# Willie Santonio Manders v. Thurman Lee

> Court of Appeals for the Eleventh Circuit · July 28, 2003 · 338 F.3d 1304

URL: https://www.frixlaw.com/law-library/cases/76238

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** July 28, 2003
- **Citations:** 338 F.3d 1304; 2003 WL 21729838
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 407 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/76238

## How later opinions describe it (automated extraction)

- finding that the Sheriff of Clinch County functioned as an arm of the state in establishing use-of-force training policies, that he was entitled to Eleventh Amendment immunity for those particular functions, and, therefore, he could not be sued by a Georgia citizen in federal …
- finding that relevant funding of sheriffs office was derived from the State, even though county bore “the major [funding] burden,” because State mandated the source of funding, set sheriffs compensation, and limited county’s autonomy over sheriffs spending decisions
- holding that in the context of establishing use-of-force policy and training and disciplining deputies, a sheriff is an “arm of the state”
- finding that even though the county funded a sheriff’s office, Geor- gia state law mandated it, so the sheriff was an arm of the state

## Opinion text

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-13606 JULY 28, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 99-00042-CV-WLS

WILLIE SANTONIO MANDERS,
Plaintiff-Appellee,
versus

THURMAN LEE, individually and as employee of the
City of Homerville, ALAN BROWN, individually and
as employee of the City of Homerville, BART CREWS,
individually and as employee of the City of
Homerville, CITY OF HOMERVILLE, CLINCH COUNTY, GEORGIA,

Defendants,

WINSTON PETERSON, individually and as employee of
Clinch County, Georgia,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(July 28, 2003)

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
Circuit Judges.
HULL, Circuit Judge:

In this § 1983 excessive force case, Willie Santonio Manders sued Sheriff

Winston Peterson in his official capacity for injuries allegedly caused by the

Sheriff’s use-of-force policy at the jail and failure to train and discipline his

deputies in that regard. We conclude that Sheriff Peterson functions as an “arm of

the State” in establishing use-of-force policy at the jail and in training and

disciplining his deputies in that regard, and is entitled to Eleventh Amendment

immunity for these particular functions. Thus, we reverse the district court’s

denial of summary judgment for Sheriff Peterson.

I. BACKGROUND

A. Facts

As the elected sheriff, defendant Sheriff Peterson is responsible for the

operation of the jail in Clinch County, Georgia, for establishing use-of-force

policy at the jail, and for hiring, training, and disciplining his deputies who work

in the jail. Sheriff Peterson’s deputy and chief jailer is Alan Brown. In May 1997,

police officers from the City of Homerville arrested plaintiff Manders and

transported him to the jail.1 Because Manders had punched a police officer, the

1
We recount the evidence in the light most favorable to Manders, the nonmoving party,
on a summary judgment motion. Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir.
1998).

2
arresting officers charged him with felony obstruction of an officer, in violation of

Georgia law, O.C.G.A. § 16-10-24(b).

As Manders was escorted into the jail’s holding cell, a City police officer

stated that Manders “hit him” earlier. According to Manders, Deputy Brown and a

City police officer then repeatedly struck him across the head, neck, and face and

banged his head against a wall. Manders suffered a bruised, swollen face. The

beating affected him emotionally, resulting in a mental hospital stay.

The morning after the beating, Manders wrote a statement for jail officials,

wherein he stated: “They had to be rough with me to let me know that they mean

business.” That same day, Manders was released from jail. Afterwards,

Manders’s mother met with Sheriff Peterson to discuss the beating. According to

Manders’s mother, Sheriff Peterson responded to her concerns this way: “[T]hat

happens sometimes when they bite and scratch.” Sheriff Peterson did not

investigate the beating incident. In his deposition, Manders later testified that

Sheriff Peterson and another officer forced him to write his statement.

Manders’s evidence also included the Policy and Procedure Manual (the

“Manual”) of the Sheriff’s Office containing the Sheriff’s use-of-force policy.

Sheriff Peterson published the Manual in 1989 or 1990, drafting some policies

3
himself and adopting some State policies. The Manual requires that “[e]ach case

involving physical or defensive force be reported in writing to the Sheriff:”2

(A) Notification of Supervisor
1. The Sheriff shall be immediately informed of each incident
involving the use of force by officers of this Department. Such
notification shall be on the same date of the incident.
2. Each case involving physical or defensive force shall be
reported in writing to the Sheriff.
3. Each officer present or assisting in an arrest or incident
requiring force shall be prepared to submit a report supplement
describing the incident if requested.

In addition to the report requirement, the Manual discusses both non-deadly and

deadly force by an officer in the performance of his duties. The Manual provides

that non-deadly force may be used by an officer in these situations:

1. When necessary to preserve the peace, prevent commission of
offenses, or prevent suicide or self-inflicted injury.
2. When preventing or interrupting a crime or attempted crime
against property.
3. When making lawful arrests and searches, overcoming
resistance to such arrest and searches, and preventing escapes
from custody.
4. When in self defense, or defense of another against unlawful
violence to his person.

The Manual also details when deadly force is justified. Sheriff Peterson has no

other written or standard operating procedures for the use of force at the jail.

B. Amended Complaint

2
Deputy Brown never submitted a written report indicating he used force with Manders.
Sheriff Peterson never required Brown to do so even after having met with Manders’s mother.

4
In this § 1983 case, Manders’s amended complaint claims that defendants

Clinch County and Sheriff Peterson, in his official capacity, are responsible for

use-of-force policy at the jail, for training and disciplining deputies who work at

the jail, and for ensuring that the policy is followed.3 According to Manders,

Deputy Brown beat him, and Clinch County and Sheriff Peterson permitted

Brown’s use of excessive force at the jail. Manders also asserts that Clinch

County and Sheriff Peterson failed to provide deputies proper training and

supervision regarding use of force at the jail and failed to promulgate adequate

rules to regulate deputies’ conduct at the jail. Manders asserts that these failures

caused his beating. Manders sought damages against Clinch County and Sheriff

Peterson in his official capacity.4

The district court denied defendants’ motion for summary judgment on

Manders’s § 1983 damage claims against Clinch County and Sheriff Peterson in

his official capacity for the use-of-force policy at the jail and the training and

3
The parties and the district court litigated this lawsuit against Sheriff Peterson as if all of
Manders’s § 1983 claims against Clinch County also were made against Sheriff Peterson in his
official capacity. Thus, we decide the case as one in which the amended complaint purports to
sue Sheriff Peterson in his official capacity for use-of-force policy and for failing to train and
discipline Deputy Brown in that regard. See Marsh v. Butler County, 268 F.3d 1014, 1023-24
n.4 (11th Cir. 2001) (en banc).
4
At no time has Manders made a claim against Sheriff Peterson’s official bond, which
Georgia law requires sheriffs to post, O.C.G.A. § 15-16-5, and we do not address such a claim.

5
disciplining of deputies in that regard.5 Sheriff Peterson alone filed this

interlocutory appeal, claiming that he is a state actor and that the district court

erred in denying him Eleventh Amendment immunity.6 This appeal does not

address the individual liability of Sheriff Peterson or his deputies for using

excessive force.7 Instead, this appeal involves only the immunity of Sheriff

Peterson in his official capacity.

II. THE ELEVENTH AMENDMENT

5
The district court granted summary judgment (1) to Sheriff Peterson individually on all
claims, (2) to Clinch County and Sheriff Peterson in his official capacity on Manders’s § 1983
claim for the negligent hiring of Deputy Brown, and (3) to Clinch County and Sheriff Peterson on
Manders’s injunctive relief claims. Manders did not appeal or cross-appeal these rulings.
6
Although Clinch County also asserts that Sheriff Peterson acts for the State and is not a
county policymaker, Clinch County did not appeal because it could not at this time. When a
county appeals asserting that a sheriff is not a county policymaker under § 1983, that presents a
defense to liability issue for the county over which we do not have interlocutory jurisdiction.
Swint v. Chambers County Comm’n, 514 U.S. 35, 43 (1995). In contrast, when a sheriff in his
official capacity appeals interlocutorily asserting Eleventh Amendment immunity, this presents a
threshold immunity-from-suit issue over which we have jurisdiction. See P.R. Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993); Swint , 514 U.S. at 42-43;
Grech v. Clayton County, __ F.3d __ (11th Cir. 2003) (en banc).
7
It is argued that the majority opinion “badly subverts the law,” makes sheriffs “immune
from suit,” and renders a “substantial blow” to citizens being able to hold officials accountable
for constitutional violations. (Dissent, Barkett, J., pp. 56, 88). As noted above, this case
involves only the sheriff “in his official capacity” and does not affect in any way claims against
sheriffs or their deputies in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 30-31
(1991) (“[T]he Eleventh Amendment does not erect a barrier against suits to impose ‘individual
and personal liability’ on state officials under § 1983.”); Hobbs v. Roberts, 999 F.2d 1526, 1528
(11th Cir. 1993) (noting that Eleventh Amendment immunity does not extend to “‘individual’ or
‘personal’ capacity suits in federal court”); Gamble v. Fla. Dep’t of Health & Rehabilitative
Servs., 779 F.2d 1509, 1512-13 (11th Cir. 1986) (“[T]he Eleventh Amendment provides no bar
to federal court adjudication of suits against state officers individually.”).

6
A. Immunity from Suit in Federal Court

The Eleventh Amendment provides immunity by restricting federal courts’

judicial power:

The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.

U.S. Const. amend. XI. The Eleventh Amendment protects a State from being

sued in federal court without the State’s consent.8 As a result, parties with claims

against a non-consenting State must resort to the State’s own courts. The Eleventh

Amendment is “a recognition that states, though part of a union, retain attributes

of sovereignty, including immunity from being compelled to appear in the courts

of another sovereign against their will.” McClendon v. Georgia Dep’t of Cmty.

Health, 261 F.3d 1252, 1256 (11th Cir. 2001).

It is also well-settled that Eleventh Amendment immunity bars suits brought

in federal court when the State itself is sued and when an “arm of the State” is

sued. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280

(1977). To receive Eleventh Amendment immunity, a defendant need not be

8
“Although the express language of the [Eleventh] [A]mendment does not bar suits
against a state by its own citizens, the Supreme Court has held that an unconsenting state is
immune from lawsuits brought in federal court by the state’s own citizens.” Carr v. City of
Florence, 916 F.2d 1521, 1524 (11th Cir. 1990) (citing Hans v. Louisiana, 134 U.S. 1 (1890)).
“[I]n the absence of consent[,] a suit in which the State or one of its agencies or departments is
named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984).

7
labeled a “state officer” or “state official,” but instead need only be acting as an

“arm of the State,” which includes agents and instrumentalities of the State. See

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-30 (1997). Whether a

defendant is an “arm of the State” must be assessed in light of the particular

function in which the defendant was engaged when taking the actions out of which

liability is asserted to arise. See Shands Teaching Hosp. & Clinics v. Beech St.

Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) (“The pertinent inquiry is not into the

nature of [an entity’s] status in the abstract, but its function or role in a particular

context.”). The particular functions at issue are Sheriff Peterson’s force policy at

the jail and the training and disciplining of his deputies in that regard.9

B. Eleventh Amendment Factors

In Eleventh Amendment cases, this Court uses four factors to determine

9
See Tuveson v. Fla. Governor’s Council of Indian Affairs, Inc., 734 F.2d 730,734 (11th
Cir. 1984) (noting “the functions of the Council” are significant to Eleventh Amendment
analysis); cf. McMillian v. Monroe County, 520 U.S. 781, 785-86 (1997) (instructing that the
question is not whether the sheriff acts for the county or state “in some categorical, ‘all or
nothing’ manner[;]” rather the question of whether the sheriff acts for the county or state requires
attention to the sheriff’s role “in a particular area, or on a particular issue”); Hess v. Port Auth.
Trans-Hudson Corp., 513 U.S. 30, 45 (1994) (noting “Port Authority functions are not readily
classified as typically state or unquestionably local”).
Although the majority opinion focuses only on the particular function of Sheriff Peterson
in establishing force policy at the jail and training and disciplining his deputies, the dissent
criticizes this functional approach and defines the Sheriff’s conduct at a higher level of
abstraction with “jail operation as the pertinent function.” (Dissent, Barkett, J., p. 65). We
disagree because the dissent’s characterization of the function at issue is too broad; the relevant
question is not whether Sheriff Peterson acts for the State or Clinch County in some categorical
all or nothing manner in connection with the county jail. Instead, the proper inquiry is whether
Sheriff Peterson acts for the State or Clinch County in the particular functions at issue today.

