Petition for Writ of Certiorari — Scott v. Mercier (No. 07-1349)

071349 APR23 2008.

OFFICE OF THE CLERK

IN THE :

Supreme Court of the United State

No. 07-

CHARLES SCOTT,

v.

JAMES MERCIER,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Unrrer States Court or APPEALS

FOR THE ELEVENTH CIRCUIT

oe

en

PETITION FOR A WRIT OF CERTIORARI

FRED S. CLARK

CLARK AND CLARK

EO. Box 8151

Savannah, GA 31412

(912) 233-0300

Attorneys for Petitioner

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

1

QUESTIONS PRESENTED FOR REVIEW

In this action, the Appellate Court affirmed the

decision of the United States District Court Southern

District of Georgia Waycross Division holding that a

deputy sheriff who arrived in an official vehicle of the

Sheriff’s Department at the home of the Plaintiff and

was wearing his uniform and badge and carrying a

weapon, was entitled to go upon the Plaintiff’s property

where his home was situated without a warrant and

without a crime being committed in the presence of the

deputy sheriff and remain on the property after he was

instructed to leave and physically attacked the Plaintiff

_ from behind by slamming his face into the wall of his

house. Questions presented are:

(1) Did the Court err in affirming the judgment of

the trial court that Eleventh Amendment sovereign

immunity applied even though the Sheriff is a County

official and his office and the County are not arms of the

state?

(2) Did the Court err in granting sovereign

immunity to the Defendant because the Plaintiff failed

to challenge an official policy or practice of the Brantley

County Sheriff’s Office which, it is submitted, should

have been unnecessary and futile because no law

enforcement supervisory official would have a policy

permitting the law enforcement officer to go upon a

person’s private property without permission when no

crime is being committed and without a warrant and at

that time and place strike a person who is not committing

a crime and who is on his own property as such a policy

would support unlawful and unconstitutional acts.

a

In addition the Court’s ruling was contrary to a>

decision of the Supreme Court of Georgia which is the

highest court of Georgia which decision stated that an

officer performing a discretionary act is entitled to

official immunity unless he or she “acted with actual

malice or with intent to cause injury.” Merrow v.

Hawkins, 266 Ga. 390, 467 S.E.2d 336 (1996).

Likewise, the Court’s holding is contrary to

42 U.S.C. § 1983 authorizing suits to redress

deprivations of civil rights by persons “acting” under

color of any “state statute, or regulation, custom, or

usage”. 42 U.S.C. § 1983. Section 1983 imposes liability

upon every person who subjects a person to a

deprivation of a federally protected right “under color

of any statute, ordinance, regulation, custom or usage

of any state or territory or the District of Columbia”.

Id. The “under color of state law” element of a prima

facie case requires a plaintiff to show that the defendant

acted under color of state law or pursuant to a custom

or usage having the force of law. Adicks v. S.H. Kress &

Co., 398 U.S. 144, 90 S. Ct. 1598 (1970). The same case

held that to act under color of state law does not require

that the defendant be an officer of the state, but only a

willful participant in joint activity with a state or its

agents. Adicks v. S.H. Kress & Co., 398 U.S. 144, 90

S. Ct. 1598 (1970). Further, this Court ruled that the

Plaintiff is not required to show some authority under

state law, state custom, or state usage purporting to

justify the action of the state’s constitution or laws.

A police officer’s exercise of arbitrary or excessive force

or a government official’s discretionary abuse of power

which goes beyond the scope of his or her authority will

usually have been performed under color of state law

10

for purposes of Section 1983 liability. Monroe v. Pape,

365 U.S. 167, 81 S. Ct. 473 (1961) overruled on other

grounds by Monell v. Department of Social Services,

436 U.S. 658, 98 S. Ct. 2018 (1978). In Monroe, police

officers were held to have acted under color of state law

in making a patently unlawful search and arrest.

Likewise in an opinion of this Court in Griffin v.

Maryland, 378 U.S. 130, 84S. Ct. 1770 (1964) this Court

found that there was State action when an amusement

park.security guard who had been deputized as a sheriff

of the county, wore a badge, identified himself as a

deputy sheriff and wrongfully arrested Black park

patrons who refused to leave the park in response to

the order.

Further this Court held that constitutional liability

attached to those wrongdoers who “carry a badge of

authority of [the government] and represented in some

capacity”. National Collegiate Athletic Association v..

Tarkanian, 488 U.S. 179, 191, 109 S. Ct. 454 (1988).

Likewise this Court held that a Defendant acts under a

color of state law when he abuses a position given to

him by the state. West v. Atkins, 487 U.S. 42, 5108

S. Ct. 2250 (1988).

Cd

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...

