# Opposition Brief — Brown v. Dekalb County (No. 06-332)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

Y FILED
No. 06-332 OCT 10 2006

OFFICE OF THE CLERK

SUPREME COURT. U.S.
In The

Supreme Court of the United States

7

PHYLLIS BROWN,

Petitioner,
V.

DEKALB COUNTY, GEORGIA,
Respondent.

¢

On Petition For Writ Of Certiorari
To The Georgia Court Of Appeals

SJ

RESPONDENT'S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

¢

WILLIAM J. LINKOUS* DUANE D. PRITCHETT
County Attorney Chief Assistant County
SaM L. BRANNEN, JR. Attorney
Senior Assistant County MELANIE F. WILSON
Attorney Senior Assistant County
*Counsel of Record Attorney
DEKALB COUNTY LAW
DEPARTMENT
1300 Commerce Drive,
5th Floor

Decatur, Georgia 30030
s (404) 371-3011
Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO +800) 225-6964
OR CALL COLLECT (402) 342-2831

*
«x

RESPONSE TO PETITIONER’S
QUESTION PRESENTED FOR REVIEW

Petitioner’s statement of the question presented
misconstrues this Court’s precedent, including McMillian
v. Monroe County, Alabama because the “arm of the state”
analysis applied to determine Eleventh Amendment
immunity is not relevant here. A more appropriate state-
ment of the question presented for review is whether the
Georgia Court of Appeals properly applied the final poli-
cymaker analysis of Monell v. New York City Dept. of
Social Servs. and McMillian v. Monroe County, et al. when,
after weighing competing factors, it concluded that in this
case former sheriff Sidney Dorsey was not a policymaker
for DeKalb County for purposes of liability under 42
U.S.C. § 1983.

RESPONSE TO THE PETITIONER’S
STATEMENT OF THE CASE

Pursuant to Supreme Court Rule 15.2, Respondent
points to an implicit misstatement of fact that arises from
the trial court’s order on a motion for partial summary
judgment as to the former sheriff Sidney Dorsey and co-
defendant, Patrick Cuffy, a former employee of the sher-
iff’s office.’ It appears that the trial court was confused
about whether the suit was brought against the former
sheriff in his official capacity. The Complaint and
Amended Complaint filed in this action do not, however,
contain any official capacity claims against the former
sheriff, the alleged final policymaker.’

’ Petitioner’s Appendix 19a.

* See Respondent’s Appendix 1-29.

|

TABLE OF CONTENTS

Page

Response to Petitioner’s Question Presented for
OIG iniicusccscshesisiicsiliishatidiblucbiddicinaiiindainedighebbanaaasabeceinidieaes i
Response to Petitioner’s Statement of the Case............ il
Reasons for Denying the Petition.............:.ssseceeereeereees 1

RESPONSE TO PETITIONER’S REASONS FOR
Se RUE. SEINE cpehvniieinincsinstinssbiadeintastemauseies 3

I. The Georgia Court of Appeals’ decision adheres
to this Court’s § 1983 jurisprudence and, there-
fore, this Court’s review is not warranted ......... 3

Il. The Circuit Courts of Appeals’ decisions
discussed by the Petition as indicative of a
split between the circuits are irrelevant to this
case. The “sea” of § 1983 jurisprudence re-
IE SS, seccacicttircininsviniesinihaatiinenetcnniens +

A. In McMillian this Court anticipated that
there would not be a uniform national

characterization for all sheriffs................... 5
B. The Eleventh Circuit Court of Appeals cor-
rectly applied McMillian ...........ccceeceeseeesseees 6

C. An overwhelming majority of the decisions
described as indicative of a split between
the Circuit Courts of Appeal address Elev-
enth Amendment immunity and are ir-
relevant to the case at bar...........cccccccceeeeeeee 8

III. Under Georgia law former sheriff Dorsey was
a policymaker for the State of Georgia for the
functions at issue. The hypothetical possibil-
ity that local officials may exercise autono-
mous power independent from counties and
States is of no consequence under the facts of
Ne IE isda csccacasdeaiciundactnbiennbpentciindniaiansiumeitte 12

lV

TABLE OF CONTENTS — Continued
Page
A. This case does not involve Eleventh

Amendment immunity...............cccceeeeeseeseees 13

B. The Georgia Court of Appeals correctly
found that former sheriff Dorsey was not a
policymaker for the County for the func-
tions at issue............... iisecidiadsaadcuetuasuavaniens 14

| ALOR OAT ee te Mek ere a eA 20

TABLE OF AUTHORITIES
Page
CASES
Bd. of Commrs. of Dougherty County v. Saba, 278

GREE SEAT ASIEN: Ao nee 18
Bd. of Commrs. of Randolph County v. Wilson, 260

I I ITI Soc ile scala sc demadebraitbiaideedadnisaemnnnadetabeainieenia 18
Brewster v. Shasta County, 275 F.3d 803 (9th Cir.

i tibaintitedih di iahceiadaieaidndindinenetininaiienadeieeredneniinaassecenetiitds 10
Brown v. Jackson, 221 Ga. App. 200 (1996) ........cseesesees 18
Cash v. Granville County Bd. of Educ., 242 F.3d 219

IIIT TIIII osha sc ciecaiacenetisacdinianiidisiteapenbesionenventodibaleaiens 9,13 —
Chaffin v. Calhoun, 262 Ga. 202 (1992) .........cccceeeeeeees 17, 18
City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)........... 6
Cortez v. County of Los Angeles, 294 F.3d 1186 (9th

iT IITs desinsnienicile Sadacednatadigeascbuetendeetouneneandioiiunentionents 10
Cozzo v. Tangipahoa Parish Council-President Gov-

ernment, 279 F.3d 273 (Sth Cir. 2002) ..........:.csesseerereeeees 9
DeGenova v. Sheriff of DuPage County, 209 F.3d

Bt te ETRE renee nee oor 10, 13
Franklin v. Zaruba, 150 F.3d 682 (7th Cir. 1998) ...5, 10, 13
Grayson vu. Peed, 195 F.3d 692 (4th Cir. 1999)................00 9
Grayson v. Royer, 529 U.S. 1067, 120 S.Ct. 1673

STITT aioe cenacia aaienedeieitieiadaessasiieabindebestealmeniainieiineaiedaiopiiiaiiande 10
Grech v. Clayton County, 335 F.3d 1326 (11th Cir.

SET tsiivnnndintnnpartedpeveetntiicanunteteotianeretenrerentoetennsaesonein passim
Harter v. Vernon, 101 F.3d 334 (4th Cir. 1996)................... 9

Henry v. County of Shasta, 132 F.3d 512 (9th Cir.
TEs is vsichenssindinibesiancssenicndandnsaiadaiestaadatandicanteninanadannititiaiiin 10

TABLE OF AUTHORITIES — Continued

Page
Hess v. Port Authority Trans-Hudson, Corp., 513
Sa SLIT eutiiainisccbintinsacscseehdeicapsipseislecianabatasibinniepitatii 2,13
Huminski v. Corsones, 396 F.3d 53 (2nd Cir. 2005).......... 10
Jett v. Dallas Indep. School Dist., 491 U.S. 701
Sa eaeieeeD evtisoshbcticiaienlawiscadinietiihaaeiaianhidibienianiieanbacibihineeieibiabiediiniiniions 15
Kentucky v. Graham, 473 U.S. 159 (1985)........:ccccesesreeeeees 2
Lake Country Estates, Inc. v. Tahoe Reg’l Planning
* FE, GEE Ge, HA Oe cctincesentstesninncincnnviaitanis 11, 13
Lowe v. Jones County, 231 Ga. App. 372, 499 S.E.2d
Lt SREB IRD RUE IE ene MRS sonar Rone one APN 18
Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) ..........++ 5,7
Mayo v. Fulton County, 220 Ga. App. 825 (1996)............. 18
McMillian v. Monroe County, Alabama, 520 U.S.
Se ii ccteninitinsacncttipitenesiinisinciamnbaseiingtlpbiiiaaas «passim
Monell v. New York City Dep’t of Social Servs., 436
is Giee CPD eriesnscchictencscseniesiibnatininniacbiansiniuanenbial 3, 13,14
Northern Ins. Co. of N.Y. v. Chatham County, 126
ee Ce ee icccntcncndddnaiistisiipaiaicnaiintiniisaniibeniitadia 11,13
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)......... 14
Purcell v. Toombs County, Georgia, 400 F.3d 1313
Ce Re Bee iaiiinectincetcipnisitcnd biiineiinstnatutadsechintubiaatiainhadeiiiediaiatl 7
Scott v. O’Grady, 975 F.2d 366 (7th Cir. 1992) ...........e0e 9
Streit v. County of Los Angeles, 236 F.3d 552 (9th
I TICE nacenpccssinnnscvinitnicetsuncnintccnenmipnademapendan 5, 10, 11