8
whether an entity is an “arm of the State” in carrying out a particular function: (1)

how state law defines the entity; (2) what degree of control the State maintains

over the entity; (3) where the entity derives its funds; and (4) who is responsible

for judgments against the entity. Miccosukee Tribe of Indians of Fla. v. Fla. State

Athletic Comm., 226 F.3d 1226, 1231-34 (11th Cir. 2000); Shands, 208 F.3d at

1311; Tuveson v. Fla. Governor’s Council of Indian Affairs, Inc., 734 F.2d 730,

732 (11th Cir. 1984).

Given these factors, the resolution of the Eleventh Amendment issue in this

case depends, in part, on state law. Therefore, before applying the four-factor test,

we must examine Georgia law and the relationship between Sheriff Peterson, the

State, and Clinch County. The issue of whether an entity is an “arm of the State”

for Eleventh Amendment purposes is ultimately a question of federal law. But the

federal question can be answered only after considering provisions of state law.

Thus, we now journey through Georgia’s legal terrain at some length.10

III. GEORGIA LAW

10
We focus on Georgia law, as opposed to how other circuits treat sheriffs under other
states’ laws, because states have extremely wide latitude in determining their forms of
government and how state functions are performed, and because significant for our case is how
the Georgia Supreme Court has treated sheriffs in Georgia and interpreted the provisions of
Georgia law in issue. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 n.5 (1997)
(noting that the Eleventh Amendment question “can be answered only after considering the
provisions of state law that define the agency’s character”); Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 280 (1977) (stating that whether an entity is entitled to Eleventh
Amendment immunity “depends, at least in part, upon the nature of the entity created by state
law”).
9
We first examine the governmental structure of Sheriff Peterson’s office

vis-à-vis the State and Clinch County under Georgia law. Next, we outline the

functions Sheriff Peterson performs as they reflect the character of his office.

Then we apply the Eleventh Amendment factors to the sheriff’s functions in issue:

promulgating force policy and training and disciplining deputies in that regard.

A. Georgia’s Governmental Structure

Georgia’s Constitution has created the sheriff’s office as an elected

constitutional office in Georgia’s governmental hierarchy. Ga. Const. art. IX, § 1,

¶ 1. The sheriff’s office is not a division or subunit of Clinch County or its county

governing body, and, thus, it is not a structural part of Clinch County government.

See id.; Ga. Const. art. IX, § 2, ¶ 1(c)(1). Rather, the sheriff’s office is a separate

constitutional office independent from Clinch County and its governing body. See

Ga. Const. art. IX, § 2, ¶ 1(c)(1).

Further, Georgia’s Constitution grants the State legislature the exclusive

authority to establish and to control a sheriff’s powers and duties. Ga. Const. art.

IX, § 1, ¶ 3(a)-(b).11 Interpreting this constitutional provision, the Georgia

11
Georgia’s Constitution provides that sheriffs “shall be elected by the qualified voters of
their respective counties for terms of four years and shall have such qualifications, powers, and
duties as provided by general law.” Ga. Const. art. IX, § 1, ¶ 3(a). 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 “if such authority is
delegated by local law, by action of the county governing authority.” Ga. Const. art. IX, § 1, ¶
3(b); see infra note 12. The State legislature thus also controls sheriffs’ qualifications and
minimum salary.
10
Supreme Court has explained that 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 and is not an employee

of the county commission.”); see Chaffin v. Calhoun, 262 Ga. 202, 203 (1992);

Warren v. Walton, 231 Ga. 495, 499-500 (1973).

In contrast to the State’s authority and control over sheriffs, Georgia’s

Constitution grants counties no legislative power or authority over sheriffs and

expressly prevents counties from controlling or affecting the sheriff’s office or the

personnel thereof.12 Ga. Const. art. IX, § 2, ¶ 1(c)(1). In this regard, the Georgia

Supreme Court has concluded that this constitutional restriction on the legislative

power granted to counties–home rule–prevents counties from taking action

affecting the sheriff’s office. Warren, 231 Ga. at 499;13 see Stephenson v. Bd. of

Comm’rs of Cobb County, 261 Ga. 399, 401-02 (1991). As a result, counties

12
Georgia’s Constitution provides that the legislative “power granted to counties . . . shall
not be construed to extend to . . . [a]ction affecting any elective county office, the salaries
thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county
governing authority.” Ga. Const. art. IX, § 2, ¶ 1(c)(1). The Georgia Attorney General has stated
that, under Georgia’s Constitution, county governing authorities lack even the authority to
supplement the sheriff’s salary “unless authorized by local law enacted by the General Assembly
to supplement the salary.” Ga. Op. Atty. Gen. No. U97-19 (1997); see infra note 36.
13
Although Warren involved a prior version of the Georgia Constitution, the same
relevant language is in the current version of the Georgia Constitution. See Warren, 231 Ga. at
499. 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
its governing body.
11
exercise no authority or control over the sheriff’s force policy, whether in making

arrests on the streets or in quelling disruptive inmates at the jail.

Further, in Georgia, counties also do not delegate any of their governmental

or police powers to sheriffs. Instead, the sheriffs’ authority and duties are derived

directly from the State. That counties delegate no power or authority to sheriffs

further explains why counties have no authority or control over them and why the

sheriff is not a subunit or division of county government.

Georgia law likewise makes the county entity itself, here Clinch County, a

separate entity independent of the sheriff’s office. Under Georgia law, Clinch

County is a “body corporate” capable of suing and being sued and is headed by the

county governing authority. Ga. Const. art. 9, § 1, ¶ 1 (“Each county shall be a

body corporate and politic with such governing authority . . . as provided by

law.”); O.C.G.A. §§ 36-1-3 (“Every county is a body corporate, with power to sue

or be sued in any court.”); 1-3-3(7) (defining “County governing authority” as “the

board of county commissioners, the sole county commissioner, or the governing

authority of a consolidated government”). As a separate entity, Clinch County is

headed by its Board of Commissioners, which is given “exclusive jurisdiction over

and control of county affairs.” Ga. Laws 1933, p. 467, § 29. In contrast, under

Georgia’s Constitution, the State has exclusive authority and control over the

duties and affairs of the sheriff’s office. Although the State requires the county to

12
fund the sheriff’s budget, Georgia’s Constitution precludes the county from

exercising any authority over the sheriff, including how the sheriff spends that

budget. Ga. Const. art. IX, § 2, ¶ 1(c)(1); Chaffin v. Calhoun, 262 Ga. 202, 203-

04 (1992); see Boswell v. Bramlett, 274 Ga. 50, 52 (2001).

The separate and distinct nature of Sheriff Peterson’s office and Clinch

County, and their independence from each other, are further demonstrated by how

Georgia law treats sheriffs’ employees. Sheriffs alone hire and fire their deputies.

See O.C.G.A. § 15-16-23. Deputies, including those serving as jailers, are

employees of the sheriff and not the county. Warren, 231 Ga. at 499 (recognizing

that “[d]eputy sheriffs and deputy jailors are employees of the sheriff, whom the

sheriffs alone are entitled to appoint or discharge”) (quotation marks omitted);

Drost v. Robinson, 194 Ga. 703, 710 (1942); Brown v. Jackson, 221 Ga. App.

200, 201 (1996) (noting deputy sheriffs “were employees of the sheriff and not

Peach County”); Wayne County v. Herrin, 210 Ga. App. 747, 751 (1993); Pettus

v. Smith, 174 Ga. App. 587, 588 (1985); see Boswell, 274 Ga. at 51 (“[E]mployees

of constitutionally elected officers of a county are considered employees of the

elected officer and not employees of the county, as represented by the local

governing authority.”); Mobley v. Polk County, 242 Ga. 798, 801-02 (1979).14

14
This case involves the acts of Deputy Sheriff Brown, who served as Sheriff Peterson’s
chief jailer. Sheriffs may assign their deputy sheriffs to work at the jail. See O.C.G.A. § 15-16-
23; Wayne County v. Herrin, 210 Ga. App. 747, 751 (1993); Kendrick v. Adamson, 51 Ga. App.
402 (1935). In Wayne County, the Georgia court read the sheriff’s power to hire and fire deputy
13
Because sheriffs are elected by county voters, it is not surprising that

Georgia’s Constitution labels sheriffs as “county officers.” Ga. Const. art. IX, § 1,

¶ 3(a). But, given how Georgia’s Constitution also makes the sheriff’s office a

constitutional office independent from the county entity itself, precludes all county

control, and grants only the State control over sheriffs, this “county officer”

nomenclature necessarily reflects a geographic label defining the territory in which

a sheriff is elected and mainly operates. It is entirely consistent for sheriffs to be

independent of the county government and to be subject to State, not county,

control but to be called “county officers” to reflect their geographic jurisdiction in

the State.

Having established that Sheriff Peterson’s office is independent from Clinch

County and its governing authority and that only the State controls and grants

powers and duties to sheriffs, we next examine the functions of the sheriff’s office

sheriffs under O.C.G.A. § 15-16-23, together with O.C.G.A. § 36-1-21, to mean that the sheriff
may appoint his deputies “at will,” but also may elect in writing to make their appointments
subject to the county civil service system as prescribed by law in O.C.G.A. § 36-1-21. Wayne
County, 210 Ga. App. at 752-53; see Brett v. Jefferson County, 123 F.3d 1429, 1434 (11th Cir.
1997) (stating deputy sheriffs in Georgia are at-will employees of the sheriff and concluding
sheriff had failed to satisfy the statutory requirements in O.C.G.A. § 36-1-21 necessary for the
sheriff to place his employees under the county civil service system).
Sheriffs also may appoint persons to serve as jailers who are not deputy sheriffs. See
Tate v. Nat’l Sur. Corp., 58 Ga. App. 874, 876 (1938) (noting “[t]here was no evidence that the
jailer was also a deputy”). O.C.G.A. § 42-4-1 provides: “By virtue of their offices, sheriffs are
jailers of the counties and have the authority to appoint other jailers, subject to the supervision of
the county governing authority, as prescribed by law.” We likewise read O.C.G.A. §§ 42-4-1 and
36-1-21 together to mean that the sheriff may appoint his non-deputy jailers “at will” under
O.C.G.A. § 42-4-1, but also may elect in writing to make their appointment subject to the county
civil service system and thereby subject to county supervision as prescribed by law in O.C.G.A. §
36-1-21. In any event, this case does not involve a jailer who is not a deputy sheriff.
14
under Georgia law. The specific tasks that sheriffs perform also shed considerable

light on the character of the sheriff’s office under Georgia law.

B. Sheriff’s Functions

As noted above, counties cannot, and do not, grant any law enforcement

power to sheriffs and do not assign or control any of the sheriffs’ duties. Instead,

the State alone has delegated to sheriffs specific duties in three main areas: (a) law

enforcement; (b) state courts; and (c) corrections. While we ultimately decide

today only whether Georgia sheriffs wear a “state hat” in prescribing use-of-force

policy, we outline the duties the State has assigned to sheriffs as they reflect the

character of the sheriff’s office under Georgia law. What duties the State assigns

sheriffs is indicia of how the State defines that entity.

1. Law Enforcement

In Georgia, the office of sheriff is as old as the State of Georgia itself and

carries with it the common law duties of sheriffs to enforce the laws and preserve

the peace on behalf of the sovereign State, as well as other specific statutory duties

imposed by the State legislature. O.C.G.A. § 15-16-10(a)(1)-(8); Hannah v. State,

212 Ga. 313 (1956) (“The office of sheriff carries with it . . . all of its common-law

duties and powers, except as modified by statute.”) (citation and quotation marks

omitted).15 Given the sheriff’s continuing common law duties, the State legislature

15
The Georgia Attorney General also has explained that under Georgia law, sheriffs have
statutory duties and also all of their common law duties and powers unless modified by statute,
15
mandates that it is the express duty of the sheriff to perform not only “such . . .

duties as are or may be imposed by law,” but also those duties “which necessarily

appertain to his or her office.” O.C.G.A. § 15-16-10(a)(8).

Georgia’s Constitution also provides that “[t]he Governor shall take care

that the laws are faithfully executed and shall be the conservator of the peace

throughout the state.” Ga. Const. art. V, § 2, ¶ 2. In enforcing the laws and

conserving the peace, the Georgia Governor does not act alone, but necessarily

acts through state agents, which include sheriffs for certain state functions.16 The

United States Supreme Court recently acknowledged that sheriffs historically had

geographic restrictions but in reality “represented the State in fulfilling [their] duty

to keep the peace.” McMillian v. Monroe County, 520 U.S. 781, 793 (1997)

(concluding that Alabama sheriffs act for the state as to the law enforcement

function in issue). The Supreme Court reflected on the longstanding historical

role of sheriffs, as follows:

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

and that these duties include enforcing the laws and conserving the peace. See Ga. Op. Atty.
Gen. No. 77-83 (1977); Ga. Op. Atty Gen. No. U69-385 (1969) (both construing former Georgia
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 criminal or traffic laws through
the power of arrest and [are charged with the] preservation of public order, the protection of life
and property, and the prevention, detection, or investigation of crime.” O.C.G.A. § 35-8-2(8)(A).
16
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.; § 35-2-30 et seq.
16
in jurisdiction to his county and generally elected by
county voters, was in reality an officer of the State, and
ultimately represented the State in fulfilling his duty to
keep the peace.