TABLE OF CONTENTS

TABLE OF APPENDICES

TABLE OF CITED AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. Statement of Facts

B. Standard of Review

REASONS FOR GRANTING THE PETITION

The District Court Erred in Granting

Defendant’s Amended Motion for

Summary JuUGPMeNt. . 0... see c ccc eeees

Contents

A. A conflict exists in the case law as

decided in the Eleventh Circuit,

Supreme Court of Georgia and

United States Supreme Court on the

issue of Eleventh Amendment

Sovereign Immunity and the issue

has been wrongly decided in the

underlying case to the prejudicial

detriment of Appellant. ............

The Trial Court Erred in Finding

that Defendant in his position as a

deputy sheriff in the state of Georgia

is an “Arm of the State” and

therefore, Entitled to Eleventh

Amendment Immunity. ............

II. The correct test for determining whether

a political subdivision of Georgia is an

“arm of the state” was not applied by the

lower courts in deciding this case. ...... 18

CONCLUSION

vi

TABLE OF APPENDICES

Appendix A — Opinien Of The United States

Court Of Appeals for The Eleventh Circuit

Dated And Filed March 10, 2008 ........... la

Appendix B — Order Of The United States

District Court For The Southern District Of

Georgia, Waycross Division Dated And Filed

September 14, 2007 ................. eeu 4a

Appendix C — Order Of The United States

Court Of Appeals For The Elevent Circuit

Denying Petition For Rehearing Filed April

ME Pe FEN e ys Rhee koe Ed Oe SEERA eee ces 13a

vii

TABLE OF CITED AUTHORITIES

Page

Cases:

Adickes v. S.H. Kress & Co.,

398 U.S. 144, 90 S. Ct. 1598 (1970) .......... ii, 8

Bd. of Comm ’rs of Randolph County v. Wilson,

260 Ga. 482, 396 S.E.2d 903 (1990) .......... 17

Carr v. City of Florence, Ala., :

916 F.2d 1521 (11th Cir. 1990) .............. 18

Cole v. Central Data Corp.,

OAT BiG Gas CCA Bd) oi ccc cc wcestece 7

Cottrell v. Caldwell,

85 F.3d 1486 (iith Cir. 1996) ............... 12

Courson v. McMillian,

939 F.2d 1479 (11th Cir. 1991) .............. 11

Graham v. Connor,

490 U.S. 386, 1009 S. Ct. 1865 (1989) ........

By ey ak Velden kw cee ueKes 7,10, 11, 12, 14

Grech v. Clayton County;