Wayne County v. Herrin, 210 Ga. App. 747, 437
REE TENET CIID dninticinncunininbeilciccincibinatdeeninncsometintiinndeions 18

Vii

TABLE OF AUTHORITIES — Continued

Page
CONSTITUTIONS AND STATUTES
U. S. Constitution
Bdeverth Amendment .......cccesccosseseseressorecescreossens passim
Bae eat: OF Wt aiisissaldsceleaindstanniseddiaiecdetsitatnaiansatie passim
Georgia Constitution, 1983,
Gs Tillis Ay 0 Sitisarastecisindgrintiictassncintepeiaseinatelcemadiaua aaa 17
Pe ,. Sig Bye UNG wenn checsticisieesebactdannabmeidiamanainaan. 17
CA: © tae iacitesetcesitnintinecanitooebicdaaenes acai 17
Ces DS BPMN siicsicssactinsnisdiavulnnsnnmiiadamamadaia 17

— QE, § 1B-16-2O[C)....ccccerererereserersvncveeneonveoncsonsscosenenensens 18

1

REASONS FOR DENYING THE PETITION

There is no compelling reason for this Court to grant
the Petition in this case. Supreme Court Rule 10 provides
that a petition for a writ of certiorari will be granted only
for compelling reasons. Subparagraphs (a) through (c) of
that rule indicate the character of the reasons this Court
considers in making its determination to grant or deny a
petition. Although not explicitly stated, the Petition
appears to urge this Court to grant certiorari pursuant to
subparagraph (c) of Rule 10 on the basis that a state court,
i.e. the Georgia Court of Appeals, has decided an impor-
tant question of federal law that has not been, but should
be settled by this Court, or has decided an important
federal question in a way that conflicts with relevant
decisions of this Court. This case does not meet the stan-
dard required for review under Supreme Court Rule 10.

There is nothing about this case that merits this
Court granting certiorari to revisit the jurisprudential
landscape regarding § 1983 liability of counties. The
Georgia Court of Appeals did not err in its application of
McMillian v. Monroe County, Alabama,’ and contrary to
Petitioner’s assertions Eleventh Amendment immunity is
simply not a relevant consideration in this case. This case
turns on the issue of whether Respondent DeKalb County,
Georgia can be liable under § 1983 for a politically moti-
vated murder by sheriff as a final policymaker for the
County. This case is not about whether DeKalb County can
be liable for a judgment entered against former sheriff
Sidney Dorsey in his official capacity, as Dorsey was not

* 520 U.S. 781, 117 S.Ct. 1734 (1997).

2

-

sued on his official capacity.’ Petitioner apparently seeks
this Court’s review in her effort to recover from the County
approximately $326,000,000 in compensatory damages
awarded as part of a judgment against former sheriff
Sidney Dorsey in his individual capacity.’ While a judg-
ment was secured against several defendants in their
individual capacities, there has been no trial and no
judgment with respect to DeKalb County or any defendant
sued in their official capacity.’

Petitioner spends a considerable amount of time
addressing cases from various Circuit Courts of Appeals
she contends misinterpret and misapply McMillian v.
Monroe County and this Court’s Eleventh Amendment
immunity jurisprudence. The Petition, however, fails to
address any misinterpretation or misapplication of McMil-
lian by the Georgia Court of Appeals in the decision at
issue.’ Significantly, none of the errors alleged by Peti-
tioner in other cases are present in the decision of the
Georgia Court of Appeals.

The Georgia Court of Appeals did not err in its applica-
tion of McMillian and related precedent. Perhaps the
alleged conflicts in Eleventh Amendment immunity juris-
prudence would be relevant if suit had been filed against
former sheriff Dorsey in his official capacity, because under
this Court’s decision in Kentucky v. Graham, “victory in an

* Respondent’s Appendix 1-29.
* Petition, 4.
* Respondent’s Appendix 32-33.

" Eleventh Amendment immunity shields states and certain
agencies exercising state power from being sued in federal court
without their consent. Hess v. Port Authority Trans-Hudson Corpora-
tion, 513 U.S. 30, 115 S. Ct 394 (1994).

official-capacity suit imposes liability on the entity that
the officer represents.” In this case, however, no such
claim was pled or pursued.

The Georgia Court of Appeals’ decision closely follows
the analytical framework of McMillian, evaluating Geor-
gia law and answering the question of whether, based on
state law, the governmental official is a final policymaker
for the local government in the particular area or function
alleged to have resulted in the constitutional violation.’ As
set forth in Section III of this Brief, the Georgia Court of
Appeals made the necessary inquiry and used the appro-
priate analysis in reaching its decision that former sheriff
Dorsey was not a policymaker for DeKalb County for the
functions at issue.

.

RESPONSE TO PETITIONER’S REASONS
FOR GRANTING THE WRIT

I. The Georgia Court of Appeals’ decision adheres
to this Court’s § 1983 jurisprudence and, there-
fore, this Court’s review is not warranted.

The Georgia Court of Appeals’ well-reasoned and
soundly based decision that the sheriff was not a final
policymaker for the County on the issues of use of deadly
force and use of sheriff’s department personnel and
resources foreclosed the Petitioner from any pursuit of her
claims against the County. The Court examined whether
the sheriff was a final policymaker for the County on the

* 473 U.S. 159, 105 S.Ct. 3099 (1985) (quoting Monell v. New York
City Dep't of Social Servs., 436 U.S. 658, 690, n.55, 98 S.Ct. 2018, 2035-
2036 n.55 (1978)).

* MeMiv. of N.Y. v. Chatham County, Georgia, 126 S.Ct.
1689 (2006).

12

IfIl. Under Georgia law former sheriff Dorsey was
a policymaker for the State of Georgia for the
functions at issue. The hypothetical possibil-
ity that local officials may exercise autono-
mous power independent from counties and
States is of no consequence under the facts of
this case.

Petitioner asserts that this Court should accept its
Petition because the Georgia Court of Appeals’ decision in
this case does not address the possibility that local officials
could exercise autonomous power independent from
counties and states. In support of its argument, Petitioner
seeks to draw distinctions between the decision of the
Georgia Court of Appeals and several federal Circuit Court
cases involving Eleventh Amendment. immunity.” Peti-
tioner argues that the Georgia Court of Appeals improp-
erly applied the § 1983 policymaker test as an “all or
nothing” proposition, and, according to Petitioner, incor-
rectly jumped from a finding that the county did not
control the sheriff to the “conclusion that Dorsey must be a
state officer immune under § 1983” while overlooking the
possibility that the sheriff could be an autonomous, inde-
pendent officer.”

Petitioner’s argument is not persuasive because it
mischaracterizes the decision of the Georgia Court of
Appeals and appears to confuse Eleventh Amendment
immunity analysis with the § 1983 final policymaker

* Petition, 20-22.
* Petition, 20.

13

analysis set forth in McMillian v. Monroe County, Ala-
bama and followed by the Georgia Court of Appeals.”