Id. at 794 (internal footnote omitted). Indeed, “in conserving the public peace, in

vindicating the law, and in preserving the rights of the government, [the sheriff]

represents the sovereignty of the State and he has no superior in his county.” 1 W.

Anderson, A Treatise on the Law of Sheriffs, Coroners and Constables 5 (1941),

cited with approval in McMillian, 520 U.S. at 794.

As we already have noted, sheriffs in Georgia derive their power and duties

from the State, are controlled by the State, and counties cannot, and do not,

delegate any law enforcement power or duties to sheriffs.17 In Georgia, this

historical role of the sheriff thus continues to this day as the sheriff directly

represents the sovereignty of the State, has no superior in his county, and performs

state functions for the sovereign in enforcing the laws and keeping the peace.

It is also entirely consistent for Georgia sheriffs to be elected by county

voters and be called “county officers” to reflect their geographic jurisdiction, but

17
While the State fulfills part of its policing functions through the sheriff’s office, the
Georgia legislature authorizes the county to fulfill policing functions through a county police
force. County governing bodies may create “a county police force” through a resolution or
ordinance of the particular county governing body followed by the approval of qualified county
electors. O.C.G.A. § 36-8-1(b). Thus, a county-wide referendum is required before a county
may create a county police force. Id. If the referendum passes, the county governing body
controls the hiring and removal of its county police, including the county police chief, and may
“abolish a county police force at any time.” O.C.G.A. § 36-8-2. County police officers are
subject to the “direction and control of the county governing body.” O.C.G.A. § 36-8-5.
17
for them still to act on behalf of the State in enforcing the laws and keeping the

peace in that jurisdiction. See R. Cooley, Handbook on the Law of Municipal

Corporations 512 (1914) (“Sheriffs . . . clerks and other so-called county officers

are properly state officers for the county. Their functions and duties pertain

chiefly to the affairs of state in the county.”).18

2. State Courts

In addition to imposing certain law enforcement duties, the State has

assigned sheriffs specific duties in the State’s superior courts.19 Superior courts

are the State’s trial courts of general jurisdiction. See Ga. Const. art. 6, § 4, ¶ 1;

O.C.G.A. § 15-6-8.20 That sheriffs perform an integral role in the state judicial

system is further indicia of how sheriffs act for the State.

The State mandates that sheriffs must attend “all sessions” of superior

courts in their respective counties and “never . . . leave [court] without the

18
For example, the State has assigned sheriffs the task of maintaining and entering
warrant information into the statewide criminal information database. O.C.G.A. § 35-3-36; see
Grech v. Clayton County, __ F.3d __ (11th Cir. 2003) (en banc) (concluding “as to the particular
function at issue [entry and maintenance of warrant information], the sheriff is acting on behalf
of the State and thus . . . Clayton County is not liable [for the sheriff’s conduct at issue]”).
19
Throughout this opinion, the term “state courts” refers only to Georgia’s superior
courts, which have exclusive jurisdiction over state felony cases, divorce cases, cases respecting
title to land, and cases arising in equity. Ga. Const. art. VI, § 4, ¶ 1. Georgia’s superior courts
also have concurrent jurisdiction over misdemeanors and other civil cases. Ga. Const. art. VI, §
4, ¶ 1; O.C.G.A. §§ 15-6-8(1); 15-7-4.
20
Just as county jails house state criminal offenders, county courthouses, funded and built
by the county, house state superior courts and their judges. O.C.G.A. § 15-6-24. Although
presiding in county courthouses, superior court judges perform state judicial functions.
18
presence of himself or his deputy.” O.C.G.A. § 15-16-10(a)(2). The State also

mandates that sheriffs must execute and return the processes and orders of the

state courts. O.C.G.A. § 15-16-10(a)(1). Sheriffs also must publish sales,

citations, and other proceedings as required by law, keep an execution docket,

keep a book of all sales made by process of state courts, and keep many other

specified records. O.C.G.A. § 15-16-10(a)(4)-(6). This same statute provides that

“[i]f any sheriff or deputy fails to comply with any provision of [O.C.G.A. § 15-

16-10(a)], he shall be fined for a contempt.” O.C.G.A. § 15-16-10(b). Thus, the

State directs sheriffs to enforce state court orders and punishes them if they do not.

The superior court clerk also delivers to the sheriff or his deputy a “precept

containing the names of the persons drawn as grand jurors,” and the sheriff or his

deputy serves the summons on each grand juror in person or by mailing, as

determined by the sheriff. O.C.G.A. § 15-12-65.21

The State also has assigned sheriffs the function of determining which

companies may make bonds in their jurisdictions. O.C.G.A. § 17-6-15. While

state judges decide whether a county jail inmate, charged with a felony, is entitled

to bond, sheriffs approve bonding companies in their counties for the State’s

21
Superior court judges “are authorized and empowered to transfer the investigation by a
grand jury from the county where the crime was committed to the grand jury in any other county
in the State” in certain circumstances. O.C.G.A. § 15-12-82(a). When this transfer occurs, “[t]he
sheriff and the clerk of the superior court of the county in which the crime was committed shall
be qualified and authorized to perform the duties of such officers in the same manner as if there
had been no change of venue.” O.C.G.A. § 15-12-82(d).
19
criminal cases. Sheriffs must “publish and make available written rules and

regulations defining acceptable sureties and prescribing under what conditions

sureties may be accepted.” O.C.G.A. § 17-6-15(b)(1). The State also prescribes

the qualifications of “professional bondspersons.” O.C.G.A. § 17-6-50. The State

in effect “places the authority to accept sureties in felony cases in the office of the

sheriff and not in the superior court.”22 Jarvis v. J&J Bonding Co., 239 Ga. 213,

215 (1977) (construing Georgia Code § 27-418 (1933), which is the precursor to

O.C.G.A. § 17-6-15).

The State also requires sheriffs to “deposit cash bonds held by the sheriff in

one or more interest-bearing trust accounts,” O.C.G.A. § 15-16-27(a), and to

remit that interest to a state agency, the Georgia Indigent Defense Council.

O.C.G.A. §§ 15-16-27(b); 17-12-32. That Council then redistributes the money

to local indigent defense programs. O.C.G.A. §§ 15-16-27(b); 17-12-30 et seq.23

These state court and bond-related duties do not stem from laws of general

application, but from statutes whereby the State requires sheriffs to perform

22
In criminal cases, state courts may require witnesses to post bonds to ensure their
appearance, O.C.G.A. § 17-7-26, and the sheriff is responsible for accepting bonds and ensuring
that they come from a bonding company approved by the sheriff. O.C.G.A. § 17-7-27.
23
On May 22, 2003, the Governor signed the Georgia Indigent Defense Act of 2003 (“the
Act”), which amends O.C.G.A. Chapter 17-12 and O.C.G.A. § 15-16-27. H.B. 770, 147th Gen.
Assem., Reg. Sess. (Ga. 2003). The Act does not change the requirement in O.C.G.A. § 15-16-
27(a) that sheriffs “deposit cash bonds held by the sheriff in one or more interest-bearing trust
accounts.” However, pursuant to the amended § 15-16-27(b), effective December 31, 2003,
sheriffs must remit the interest to the Georgia Public Defender Standards Council, a state agency,
for distribution to the circuit public defender offices instead of to the Georgia Indigent Defense
Council.
20
specific tasks that are state functions in the State’s criminal justice system. These

statutes are not mere general regulatory control. Instead, they represent the State

delegating discrete state functions in the State’s criminal justice system

specifically to sheriffs.

3. Corrections

The State also assigns sheriffs specific corrections duties regarding state

offenders. The State requires that the sheriff take custody of all inmates in the jail

in his county. O.C.G.A. § 42-4-4. The Georgia legislature mandates that “[i]t

shall be the duty of the sheriff . . . [t]o take from the outgoing sheriff custody of

the jail and the bodies of such persons as are confined therein” and to furnish

inmates “medical aid, heat, and blankets, to be reimbursed if necessary from the

county treasury.” O.C.G.A. § 42-4-4(a)(1)-(2). Sheriff Peterson’s authority and

duty to administer the jail in his jurisdiction flows from the State, not Clinch

County. See In re Irvin, 254 Ga. 251, 253 (1985) (“It is clear that the legislature

has vested broad authority in the office of sheriff to administer the jails.”).

Sheriffs who refuse to take custody of an inmate may be charged with a

misdemeanor. O.C.G.A. § 42-4-12.

It is important to outline how the State uses county jails to incarcerate its

state offenders and, in turn, requires sheriffs to administer them. To begin with,

sheriffs must take custody of inmates arrested and awaiting trial in state superior

21
courts on state felony and misdemeanor charges.24 No sheriff’s approval is

required. For example, a City of Homerville police officer arrested plaintiff

Manders for felony obstruction of an officer–in violation of state law, O.C.G.A. §

16-10-24(b)–and took Manders to the Clinch County jail.

As custodians of pre-trial detainees charged with state felonies, sheriffs

transfer inmates to and from the State’s superior courts for pre-trial and trial

proceedings, as well as attend all sessions of those courts. If a change of venue for

the trial is granted by the state trial judge, the sheriff must transport the person to

the county to which the change of venue is directed and deliver that person to the

sheriff of that county. O.C.G.A. § 42-4-11.

Another class of inmates in the county jails are those serving state sentences

for felonies. When convicted of a felony offense, the felon by operation of

Georgia law is committed to the custody of the Georgia Department of Corrections

(“DOC”), which determines the place of confinement. O.C.G.A. §§ 42-5-50(b);

24
See Howington v. Wilson, 213 Ga. 664, 665 (1957) (“It is apparent from [Georgia]
statutes that the custody of a defendant, pending his trial under an indictment for a criminal
offense, is in the sheriff of the county wherein the offense was committed . . . .”); State v.
Middlebrooks, 236 Ga. 52, 52-53 (1976) (defendant originally detained in City of Atlanta jail
transferred to custody of the Fulton County Sheriff upon indictment).
22
42-5-51(b).25 In at least five situations, convicted felons serve their state sentences

in county jails.

First, a convicted felon, although in DOC custody, serves his state felony

sentence in the county jail pending appeal if his attorney certifies his presence is

necessary for the appeal. O.C.G.A. § 42-5-50(c). No sheriff or DOC approval is

required.26 The DOC’s regulations even provide that the State will pay for the cost

of maintaining felony prisoners in county jails after conviction and sentencing

until their appeals are concluded. Ga. Comp. R. & Regs. § 125-2-4-.02(d).27

Second, due to prison overcrowding, the DOC has broad discretion to assign

convicted felons to serve their state sentences in county jails and to reimburse

counties for their incarceration at a daily rate.28 The state trial court must notify

25
The state superior court has no authority to sentence a person convicted of a felony
other than to the custody of the commissioner of the Georgia Department of Corrections, and the
State has authority over the inmate on the place of confinement and on the computation of
sentence. See Eubanks v. State, 229 Ga. App. 667, 667-68 (1997). The State may allow felons
to remain in the county jail and reimburse the county. O.C.G.A. § 42-5-51(b)-(c).
26
See Helmeci v. State, 230 Ga. App. 866, 871 (1998) (stating that O.C.G.A. § 42-5-50(c)
“is clearly couched in mandatory language, indicating that a trial court has no discretion in
denying a request to remain in the county pending appeal”); O.C.G.A. § 42-5-50(b) (stating
except as otherwise provided in O.C.G.A. § 42-5-50(c), the DOC shall assign the place of
confinement for convicted felons).
27
“The Department of Corrections will provide reimbursement to counties for cost of
maintaining felony prisoners in the county jails after conviction and sentencing and before such
prisoners are transferred to a place of confinement as directed by the Commissioner, Department
of Corrections.” Ga. Comp. R. & Regs. § 125-2-4-.02(d) (describing reimbursement procedure
and including felons remaining in county jail during appeal as inmates for which reimbursement
may be obtained).
28
See Clayton County v. Evans, 258 Ga. 146, 147 (1988) (noting “the General
Assembly–aware of the problem of the existence of overcrowded state prisons–made provision in
23
the DOC that a person is convicted of a felony within thirty days. O.C.G.A. § 42-

5-50(a). The DOC then has fifteen days to elect to transfer the inmate or to start

paying for his incarceration. O.C.G.A. § 42-5-51(c). No sheriff’s approval is

required.