335 F-3d 1326 (11th Cir. 2003) .............. 17

Griffin v. Maryland,

378 U.S. 180, 84S. Ct. 1770 (1964) .......... iii, 9

viii

Cited Authorities

Harlow v. Fitzgerald,

457 U.S. 800, 102 S. Ct. 2727 (1982)

Howell v. Tanner, |

650 F.2d 610 (5th Cir. 1981), reh. denied,

659 F.2d 1079 (5th Cir. 1981), cert. denied,

456 U.S. 918 (1982)

Hundertmark v. Fla. Dep’t of Transp.,

205 F.3d 1272 (11th Cir. 2000)

Johnson v. Jones,

515 U.S. 304, 115 S. Ct. 2151 (1995)

Jordan v. Mosley,

487 F.3d 1350 (11th Cir. 2007)

Lee v. Ferraro,

284 F.3d 1188 (11th Cir. 2002)

Manders v. Lee,

338 F.3d 1304 (11th Cir. 2003)

Merrow v. Hawkins,

266 Ga. 390, 467 S.E 2d 336 (1996)

Monell v. Department of Social Services,

436 U.S. 658, 98 S. Ct. 2018 (1978)

Monroe v. Pape,

365 U.S. 167, 81 S. Ct. 473 (1961)

RE ats

een RE NR i 4 ce ts AON a a ne Oe nee

ix

Cited Authorities

Page

National Collegiate Athletic Assn. v. Tarkanian,

488 U.S. 179, 109 S. Ct. 454 (1988) .......... iii, 10

Northern Insurance Company of New York

v. Chatham County, 547 U.S. 189,

126 S. Ct. 1689, 164 L. Ed. 2d 367

Reed v. Hoy,

909 F-2d 324 (9th Cir. 1990)

Rich v. Dollar,

841 F.2d 1558 (11th Cir. 1988)

Rodriguez v. Ritchey,

539 F'2d 394 (5th Cir. 1976)

Santos v. Gates,

287 F3d 846 (9th Cir. 2002)

Shands Teaching Hospital & Clinics

v. Beech St. Corp.,

208 F-3d 1308 (11th Cir. 2000)

Sheth v. Webster,

145 F3d 1231 (11th Cir. 1998)

Stengel v. Belcher,

522 F.2d 438 (6th Cir. 1975)

Tennessee v. Garner,

471 U.S. 1, 105 S. Ct. 1694 (1985)

x

Cited Authorities

Page

Thornton v. City of Macon,

132 F.3d 1395 (11th Cir. 1998) ..... 7, 10, 13, 14, 15

Travelers Indem. Co. v. School Bd. of

Dade County, Fla.,

666 F.2d 506 (ilth Cir. 1982) ............... 18

Vierling v. Celebrity Cruises,

339 F.3d 1309 (11th Cir. 2003) .......... 18, 19, 20

West v. Atkins,

487 U.S. 42, 108 S. Ct. 2250 (1988) .......... iii, 10

Will v. Mich. Dep’t of State Police,

ME Soir Vig veda dAW pee vests ne 18

Statutes:

EERE 00s Co's s hivaevedckousee sen 1

ees © I oa ks Sb nepeacdusvevansen passim

xi

Cited Authorities

Page

Constitutional Provisions:

Georgia’s Constitution,

ee A CGD ccs cc ccccceveues 1

Georgia Constitution,

Art. IX, Sec. I, Par. III (a) (b) (a) ........... 3,17

United States Constitution Amendment IV ....

a ee siete nig idl Saari 2, 12, 13, 20

United States Constitution Amendment XI ... passim

' United States Constitution Amendment XIV . .2, 12, 20

l

OPINIONS BELOW

The opinion of the United States District Court

Southern District of Georgia Waycross Division is styled —

as Charles Scott v. Deputy Sheriff James Mercier, |

Deputy Sheriff of Brantley County, which is unreported.

The opinion of the Court of Appeals for the Eleventh

Circuit containing the same styling is also unreported.

Both opinions are set forth in the appendix hereto as is

the order denying the petition for rehearing which is

unreported.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals for the

Eleventh Circuit was entered on March 10, 2008 and

the order denying the petition for rehearing vas entered

on April 3, 2008 and this Petition for a Writ o” Certiorari

was filed within ninety days of that date. The jurisdiction

of this court is invoked under 28 U.S.C. § 1254 (1).

STATUTORY PROVISIONS INVOLVED

Georgia’s Constitution Art. I, Sec. II, Par. IX (d)

states,

... all officers and employees of the state or

its departments and agencies may be subject

to suit and may be liable for injuries

and damages caused by the negligent

performance or the negligent failure to

perfcrm the ministerial functions and may be

liable for injuries and damages if they act with

2

actual malice, or with actual intent to cause

injury in the performance of their official

functions...

42 U.S.C.A. § 1983 provides that liability is imposed

upon every person who subjects a person to a

deprivation of a federally protected right “under color

of any statute, ordinance, regulation, custom, or usage,

of any state or territory of the District of Columbia”.

United States Constitution Amendment IV, the right

of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and

seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

United States Constitution Amendment XI, 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

in another state, or by citizens or the subjects of any

foreign state.

United States Constitution Amendment XIV, all

persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

3

Georgia Constitution, Article IX, Sec. I, Par. III (a)

(b) (a) ... sheriff ... 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.

County officers listed in sub-paragraph (a) of this

paragraph may be on a fee basis, salary basis, or fee

basis supplemented by salary, in such manner as may

be directed by law. Minimum compensation for said

county officers may be established by the general

assembly by general law. Such minimum compensation

may be supplemented by local law or, if such authority

is delegated, by local law, by action of the county

governing authority.

STATEMENT OF THE CASE

Plaintiff-Appellant, Charles Scott (hereinafter

“Plaintiff” or “Appellant”), filed a Complaint with the

United States District Court for the Southern District

of Georgia on May 5, 2006. (R.1) The Scheduling Order

of August 11, 2006, set December 23, 2006, as the last

date for filing of all civil motions. (R.9). Defendant sought

an extension of time to file a Motion for Summary

Judgment (R.15) and it was granted, extending the time

to file through January 13, 2007. (R.6). Defendant filed

a Motion for Summary Judgment on January 12, 2007,

based on qualified immunity and Fourth Amendment

issues. (R.17). On January 31, 2007, Plaintiff filed a

Motion to Amend/Correct his Complaint. (R.23).

Plaintiff’s opposition to Defendant’s Motion for

Summary Judgment was filed on February 1, 2007.

(R.24-R.25). On February 12, 2007, Defendant filed a

4

response brief to Plaintiff’s opposition to Defendant’s

Motion for Summary Judgment. (R.29). Plaintiff filed

his reply to Defendant’s Response to Plaintiff’s

Opposition to Motion for Summary Judgment on

February 28, 2007. (R.30). On March 3, 2007, the Court

granted Plaintiff’s Motion to Amend Complaint. (R.32).

