The opinion
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);
*
Honorable Robert B. Propst, Senior U.S. District Judge for
the Northern District of Alabama, sitting by designation.
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
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).
2
Quoting 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.
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
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
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.
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
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
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.
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
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").
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
5
"The right of the people to be secure in their persons ...
against unreasonable search and seizures...."
6
See also Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985).
7
Of 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.
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
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).
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
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
9
See Judge Silberman's opinion in Crawford-El, supra, for a
historical and statistical analysis.
10
Crawford-El, supra, recognizes that trial courts are
caught in a "vortex of changing standards."