Third, if a convicted felon’s state probation is revoked, a state judge has

discretion to sentence the felon to serve his state sentence in the county jail in

certain circumstances. O.C.G.A. § 17-10-1(a)(3)(A). No sheriff’s approval is

required.

Fourth, convicted felons serving a paroled state sentence, under the DOC’s

authority, who violate parole may be held in county jails until a state judge

formally revokes their state parole. Ga. Op. Atty. Gen. No. 82-33 (1982). No

sheriff’s approval is required.

Fifth, convicted felons in DOC custody may serve their state sentences in

county jails if they are participating in a state-sponsored project and the sheriff

approves. O.C.G.A. § 42-5-51(d).

Yet another class of inmates in county jails are those serving state

misdemeanor sentences. If a defendant is convicted of a state misdemeanor

O.C.G.A. § 42-5-51(c) for the reimbursement to the county . . . for the cost of incarcerating state
prisoners”).
24
offense, the state judge has discretion to sentence the defendant to, among other

locations, the “county jail.”29 O.C.G.A. § 17-10-3(a)(1)-(3).

Because the State uses the statewide network of county jails to incarcerate

its felony and misdemeanor offenders, it is not surprising that the State expressly

authorizes sheriffs to act beyond their respective counties and to transfer prisoners

to the county jails of other sheriffs.30 In addition to venue changes, the State

requires sheriffs to take persons arrested to a jail of another county if the sheriff’s

county jail is in an “unsafe condition.” O.C.G.A. § 42-4-4(a)(3).31

The State also permits sheriffs to exercise their discretion to “transfer[] a

prisoner to another jail in another county if the sheriff concludes that such transfer

29
The other locations include a “county correctional institution;” a “state probation
detention center or diversion center;” or a “state correctional institution” if the “crime was
committed . . . within the confines of a state correctional institution.” O.C.G.A. § 17-10-3(a)(1)-
(3). Under Georgia law, county jails are separate facilities from “county correctional
institutions.” See O.C.G.A. § 42-5-53.
30
In operating the jail, Sheriff Peterson also must carry out many state policies on how
inmates are treated and jails are operated. The State regulates the preparation, service, and
number of meals and inspects the jail periodically “to ensure against the presence of unsanitary
conditions.” O.C.G.A. § 42-4-32(a)-(c). The State prescribes that a jailer shall not be “guilty of
willful inhumanity or oppression to any inmate under his care and custody.” O.C.G.A. § 42-4-5.
The State sets the minimum safety and security requirements for jails. O.C.G.A. § 42-4-31(a).
We do not contend that these statutory jail duties, by themselves, transform sheriffs into
state officials. Instead, we mention these statutes as further evidence of how the duties of
sheriffs in Georgia are governed by the State and not by county governing bodies. This
background is relevant to our consideration of whether the sheriff is an arm of the state or the
county in establishing force policy as to Manders.
31
With respect to § 42-4-4(a)(3) transfers, the Georgia Supreme Court instructs that “[t]he
legislature has vested the sheriff alone with the . . . administrative authority to order such
transfers” and that a state superior court may not order such a transfer sua sponte, although the
sheriff would be required to carry out an order of the court if the issue of the unsafe conditions of
the jail were properly before the court. In re Irvin, 254 Ga. 251, 253-54 (1985).
25
is in the best interest of the prisoner or that such transfer is necessary for the

orderly administration of the jail.” O.C.G.A. § 42-4-4(b). In a similar vein,

“[w]hen there is no secure jail in a county or when it is deemed necessary by the

sheriff, any person committing an offense in the county may be sent to a jail in

another county determined to be suitable by the sheriff.” O.C.G.A. § 17-7-1.32

Given sheriffs’ significant corrections role for state offenders, the State

further requires sheriffs to keep detailed records of persons committed to county

jails. O.C.G.A. § 42-4-7. These records include the “age, sex, race, under what

process such person was committed and from what court the process issued, the

crime with which the person was charged, the date of such person’s commitment

to jail, the day of such person’s discharge, under what order such person was

discharged, and the court from which the order issued.” O.C.G.A.

§ 42-4-7(a). The State mandates that a sheriff or a deputy who fails to comply

with these state requirements shall be fined for contempt and subject to removal

from office. O.C.G.A. § 42-4-4(c).

In sum, these requirements are not state laws of general application but

represent the State’s managing and controlling where state offenders are

32
Although a state felony inmate has a right to remain in the county jail during appeal
under O.C.G.A. § 42-5-50(c), the sheriff may transfer that inmate to another jail if the sheriff’s
jail is unsafe. See Helmeci, 230 Ga. App. at 871 (concluding the “conditions authorizing transfer
[under O.C.G.A. § 42-4-4(a)(3) were] not present” and “the trial court erred in denying
Helmeci’s motion to remain in the county jail pending the disposition of his appeals”).
26
incarcerated, designating that certain state offenders serve state time in county

jails, and then assigning sheriffs specific corrections duties regarding those state

offenders.33 In contrast, counties have no authority over what corrections duties

sheriffs perform, or which state offenders serve time in county jails, or who is in

charge of the inmates in the county jails.34

33
Sheriffs’ incarceration of offenders in the county jail, such as Manders, who are charged
with state felonies and being prosecuted by the State of Georgia in state superior courts is a state
function. The State requires that sheriffs not only transport state offenders to and from state
superior courts and attend all sessions of those state courts, but also take custody of state
offenders in county jails between those state superior court sessions. The State of Georgia has a
Department of Corrections, a state agency, that operates state prisons and incarcerates felony
offenders after conviction. But the existence of the Department of Corrections does not preclude
the State from utilizing other law enforcement agencies, such as sheriffs, to perform part of the
State’s incarceration function for state offenders. As detailed above, the State requires sheriffs to
take custody of state offenders, both pre- and post-conviction, in county jails, and counties have
no law enforcement or other corrections authority over state offenders in county jails.
In fact, it makes sense for the State to utilize the network of county jails to incarcerate
state offenders in the location of the state superior courts not only during pre-trial and trial, but
also while the inmates serve state sentences during their appeals. Indeed, as explained above, the
Department of Corrections can elect to have state offenders serve the entire state sentence in the
county jail. That the State also operates state prisons and requires Clinch County to build and
fund a county jail and to provide food, clothing, and medical necessities to inmates does not
diminish the important state functions that Sheriff Peterson performs relative to state offenders,
such as Manders, in the county jail.
34
Griffin v. Chatham County, 244 Ga. 628 (1979), underscores how counties lack
authority over sheriffs’ operation of county jails. In Griffin, the Georgia Supreme Court
concluded that the sheriff must accept city prisoners only because a local act of the State
legislature granted Chatham County power over the county jail and that County’s commission
had contracted with the City of Savannah to maintain city prisoners in the county jail. Id. at 629-
30. Griffin involved a local act by the State legislature that was applicable only to Chatham
County. That local act granted the Chatham County commissioners considerable power over the
county jail as follows: “Said Commissioners [of Chatham County] shall have power to make
proper rules and regulations for the government and control of said jail of Chatham County, and
the prisoners and inmates therein, and, except as hereinbefore provided, are hereby invested with
the management and care of said jail.” Griffin, 244 Ga. at 630 n.8 (quotation marks omitted)
(alteration in original). In the present case, there is no similar local act by the State legislature
regarding the Clinch County jail. Absent such a local act, counties are precluded from power or
authority over sheriffs.
27
IV. APPLYING ELEVENTH AMENDMENT FACTORS

Having examined Georgia’s law governing sheriffs, we now specifically

apply the Eleventh Amendment factors to Sheriff Peterson’s particular functions in

issue. We need not, and do not, decide today whether Georgia sheriffs wear a

“state hat” for Eleventh Amendment purposes for all of the many specific duties

assigned directly by the State. We have recounted these duties as relevant Georgia

law that reflects on the nature and character of the sheriff’s office. We, however,

must decide here only whether Sheriff Peterson is an “arm of the State” in

establishing force policy at the jail and in training and disciplining his deputies in

that regard.

A. How State Law Defines the Entity

The first factor in the Eleventh Amendment analysis is how Georgia law

defines the sheriff’s office. In Georgia, the office of sheriff is an elected

constitutional office. Although a sheriff performs his duties mainly, although not

always, within the geographical confines of a county, the essential governmental

nature of his office is (a) to continue to perform his historical common law duties

to enforce the law and preserve the peace on behalf of the sovereign State and (b)

to perform specific statutory duties, directly assigned by the State, in law

enforcement, in state courts, and in corrections. Most of those duties are an

integral part of the State’s criminal justice system and are state functions.

28
Moreover, the sheriff’s office is a separate and independent office from both

Clinch County and its governing body. Counties delegate no powers or duties to

sheriffs. Sheriff Peterson and his deputies at the jail are not employees of Clinch

County. Indeed, Georgia’s Constitution precludes Clinch County from having any

control over the sheriff’s office.

Although the specific duties the State assigns to sheriffs shed considerable

light on the character of the sheriff’s office, we must focus on the nature of the

particular function at issue here: force policy. The sheriff’s authority to use force

or the tools of violence, whether deadly or non-deadly force, and the sheriff’s

obligation to administer the jail are directly derived from the State and not

delegated through the county entity. In addition, use of force and creating force

policy are quintessential policing functions, exercised by sheriffs in initial arrests,

in subduing inmates in sessions of state superior courts, or in quelling disruptive

inmates in county jails.

While we must consider context, the location where the sheriff’s policing

function is performed does not automatically transmute the function into a state

function or a county function. In administering the jail, the sheriff does not check

his arrest powers or force authority at the door. Instead, he and his deputies bring

them into the jail and exercise them in the jail setting. This case is not a case of

feeding, clothing, or providing medical care to inmates, which necessarily occur

29
within the jail. Instead, it involves Sheriff Peterson’s force policy, which happens

to be at issue in the jail context in this particular case. While the jail context is

important, it likewise is significant that the sheriff’s force policy is at issue in

many settings and that location alone does not control. It is also material that the

State uses the county jail to incarcerate not only pretrial detainees charged with

state offenses, such as Manders, but also state offenders serving state sentences

after conviction.

Based on our review of Georgia law, we conclude that the sheriff wears a

“state hat” when he creates and implements force policy in the jail.35 Thus, this

first factor weighs heavily in favor of immunity.

35
The dissent raises a parade of hypothetical scenarios from the Chief of the Atlanta
Police Department to a security guard watching the cosmetics counter at a department store.
(Dissent, Barkett, J., p. 59). Nowhere does this opinion in any way suggest or imply that a
private security guard’s or a city or county police officer’s power to arrest or use force entitles
that officer to Eleventh Amendment immunity. All certified peace officers in Georgia have
certain arrest and force powers granted by the State. The key question is not what arrest and
force powers sheriffs have, but for whom sheriffs exercise that power. A city delegates and
exercises its policing function through its city police officers and a county through county police
officers, and thus city and county police officers act for and represent the city and county,
respectively. In contrast, the State delegates and performs certain state policing and corrections
functions through several law enforcement agencies, including sheriffs, and sheriffs act for and
represent the State in those assigned tasks. As explained previously, under Georgia law counties
lack power in the area of law enforcement except to operate a county police force. See supra
note 17.
What additionally makes sheriffs distinct from city and county police officers is that the
State expressly has vested in sheriffs specific state functions and that sheriffs utilize their arrest
and force powers in executing state functions. As detailed above, sheriffs perform a variety of
specific state functions in the State’s criminal justice system, from attending every session of
state superior court, to taking custody of state offenders, both pre- and post-conviction, in county
jails. Sheriff Peterson’s authority over inmates and the duty to administer the jail flow from the
State, not Clinch County, those functions and duties pertain chiefly to affairs of the State in
Clinch County, and Clinch County plainly has no control or authority over Sheriff Peterson’s
force policy at the jail or his deputies at the jail.
30
B. Where State Law Vests Control

The second factor of the Eleventh Amendment analysis examines where

Georgia law vests control. In addition to mandating and controlling sheriffs’

specific duties as outlined above, only the State possesses control over sheriffs’

force policy and that control is direct and significant in many areas, including

training and discipline.