The Complaint, as amended, names Deputy Sheriff

James Mercier in his official capacity. (R.33).

On June 28, 2007 the Court set a status conference

for June 29, 2007. (R.38). The minutes from the

conference were entered on June 29, 2007, but the

record indicates that the minutes were modified on July

6, 2007. (R.39). The minutes indicate that there is an

outstanding motion for summary judgment and

“Defendant says there are outstanding claims not

addressed in the present motion for summary judgment.

Defendant wants to amend their motion for summary

judgment or either file a second motion for summary

judgment.” (R.39). In the minutes, the trial court directs

Defendant to file an addendum to the Motion for

Summary Judgment within 3 weeks. (R.39). Defendant

filed his Amended Motion for Summary Judgment on

July 20, 2007, raising the Eleventh Amendment

Sovereign Immunity issue for the first time. (R.41).

Plaintiff filed his reply brief in opposition on July 30,

2007. (R.43). On September 14, 2007, the trial judge

granted Defendant’s motion for summary judgment and

the Judgment was entered on September 19, 2007.

(R.51-R.52). The Court’s order dismissed the claims

against Defendant as barred by the Eleventh

Amendment. (R.51). On September 21, 2007, Plaintiff

filed his notice of appeal. (R.53).

A. Statement of Facts

On or about Septémber 12, 2005, Plaintiff and his

wife, were taking care of three children, who were at

their home, at the request of their mother and custodial

parent, Karen Gibson (Deposition of Marlene Scott

(“M. Scott”) (M. Scott 15:23-16:1); Deposition of Charles

Scott (“Scott”) 30:2-3; 36:14-20; 40:8-9). On that date,

the Defendant, while acting as deputy sheriff and under

color of authority of Georgia law, forcefully entered the

property of the Plaintiff, without authority or invitation,

and told Plaintiff he was going “in your house and get

the kids.” (Scott 30:2-3; 39:21-24). Plaintiff did not feel

comfortable releasing the children from his charge and

asked Defendant if he had a warrant or some other

paperwork regarding the children, to which the

Defendant stated he was going in the house one way or

another and getting the kids. (Scott 42:21- 43:2).

Plaintiff told Defendant that unless he had the

proper paperwork, he “was not coming in my house.”

(Scott 39:16-24; 42:21-25). Defendant then shoved the

gate located at the entrance to the Plaintiff’s home into

Plaintiff, knocking the Plaintiff back from the gate and

cutting Plaintiff’s arm. (Scott 43:17-44:9). Plaintiff

requested that Defendant call the sheriff to the scene

and Defendant refused, stating, “I am the law and I am

going in that house one way or another.” (Scott 44:10-

14). Plaintiff told Defendant that unless he had the

proper paperwork, he “was not coming in my house.”

(Scott 39:16-24; 42:21-25).

Both men walked te the porch (Scott 49:20-24) and

Plaintiff stated that he would call the Sheriff himself.

6

(Scott 45:12-14). When Plaintiff turned to open the door

to his home, the Defendant violently blind-sided him and

shoved Plaintiff’s face into the wall of his home. (Scott

48:1-7). This action by Defendant was unprovoked and

restrained Plaintiff and Defendant then attempted to

spray Plaintiff with mace. (Scott 49:3-5; 50:17-20). At all

times relative to this incident, Plaintiff was a free citizen

and was not suspected of committing any crimes.

Although Plaintiff remained calm, Defendant was

aggressive from the time he arrived at the Plaintiff’s

property. (Scott 46:1-2).

Defendant did not give any warnings to Plaintiff not

to enter his house or that he was going to be seized or

restrained in any way. (Scott 50:17-18). In fact, the first

time Defendant told Plaintiff he could not enter his home

was afier he had been injured by the Defendant who

also threatened him with mace. (Scott 50:17-18). As a

direct result of the Defendant’s attack and beating of

Plaintiff, Plaintiff suffered severe injuries, including

bruises, lacerations, injury to his mouth and teeth and

a broken nose. (Scott 41:4; 50:8-14).

B. Standard of Review

This Court reviews de novo a district court’s

ruling regarding Eleventh Amendment immunity.

Hundertmark v. Fla. Dep’t of Transp., 205 F:3d 1272,

1274 (11th Cir. 2000). An appeal of the granting of

summar ; judgment is a de novo proceeding to determine

whether the trial court had applied the correct summary

judgment standard after all disputed facts are

considered in a light most favorable to the non-moving

party and giving the respondent all reasonable

7

inferences and resolving conflicts in his favor. Sheth v.

Webster, 145 F.3d 1231, 1236 (11 Cir. 1998); Cole v.