A. This case does not involve Eleventh Amend-
ment Immunity.

Petitioner repeatedly attempts to draw contrasts
between this case and cases turning on the grant or denial
of Eleventh Amendment immunity in an effort to convince
this Court to grant certiorari. Notably, neither McMillian
nor the decision of the Georgia Court of Appeals in this
case rely upon, or even discuss, Eleventh Amendment
immunity. The Georgia Court of Appeals decision did not
conclude that former sheriff Dorsey was an “arm-of-the-
state” or otherwise rely upon the Eleventh Amendment
jurisprudence of which Petitioner complains.” Petitioner’s
arguments to the contrary overlook the fact that this case
turns on a different analysis, with the question being
solely whether former sheriff Dorsey was a policymaker
for DeKalb County on the issues of use of deadly force and
use of sheriff’s department personnel and resources.” The
Georgia Court of Appeals properly analyzed the relevant
question, with its analysis closely following this Court’s
decision in McMillian.”

* McMillian, 520 U.S. 781, 117 S.Ct.- 1734 (1997); See Monell v.
New York City Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018,
2037-2038 (1978).

* Compare Northern Ins. Co. of New York, 126 S.Ct. 1689; Hess,
513 U.S. 30, 115 S.Ct. 394; Lake Country Estates, Inc., 440 U.S. 391, 99
S.Ct. 1171; Franklin, 150 F.3d 682; DeGenova, 209 F.3d 973; Cash, 242
F.3d 219.

“ See McMillian, 520 U.S. at 786, 117 S.Ct. at 1737.
“” 520 U.S. 781, 117 S.Ct. 1734.

14

B. The Georgia Court of Appeals correctly
found that former sheriff Dorsey was not
a policymaker for the County for the func-
tions at issue.

Petitioner mischaracterizes the Georgia Court of
Appeals’ decision when he argues that the court’s holding
was based upon a mere lack of county control. To the
contrary, the Georgia Court of Appeals applied the same
analysis set forth in McMillian, looking at the elements of
state law considered by this Court in that case, and found
that because Georgia sheriffs are empowered, directed and
controlled by state law in the functions at issue, former
sheriff Dorsey was a policymaker for the State for pur-
poses of § 1983 liability.” The decision was not based upon
a knee-jerk reaction that “because county did not exercise
authority over sheriff’s use of deadly-force policies or law
enforcement personnel and resources, the state exercised
control over those functions.” Rather, the Georgia Court
of Appeals conducted a detailed analysis and found that
state empowerment, direction and control of former sheriff
Dorsey in the functions at issue indicated that Dorsey was
not a policymaker for DeKalb County when performing
those functions.

“ As discussed in Monell v. Dep't of Social Servs., a local govern-
ment such as DeKalb County is liable under § 1983 only for its policies
or customs that cause constitutional torts. 436 U.S. 658, 98 S.Ct. 2018
(1978). While DeKalb County takes issue with the Georgia Court of
Appeals’ conclusion that sheriff Dorsey's private decision to commit
malice murder on his own time could constitute a policy under the
reasoning of Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct.
1292 (1986), we do not take up the issue at this juncture.

** Compare Petition, 20.

15

A comparison of the analytical framework of McMillian
with the framework applied by the Georgia Court of
Appeals in this case shows that the Petition for Writ of
Certiorari should be denied. In McMillian, this Court
considered whether an Alabama sheriff was a policymaker
for the State or the county for purposes of liability under
42 U.S.C. § 1983 when acting in a law enforcement capac-
ity." The Court noted that in determining a local govern-
ment’s § 1983 liability, a court’s task is to “identify those
who speak with final policymaking authority for the local
government actor concerning the action alleged to have
caused the constitutic a violation at issue.” This Court
began by holding that the question of whether the sheriff
was a policymaker for the State or the county depended on
state law, and for that reason the analysis of the Eleventh
Circuit Court of Appeals, most familiar with the state law
concepts at issue, would be entitled to considerable defer-
ence.” In McMillian, this Court framed the question as
whether, under Alabama law, a sheriff is a policymaker for
the State or the county when he acts in a law enforcement
capacity.”

In answering the question in McMillian, this Court
reviewed the Alabama Constitution, Code, and Eleventh
Circuit and the Alabama Supreme Court precedent con-
struing such authority. In particular, this Court considered
the Alabama Constitution, which designated sheriffs as
“constitutional officers” and members of the “executive

“ McMillian, 520 U.S. 781, 117 S.Ct. 1734 (1997).

* McMillian, 520 U.S. at 785 (citing Jett v. Dallas Indep. School
Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2723-2724 (1989)).

“ 520 U.S. at 786, 117 S.Ct. at 1734.
oft

16

department” of state government, with only the State
Supreme Court and Governor empowered to impeach
sheriffs.” The Alabama Code defined sheriffs’ duties as
primarily acting on behalf of the state courts, with a
responsibility to submit reports and evidence collected in
investigating crimes to the district attorney.” Under
Alabama law, county governing bodies were found to have
no power to instruct a sheriff on how to carry out the
duties of his or her office.” In a point designated as-critical
by the McMillian Court, the Alabama Supreme Court had
concluded from its review of State constitutional and
statutory provisions that sheriffs were executive officers of
the state, and had held unequivocally: “sheriffs are state
officers, and ... claims brought against sheriffs based on
their official acts therefore constitute suits against the
State, not suits against the sheriff’s county.” This Court
ultimately held that an Alabama sheriff acting in a law
enforcement capacity acts as a policymaker for the State.

The McMillian Court considered and rejected several
factors argued to show that an Alabama sheriff should be
considered a county officer. For example, the Court noted
the sheriff’s salary was paid out of the county treasury,
the county was required to fund the expenses of the
sheriff’s office “to the extent reasonably needed for the
proper and efficient conduct of the affairs of the sheriff’s
office,” the sheriff’s jurisdiction was limited to the borders

“ 520 US. at 788-789, 117 S.Ct. at 1738-1739.
*” 520 U.S. at 789-790, 117 S.Ct. at 1739.

520 U.S. at 788-789, 117 S.Ct. at 1738-1739 (Under Alabama law,
governing body of counties cannot instruct the sheriff how to ferret out
crime, how to arrest a criminal, or how to secure evidence of a crime).

” 520 U.S. at 789, 117 S.Ct. at 1738.

17

of his county, and the sheriff was elected locally by county
voters.” Such factors were found by the McMillian court to
be insufficient to overcome the constitutional, statutory
and case decisions holding that Alabama sheriffs were
policymakers for the state when acting in their law en-
forcement capacity.

In this case, the Georgia Court of Appeals followed the
analysis set forth in McMillian and determined that
former sheriff Dorsey was not a policymaker for the
County functions at issue: the use of deadly-force and use
of law enforcement personnel and resources. Similar to
McMillian, the Georgia Court of Appeals examined the
Georgia Constitution, Georgia statutes, and interpretive
case law. The Georgia Court of Appeals considered that the
Georgia constitution, while nominally designating the
sheriff as a “county officer,” grants the legislature exclu-
sive authority to establish a sheriff’s powers, duties,
qualifications and minimum salary.” Further, the Georgia
constitution specifically exempts the sheriff’s office from
modification by counties pursuant to their local legislative
powers.” Georgia law defines a sheriff’s duties,” providing
that the sheriff alone has the power to hire and fire his
deputies and sheriffs,” and that only the Governor of the

* 520 US. at 791, 117 S.Ct. at 1740.

“ See the decision of the Georgia Court of Appeals in this matter,
attached to the Petition, App. 10a, citing Ga. Const. of 1983, Art. IX, § 1,
q I1l(a)-<(b), See also Chaffin v. Calhoun, 262 Ga. 202, 203, 415 S.E.2d
906 (1992).

* Petition, App. 12a, n.31; See Ga. Const. of 1983, Art. IX, § 2,
4 l(c).

” Petition, App. 10a, n.20, citing O.C.G.A. § 15-16-10.
* Petition, App. 12a, citing O.C.G.A. § 15-16-23.