1. State Requires Annual Training of Sheriffs

The State requires annual specialized training of sheriffs in all counties by

the Georgia Sheriffs’ Association with the assistance of the Georgia Public Safety

Training Center.36 O.C.G.A. § 15-16-3. The annual training of sheriffs “shall be

generally devoted to contemporary law enforcement, investigation, judicial

process, and corrections practices and specifically shall be germane to the . . .

office of sheriff in the several counties of this state.” O.C.G.A. § 15-16-3(a). The

“purpose of this Code section [O.C.G.A. § 15-16-3] is to promote professionalism

within the office of sheriff by ensuring the highest possible quality of law

enforcement training is offered to each sheriff on an annual basis.” O.C.G.A. §

15-16-13(a). It is reasonable to assume that such training includes instruction on

36
The State prescribes the qualifications for sheriffs. The Georgia legislature has declared
that “proper qualifications and standards be required of the . . . sheriff so as to increase the
effectiveness . . . of the several sheriffs of this state as law enforcement officers to combat
crime.” O.C.G.A. § 15-16-1(a). The State mandates a detailed set of qualifications that a person
must satisfy to be a candidate for the sheriff’s office in any county. See O.C.G.A. § 15-16-1(a)-
(c).
31
force policy and hiring and training deputies. Sheriff Peterson testified that in

preparing the force policy in his Manual he adopted some state policies.

Furthermore, the Georgia Sheriffs’ Association uses state funds (or federal funds

distributed to the State) to cover all training costs. See O.C.G.A. § 15-16-3(d).

Notably, if a sheriff fails to comply with the annual training requirements,

the Governor–the State’s chief–may suspend the sheriff without pay for ninety

days. O.C.G.A. § 15-16-3(e)(4). The State also mandates that a sheriff’s failure to

complete annual training requirements will result in the loss of arrest powers.

O.C.G.A. § 15-16-3(e)(1),(4). Again, these rules are not laws of general

application, but are specific statutes whereby the State directly requires annual

training of all sheriffs, controls the training subject matter, pays for the training,

and sanctions sheriffs for non-compliance. In contrast, counties have no control

over sheriffs or their training.

2. Governor Disciplines Sheriffs

In addition, the Governor has broad investigation and suspension powers

regarding any misconduct by a sheriff in the performance of any of his duties.

O.C.G.A. § 15-16-26.37 If a sheriff’s policy permits excessive force in the county

jail, plainly the Governor may discipline the sheriff. If a sheriff fails to take

37
The Governor may determine that an investigation of a sheriff “should be made as a
result of criminal charges, alleged misconduct in office, or alleged incapacity of the sheriff to
perform the functions of his office.” O.C.G.A. § 15-16-26(a).
32
custody of state offenders in the county jail, plainly the Governor may discipline

the sheriff. The State legislature expressly has made Sheriff Peterson answerable

to the Governor for his conduct and policies.

Specifically, the Governor may initiate an investigation of any suspected

misconduct by any sheriff and may suspend the sheriff. O.C.G.A. § 15-16-26(a),

(c). The Governor selects two sheriffs, who along with the State Attorney

General, conduct the investigation for the Governor. O.C.G.A. § 15-16-26(a).

The State funds the investigation. Id.

If the Governor’s committee recommends suspension to the Governor, the

Governor may suspend the sheriff for sixty days and extend that suspension for

thirty additional days. O.C.G.A. § 15-16-26(c). This disciplinary procedure is

direct, substantial, and immediate state control over the sheriff’s acts. If Sheriff

Peterson permits excessive force, all the Governor must do is have a committee

immediately investigate and report, and the Governor can suspend him.38

Moreover, if the Governor believes the sheriff should be removed from

office, the Governor is “authorized to request the district attorney of the county of

38
A wholly separate statute, O.C.G.A., § 45-5-6, provides for removal of any public
official upon a felony indictment. See Gipson v. Bowers, 263 Ga. 379 (1993) (stating that the
Governor “can take no official action against a sheriff unless there has been a criminal
indictment” first). The above Georgia statute, O.C.G.A. § 15-16-26, however, is not a law of
general application to all public officials but independently addresses only sheriffs and the
Governor’s investigation and suspension of sheriffs for any misconduct in office, which do not
require a criminal indictment or even any suspected criminal activity. Compare O.C.G.A. § 15-
16-26, with § 45-5-6.
33
the sheriff’s residence to bring a removal petition against the sheriff” based upon

the evidence reported by the Governor’s investigation committee.39 Id. The

Governor may order additional investigation “by the committee, by the Georgia

Bureau of Investigation, by other law enforcement agencies . . . or by any special

committee appointed by the Governor for such purpose.” O.C.G.A. § 15-16-26(c).

3. Counties Lack Control

In contrast, counties have no authority, control over, or involvement in

Sheriff Peterson’s force policy at the jail, or his training and disciplining of

deputies in that regard. While Georgia counties have obligations involving the jail

structure and inmates’ food, clothing, and medical necessities, such duties involve

wholly separate and distinct matters from the sheriff’s force policy at the jail and

his training and disciplining of deputies in that regard.40

39
The Governor necessarily acts through others in filing removal petitions, and the district
attorney acts for the State in filing a petition to remove a sheriff. See Owens v. Fulton County,
877 F.2d 947, 951-52 (11th Cir.1989) (concluding district attorney acted for the State of Georgia
and not Fulton County in prosecution decisions, even though elected by only Fulton County
voters and although his office’s budget was provided in large part by county funds). The state
judicial proceedings for removal of a sheriff are 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) & 42-4-4(c).
40
It has been suggested that counties have more oversight than the State over the sheriff’s
operation of the jail because “county governing authorities have at their disposal the investigative
powers of grand juries, see [O.C.G.A.] § 15-12-71(c) (2001), which must inspect jails annually
and make appropriate recommendations to the county commission. [O.C.G.A.] § 15-12-78.”
(Dissent, Barkett, J., p. 74). This suggestion misapprehends these statutes and the well-
established function of grand juries in the State’s justice system.
Under Georgia law, the grand jury has two principal duties. First, the grand jury
historically and functionally is a wholly independent investigating and accusing body in the
State’s felony cases. O.C.G.A. §§ 15-12-61, 15-12-71, 15-12-74, 15-12-82, 15-12-100. Second,
the State vests in the grand jury the civil power and function of inspecting and investigating not
just the county jail, but any county building, the county governing body itself, or any county
34
Because of the State’s direct and substantial control over the sheriff’s

duties, training, and discipline and the county’s total lack thereof, this control

factor also weighs heavily in favor of Sheriff Peterson’s entitlement to Eleventh

Amendment immunity.41

C. Funds

commissioner. O.C.G.A. § 15-12-71(b)(2). Because the grand jury is independent and equally
oversees county governing authorities, it cannot fairly be said that grand juries work at the
counties’ disposal or act for counties in investigating sheriffs or county jails.
Instead, grand jurors, like sheriffs, are drawn from the county, paid with county funds, but
perform discrete functions in the State’s justice system. To the extent supervision exists,
superior court judges in the state judicial system supervise grand juries. O.C.G.A. §§ 15-12-
71(a); 15-12-80, 15-12-100(a), 15-12-101. Superior court judges draw and impanel grand jurors,
charge them, administer their oaths, and select their foreperson or direct the jury itself to select a
foreperson. O.C.G.A. §§ 15-12-62, 15-12-68.
Given that many state offenders serve time in county jails, the State legislature also
requires that grand juries each year “inspect the condition and operations of the county jail,”
O.C.G.A. § 15-12-71(b)(1), and “the offices of the district attorney at least once in every three
calendar years.” Id. The grand jury “may prepare reports or issue presentments based upon its
inspections,” then filed in the superior court. O.C.G.A. §§ 15-12-71(b)(3); 15-12-80. At each
annual § 15-12-71(b)(1) inspection, O.C.G.A. § 15-12-78 requires that the grand jury make
recommendations regarding heating and ventilation, which the county “shall strictly enforce,”
and presentments as to the “treatment of the inmates.”
41
We reject the arguments (a) that the State’s control over sheriffs represents nothing
more than “its role as the seat of legislative power in Georgia” and its “sovereign prerogative to
structure local government,” (Dissent, Barkett, J., pp. 66-67) and (b) that the State’s control over
sheriffs is the “the kind of indirect and ultimate control . . . reserved by the state with respect to
every state-created entity.” (Dissent, Anderson, J. p. 52). We fully recognize that ultimate
control of every state-created entity resides with the State and that the State may destroy or
reshape any political subdivision as it sees fit, including the sheriff’s office. The key differences
here are that the State of Georgia has structured Sheriff Peterson’s office as independent of
Clinch County, that the State has vested in Sheriff Peterson specific state functions, that most of
Sheriff Peterson’s duties relate directly to, and are an integral part of, the State’s criminal justice
system, and that the State can discipline directly Sheriff Peterson for any misconduct. That
sheriffs act as to state matters (and not as to local government matters) is, in part, why counties,
and cities too, have no power, authority, or control over sheriffs.
35
The third factor in the Eleventh Amendment analysis is where the entity

derives its funds. The State funds the annual training of sheriffs, funds the

Governor’s disciplinary procedure over sheriffs for use of excessive force, and

pays for certain state offenders assigned to the county jails under the sheriff’s

supervision.42 Thus, state funds are involved to some extent in the particular

functions of Sheriff Peterson at issue.

While Clinch County bears the major burden of funding Sheriff Peterson’s

office and the jail, it is because the State so mandates. By state statutes, Clinch

County must (1) maintain the jail structure, (2) appropriate funds for necessities to

inmates (such as food, bedding, clothing, electricity, and sanitation) and the

salaries of Sheriff Peterson and his deputies, and (3) pay the premium for the

Sheriff’s official bond. O.C.G.A. §§ 36-9-5; 42-5-2(a); 15-16-20; 45-4-7.

Manders relies on O.C.G.A. § 42-5-2(a), which provides, in part, that “it

shall be the responsibility of the governmental unit, subdivision, or agency having

the physical custody of an inmate to maintain the inmate, furnishing him food,

clothing, and any needed medical and hospital attention.”43 But Manders does not

42
The State pays the county the per diem rate for convicted state offenders in the county
jail, and the county, in turn, funds the sheriff’s budget. O.C.G.A. § 42-5-50(d); Ga. Comp. R. &
Regs. § 125-2-4.02(d). The State requires the county to pay for pre-trial state offenders, but,
once convicted, the State pays.
43
We stress that this case does not involve medical care, which counties have a statutory
obligation to provide to inmates in county jails. O.C.G.A. § 42-5-2. See, e.g., Epps v. Gwinnett
County, 231 Ga. App. 664, 670 (1998) (Gwinnett County contracted with Prison Health Services,
Inc.); Cherokee County v. North Cobb Surgical Assocs., 221 Ga. App. 496, 499 (1996); Macon-
36
allege that Sheriff Peterson denied him necessities in O.C.G.A. § 42-5-2. Rather,

Manders challenges only Sheriff Peterson’s force policy at the jail and the training

and disciplining of his deputies.

Furthermore, Clinch County’s financial control is attenuated because (a) the

State mandates Sheriff Peterson’s minimum salary and official bond amount, and

(b) Clinch County sets the total budget but cannot dictate how Sheriff Peterson

spends it. The Georgia Supreme Court has held that counties “must provide

reasonably sufficient funds to allow the sheriff to discharge his legal duties,” and

that “the county commission may not dictate to the sheriff how that budget will be

spent in the exercise of his duties.” Chaffin v. Calhoun, 262 Ga. 202, 203-04

(1992);44 see Boswell v. Bramlett, 274 Ga. 50, 52 (2001). Georgia’s Constitution

Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530, 531-32 (1993) (concluding
Houston County owed hospital for medical care provided to inmate in county jail).
44
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-seven percent. 262 Ga. at 202, 204. The trial court granted 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 Supreme Court affirmed, holding that the trial court had not abused its discretion 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 203 (citing Board of
Commissioners of Randolph County v. Wilson, 260 Ga. 482 (1990)); and (3) although the county
commission has the power to create its own county police force, “‘the commissioners could not
divest the sheriff of his power and duty to enforce the laws and preserve the peace,’” either
directly or indirectly by exercise of their fiscal authority or control of county property, Chaffin,
262 Ga. at 203 (quoting 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, the sheriff requested $70,000 to pay deputies, but
the county commission budgeted a lump sum of only $60,080. 260 Ga. at 482. The Georgia
37
further prevents counties from taking any action affecting any elective county

office or the personnel thereof. Ga. Const. art. IX, § 2, ¶ 1(c)(1).

Payment of Sheriff Peterson’s budget, when required by the State, does not

establish any control by Clinch County over his force policy at the jail or how he

trains and disciplines deputies.45 By virtue of State mandates, both state and

county funds are involved in the particular functions in issue. This state

involvement is sufficient to tilt the third factor of the Eleventh Amendment

analysis toward immunity.

