easily applied in cases,

such as Fourth Amendment cases, where the underlying inquiry is one

of objective reasonableness. I thus distinguish the facts and

issues of this case from those in Jenkins. In Jenkins the issue is

whether reasonable officials would know that their conduct was

objectively unreasonable.3 Such inquiries require more than an

abstract consideration of Fourth Amendment law. If the inquiry in

Jenkins had involved an element of intent or purpose, the intent or

purpose, not the specific conduct, may have been the appropriate

issue to focus upon if the inappropriateness of such intent or

purpose had been clearly established. The Jenkins majority relied

upon a Supreme Court case which states that searches must be

reasonable under the circumstances.4

 This is little more direction
 5

"The right of the people to be secure in their persons ...

against unreasonable search and seizures...." 

 6See also Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985). 

 7Of interest as it relates to the facts of this case is the

following dictum in Wright: "At a minimum, "[i]t is clear ...

that the Due Process Clause protects a pretrial detainee from the

use of excessive force that amounts to punishment.' Graham, 109

S.Ct. at 1871 n. 10." This dictum clearly distinguishes the

appropriate analysis here from that in Jenkins. 

than the insight that the Fourth Amendment itself provides.5

Apparently, the Jenkins majority would hold that public officials

must determine whether a controlling appellate court will determine

that certain conduct is egregious enough to qualify as being

unreasonable even though none has specifically so held.

Perhaps no case provides a better example of the requirement

of prior concrete law in Fourth Amendment cases that does Wright v.

Whiddon, 951 F.2d 297 (11th Cir.1992). Tennessee v. Garner, 471

U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) clearly established

that the use of deadly force to apprehend a fleeing, non-dangerous

felony suspect is a constitutionally unreasonable seizure under the

Fourth Amendment.6

 Garner was decided six months before the

incident in Wright. In Wright, a person who had been arrested on

a charge of armed robbery and had confessed to the crime ran from

a courthouse while awaiting a probation revocation hearing. The

escapee was admittedly unarmed, but was fatally wounded as he ran

down an alley. The court held that Garner did not clearly

establish that deadly force cannot be used against a fleeing,

previously arrested, non-dangerous felon. Thus, the police officer

who shot the fleeing felon was entitled to qualified immunity.7

Since this case, unlike Jenkins and Wright, implicates
 8

This holding was made in even a First Amendment case where

an element of the Mt. Healthy analysis includes a determination

of whether the defendant's conduct was substantially motivated by

a consideration of the plaintiff's protected speech. See Mt.

Healthy v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471

(1977). Compare Hansen's holding to that in Fikes v. City of

Daphne, 79 F.3d 1079 (11th Cir.1996). 

subjective intent or motive, the issue remains as to how such

intent claims are to be considered during the course of a qualified

immunity analysis. In Ratliff v. DeKalb County, Ga., 62 F.3d 338,

341 (11th Cir.1995), the court stated, "We are bound by our earlier

holding that, in qualified immunity cases, intent is a relevant

inquiry if discriminatory intent is a specific element of the

constitutional tort; and, we follow that rule here." Compare,

however, Hansen v. Soldenwagner, 19 F.3d 573, 578 (11th

Cir.1994)("For qualified immunity purposes, the subjective

motivation of the defendant official is immaterial ... Harlow 's

objective standard would be rendered meaningless if a plaintiff

could overcome a summary judgment motion based on qualified

immunity by injecting the defendant's state of mind into the

pleadings.")8

In the recent case of Foy v. Holston, cited supra, the court

attempted to strike a balance in cases in which intent is an

element of the underlying claim. The court in Foy stated,

One trigger to the doctrine's application depends upon whether

the record establishes that the defendant, in fact, did

possess a substantial lawful motive for acting as he did act.

At least when an adequate lawful motive is present, that a

discriminatory motive might also exist does not sweep

qualified immunity from the field even at the summary judgment

stage. Unless it, as a legal matter, is plain under the

specific facts and circumstances of the case that the

defendant's conduct—despite his having adequate lawful reasons

to support the act—was the result of his unlawful motive, the

defendant is entitled to immunity. Where the facts assumed
for summary judgment purposes in a case involving qualified

immunity show mixed motives (lawful and unlawful motivations)

and pre-existing law does not dictate that the merits of the

case must be decided in plaintiff's favor, the defendant is

entitled to immunity.