18

State of Georgia is authorized to suspend a Georgia
sheriff.”

On an aspect of the analysis deemed critical by the
McMillian Court, the Georgia Supreme Court’s decisions
interpreting the Georgia constitution and State law
support, if not require, the conclusion that the former
sheriff was a policymaker for the State with respect to the
use of deadly-force and law enforcement personnel and
resources, The Georgia Supreme Court has held that the
“sheriff is an elected, constitutional officer; he is subject to
the charge of the General Assembly and is not an em-
ployee of the county commission.”” The Georgia Supreme
Court has similarly held that deputy sheriffs are employ-
ees of the sheriff, not the county, and the county cannot be
held vicariously liable for the negligence of sheriff’s
deputies.” While Georgia county commissions set the
sheriff’s budget and must provide reasonably sufficient
funds to allow the sheriff to discharge his legal duties, a
county “may not dictate to the sheriff how that budget will
be spent in the exercise of his duties.”” Moreover, like in
McMillian, only the Governor of the State of Georgia is
authorized to suspend a Georgia sheriff.”

*” Petition, App. 12a, citing O.C.G.A. § 15-16-26(c).

* Petition, App. 10a-lla, citing Bd. of Commrs. Of Randolph
County v. Wilson, 260 Ga. 482, 396 S.E.2d 903 (1990), Bd. of Commrs.
Of Dougherty County v. Saba, 278 Ga. 176, 177, 598 S.E.2d 437 (2004)
and Mayo v. Fulton County, 220 Ga. App. 825, 470 S.E.2d 258 (1996).

* Petition, App. 12a, citing Lowe v. Jones County, 231 Ga. App.
372, 373, 499 S.E.2d 348 (1998), Brown v. Jackson, 221 Ga. App. 200,
201, 470 S.E.2d 786 (1996), Wayne County v. Herrin, 210 Ga. App. 747,
751, 437 S.E.2d 793 (1993).

© Petition, App. 13a, n.33-35; See Chaffin, 262 Ga. at 203.

* Petition, App. 12a.

19

Further, in an extensive opinion, the Eleventh Circuit
Court of Appeals in Grech held that a Georgia sheriff was
not a policymaker for the county when acting in his law
enforcement function and, more specifically, with regard to
maintenance of a computer warrant system.” Grech noted
among other things that “[t]here is not a single Georgia
case ... holding a county liable for the torts of a sheriff or
his deputies.”” Grech was referred to as persuasive and
extensively cited by the Georgia Court of Appeals in its
decision in this case.™

Considering Georgia state constitutional and statu-
tory authority, and the Georgia appellate court and Elev-
enth Circuit Court of Appeals opinions construing such
authority, it is clear that Georgia sheriffs are policymakers
for the state on the functions at issue in this case. The
Georgia Court of Appeals properly applied the McMillian
analysis when it evaluated the Georgia constitution,
statutes and case law to answer the question of whether
former sheriff Dorsey was a policymaker for the State or
the County on use of deadly-force and use of law enforce-
ment personnel and resources. Like sheriffs in Alabama,
the powers and duties of Georgia sheriffs are dictated by
the State, with only State officials having any oversight or
control of sheriffs. Like in McMillian, the Georgia law in
favor of Respondent’s position outweighs any provisions of
law that cut in favor of the conclusion that Georgia sher-
iffs are county policymakers.” This Court should deny
Petitioner’s request for certiorari because the Georgia

“ Petition, App. 10a, n.23, citing Grech, 335 F.3d at 1348.
© Petition, App. 1la; Grech, 335 F.3d at 1342 n.32.

* Id.

* Compare McMillian, 520 U.S. at 1740.

20

Court of Appeals properly analyzed the relevant question,
with its analysis closely following the analytical frame-
work set forth by this Court in McMillian.

¢

CONCLUSION

For the reasons set forth herein, the Petition for
Certiorari should be denied.

Respectfully submitted,

WILLIAM J. LINKOUS, III
County Attorney
Counsel of Record

DEKALB COUNTY LAW DEPARTMENT
1300 Commerce Drive

Decatur, Georgia, 30030

Tel: (404) 371-3011

DUANE D. PRITCHETT
SAM L. BRANNEN, JR.
MELANIE F’, WILSON
Of Counsel

DEKALB COUNTY LAW DEPARTMENT
1300 Commerce Drive

Decatur, Georgia, 30030

(404) 371-3011

APPENDIX

App. 1

IN THE SUPERIOR COURT OF
GWINNETT COUNTY
STATE OF GEORGIA

PHYLLIS BROWN, Individually
as surviving spouse and as
Executrix of the Estateé of
DERWIN BROWN, deceased,
Plaintiffs, CIVIL ACTION
FILE NO.:
02-A-12772

)
)
)
)
)
)
vs. ‘
SIDNEY DORSEY, in his )
Individual Capacity, SECURITY )
INVESTIGATION DIVISION, INC., )
MECCA SECURITY, INC., )
MELVIN D. WALKER, in his '

Individual Capacity, PATRICK
CUFFY, in his Individual )
Capacity, PAUL SKYERS, )
DAVID I. RAMSEY, and )
DEKALB COUNTY, )
)

Defendants.

COMPLAINT
(Filed Nov. 21, 2002)

COMES NOW Phyllis Brown, Plaintiff in the above-
styled action, and shows this Court as follows:

JURISDICTION AND VENUE
1.

Plaintiff Phyllis Brown is a citizen of the State of
Georgia.

~

App. 2

2.

Defendant Sidney Dorsey, the former Sheriff of
DeKalb County, is presently a prisoner in the custody of
the State of Georgia. Prior to his incarceration, Defendant
Sidney Dorsey was most recently known to reside in
DeKalb County at 1891 Montvallo Terrace SE, Atlanta, GA
30316-2812. Defendant Sidney Dorsey is a joint tortfeasor
with Defendant Paul Skyers, hence jurisdiction and venue
are proper in this Court.

3.

Defendant Security Investigation Division, Inc.
(hereinafter “SID”) is a Georgia Corporation with its
-principal place of business in DeKalb County, Georgia.
Defendant can be served in DeKalb County through its
registered agent, Sherry Dorsey, 1891 Montvallo Terrace
SE, Atlanta, GA 30316-2812. Defendant SID is a joint
tortfeasor with Defendant Paul Skyers, hence jurisdiction
and venue are proper in this Court.

4.

Defendant Mecca Security, Inc. (hereinafter “Mecca”)
is a Georgia Corporation with its principal place of busi-
ness in Georgia. Defendant can be served in Rockdale
County through its registered agent, Veleria Askew
Walker, 3685 Sweet Briar Lane SE, Conyers, GA 30094-
3862. Defendant Mecca is a joint tortfeasor with Defen-
dant Paul Skyers, hence jurisdiction and venue are proper
in this Court.

App. 3 -

5.

Defendant Melvin D. Walker (hereinafter “Walker”) is
a former Deputy and/or Jailor at the DeKalb County
Sheriff’s Department. Walker is also the Chief Executive
Officer of Defendant Mecca. He can be served in Rockdale
County at his place of residence, 3685 Sweet Briar Lane
SE, Conyers, GA 30094-3862. Defendant Walker is a joint
tortfeasor with Defendant Paul Skyers, hence jurisdiction
and venue are proper in this Court.

6.

Defendant Patrick Cuffy (hereinafter “Cuffy”) is a
former Deputy and/or Jailor at the DeKalb County Sher-
iff’s Department. Defendant Cuffy’s last known place of
residence was in DeKalb County at 3785 Caseys Cove,
Ellenwood, GA 30294. Defendant Cuffy is a joint tortfeasor
with Defendant Paul Skyers, hence jurisdiction and venue
are proper in this Court.

F

Defendant Paul Skyers (hereinafter “Skyers”) can be
served in Gwinnett County at his place of residence, 4398
Redgate Rd NW, Norcross, GA 30093. Jurisdiction and
venue are proper in this Court.