Supreme Court held that the county commission did not abuse its authority, viewing 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.
45
Alabama sheriffs are elected by county voters, their budgets are paid from county funds,
and their jurisdiction is limited to the borders of their respective counties. The Supreme Court
found these factors insufficient to establish county control over sheriffs and decided that
Alabama sheriffs act for and represent the State in their law enforcement duties. See McMillian
v. Monroe County, 520 U.S. 781, 791 (1997) (“The county’s payment of the sheriff’s salary does
not translate into control over [the sheriff], since the county neither has the authority to change
his salary nor the discretion to refuse payment completely.”). The Supreme Court concluded that
the ability of the county governing body to reduce the sheriff’s budget as long as the budget
remains reasonable results in “attenuated and indirect influence over the sheriff’s operations.”
See id. at 791-92. Although the analysis required on the Eleventh Amendment question is
different from that for a § 1983 policymaker claim, the issue of control under state law is a
relevant factor to both inquiries.
After noting that Alabama law cut both ways, the Supreme Court in McMillian concluded
that Alabama sheriffs act for the State of Alabama, not the county, and then made this apt
observation about Alabama law, which applies equally to Georgia law regulating its sheriffs:
“We are not, of course, predicting that state law will always speak with perfect clarity. . . . It may
not be possible to draw an elegant line that will resolve this conundrum.” McMillian, 520 U.S. at
793 (quoting Paprotnik, 485 U.S. at 125, 126-27). This case exemplifies that axiom, and it also
explains why we narrowly decide only that Georgia sheriffs in their official capacity act for the
State in establishing force policy in the county jail and in training and disciplining their deputies
in that regard.
38
D. Liability for and Payment of Adverse Judgments

The fourth factor is the source of the funds that will pay any adverse

judgment against Sheriff Peterson in his official capacity. Before applying this

factor, we discuss three recent cases addressing it.

In Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 35-39 (1994),

the Supreme Court denied Eleventh Amendment immunity to an interstate

railway-port authority, created under the U.S. Constitution’s Interstate Compact

Clause and controlled by the federal government and two states. Because the

federal government was one of the “multiple creator-controllers,” the five-justice

majority in Hess concluded that the states had ceded a portion of their sovereignty

to Congress and that having the “Compact Clause” entity respond in federal court

did not affront “the dignity” of the states. Id. at 47. Hess further concluded that

“both legally and practically” neither state was obligated to pay any judgment

against the entity. Id. at 51-52. Rather, the entity was financially independent,

with funds from private investors, tolls, fees, and investment income. Id. at 36,

49-50. Although weighing this source-of-payment factor heavily, Hess never

suggests that for Eleventh Amendment immunity a state treasury drain is required

per se and Hess notes that “current Eleventh Amendment jurisprudence

39
emphasizes the integrity retained by each State in our federal system.” Hess, 513

U.S. at 39.46

The focus of the Supreme Court in Regents of the University of California

v. Doe, 519 U.S. 425, 430-31 (1997), was on “potential legal liability” and “the

risk of adverse judgments,” as opposed to requiring that state funds actually pay

the judgment. In Regents, the federal government indemnified a state university,

and the litigation had “no impact” on the state treasury. Id. Nevertheless, the

Supreme Court determined that this full indemnity did not affect the university’s

immunity. Id. The Supreme Court emphasized that “[t]he Eleventh Amendment

protects the State from the risk of adverse judgments even though the State may be

46
It is at the outset of its opinion in Hess that the Supreme Court discusses “current”
Eleventh Amendment jurisprudence and its emphasis on “the integrity retained by each State in
our federal system.” Hess, 513 U.S. at 39. The Eleventh Amendment’s role historically was to
protect the State’s treasury from federal courts forcing the State to repay war debts. Id. The
Court in Hess discussed the state treasury factor but only after first concluding that “[s]uit in
federal court is not an affront to the dignity of a Compact Clause entity, for the federal court, in
relation to such an enterprise, is hardly the instrument of a distant, disconnected sovereign;
rather, the federal court is ordained by one of the entity’s founders.” Id. at 41. The Supreme
Court continued its focus on the importance of the sovereign integrity of the State under the
Eleventh Amendment and pointed out why the States’ integrity was not compromised when a
Compact Clause entity is sued in federal court, stating:
Nor is the integrity of the compacting States compromised when the Compact
Clause entity is sued in federal court. As part of the federal plan prescribed by the
Constitution, the States agreed to the power sharing, coordination, and unified
action that typify Compact Clause creations. Again, the federal tribunal cannot be
regarded as alien in this cooperative, trigovernmental arrangement.
Id. at 41-42. The Supreme Court further stressed that “federal courts are not alien to a bistate
entity Congress participated in creating.” Id. at 47.
The Court in Hess focused on the state treasury factor, but only after it concluded that the
sovereign integrity of the State was not implicated when a Compact Clause entity is sued in
federal court. In stark contrast, because sheriffs act for and represent the State, not the county, in
promulgating force policy at the jail, the State’s integrity is heavily involved in this case.
40
indemnified by a third party,” and “it is the entity’s potential legal liability, rather

than its ability or inability to require a third party to reimburse it, or to discharge

the liability in the first instance, that is relevant.” Id. at 431.47

Thereafter, this Court applied these principles in Shands Teaching Hospital

and Clinics, Inc. v. Beech Street Corp., granting immunity to private corporations

that contracted with the state to administer its health insurance program and to

provide a network of medical services. 208 F.3d at 1310-11, 1313. We stated that

“although these are private corporations that are neither controlled nor funded by

the state, they are protected by governmental immunity when they are clearly

acting as agents of the state.” Id. at 1311. Noting that other circuits had not

adopted an approach of total or no immunity, Shands looked to the relief sought

and whether the judgment against the private corporation “would implicate the

state treasury or interfere with the administration of [a] state . . . program.” Id.

Given that the State could be sued for the negligence of the agent corporations in

untimely paying claims, we determined that the judgment against the private

47
Other than Regents and Hess, the only other recent Supreme Court discussion of the
“arm of the State” doctrine in the Eleventh Amendment context is a footnote in Auer v. Robbins,
519 U.S. 452 (1997). In Auer, the Supreme Court concluded that the St. Louis Board of Police
Commissioners was not an arm of the state: although the Governor appointed four of the five
members, “the city of St. Louis is responsible for the board’s financial liabilities” and “the board
is not subject to the State’s direction or control in any other respect.” Id. at 456 n.1. In contrast
to Auer, Clinch County is not liable for Sheriff Peterson’s acts, is not required to pay judgments
against the Sheriff, and the State directs and controls the Sheriff in many respects.
41
corporations “would implicate state funds” and that the private corporations would

indemnify the state was immaterial. Id. at 1313.

Applying these principles to this case, we first determine that under Georgia

law Clinch County would not pay a damages award against Sheriff Peterson.

Georgia courts speak with unanimity in concluding that a defendant county cannot

be held liable for the tortious actions or misconduct of the sheriff or his deputies

and is not required to pay the resulting judgments.48 Likewise, Georgia courts

have concluded that counties are not liable for, and not required to give sheriffs

money to pay, judgments against sheriffs in civil rights actions. See Wayne

County Bd. of Comm’rs v. Warren, 236 Ga. 150, 152 (1976) (“[A] county has no

liability in connection with the violations of the civil rights of any person by a

county officer.”). The Georgia Supreme Court in Warren quoted a Georgia statute

stating that “[a] county is not liable to suit for any cause of action unless made so

48
Wayne County Bd. of Comm’rs v. Warren, 236 Ga. 150, 152 (1976) (concluding that a
county has no liability for the violations of the civil rights of any person by a county sheriff);
Brown, 221 Ga. App. at 201 (reversing denial of summary judgment for Peach County because
the Peach County sheriff, not Peach County, was the proper party to sue and noting that deputy
sheriffs “were employees of the sheriff and not Peach County”); 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 vicariously liable as their principal”); Pettus v. Smith, 174 Ga.
App. 587, 588 (1985) (affirming summary judgment for county board of commissioners 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 course was reasonably required to be supplied to deputy sheriffs”); Chadwick
v. Stewart, 94 Ga. App. 329, 329-30 (1956).
42
by statute.” Id. at 151 (quotation marks omitted).49 Thus, by statute, the county

was not liable. In addition, the Georgia Supreme Court concluded that “there is no

duty of the county to furnish the sheriff with money to settle a civil rights

judgment entered against him.” Id. at 152.50

Although Clinch County is not required to pay and although Sheriff

Peterson argues that “the ‘legal liability’ for sheriffs in Georgia rests with the State

of Georgia, not individual counties,” we can locate no Georgia law expressly

requiring the State to pay an adverse judgment against Sheriff Peterson in his

official capacity. Sheriff Peterson thus apparently would have to pay any adverse

federal court judgment against him in his official capacity out of the budget of the

49
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 judgments awarded in courts. Id. at 60-61. The Georgia
Supreme Court emphasized that “[t]he nature of the [county] Board’s liability here is not that of
respondeat superior [for the deputy sheriff’s acts], but exists solely by virtue of its voluntary and
self-imposed obligation to provide indemnification for the acts of its employees committed
during the performance of their duties.” Id. at 61. No evidence in this case suggests that Clinch
County voluntarily has agreed to provide indemnification to Sheriff Peterson or his deputies.
Further, the Supreme Court has instructed that indemnification does not remove the cloak of
immunity. Regents, 519 U.S. at 430-31.
50
Haywood v. Hughes, 238 Ga. 668 (1977), has been cited 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 Georgia Supreme
Court emphasized that the statute authorizes counties to do so “in their discretion” and “give[s]
the county considerable latitude in determining what actions will be defended.” Id. at 669 (citing
Ga. Code Ann. § 89-945, which is now O.C.G.A. § 45-9-21). In Haywood, the Glascock County
Commissioners adopted a policy to pay attorney’s fees in two specific suits against the sheriff.
Id. Haywood demonstrates that Clinch County is not required to pay the sheriff’s attorney’s fees
unless it elects to do so.
43
sheriff’s office. In turn, this payment would reduce his budget, and the practical

reality is that Sheriff Peterson must recoup that money from somewhere. If a

significant adverse judgment occurs, both county and state funds are implicated

because Sheriff Peterson would need to seek a greater total budget from the county

for his office and a greater daily rate from the State for felony offenders serving

their state sentences in the county jail.

Never has the Supreme Court required an actual drain on the state treasury

as a per se condition of Eleventh Amendment immunity.51 See Regents of the

Univ. of Cal. v. Doe, 519 U.S. 425; Hess, 513 U.S. 30; Shands, 208 F.3d 1308.

This is because the Eleventh Amendment “is rooted in a recognition that the

States, although a union, maintain certain attributes of sovereignty,” and a purpose

of the Eleventh Amendment is to “accord[] the States the respect owed them as

members of the federation” and not to affront the “dignity” or “integrity” of a state

51
Hess says that the state treasury factor is a “core concern” of Eleventh Amendment
jurisprudence. 513 U.S. at 51. It is true that the presence of a state treasury drain alone may
trigger Eleventh Amendment immunity and make consideration of the other factors unnecessary.
Thus, this is why some decisions focus on the treasury factor. If the State footed the entire bill
here, there would be no issue to decide.
The Eleventh Amendment, however, does not turn a blind eye to the state’s sovereignty
simply because the state treasury is not directly affected. Moreover, the United States Supreme
Court has never said that the absence of the treasury factor alone defeats immunity and precludes
consideration of other factors, such as how state law defines the entity or what degree of control
the State has over the entity. As mentioned earlier, although the state treasury was not affected,
the Hess Court spent considerable time pointing out how that lawsuit in federal court did not
affect the dignity of the two States because they had ceded a part of their sovereignty to the
federal government as one of the creator-controllers of the Compact Clause entity in issue. If the
state-treasury-drain element were always determinative in itself, this discussion, as well as the
other control discussion, would have been unnecessary. See supra note 46.
44
by requiring a state to respond to lawsuits in federal courts. Hess, 513 U.S. at 39-

40 (citation and quotation marks omitted). “[C]urrent Eleventh Amendment

jurisprudence emphasizes the integrity retained by each State in our federal

system.” Id. at 39. The State’s “integrity” is not limited to who foots the bill, and,

at a minimum, the liability-for-adverse-judgment factor does not defeat Sheriff

Peterson’s immunity claim.