Central Data Corp. 947 F:2d 313 (C.A. 87). The Court

must answer the legal question of whether a defendant

is entitled to qualified immunity under that version of

the facts. Thornion v. City of Macon, 132 F.3d 1395, 1397

(11 Cir. 1998).

This Court must approach the facts from the

plaintiff’s perspective because “the issues appealed here

concern ‘not which facts the parties might be able to

prove, but, rather, whether or not certain given facts

showed a violation of clearly established law.’” Sheth,

145 F.3d at 126 (quoting Johnson v. Jones, 515 US. 304,

311, 115 S. Ct. 2151, 2155 (1995)). For summary

judgment purposes, all claims that law enforcement

officers have used excessive force—deadly or not—in

the course of any arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its ‘reasonableness standard[.]’

Whether the amount of force used was reasonable is

determined objectively “from the perspective of a

reasonable officer on the scene, rather than the 20/20

vision of hindsight” and “requires careful attention to

the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Graham

v. Connor, 409 U.S. 386, 109 S. Ct. 1864, 1872, 104

L. Ed. 2d 448.

8

REASONS FOR GRANTING THE PETITION

I. The District Court Erred in Granting Defendant’s

Amended Motion for Summary Judgment.

A. Aconflict exists in the case law as decided in

the Eleventh Circuit, Supreme Court of

Georgia and United States Supreme Court on

the issue of Eleventh Amendment Sovereign

Immunity and the issue has been wrongly

decided in the underlying case to the

prejudicial detriment of Appellant.

Through § 1983, Congress sought “to give a remedy

to parties deprived of constitutional rights, privileges

and immunities by an official’s abuse of his position.”

Monroe v. Pape, 365 U.S..167, 172, 81 S. Ct. 478, 476

(1961). Accordingly, it authorized suits to redress

deprivations of civil rights by persons acting “under

color of any [state] statute, ordinance, regulation

custom, or usage.” 42 U.S.C. § 1983. Section 1983

imposes liability upon every person who subjects a

person to a deprivation of a federally protected right

“under color of any statute, ordinance, regulation,.

custom, or usage, of any state or territory or the District

of Columbia.” Jd. The “under color of state law” element

of a prima facie case requires a plaintiff to show that

the defendant acted under color of law or pursuant to a

custom or usage having the force of law. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, (1970). To act

under color of state law does not require that the

defendant oe an officer of the state, but only a willful

participant in joint activity with a state or its agents.

Id.

Se et a

; Re ap!

9

The term “under color of law” includes not only

action taken by state officials pursuant to state law, but

also action clothed with the authority of state law. Thus,

the plaintiff is not required to show some authority

under state law, state custom, or state usage purporting

to justify the actions of the state’s constitution or laws.

A police officer’s exercise of arbitrary or excessive force,

or a government official’s discretionary abuse of power

which goes beyond the scope of his or her authority will

usually have been performed under color of state law

for purposes of section 1983 liability. Monroe v. Pape,

365 U.S. 167, 81 S. Ct. 473 (1961), overruled on other

grounds by Monell v. Department of Social Services,

436 U.S. 658, 98 S. Ct. 2018 (1978).

In Monroe v. Pape, police officers were held to have

acted under color of state law in making a patently

unlawful search and arrest. In Griffin v. Maryland, 378

USS. 130, 84S. Ct. 1770, (1964), the Supreme Court found

state action when an amusement park security guard

who had been deputized as a sheriff of the county, wore

, a badge, and identified himself as a deputy sheriff and

wrongfully arrested black park patrons who refused to

leave the park in response to his order.

In the context of an arrest made by a police officer,

the “action under color of state law” element of the

prima facie case often is easily established because of

the apparent authority conferred by a police uniform, a

police officer’s actions while in uniform may be

considered actions taken under color of state law even

though their ulterior purpose is private and unrelated

to legitimate law enforcement ends. Howell v. Tanner,

650 F.2d 610 (5 Cir. 1981), reh. denied, 659 F-2d 1079

(5" Cir. 1981), cert. denied, 456 U.S. 918 (1982).

10

The Sixth Circuit has gone even further by holding

that when an officer acts pursuant to his official duty,

even without identifying himself as a policeman and

without a uniform or badge, he engages in state action.

Stengel v. Belcher, 522 F.2d 488 (6 Cir. 1975). The U.S.

Supreme Court held, Constitutional liability attached

only to those wrongdoers ‘who carry a badge of

authority of [the government] and represent it in some

capacity.’ National Collegiate Athletic Assn. v.

Tarkanian, 488 U.S. 179, 191, 109 S. Ct. 454 (1988). A

defendant acts under color of state law when he abuses

a position given to him by the state. West v. Atkins, 487

U.S. 42, 50, 108 S. Ct. 2250 (1988).