8.

Defendant DeKalb County is a political subdivision of
the State of Georgia, able to sue and be sued. Defendant
DeKalb County can be served by means of service of
process upon the Chief Executive Officer, Vernon Jones, at
his office at Maloof Center, Sixth Floor, Government

App. 4

Administration, 1300 Commerce Drive, Decatur, GA
30030. Defendant DeKalb County is a joint tortfeasor with
Defendant Skyers, hence jurisdiction and venue are proper
in this Court.

9.

Defendant David I. Ramsey (hereinafter “Ramsey”) is
presently living in St. Croix, VI. Defendant Ramsey is a
joint tortfeasor with Defendant Skyers, hence jurisdiction
and venue are proper in this Court.

10.

During the year 2000, Defendant Ramsey inflicted
tortuous injuries upon Plaintiff and her decedent, Derwin
Brown, as described hereafter. Both said tortuous acts and
injuries occurred in Georgia. Subsequently, Defendant
Ramsey subsequently left the State of Georgia, and, as of
the date of the filing of this Complaint, no longer resides
within the State of Georgia. Defendant Ramsey is thus
subject to the personal jurisdiction of this Court under the
Georgia Long Arm Statute, O.C.G.A. § 9-10-91, and is
amenable to service of process as provided in O.C.G.A. § 9-
10-94.

FACTUAL ALLEGATIONS
11.

Defendant Sidney Dorsey was the Sheriff of DeKalb
County, Georgia from January 1, 1997 through December
31, 2000. :

App. 5

12.

As Sheriff of DeKalb County, Defendant Sidney
Dorsey was Defendant DeKalb County’s managing officer
with ultimate policymaking authority on all matters
pertaining to (1) the duties and assignments of DeKalb
Jailors, Sheriff’s Deputies, and other Sheriff’s Depart-
ment personnel, (2) the policies, procedures, and operation
of the DeKalb County Jail, (3) the policies and procedures
governing the service of legal process, subpoenas, and
arrest warrants within DeKalb County, (4) the provision of
security at the DeKalb County Courthouse, and (5) the
policies and procedures governing the conduct and em-
ployment of Sheriff’s Department personnel.

13.

During his tenure as Sheriff, Defendant Sidney
Dorsey was also the owner or part owner of Defendant
SID. Defendant Sidney Dorsey had managerial authority
over the operations of Defendant SID.

14,

During the year 2000, Derwin Brown ran against
Defendant Sidney Dorsey for the office of Sheriff and
defeated Defendant Sidney Dorsey in the primary run-off
election, with the result that Defendant Sidney Dorsey’s
tenure in office expired December 31, 2000.

15.

During his 2000 election bid against Defendant
Sidney Dorsey, Derwin Brown campaigned for office on a
platform that called for a state criminal investigation of

App. 6

the administration at the DeKalb County jail, a reorgani-
zation of the DeKalb Sheriff’s Office reservist program, a
private accounting audit and the implementation of a
merit hiring procedure.

16.

Derwin Brown called the DeKalb County Jail “a
cesspool of corruption.”

a7

Between August 8, 2000 and August 31, 2000, Defen-
dant Sidney Dorsey solicited and enlisted Defendants
Cuffy, Ramsey, Skyers, and Walker to kill Derwin Brown.

18.

As of August, 2000, Defendants Walker and Cuffy
worked for the DeKalb County Sheriff’s Office as Deputies
and/or Jailors.

19.

As of August, 2000, Defendant SID employed or had
employed Defendants Cuffy, Ramsey, Skyers, and Walker
as providers of security services.

20.

As of August, 2000, Defendant Walker was an owner
or part owner, as well as employee, of Defendant Mecca.

App. 7

21.

As of August, 2000, Defendant Mecca employed or had
employed Defendant Skyers as a provider of security
services.

22.

Between August 8, 2000, and December 15, 2000,
Defendant Sidney Dorsey met with Defendants Cuffy,
Walker, Ramsey, and Skyers in DeKalb County for the
purpose of planning how and where Derwin Brown could
be murdered.

23.

Between August 8, 2000, and December 15, 2000,
Defendants Cuffy, Walker, Ramsey, and Skyers conducted
surveillance, in DeKalb County and elsewhere, on Derwin
Brown personally and on his residence.

24.

Between August 8, 2000, and December 15, 2000,
Defendants Cuffy, Walker, Ramsey, and Skyers obtained
firearms for the purpose of killing Derwin Brown.

25.

Between August 9, 2000, and August 12, 2000, in
DeKalb County, Defendant Sidney Dorsey reassigned
Defendant Cuffy from the Jail Division to Community
Relations in order to allow Defendant Cuffy to more easily
participate in the planning and execution of the conspiracy
to murder Derwin Brown.

App. 8

26.

On or about September 23, 2000, in DeKalb County,
DeKalb County Board of Education School Resource
Officer Karey Harris encountered Defendant Cuffy and/or
Defendants Walker, Ramsey, and Skyers during an
aborted attempt to murder Derwin Brown at his residence
or to conduct surveillance of Derwin Brown for the pur-
pose of facilitating his murder. Defendant Sidney Dorsey
stated to School Resources Officers that Defendant Cuffy
was on a special assignment for Defendant Sidney Dorsey.

27.

Between August 8, 2000, and December 15, 2000,
Defendants Sidney Dorsey, Cuffy, Walker, Ramsey, and
Skyers discussed the consideration or compensation that
Defendants Ramsey, Skyers, and Walker would receive for
their participation in the murder of Derwin Brown.

28.

On or about October 30, 2000, Defendant Sidney
Dorsey ordered Sheriffs Department personnel to hire, on
an expedited basis, Defendants Skyers and Ramsey, as
consideration for Defendants Skyers’ and Ramsey’s par-
ticipation in the conspiracy to murder Derwin Brown.

29.

Between August 8, 2000, and December 15, 2000,
Defendant Dorsey ordered that Defendant Walker be given

special consideration for admission to the Peace Officer
Standards and Training (POST) Mandate School as

App. 9

consideration for his participation in the conspiracy to
murder Derwin Brown.

30.

Between August 8, 2000, and December 15, 2000,
Defendants Sidney Dorsey, Cuffy, Walker, Ramsey, and
Skyers discussed alibis for the time of the murder.

31.
On or about December 15, 2000, Defendants Walker,

Ramsey, Cuffy, and Skyers traveled to the home of Derwin
Brown.

32.

While present at the home of Derwin Brown, Defen-
dant Walker intentionally and maliciously shc Derwin
Brown and killed him. :

33.
During the murder of Derwin Brown, Defendants
Ramsey, Cuffy, and Skyers stood by ready to aid Defendant

Walker in the event that Defendant Walker required help
in committing the murder.

34,

Following the murder of Derwin Brown, Defendants
Walker, Ramsey, Cuffy, and Skyers fled the scene together.
Defendant Skyers drove the getaway car.

App. 10

35.

In committing the murder of Derwin Brown, Defen-
dants Walker, Ramsey, Cuffy, and Skyers acted on the
orders of Defendant Sidney Dorsey.

36.

Defendants Sidney Dorsey, Cuffy, Walker, Ramsey,
Skyers, SID, and Mecca acted in concert to plan, commit,
and/or cover-up the murder of Derwin Brown.

37.

Defendants Sidney Dorsey, Cuffy, Walker, Ramsey and
Skyers acted with the actual and malicious intent to inflict
injury upon Derwin Brown.

COUNT I: WRONGFUL DEATH
38.

The averments set forth in paragraphs 1 through 37
above are hereby incorporated by reference as if fully set
forth herein.

39.

Defendant Sidney Dorsey solicited Defendants Cuffy,
Walker, Ramsey, and Skyers to commit the murder of
Derwin Brown. Defendants Cuffy, Walker, Ramsey, and
Skyers agreed to participate and did participate in the
planning, preparation, and execution of the murder.