In note 9, the court added:

We know that matters of intent are often jury questions. But,

even at summary judgment, "where the defendant's justification

evidence completely overcomes any inference to be drawn from

the evidence submitted by the plaintiff the [ ] court may

properly acknowledge that fact...." Young v. General Foods

Corp., 840 F.2d 825, 830 (11th Cir.1988)(quoting Grigsby v.

Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir.1987))....

Here the record, in fact, shows substantial lawful intent,

while not ruling out some unlawful intent, too. Unlike

McMillian and Ratliff (which involved pointed district court

fact findings—that we did not review—about the intent of the

defendants and in which the Mt. Healthy doctrine was not

discussed), we are deciding the qualified immunity question

based on circumstances which include indisputable and

sufficient lawful motivations on the part of Defendants.

Crawford-El v. Britton, 93 F.3d 813 (D.C.Cir.1996) (en banc),

proposes another solution, in cases involving the intent or motive

of public officials, to preserving the holding in Harlow v.

Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)

that requires some protection to such officials from the costs of

lawsuits that unduly chill their exercise of discretion in the

performance of their public duties. The apparent majority of the

court held that when motive or intent is an essential element of a

constitutional tort claim, the plaintiff, in opposition to a motion

for summary judgment based on qualified immunity, has to present

clear and convincing evidence that the defendant acted with an

unconstitutional motive. The court split with regard to the amount

of discovery to be allowed to plaintiffs on the intent or motive

issue before the trial court rules on such motions. While the

number of concurring opinions makes it difficult to ascertain the
holdings of the court, at least one commentator has stated that

while Judge Williams' "opinion for the court" adopted the clear and

convincing standard, Judge Ginsburg's opinion prevailed as to the

amount of discovery allowed. Judge Ginsburg wrote that "a

plaintiff [should be allowed] to pursue limited discovery only upon

a showing that he has a reasonable likelihood of turning up

evidence that a jury could consider clear and convincing proof of

the defendant's unconstitutional motive...." It appears that Judge

Silberman apparently stood alone in his view that there should be

only an objective inquiry into the pretext of an asserted

legitimate motive. Judge Silberman would apparently hold that if

a defendant articulates any reasonable motive for his actions, he

is entitled to summary judgment unless a jury might find that such

a suggested motive, whether true or false, would be unreasonable.

Apparently a jury would not be allowed to determine the true

motive. Judge Silberman's view is close to the holding in Foy.

In note 5 of Foy, the court remarked on the difference between

constitutional torts which require proof of intent or motive and

those that don't. The court stated:

But, many constitutional torts do not require the plaintiff to

prove that the defendant possessed discriminatory intent in

acting. For qualified immunity in such cases, no court doubts

that Harlow's test of objective reasonableness applies: The

subjective intent of the government actor is unimportant to

the resolution of the qualified immunity issue. The sole

question is whether any reasonable official (regardless of

subjective motive) could have acted as the defendant acted

without violating clearly established law.

Jenkins involves the type case discussed in note 5 in Foy. Our

instant case does implicate the subjective intent of the defendant.

An issue is whether claims involving subjective intent are
 9

See Judge Silberman's opinion in Crawford-El, supra, for a

historical and statistical analysis. 

 10Crawford-El, supra, recognizes that trial courts are

caught in a "vortex of changing standards." 

appropriate for summary judgment based upon qualified immunity if

a legitimate motive is simply posited. I find it difficult to see

how such cases can be determined at the summary judgment stage if

there is any substantial evidence of an illegal motive in view of

the established law which precludes a trial court's making

credibility determinations, weighing the evidence, and interfering

with a jury's drawing of legitimate inferences from the evidence.

See Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992).

I fully agree with the concerns expressed by various judges

about the exponential growth of such claims against public

officials.9

 I am simply concerned that the rules be "clearly

established" so that neither parties nor trial courts will have to

continue to play panel roulette and can avoid unnecessary and

costly appeals. For an indication of the difficulty facing trial

courts, compare the holding in Foy, supra, with that in Ratliff,

supra, and the vacated Jenkins majority opinion with the opinion in

Wright. Also consider the above quoted statement in Hansen. While

our holding in this case appears to be consistent with that in

Ratliff, it may be somewhat inconsistent with that in Foy, although

Foy purports to distinguish our holding.

I suggest that the qualified immunity issues cry out for

further en banc consideration, especially as to the claims

involving intent or motive as an element vis a vis those which do

not.10