V. CONCLUSION

Having applied the Eleventh Amendment factors, we conclude that Sheriff

Peterson in his official capacity is an arm of the State, not Clinch County, in

establishing use-of-force policy at the jail and in training and disciplining his

deputies in that regard.52 Therefore, Sheriff Peterson is entitled to Eleventh

Amendment immunity in this case.53 We need not answer, and do not answer,

52
Never before has this Court discussed or decided en banc the particular issue in this
case. We think that no panel actually has decided the question before this case. In prior § 1983
cases, we merely accepted official capacity suits against Georgia sheriffs as suits against their
respective counties. See, e.g., Alexander v. Fulton County, 207 F.3d 1303, 1322 n.14 (11th Cir.
2000); Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999). In these cases, we did not decide
whether, under Georgia law, sheriffs are agents for the State or the counties, and it does not
appear the parties raised the question. To the extent that our prior decisions state or imply that
Georgia sheriffs act for counties regarding the particular functions in issue–force policy and
training and disciplining of deputies in that regard–we overrule those decisions.
53
We are mindful of the Supreme Court’s instruction that, before reaching an Eleventh
Amendment issue, a court should address “the question [of] whether the statute itself permits the
cause of action it creates to be asserted against States.” Vermont Agency of Nat. Res. v. United
States ex rel. Stevens, 529 U.S. 765, 779 (2000) (emphasis in original). If sheriffs in their
official capacity are arms of the state when exercising certain functions, then an issue arises
whether Manders’s § 1983 suit is subject to dismissal on the independent ground that they are not
“persons” for purposes of § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). This statutory issue, however, is not before us as it was neither briefed nor argued on
appeal.
45
today whether Sheriff Peterson wears a “state hat” for any other functions he

performs. We conclude only that he does as to the limited functions at issue in

this case.

The first two factors weigh heavily in favor of immunity, and the third

factor tilts that way as well. Sheriffs’ duties and functions are derived directly

from the State, performed for the State, and controlled by the State. The State of

Georgia has exercised its managerial prerogative: (a) to incarcerate state offenders,

pretrial and post-conviction, in county jails, among other locations; (b) to assign

sheriffs certain specific state functions in law enforcement, state courts, and

corrections, including making sheriffs in charge of state offenders in county jails;

(c) to control sheriffs’ duties, train sheriffs in those duties, and discipline sheriffs;

(d) to preclude any county control over sheriffs but nonetheless require counties to

fund the jail structure and sheriffs’ budgets; and (e) for the State to pay for

sheriffs’ training and discipline, as well as certain state offenders in the county

jail. Given these principles of Georgia law, we conclude that sheriffs act for the

State, not counties, as to the functions in issue.54

54
It has been suggested that the sheriff’s office is an independent, constitutional, elected
office that is neither the State nor the county. (Dissent, Anderson, J., p. 53). Throughout this
litigation the parties have briefed and framed the legal issue in this case solely as whether Sheriff
Peterson in his official capacity acts on behalf of the State or Clinch County in the context of the
Eleventh Amendment. Thus, we decide that controversy. No other issue is before us. In
addition, while we agree that the sheriff’s office is independent from and not controlled by the
county, we conclude today only that the sheriff acts for the State in performing the particular
functions at issue in this case.
46
As to the final fourth factor in the Eleventh Amendment analysis, although

the State and the county are not required to pay an adverse judgment against the

sheriff, both county and state funds indirectly are implicated. In any event, the

State’s sovereignty and thus its integrity remain directly affected when federal

court lawsuits interfere with a state program or function. At a minimum, this final

factor does not defeat immunity.

Accordingly, we reverse the district court’s order denying Sheriff Peterson’s

motion for summary judgment and remand this case to the district court for

proceedings consistent with this opinion.

REVERSED AND REMANDED.

47
ANDERSON, Circuit Judge, dissenting, in which TJOFLAT, BIRCH, and
WILSON, Circuit Judges, join:

I respectfully dissent. I submit that the opinion for the court misapplies the

appropriate Eleventh Amendment analysis. In my judgment, the most favorable

face that the sheriff might put on this case would paint this case as similar to Hess

v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 115 S.Ct. 394 (1994). In

Hess, the “[i]indicators of immunity or the absence thereof do not ... all point the

same way,” id. at 44, 115 S.Ct. at 402. In this case, the following immunity

indicators point against Eleventh Amendment immunity: the sheriff’s geographic

limitation to a single county, the sheriff’s accountability to the electorate of a

single county, the state constitution’s treatment of sheriffs as county officers and

not as state officials, the state's delegation of broad policymaking autonomy to the

sheriff as opposed to retaining hands-on control, and the fact that the state has no

legal liability and no potential legal liability with respect to judgments against a

sheriff. As in Hess, the functions of the sheriff “are not readily classified as

typically state or unquestionably local.” Id. at 45, 115 S.Ct. at 403. Both states

and municipalities engage in law enforcement activities, and in particular in the

jailing function.

48
In my judgment, the second Eleventh Amendment immunity factor – control

– is the only one of the four indicators1 that might provide some support for the

majority position.2 Even assuming arguendo that there are immunity indicators

pointing in different directions, the Supreme Court has given us clear guidance in

such situations: “When indicators of immunity point in different directions, the

Eleventh Amendment’s twin reasons for being remain our prime guide.” Hess,

513 U.S. at 47, 115 S.Ct. at 404. The first of the twin reasons asked whether it

would be “disrespectful” or a “threat to the dignity” of the state to require the state

to answer the complaint in federal court. Of course, it is well established that an

identical claim against a city or a county – i.e., Manders’ § 1983 excessive force

claim for violating the Eighth Amendment by beating him while in jail – would

not be barred by Eleventh Amendment immunity. I see no greater threat to the

dignity of the state in the instant suit against the Sheriff of Clinch County.

1
With respect to the first indicator – how the state defines the Sheriff’s Office with
respect to the jail function – I agree with most of what Judge Barkett says in her dissent. See
Barkett, J., dissenting, at Part I. With respect to the third indicator – the source of defendant’s
funding – I again agree with most of what Judge Barkett has written. Id. at Part III. With respect
to the fourth indicator – the state’s liability for adverse judgments – no one has suggested that
the state would be liable, and thus this most important factor, this core concern of the Eleventh
Amendment, points strongly against immunity. In other words, I agree with most of what Judge
Barkett has written, but I specifically decline to join her implication that the county governing
body would bear §1983 liability for actions of the sheriff. All we need decide in this case is that
the sheriff is not an arm of the state; we need not decide the county’s liability vel non.
2
Ultimately, I believe even the control factor fails to offer much support for the
majority position. The control exercised by the state is simply too indirect and too limited. See
brief discussion below, and the fuller discussion in Barkett, J., dissenting, Part II.
49
The second of the twin reasons which the Supreme Court in Hess held

should guide us is what the Supreme Court characterized as “the impetus for the

Eleventh Amendment: the prevention of federal-court judgments that must be paid

out of a State’s treasury.” Id. at 48, 115 S.Ct. at 404 (emphasis added). The

Supreme Court also characterized this state treasury factor as “the Eleventh

Amendment’s core concern,” id. at 51, 115 S.Ct. at 406, and cited with approval

the fact that the vast majority of the circuits have concluded that the state treasury

factor is “the most important factor” to be considered. Id. at 49, 115 S.Ct. at 405.3

In applying this analysis, the Supreme Court expressly discounted the

significance of the control factor, stating in relevant part:

But ultimate control of every state-created entity resides with the
State, for the State may destroy or reshape any unit it creates.
“[P]olitical subdivisions exist solely at the whim and behest of their
State,” yet cities and counties do not enjoy Eleventh Amendment
immunity.

3
Following Hess, the cases have uniformly continued to consider the state treasury
factor as dominant. See Vogt v. Board of Comm'rs, 294 F.3d 684, 689 (5th Cir. 2002) (following
Hess, “[the] most significant factor in assessing an entity's status is whether a judgment against it
will be paid with state funds”) (citation omitted); Streit v. County of Los Angeles, 236 F.3d 552,
567 (9th Cir. 2001) (applying Hess, whether state is financially liable for judgment against
sheriff's office for operation of county jail is “the most important factor in identifying an arm of
the state”); Harter v. Vernon, 101 F.3d 334, 338-39 (4th Cir. 1996) (observing, in holding that
North Carolina sheriff and deputies are not immune, that “when the state treasury will not pay the
judgment ... the most salient factor in Eleventh Amendment decisions weighs against a finding of
immunity”) (internal quotes omitted); Sonnenfeld v. Denver, 100 F.3d 744, 749 (10th Cir. 1996)
(citing Hess, “[t]he most important factor in determining whether a governmental entity is
entitled to Eleventh Amendment immunity is whether a judgment against it would be paid from
the state treasury.”); Christy v. Pennsylvania Turnpike Comm'n, 54 F.3d 1140, 1145, 1149-50
(3rd Cir. 1995) (quoting Hess, “the most important factor is whether a judgment against the
entity in question ... would be paid out of the state treasury,” and holding that there was no
Eleventh Amendment immunity despite considerable state control) (internal quotes omitted).
50
Id. at 47, 115 S.Ct. at 404 (citation omitted). Even more significant, the Court

held:

Moreover, rendering control dispositive does not home in on the
impetus for the Eleventh Amendment: the prevention of federal-court
judgments that must be paid out of a State’s treasury.

Id. at 48, 115 S.Ct. at 404. The fact that the control factor was discounted in Hess

is particularly significant for the instant case because the state control in Hess was

much more direct and significant than the control exercisable by the state in the

instant case. At issue in Hess was the Eleventh Amendment status of a bi-state

port authority. The governing body of the port authority, twelve commissioners,

were appointed, six by each state. Id. at 36, 115 S.Ct. at 399. Any vote or action

by the commissioners was subject to a veto by the governor their respective states.

Id. at 37, 115 S.Ct. at 399. Other control was exercisable by the state legislatures.

Id. In Hess, in other words, there was direct control over any and all decisions.

On the other hand, the state control in the instant case is clearly indirect. It

includes delegations of authority; it provides for general standards and

inspections; it reserves for the Governor the power to temporarily suspend a

sheriff for specified misconduct or incapacity, and participation in the process of

removal from office, again for specified misconduct or incapacity. Moreover, the

state control in the instant case is either equally applicable to city and county jails,

or analogous to state control over other local officers. In short, the state control

51
here is precisely the kind of indirect and ultimate control which the Supreme Court

in Hess discounted as being reserved by the state with respect to every state-

created entity. Id. at 47, 115 S.Ct. at 404 (“But ultimate control of every state-

created entity resides with the State.”).4 Thus, if state control was not sufficient to

warrant Eleventh Amendment immunity in Hess, I cannot conclude that it is in the

instant case.5 I respectfully submit that the opinion for the court overemphasizes

the control factor and underemphasizes the state treasury factor. With respect to

the latter, it is clear that the state treasury is not obligated to pay adverse

judgments against the sheriff. In this respect too, the instant case is even clearer

than Hess.6

4
Justice O'Connor's dissent in Hess would have placed greater weight on the
control factor, but only on “real, immediate control and oversight, rather than on the potentiality
of a State taking action to seize the reins.” See id. at 62, 115 S.Ct. at 411 (O'Connor, J.,
dissenting). It is doubtful that the state's control in the instant case would satisfy Justice
O'Connor's standard.
5
Although the control factor is relevant both in the policymaker inquiry for § 1983
purposes and in the Eleventh Amendment inquiry, control is a more significant factor in the §
1983 inquiry. Compare Turquitt v. Jefferson County, Alabama, 137 F.3d 1285, 1292 (11th Cir.
1998) (en banc) (“Local governments can never be liable under §1983 for the acts of those whom
the local government has no authority to control.”) with Hess, 404 U.S. at 47-48, 115 S.Ct. at 404
(discounting the control factor as above discussed). For this reason, as well as the primacy for
the Eleventh Amendment of the state treasury factor, the § 1983 caselaw should be used only
cautiously in an Eleventh Amendment analysis.
6
Nothing in Regents of the Univ. of Calif. v. Doe, 519 U.S. 425, 117 S.Ct. 900
(1997), suggests a contrary result here. In Doe, the Court framed the core Eleventh Amendment
question as whether an adverse judgment would expose the state to “potential” legal liability,
even if some coverage mechanism existed to indemnify the state against actual liability. Id. at
431, 117 S.Ct. at 904. There is no suggestion here that the state is liable for judgments against
sheriffs in any fashion, real or potential.
52
In sum, I submit that, at best, the other immunity indicators point in

different directions. As in Hess, we should therefore look to the “twin reasons”

for guidance. I submit that these reasons point against Eleventh Amendment

immunity, and indeed more strongly so than in Hess.

In addition to the inappropriate emphasis discussed above, I also

respectfully disagree with the opinion for the court in another respect. In my

judgment, it asks the wrong question. It asks who has the most control, the state

or the county. I submit that the proper question is whether the sheriff has carried

his burden of proving that he is an arm of the state. In other words, the issue is not

the state versus the county; rather, the issue is whether the sheriff is an arm of the

state vel non. The mere fact that the sheriff is not the policymaker for the county

commission, is not controlled by the county commission, and the fact that the

county has no respondeat superior liability for judgments against the sheriff, do

not, either singly or in combination, go very far toward establishing that a Georgia

sheriff is an arm of the state. The Seventh Circuit recognized this in Franklin v.