App. 11

40.

Defendants Sidney Dorsey, Walker, Cuffy, Skyers, and
Ramsey, in planning, shooting, or participating in the
shooting of Derwin Brown, did unlawfully and with malice
aforethought cause Derwin Brow ’s death.

41.

At the time of the murder of Derwin Brown, Plaintiff
Phyllis Brown was Derwin Brown’s lawfully-married wife.

42.

Pursuant to O.C.G.A. §51-4-2, Defendants Sidney
Dorsey, Cuffy, Walker, Ramsey, and Skyers are liable to
Plaintiff Phyllis Brown, in her capacity as the surviving
spouse of Derwin Brown, for the full value of Derwin
Brown’s life.

43.

Additionally, Defendants Sidney Dorsey, Walker,
Cuffy, Skyers, and Ramsey, in murdering Derwin Brown,
acted with an intent to promote the interests of Defen-
dants Mecca and/or SID. Said Defendants therefore acted
within the scope of their employment to Defendants Mecca
and/or SID.

44.
Therefore, pursuant to O.C.G.A. § 51-4-2 and the

doctrine of respondeat superior, Defendants Mecca and
SID are liable to Plaintiff Phyllis Brown, in her capacity as

App. 12

the surviving spouse of Derwin Brown, for the full value of
Derwin Brown's life.

COUNT II: SURVIVAL ACTION
FOR PAIN AND SUFFERING

45,
The averments set forth in paragraphs 1 through 44

above are hereby incorporated by reference as if fully set
forth herein.

46.

Defendant Sidney Dorsey solicited Defendants Cuffy,
Walker, Ramsey, and Skyers to commit the murder of
Derwin Brown. Defendants Cuffy, Walker, Ramsey, and
Skyers agreed to participate and did participate in the
planning, preparation, and execution of the murder.

47.

Defendants Sidney Dorsey, Walker, Cuffy, Skyers, and
Ramsey, in planning, shooting, or participating in the
shooting of Derwin Brown, did unlawfully and with malice
aforethought cause Derwin Brown’s death.

———

48.

Derwin Brown experienced pain and suffering, mental
anguish, and emotional distress prior to his death.

App. 13

49.

Defendants Sidney Dorsey, Cuffy, Walker, Ramsey,
and Skyers are therefore liable to Plaintiff Phyllis Brown
in her capacity as Executrix of Derwin Brown’s estate for
general damages for injuries caused to her husband,
Derwin Brown.

50.

Additionally, Defendants Sidney Dorsey, Walker,
Cuffy, Skyers, and Ramsey, in murdering Derwin Brown,
acted with an intent to promote the interests of Defen-
dants Mecca and/or SID. Said Defendants therefore acted
within the scope of their employment to Defendants Mecca
and/or SID.

51.

Therefore, pursuant to the doctrine of respondeat
superior, Defendants Mecca and SID are liable to Plaintiff
Phyllis Brown, in her capacity as Executrix of Derwin
Brown's estate, for general damages for. injuries caused to
her husband, Derwin Brown.

COUNT III: ACTION FOR MEDICAL
AND FUNERAL EXPENSES

7 52.

The averments set forth in paragraphs 1 through 51
above are hereby incorporated by reference as if fully set
forth herein.

App. 14

53.

Defendant Sidney Dorsey solicited Defendants Cuffy,
Walker, Ramsey, and Skyers to commit the murder of
Derwin Brown. Defendants Cuffy, Walker, Ramsey, and
Skyers agreed to participate and did participate in the
planning, preparation, and execution of the murder.

54.

Defendants Sidney Dorsey, Walker, Cuffy, Skyers, and
Ramsey, in planning, shooting, or participating in the
shooting of Derwin Brown, did unlawfully and with malice
aforethought cause Derwin Brown’s death.

55.

As the result of the murder of Derwin Brown, Derwin
Brown’s estate incurred special damages including medical
. and funeral expenses for Derwin Brown.

56.

Defendants Sidney Dorsey, Cuffy, Walker, Ramsey,
and Skyers are therefore liable to Plaintiff Phyllis Brown
in her capacity as Executrix of Derwin Brown’s estate for
special damages for injuries caused to her husband,
Derwin Brown.

57.

Additionally, Defendants Sidney Dorsey, Walker,
Cuffy, Skyers, and Ramsey, in murdering Derwin Brown,
acted with an intent to promote the interests of Defen-
dants Mecca and/or SID. Said Defendants therefore acted

App. 15

within the scope of their employment to Defendants Mecca
and/or SID.

58.

Therefore, pursuant to the doctrine of respondeat
superior, Defendants Mecca and SID are liable to Plaintiff
Phyllis Brown, in her capacity as Executrix of Derwin
Brown’s estate, for general damages for injuries caused to
her husband, Derwin Brown.

COUNT IV: WRONGFUL DEATH RESULTING FROM
THE VIOLATION OF FOURTEENTH AMENDMENT
RIGHTS PROTECTED BY 42 U.S.C. § 1983

59.

=-

The averments set forth in paragraphs 1 through 58
above are hereby incorporated by reference as if fully set
forth herein. ~

60.

Defendant Sidney Dorsey employed the resources and
manpower of the DeKalb County Sheriffs Department,
including two deputies, Defendants Walker and Cuffy, to
murder Derwin Brown.

61.

Defendants Sidney Dorsey, Walker, and Cuffy, acting
jointly with Defendants Skyers and Ramsey, committed
the murder of Derwin Brown under color of state law.

App. 16

62.

As Sheriff of DeKalb County, Defendant Sidney
Dorsey was the final policymaker for Defendant DeKalb
County in matters concerning the use of deadly force by
Sheriff’s Department personnel, the direction and control
of Deputies and Jailors, and the direction, control, and use
of Sheriff’s Department materials, equipment, and re-
sources. Defendant DeKalb County therefore bears liabil-
ity for the actions of Defendant Sidney Dorsey taken under
color of state law.

63.

Defendants Sidney Dorsey, Walker, Cuffy, Ramsey,
Skyers, and DeKalb County have therefore acted under
color of state law by murdering Derwin Brown and have
thereby deprived Derwin Brown of his life, liberty, and
bodily integrity without due process of law in violation of
Derwin Brown’s rights as protected by the Fourteenth
Amendment of the United States Constitution.

64.

As the actual and proximate result of the actions of
Defendants as aforesaid, Derwin Brown died.

65.

At the time of the murder of Derwin Brown, Plaintiff
Phyllis Brown was Derwin Brown’s lawfully-married wife.

App. 17

66.

Pursuant to 42 U.S.C. § 1983 and O.C.G.A. § 51-4-2,
Defendants DeKalb County, Skyers, and Ramsey as well
as Defendants Sidney Dorsey, Walker, and Cuffy in their
individual capacities, are liable to Plaintiff Phyllis Brown,
in her capacity as the surviving spouse of Derwin Brown,
for the full value of Derwin Brown’s life.

COUNT V: SURVIVAL ACTION FOR THE
VIOLATION OF FOURTEENTH AMENDMENT
RIGHTS PROTECTED BY 42 U.S.C. § 1983

67.
The averments set forth in paragraphs 1 through 66

above are hereby incorporated by reference as if hilly set
forth herein.

68.

Defendant Sidney Dorsey employed the resources and
manpower of the DeKalb County Sheriff’s Department,
including two deputies, Defendants Walker and Cuffy, to
murder Derwin Brown.

69.

Defendants Sidney Dorsey, Walker, and Cuffy, acting
jointly with Defendants Skyers and Ramsey, committed
the murder of Derwin Brown under color of state law.

App. 18

70. if

As Sheriff of DeKalb County, Defendant Sidney
Dorsey was the final policymaker for Defendant DeKalb
County in matters concerning the use of deadly force by
Sheriff’s Department personnel, the direction and control
of Deputies and Jailors, and the direction, control, and use
of Sheriff’s Department materials, equipment, and re-
sources. Defendant DeKalb County therefore bears liabil-
ity for the actions of Defendant Sidney Dorsey taken under
color of state law.