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. Shands Teaching

Hospital & Clinics v. Beech St. Corp., 208 F.3d 1308,

1311 (11 Cir. 2000). Where a police officer is dispatched

to a home regarding a civil matter, the police officer may

not lawfully remain on the property once the owner

requests that he leave. Thornton v. Macon, 132 F.3d

1395, 1399 (11™ Cir. 1998). Under that test, the “question

is whether an officer’s actions are ‘objectively

reasonable’ in light of the facts and circumstances

confronting the officer, without regard to any underlying

intent or motivation on the officer’s part.” Graham v.

Connor, 490 U.S. 386, 1009 S. Ct. 1865 (1989). The

Fourth Amendment of the United States Constitution

subjects any seizure of a person by an officer, through

the use of force, to its reasonableness requirements.

Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699

(1985). Accordingly, the reasonableness of a particular

1]

a use of force must be judged from the perspective of an

FE objectively reasonable officer. Reed v. Hoy, 909 F.2d 324,

328 (9% Cir. 1990) (citing Graham v. Conner, 490 U.S.

386, 109 S. Ct. 1865 (1989)).

The highest court of Georgia held that an officer

performing a discretionary act is entitled to official

immunity unless he or she “acted with actual malice or

4§ with actual intent to cause injury,” Merrow v. Hawkins,

266 Ga. 390, 467 S.E.2d 336 (1996). In order to receive

3 qualified immunity, the public official “must first prove

that ‘he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.”

Courson v. McMillian, 939 F.2d 1479, 1487 (11% Cir.

1991)(quoting Rich v. Dollar, 841 F.2d 1558, 1563

(11 Cir. 1988). If the defendant was not acting within

his discretionary authority, he is ineligible for the benefit

of qualified immunity. Lee v. Ferraro, 284 F.3d 1188

(11% Cir. 2002). The Defendant made no statement nor

submitted any document that he was acting with the

scope of his discretionary authority. .

Actual malice in rulings on this issue denotes

“express malice or malice in fact.” Harlow v. Fitzgerald,

457 U.S. 800, 801, 102 S. Ct. 2727, 2729 (1982). Malice

was showed by the Defendant striking the Plaintiff

forcefully.

Thus, such immunity exists only “insofar as [the

officer’s] conduct does not violate ‘clearly established’

statutory or constitutional rights of which a reasonable

person would have known.” /d.

2 - a ce ne MRE NR i lh i ETTORE. A OO OA RAIN.

re 12

In this case, Plaintiff’s § 1983 claim includes an

infringement on his property rights and an excessive

force claim as premised upon a clearly established right

of which the Defendant should have known, namely the

right to be free from unreasonable force as guaranteed

by the Fourth and the Fourteenth Amendments to the

United States Constitution. It is clearly established that

the use of excessive force in carrying out an arrest

constitutes a violation of the Fourth Amendment.

Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865,

1871 (1989); Cottrell v. Caldwell, 85 F.3d 1480, 1492

(11" Cir. 1996). Graham v. Connor, is the seminal case

on this issue containing, the most cogent statement of

the position of the courts on this important issue. The

Court’s must balance the force used against the need,

to determine whether the force used was “greater than

is reasonable under the circumstances.” Santos v. Gates,

287 F.3d 846, 854 (9 Cir. 2002). This determination

“requires careful attention to the facts and

circumstances of each particular case” and a “careful

balancing” of an individual’s liberty with the

government’s interest in the application of force and

because such balancing nearly always requires a jury to

sift through disputed factual contentions, and to draw

inferences therefrom, the courts have held on many

occasions that summary judgment or judgment as a

matter of law in excessive force cases should be granted

sparingly. This is because police misconduct cases almost

always turn on a jury’s credibility determinations. /d.

In this case a county deputy sheriff entered

property without permission or a warrant and

committed an assault and battery on the Plaintiff, and

this action was brought against him in his official

13

\

capacity. 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.

Teaching Hospital v. Beech St. Corp., 208 F.3d 1308; 1311

(11" Cir. 2000).

The Eleventh Circuit made a statement in its ruling

in favor of the Appellant on the issue of qualified

immunity in Jordan v. Mosley, 487 F.3d 1350, 1354

(11 Cir. 2007) that would clearly apply to the Appellee

deputy sheriff in the instant case. It stated “We first

note the obvious fact that Deputy Mosley neither

arrested Plaintiff nor obtained the pertinent arrest

warrant. In the Eleventh Circuit, a non-arresting officer

who instigates or causes an unlawful arrest can still be

liable under the Fourth Amendment. Rodriguez v.

Ritchey, 539 F.2d 394, 400 (5" Cir. 1976).