Zaruba, 150 F.3d 682 (7th Cir. 1998). There, in holding that an Illinois sheriff was

not entitled to Eleventh Amendment immunity, the court said:

According to defendants, if sheriffs in Illinois are not agents of the
county for purposes of holding the county liable under respondeat
superior, then sheriffs must therefore be agents of the state. This
argument overlooks a crucial third possibility ... – namely, that the
sheriff is an agent of the county sheriff’s department, an

53
independently-elected office that is not subject to the control of the
county in most respects.

Id. at 685. The court held that the fact that “the county is not liable under

respondeat superior for the actions of the sheriff does not necessarily entail that

the sheriff must necessarily be an agent of the state.” Id. at 686. Similarly, in

Hess, there was no attempt to assign responsibility for the bi-state authority to

some level of government other than the state. It was sufficient there, as it should

be here, to say that defendant is not an arm of the state.

For the foregoing reasons, I respectfully dissent.

54
BARKETT, Circuit Judge, dissenting, in which TJOFLAT, BIRCH, and
WILSON, Circuit Judges, join, and in which ANDERSON, Circuit Judge, joins in
part:

Willie Santonio Manders sued Clinch County Sheriff Winston Peterson

under 42 U.S.C. § 1983 for injuries Manders sustained when officers under Sheriff

Peterson’s supervision struck him repeatedly in the face and bashed his head

against a wall in the Clinch County Jail. According to Manders’s deposition

testimony, the beating he sustained upon his arrival at the county jail eventually

resulted in his admission to a mental hospital.

In Georgia, county jails such as the one where Manders was held are

quintessentially local institutions that exist separate and apart from the state's

integrated system of prisons. Their operation is among the responsibilities of the

county and, specifically, the county sheriff. Longstanding authority clearly

establishes that local governments such as counties may be held liable under 42

U.S.C. § 1983 for policies they adopt or customary practices they tolerate in

operating local governmental facilities. See Jinks v. Richland County, 123 S. Ct.

1667, 1673 (2003) (unanimous opinion); Monell v. New York City Dep’t of Social

Servs., 436 U.S. 658 (1978).1 In the past, therefore, plaintiffs such as Manders

1
Thus we and our sister circuits have previously held, correctly in my view, that claims
against sheriffs in their official capacity for constitutional violations at county jails are claims
against the relevant county. See, e.g., Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999)
(stating that jail inmate’s § 1983 “claim against Sheriff Jarvis in his official capacity is a claim
against DeKalb County”); see also Streit v. County of Los Angeles, 236 F.3d 552, 564 (9th Cir.
2001); DeGenova v. Sheriff of DuPage County, 209 F.3d 973, 977 (7th Cir. 2000); Doe By and
Through Doe v. Washington County, 150 F.3d 920, 923-24 (8th Cir. 1998); Dotson v. Chester,
55
could be confident that violations of their constitutional rights in county jails

would not go unremedied.

Today, however, the majority badly subverts the law of local governmental

liability by holding that county sheriffs in Georgia act for the state, and thus are

immune from suit by operation of the Eleventh Amendment, when they exercise

policy-making authority over county jails. It reaches this conclusion by

determining that even if Sheriff Peterson’s policies were responsible for inmate

Manders’s beating, Peterson adopted these polices not in his role as jailer, but in

carrying out the previously unknown “functions” of “establishing use-of-force

policy at the jail and . . . training and disciplining his deputies in that regard.”

Majority Opinion at 2.

When confronted in the past with § 1983 claims based on a jail inmate’s

treatment while in custody, we have always defined the relevant function as

“operating a county jail.” See Turquitt v. Jefferson County, 137 F.3d 1285, 1288

(11th Cir. 1998) (en banc); see also Marsh v. Butler County, 268 F.3d 1014, 1028

(11th Cir. 2001) (en banc) (quoting Turquitt); Lancaster v. Monroe County, 116

F.3d 1419, 1428 (1997). This has been our practice for good reason. The point of

identifying the pertinent governmental function in each case is to keep our

analysis focused on the discrete set of positive state law authorities that define the

937 F.2d 920, 934 (4th Cir. 1991); Blackburn v. Snow, 771 F.2d 556, 571 (1st Cir. 1985).
56
particular area of official responsibility at issue. Cf. McMillian v. Monroe

County, 520 U.S. 781, 786 (1997) (requiring analysis of the “particular area” at

issue and contrasting it with a “categorical, ‘all or nothing’” approach); City of St.

Louis v. Praprotnik, 485 U.S. 112, 125 (1988) (expressing confidence that state

law will provide sufficient guidance when inquiry is focused on a “given area of a

local government’s business”). This analytical purpose is inevitably frustrated if

the notion of function is conflated with what is more properly deemed a general

attribute of the defendant’s office, incidental to a range of official functions. Once

our inquiry becomes tied to an attribute that is at issue in a variety of contexts, we

face the danger of a sprawling inquiry spanning the whole corpus of state law.

Such is the case here. At bottom, the majority’s newly invented “function”

is nothing more than the sheriff’s lawful authority to use force. This power is

implicated, at a greater or lesser degree of remove, in virtually all of a sheriff’s

areas of official responsibility. It is not a function but rather a general attribute of

the sheriff’s office.

By defining “function” in its unprecedented fashion, the majority dispenses

with the guidance to be found in Georgia statutes clearly directing that Sheriff

Peterson manages the Clinch County Jail for Clinch County.2 It then fails to locate

2
Since 1863, the Georgia Code has provided that sheriffs are “Jailers of the counties.”
Ga. Code § 331 (1863). Today, it provides that “sheriffs are jailers of the counties and have the
authority to appoint other jailers, subject to the supervision of the county governing authority."
Ga. Code Ann. § 42-4-1(a) (1997). Moreover, it is counties that have the “physical custody” of
57
any equally clear authority addressing the question we must decide today. No

guidance is to be found in the statute identifying circumstances under which

sheriffs may deploy force, because this enactment establishes only that the same

authority extends to state and local governmental actors alike. See Ga. Code Ann.

§ 17-4-20(d) (prohibiting either a “law enforcement agency of this state or of any

political subdivision of this state” from limiting peace officers’ authority to use

force) (emphasis added); Perry v. State, 419 S.E.2d 922, 924 (Ga. Ct. App. 1992)

(defining scope of sheriff’s arrest power by way of Ga. Code Ann. § 17-4-20).

Instead, the majority rifles through the rest of the Georgia Code, drawing indirect

inferences from statutes addressing everything from registration of bail-bond

sureties to execution of court process. In the course of its effort to integrate these

state laws into a sort of unified theory of Georgia sheriffs, the majority deploys

two arguments that misstate the law and have implications of tremendous breadth.

First, the majority suggests that sheriffs are entitled to Eleventh Amendment

immunity because their authority to use force is conferred by the state. See

Majority Opinion at 29. This logic marks a blatant end-run around our function-

by-function approach. As the majority itself points out, sheriffs may exercise

force “in initial arrests, in subduing inmates in sessions of state superior courts, or

in quelling disruptive inmates in county jails.” Id. If sheriffs are state agents

inmates in their jails and are therefore bound to “maintain” them, as by furnishing “food,
clothing, and any needed medical and hospital attention.” Id. § 42-5-2(a).
58
simply because their authority to use force originates in state law, then it must be

they act as state agents whenever engaged in a capacity that requires the

deployment of force – which is to say, in virtually every function sheriffs have

traditionally served.

Even more radically, this argument implies that Eleventh Amendment

immunity extends beyond sheriffs to city police officers, county police officers,

and even private security guards. All of these individuals, from the Chief of the

Atlanta Police Department to the employee keeping watch over the cosmetics aisle

of a department store, act on authority vested in them by state law when using

force to effectuate arrests for violations of state law. See Allen v. City of Atlanta,

510 S.E.2d 64, 66 (Ga. Ct. App. 1998) (striking down city police department’s

policy governing officers’ discharge of their firearms on basis of conflict with Ga.

Code Ann. § 17-4-20); Ga. Code Ann. § 36-8-5 (authorizing arrest by county

police); id. § 17-4-60 (authorizing arrest by private parties); Cash v. State, 221

S.E.2d 63, 64 (Ga. 1975) (approving store security officer’s arrest of shoplifter).

Yet it is settled law that city police, county police, and security guards hired by

private entities are not entitled to Eleventh Amendment immunity. City of Canton

v. Harris, 489 U.S. 378, 388 (1989); Pembaur v. City of Cincinatti, 475 U.S. 469,

473-74, 484-85 (1986); Farred v. Hicks, 915 F.2d 1530, 1532-33 (11th Cir. 1990).

59
The majority proffers no test to distinguish these officers and individuals from the

county sheriffs whose exercise of force it newly designates a state function.3

The second untenable argument offered by the majority is that the sheriff is

entitled to Eleventh Amendment immunity simply because the General Assembly

defines the powers and duties of his or her office. Yet on this theory of what

makes a public office an “arm of the state” immune from suit, Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977), there can be no such

thing as local government, because all local government is by definition a creature

of the state’s authority to attach powers and duties to particular offices. Indeed, as

I shall discuss at greater length below, the Georgia Constitution authorizes the

state legislature to define the powers and duties of the very officials most readily

associated in Georgia with policy-making on behalf of local governments: county

commissioners. To hold that county commissioners are entitled to Eleventh

3
To be sure, the majority endeavors to articulate such a distinction by stating that “[a] city
delegates and exercises its policing function through its city police officers and a county through
county police officers,” whereas “the State delegates and performs certain state policing and
corrections functions through several law enforcement agencies, including sheriffs. . . .”
Majority Opinion at 30 n.35. This purported distinction presupposes an answer to the very
question at issue in this appeal, namely, whether county sheriffs in Georgia act for the state.
Because the analysis by which the majority reaches its affirmative answer rests in part on an
attribute common to all peace officers in Georgia – namely, the conferment by state law of a
power to effect arrests by force – it would seem to follow that not only sheriffs but also city and
county police officers could be regarded as state actors. Apparently this is not so. While the
majority’s distinction escapes me, I certainly agree that city and county police officers do not
generally act as arms of the state, and thus I am reassured by today’s promise that the
“hypothetical scenarios” raised by the majority’s reasoning will remain, after all, merely
hypothetical. Majority Opinion at 30 n.35.
60
Amendment immunity plainly flouts established law. Nonetheless, this is

precisely what the majority implies today.

In the end, identifying “force policy” as the function at issue in this case so

broadens the inquiry required in applying the Eleventh Amendment that the

majority’s opinion becomes a largely ad hoc survey of the Georgia Code. When

we instead recognize jail operation as the proper focus of our inquiry, every

relevant factor straightforwardly weighs against the conclusion that Sheriff

Peterson, in carrying out this function, acts as an “arm of the state” such that the

Eleventh Amendment immunizes him from suit in federal court.

I. DEFINITION OF SHERIFF’S OFFICE AND JAILS UNDER STATE
LAW

The first factor relevant in our application of the Eleventh Amendment is

how state law defines the entity or official sued as a defendant. We have

previously found this factor to favor holding a sheriff unprotected by the Eleventh

Amendment when the state constitution, as interpreted by the state supreme court,

established that the “sheriff is a ‘county official’ and, as such, is an integral part of

the ‘county.’” Hufford v. Rodgers, 912 F.2d 1338, 1341 (11th Cir. 1990) (citation

omitted).

The Georgia Constitution is unequivocal in its designation of sheriffs as

“county officers.” Ga. Const. art. 9, § 1, ¶ 3. I have discussed the relevant

provision and its history at some length in Grech v. Clayton County, ___ F.3d ___
61
(Barkett, J., concurring). Rather than revisit that discussion in full, I here note

simply that the language, structure, and history of the Georgia Constitution

overwhelmingly demonstrate an intent on the framers’ part to ratify more than one

hundred years of Georgia case law recognizing the sheriff’s independence from

state lawmakers. Indeed, the drafters resoundingly rejected a suggestion that

would have given the state legislature the power to decide whether the sheriff's

office would exist and by whom it could be filled. Id. at 10 n.8 (Barkett, J.,

concurring). This designation of sheriffs as independent county officers militates

against considering them arms of the state in any of their official functions.

With respect to the particular sheriff’s function we must consider in this

case, statutory law defining jails as county institutions perfectly complements the

constitution’s definition of the sheriff’s office. “By virtue of their offices,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/76238. Public record. Not legal advice.