71.

Defendants Sidney Dorsey, Walker, Cuffy, Ramsey,
Skyers, and DeKalb County have therefore acted under
color of state law by murdering Derwin Brown and have
thereby deprived Derwin Brown of his life, liberty, and
bodily integrity without due process of law in violation of
Derwin Brown’s rights as protected by the Fourteenth
Amendment of the United States Constitution.

72.

As the actual and proximate result of the actions of
Defendants as aforesaid, Derwin Brown died.

73.

—_

Derwin Brown experienced pain and suffering, mental
anguish, and emotional distress prior to his death.

App. 19

74.

As a result of the murder of Derwin Brown, the estate
of Derwin Brown incurred special damages including
medical and funeral expenses.

75.

Pursuant to 42 U.S.C. § 1983, Defendants DeKalb
County, Skyers, and Ramsey, as well as Defendants Sidney
Dorsey, Walker, and Cuffy in their individual capacities,
are liable to Plaintiff Phyllis Brown, in her capacity as
Executrix of Derwin Brown’s estate, for general and
special damages for injuries caused to her husband,
Derwin Brown. Furthermore, Plaintiff is entitled to an
award of punitive damages to punish Defendants Sidney
Dorsey, Walker, Cuffy, Ramsey, and Skyers for their
intentional depravation of Plaintiff’s constitutional rights
and to deter said Defendants from similar misconduct in
the future.

COUNT VI: WRONGFUL DEATH RESULTING
FROM THE VIOLATION OF FIRST AMENDMENT
RIGHTS PROTECTED BY 42 U.S.C. § 1983

76.

The averments set forth in paragraphs 1 through 75
above are hereby incorporated by reference as if fully set
forth herein.

tk

Defendant Sidney Dorsey employed the resources and
manpower of the DeKalb County Sheriff’s Department,

App. 20

including two deputies, Defendants Walker and Cuffy, to
murder Derwin Brown.

78.

Defendant Dorsey murdered Derwin Brown to prevent
Derwin Brown from taking office at the expiration of
Dorsey’s term.

79.

Defendants Sidney Dorsey, Walker, and Cuffy, acting
jointly with Defendants Skyers and Ramsey, committed
the murder of Derwin Brown under color of state law.

80.

As Sheriff of DeKalb County, Defendant Sidney
Dorsey was the final policymaker for Defendant DeKalb
County in matters concerning the use of deadly force by
Sheriff’s Department personnel, the direction and control
of Deputies and Jailors, and the direction, control, and use
of Sheriff’s Department materials, equipment, and re-
sources. Defendant DeKalb County therefore bears liabil-
ity for the actions of Defendant Sidney Dorsey taken under
color of state law.

81.

Defendants Sidney Dorsey, Walker, Cuffy, Ramsey,
Skyers, and DeKalb County have therefore acted under
color of state law by murdering Derwin Brown in retalia-
tion for his exercising of his right to campaign for public
office and to speak out on matters of public concern, as

App. 21

protected by the First Amendment of the United States
Constitution and as applied to the State of Georgia by the
Fourteenth Amendment of the United States Constitution.

82.

As the actual and proximate result of the actions of
Defendants as aforesaid, Derwin Brown died.

83.

At the time of the murder of Derwin Brown, Plaintiff
Phyllis Brown was Derwin Brown’s lawfully-married wife.

84.

Pursuant to 42 U.S.C. § 1983 and O.C.G.A. § 51-4-2,
Defendants DeKalb County, Skyers, and Ramsey, as well
as Defendants Sidney Dorsey, Walker, and Cuffy in their
individual capacities, are liable to Plaintiff Phyllis Brown,
in her capacity as the surviving spouse of Derwin Brown,
for the full value of Derwin Brown’s life.

COUNT VII: SURVIVAL ACTION FOR THE
VIOLATION OF FIRST AMENDMENT
RIGHTS PROTECTED BY 42 U.S.C, § 1983

85.

The averments set forth in paragraphs 1 through 84
above are hereby incorporated by reference as if fully set
forth herein.

—.— anes

App. 22

86.

Defendant Sidney Dorsey employed the resources and
manpower of the DeKalb County Sheriff’s Department,
including two deputies, Defendants Walker and Cuffy, to
murder Derwin Brown.

87.

Defendant Dorsey murdered Derwin Brown to prevent
Derwin Brown from taking office at the expiration of
Dorsey’s term.

88. .

Defendants Sidney Dorsey, Walker, and Cuffy, acting
jointly with Defendants Skyers and Ramsey, committed
‘the murder of Derwin Brown under color of state law.

89.

As Sheriff of DeKalb County, Defendant Sidney
Dorsey was the final policymaker for Defendant DeKalb
County in matters concerning the use of deadly force by
Sheriff’s Department personnel, the direction and control
of Deputies and Jailors, and the direction, control, and use
of Sheriff’s Department materials, equipment, and re-
sources. Defendant DeKalb County therefore bears liabil-
ity for the actions of Defendant Sidney Dorsey taken under
color of state law.

90.

Defendants Sidney Dorsey, Walker, Cuffy, Ramsey,
Skyers, and DeKalb County have therefore acted under

App. 23

color of state law by murdering Derwin Brown in retalia-
tion for exercising of his right to campaign for public office
and to speak out on matters of public concern, as protected
by the First Amendment of the United States Constitution
and as applied to the State of Georgia by the Fourteenth
Amendment of the United States Constitution.

91.

As the actual and proximate result of the actions of
Defendants as aforesaid, Derwin Brown died.

92.

Derwin Brown experienced pain and suffering, mental
anguish, and emotional distress prior to his death.

93.

Additionally, as a result of the murder of Derwin
Brown, the estate of Derwin Brown incurred special
damages including medical and funeral expenses.

94.

Pursuant to 42 U.S.C. § 1983,Defendants DeKalb
County, Ramsey, and Skyers, as well as Defendants Sidney
Dorsey, Walker, and Cuffy in their individual capacities,
are liable to Plaintiff Phyllis Brown, in her capacity as
Executrix of Derwin Brown’s estate, for general and
special damages for injuries caused to her husband,
Derwin Brown. Furthermore, Plaintiff is entitled to an
award of punitive damages to punish Defendants Sidney
Dorsey, Walker, Cuffy, Skyers, and Ramsey for their

App. 24

intentional depravation of Plaintiff s constitutional rights
and to deter said Defendants from similar misconduct in
the future.

COUNT VIII: PUNITIVE DAMAGES
95.

The averments set forth in paragraphs 1 through 94
above are hereby incorporated by reference as if fully set
forth herein.

96.

The actions of Defendants Sidney Dorsey, Cuffy,
Walker, Ramsey, Skyers, SID; and Mecca as aforesaid
show willful misconduct, malice, wantonness, oppression,
or that entire want of care that would raise the presump-
tion of conscious indifference to consequences, such that
Plaintiff Phyllis Brown, in her capacity as Executrix of the
Estate of Derwin Brown, is entitled to recover punitive
damages to deter Defendants from similar wrongful
conduct in the future in such amount as shall be deter-
mined by an impartial finder of fact.

ANTE LITEM NOTICE PRESENTED
97.

The averments set forth in paragraphs 1 through 96
above are hereby incorperated by reference as if fully set
forth herein.

On December 14, 2001, Plaintiff made written pre-
sentment of her claims for the official misconduct of
Defendant Sidney Dorsey, including wrongful death,
general damages, and special damages, to Defendant
DeKalb County. Plaintiff presented said claims via letter
to Vernon Jones, the Chief Executive Officer, and Thomas

App. 25

98.