A case decided by the Eleventh Circuit Court in 1998

is factually similar to the instant case and application of

the law directly in point with the facts in the ruling made

in the trial court. When a police officer is dispatched to

a home regarding a civil matter the police officer may

not lawfully remain on the property once the owner

requests that he leave. Thornton v. Macon, 132 F.3d

1395, 1399 (11” Cir. 1998). In Thornton, an officer was

dispatched to the plaintiff’s residence at the request of

plaintiff’s former girlfriend, who requested police

assistance to resolve a civil dispute. /d., at 1397-98. The

girlfriend wanted to return a set of keys to the plaintiff

in exchange for a mattress she claimed belonged to her,

which was in the residence. /d. The Court stated that

the officer lawfully could peaceably approach the front

14

door and attempt to deliver the keys and attempt to

retrieve the mattress; in doing so he would merely be

attempting to mediate dnd diffuse a contentious

situation. Jd. at 13899. The officer could not force such

an exchange and could not remain on the property after

the plaintiff had refused to make the exchange. /d.

[emphasis added]. The plaintiff in Thornton had

committed no crime and had not threatened anyone;

once he had asked the officer to leave, the continued

presence and attempt to retrieve the mattress by force

was not pursuant to the officer’s official duties and was

outside the officer’s authority. Jd.

This ruling on a § 1983 claim by the Eleventh Circuit

Court of Appeals contains facts comparable to the

factual events in the instant case and should have been

followed by the Eleventh Circuit in the ruling on this

case.

In determining whether the Plaintiff’s rights were

violated in this § 1983 claim, the entitlement to qualified

immunity is determined by an objective reasonableness

test. Graham v. Connor, 490 U.S. 386, 1009 S. Ct. 1865

(1989). Under that test, the “question is whether an

officer’s actions are ‘objectively reasonable’ in light of

the facts and circumstances confronting the officer,

without regard to any underlying intent or motivation

on the officer’s part.” /d.

Applying the above test to the facts in this case and

construing those facts most favorably to plaintiff as the

party opposing summary judgment, we submit that the

Court should hold that the entry onto the Plaintiff’s

property without permission or cause and the use of

, 4 et ees

etn eG seio te ey i4

15

force against the plaintiff was not objectively

reasonable. The facts, when construed in plaintiff’s

favor, do not demonstrate that Defendant had probable

cause to arrest the plaintiff nor did he have a warrant

enabling him to lawfully enter onto the Plaintiff’s

property before he forcibly struck the Plaintiff. As was

stated by the Eleventh Circuit Court in Thornton, “no

reasonable police officer would have believed that the

officer(s) had probable cause to arrest” Thornton, at

1399.

This is especially so in the present case where at all

times relative to this incident, Plaintiff was a free citizen

and was not suspected of committing any crimes.

Although Plaintiff remained calm, Defendant was

aggressive from the time he arrived at the Plaintiff’s

property. (Scott 46:1-2). Defendant did not give any

warnings to Plaintiff not to enter his house or that he

was going to be seized or restrained in any way. (Scott

50:17-18). In fact, the first time Defendant told Plaintiff

he could not enter his home was after he had been

injured by the Defendant who also threatened him with

mace. (Scott 50:17-18).

As a direct result of the Defendant’s attack and

beating of Plaintiff, Plaintiff suffered severe injuries,

including bruises, lacerations, injury to his mouth and

teeth and a broken nose. (Scott 41:4; 50:8-14).

16

B. The Trial Court Erred in Finding that

Defendant in his position as a deputy sheriff

in the state of Georgia is an “Arm of the

State” and therefore, Entitled to Eleventh

Amendment Immunity.

The trial court erred when it found that Defendant

is an arm of the state. 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. Shands Teaching Hospital & Clinics v. Beech

St. Corp., 208 F.3d 1308, 1311 (11 Cir. 2000). Defendant

and the triai court relied on Manders v. Lee, 338 F.3d

1304 (11th Cir. 2003), for the proposition that a Georgia

sheriff, in his official capacity, is an arm of the state and

that his deputies are therefore protected by the

Eleventh Amendment. In addition, the trial court stated

that a claim against officers of a County Sheriff’s

Department is tantamount to a claim against the

Sheriff’s Department itself and consequently, the

Defendant is entitled to Eleventh Amendment immunity.

In Manders, an arrestee brought a § 1983 claim

against a sheriff in his official capacity after he was

allegedly beaten by a sheriff’s deputy at the county jail.