E. Brown, the current Sheriff of DeKalb County.

[Signatures on Next Page]

WHEREFORE Plaintiff prays,

(a)

(b)

(c)

(d)

(e)

That summons issue and process be served
upon Defendants;

That Plaintiff have trial by a jury of twelve
(12) persons;

That Plaintiff, in her capacity as executrix of
Derwin Brown’s estate, recover general
damages from Defendants Sidney Dorsey,
SID, Mecca, Walker, Ramsey, Cuffy, Skyers,
and DeKalb County in an amount to be de-
termined in the enlightened conscience of a

jury;

That Plaintiff, in her capacity as executrix of
Derwin Brown’s estate, recover special dam-
ages from Defendants Sidney Dorsey, SID,
Mecca, Walker, Ramsey, Cuffy, Skyers, and
DeKalb County for medical and funeral ex-
penses in amounts to be proven at trial;

That Plaintiff, in her capacity as surviving
spouse of Derwin Brown, recover damages
from Defendants Sidney Dorsey, SID, Mecca,

Walker, Ramsey, Cuffy, Skyers, and DeKalb
County for the full value of Derwin Brown’s

App. 26

life, said amount to exceed fifty million dol-
lars ($50,000,000.00);

(f) The Plaintiff recover punitive damages
against Defendants SID, Mecca, Ramsey, and
Skyers, as well as Defendants Sidney Dorsey,
Walker, and Cuffy in their individual capaci-
ties, in an- amount to be determined in the
enlightened conscience of a jury;

(g) That Plaintiff recover her costs and attor-
ney’s fees in this action, pursuant to 42 USC
§ 1988, O.C.G.A.§ 13-6-11, and other appli-
cable Federal and state law; and

(h) That Plaintiff have such other relief as this
Court may deem just and proper.

Respectfully submitted this 21st day of November,
2002.

CASEY GILSON LEIBEL P.C.

By: /s/ Steven K. Leibel
STEVEN K. LEIBEL
Georgia State Bar No. 445050

/s/ George P. Shingler
GEORGE P. SHINGLER
Georgia State Bar No. 642850

MICHAEL T. MCCULLEY .
Georgia State Bar No. 486989
Attorneys for Plaintiff

31st Floor

Six Concourse Parkway
Atlanta, Georgia 30328 _
(770) 512-0300

Fax (770) 512-0070

App. 27

IN THE SUPERIOR COURT OF
GWINNETT COUNTY
STATE OF GEORGIA

CIVIL ACTION FILE
NO.: 02-A-12722-7

PHYLLIS BROWN,
Individually as surviving
spouse and as Executrix
of the Estate of DERWIN
BROWN, deceased,

Plaintiffs,
vs.

SIDNEY DORSEY, in his
Individual Capacity,
SECURITY INVESTIGA-
TION DIVISION, INC.,
MECCA SECURITY, INC.,
MELVIN D. WALKER, in
his Individual Capacity,
PATRICK CUFFY, in his
Individual Capacity,
PAUL SKYERS,

DAVID I. RAMSEY, and
DEKALB COUNTY,

Defendants.

ee A ee ee ee ee a ae ae ae ee ee a a a a a

AMENDED COMPLAINT
(Filed Aug. 15, 2003)

COMES NOW Phyllis Brown, Plaintiff in the above-
styled action, and shows this Court as follows:

App. 28

i.

Plaintiff incorporates paragraphs 1 to 98 of her
original Complaint as fully and completely as if they were
set forth verbatim herein.

2.

Plaintiff incorporates the “Wherefore” paragraph of
her original Complaint as fully and completely as if it were
set forth verbatim herein.

3.

Plaintiff hereby adds the following to her original
Complaint as paragraph 99: In violating Derwin Brown’s
federally-protected constitutional rights, as alleged in
Counts IV, V, VI, and VII of Plaintiff's Complaint, Defen-
dant Sidney Dorsey acted, pursuant to his authority as
Sheriff of DeKalb County, to implement a policy of keeping
himself in office by eliminating his competition.

Respectfully submitted this 13th day of August, 2003.
CASEY GILSON LEIBEL P.C.

By: /s/ Steven K. Leibel
STEVEN K. LEIBEL
Georgia State Bar No. 445050

GEORGE P. SHINGLER
Georgia State Bar No. 642850

MICHAEL T. MCCULLEY
Georgia State Bar No. 486989
Attorney for Plaintiff

App. 29

31st Floor

Six Concourse Parkway
Atlanta, Georgia 30328
(770) 512-0300

(770) 512-0070 (fax)

App. 30

IN THE SUPERIOR COURT OF
GWINNETT COUNTY
STATE OF GEORGIA

PHYLLIS BROWN,
Plaintiff,

) CIVIL ACTION FILE

)

)
vs. )

)

)

)

NO.: 02-A-12722-7

SIDNEY DORSEY et al.,

Defendants.

CERTIFICATE OF SERVICE

This is to certify that I have this day served copies of
the Amended Complaint upon all parties by depositing a
true and exact copy-of the same in the United States Mail
with proper postage affixed and addressed as follows:

Xernia L. Fortson
DeKalb County Law Department
Senior Assistant County Attorney
1300 Commerce Drive, 5th Floor Decatur, GA 30030

Brian Steel
The Steel Law Firm, P.C.
Suite 300
1800 Peachtree Road, NW
Atlanta, GA 30309

Duane Jones
Duane Jones & Associates
Suite 117
5036 Snapfinger Woods Drive
Decatur, GA 30035

App. 31

Albert A. Mitchell
Albert A. Mitchell, P.C.
The C&S Professional Building
3079 Campbellton Road, Suite 203
Atlanta, GA 30311

Security Investigation Division, Inc.
c/o Sherry Dorsey
1891 Montvallo Terrace SE
Atlanta, GA 30316-2812.

Paul Skyers
4398 Redgate Rd NW
Norcross, GA 30093.

Respectfully submitted this 13th day of August, 2003.
CASEY GILSON LEIBEL P.C.

/s/ Michael T. McCulley
Michael T. McCulley
Georgia Bar No.: 486989

31st Floor

Six Concourse Pkwy
Atlanta, Georgia 30328
(770) 512-0300 [voice]
(770) 512-0070 [facsimile]

App. 32

IN THE SUPERIOR COURT OF
GWINNETT COUNTY
STATE OF GEORGIA

CIVIL ACTION FILE
NO.: 02-A-12722-7

PHYLLIS BROWN,
Individually as surviving
spouse and as Executrix
of the Estate of DERWIN
BROWN, deceased,

Plaintiffs,
VS.

SIDNEY DORSEY,
PATRICK CUFFY, and
PAUL SKYERS,

Defendants.

)
)
)
)
)
)
) i
)
)
)
)
)
)

JUDGMENT

(Filed Nov. 24, 2004)

This action came on for trial before the court and a
jury, Honorable Melodie Snell Conner presiding, and the
issues having been duly tried and the jury having duly
rendered its verdict on November 18, 2004,

It Is Ordered and Adjudged that:

1. Plaintiff Phyllis Brown, individually as surviving
spouse of Derwin Brown, recover of defendants, jointly and
severally, the sum of $250,108,398.00, with interest
thereon at the rate of 12% as provided by law, and her
costs of action.

2. Plaintiff Phyllis Brown, as the Executrix of the
Estate of Derwin Brown, deceased, recover from defendants,

App. 33

jointly and severally, the sum of $76,028,000.00, with
interest thereon at the rate of 12% as provided by law, and -
her costs of action.

It Is Further Ordered and Adjudged, based on the
jury’s separate verdict on the punitive damages claim, that
Plaintiff Phyllis Brown, as the Executrix of the Estate of
Derwin Brown, deceased, recover of Defendants Sidney
Dorsey, Patrick Cuffy and Paul Skyers, jointly and sever-
ally, the sum of $450,000.00 as punitive damages with
interest thereon at the rate of 12% as provided by law, and
her costs of action.

So ordered this 23rd day of November, 2004.

/s/ Melodie Snell Conner
Melodie Snell Conner, Judge
Superior Court of Gwinnett

County

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1427%3A2. Public record. Not legal advice.