The Eleventh Circuit held that the sheriff was 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 was therefore entitled to Eleventh

Amendment immunity. Manders, 338 F.3d at 1319. In

Manders, the Eleventh Circuit noted that it was bound

by prior panel precedent to treat a Georgia sheriff as

an agent of the county, rather than the state, for

17

purposes of Eleventh Amendment immunity. 285 F:3d

at 993. The Eleventh Circuit, however, proceeded to

question the correctness of its prior panel precedent

on this issue, and concluded that “Georgia sheriffs are

agents of the state, not counties, when performing their

law enforcement duties as to use of force [in the jail

setting].” 285 F.3d at 9938. The Manders decision only

considered the narrow function of “establishing use of

force policy at the jail,” and the Eleventh Circuit

explicitly declined to decide whether county sheriffs

are arms of the state for any of their other specific

duties. Manders,. 338 F.3d at 1319; Scruggs v. Lee,

No. 06 155112007 WL 1745898, *2 (11 Cir. June 15, 2007)

(same).

The Eleventh Circuit has not extended Manders to

all sheriff functions. See Grech v. Clayton County, 335

F.3d 1326, 1332 35 (11% Cir. 2003)(plurality en banc

decision). The Georgia Constitution designates the

sheriff as a “county officer,” and the Georgia Supreme

Court has held that a county sheriff is a separate

constitutional entity. Ga. Const. art. [IX § 1, 9 3(a) (b);

Bd. of Comm’rs of Randolph County v. Wilson, 260 Ga.

482, 482, 396 S.E.2d 903 (1990). Furthermore, this Court

has ruled that a County is not an arm of the State in a

Georgia case. Northern Insurance Company of New

York v. Chatham County, 547 U.S. 189, 126 S. Ct. 1689,

164 L. Ed. 2d 367. Therefore the lower courts erred in

extending Manders and holding that a Georgia Deputy

Sheriff is an “arm of the state” for the general law

enforcement functions at issue in this case.

In addition, the proceedings below in this case did

not establish who would pay a judgment, the state or

18

the county. The USDC Order essentially states that the

payment of any damages award are irrelevant and this

approach completely ignores the appropriate judicial

standard of Edelman v. Jordan, 415 U.S. 651, 668, 94 S.

Ct. at 1358 (1974)(overruled on other grounds by Will v.

Mich. Dep't of State Police, 491 U.S. 58 (1989)) and

Travelers Indem. Co. v. School Bd. of Dade County, Fla.,

666 F.2d 505, 509 (11th Cir. 1982), where both hold that

entities are immune only if it is a “virtual certainty” that

the state will foot the bill. Carr uv. City of Florence, Ala.,

916 F.2d 1521, 1527-28 (11th Cir. 1990). Importantly, this is

a fact question which must be determined in every case

where Eleventh Amendment immunity is involved. Jd. For

the foregoing reasons the USDC erred in granting

Eleventh Amendment Sovereign Immunity to Defendant.

II. The correct test for determining whether a political

subdivision of Georgia is an “arm of the state” was

not applied by the lower courts in deciding this case.

The Georgia Supreme Court’s decision in the Hines

v. Georgia Ports Authority, 278 Ga. 632, 604 S.E.2d 189

serves to correct the District Court’s rejection of the

Vierling v. Celebrity Cruises analysis by making it the

applicable standard for use when evaluating the application

of sovereign immunity of Georgia State agencies. Vierling

v. Celebrity Cruises, 339 F.3d 1309, 1313-15 (11th Cir. 2003)

In Vierling, the Eleventh Circuit held that the Port

Authority was not entitled to sovereign immunity as it was

financially self-sufficient, generated its own revenues, and

paid its own debis. “Furthermore, (the Eleventh Circuit

reasoned), “the state has no control over the operation

of the facility and Florida law treats the Port Authority,

as an entity of the county, not of the state.” See Vierling

v. Celebrity Cruises, 339 F-3d at 1315 (Emphasis added).

19

Because of the Georgia Supreme Court’s adoption of

Vierling in Hines v. Georgia Ports Authority, supra, at

page 93 certiorari should be granted and the District

Court’s September 14, 2007, order as affirmed in the

appellate court must be reversed because this Court in

Northern Insurance Company of New York, supra, the

Court has already tacitly recognized that Chatham County

cannot serve as an arm of the state under the Vierling

test. In order to remove any confusion as to why Chatham

County is not an “arm of the state” under the Vierling

test the Plaintiffs provide the following review of the

applicable facts and law.

In Vierling, the Eleventh Circuit stressed the

importance of determining whether the state or the county

would ultimately be responsible for satisfying any adverse

judgment. 339 F.3d at 1314. Specifically the Eleventh

Circuit noted:

Although no single factor is dispositive, the third

factor, the source of the entity’s funds and

responsibility for satisfying judgments, is “of .

considerable importance.” Doe, 519 U.S. at 430,

117 S. Ct. at 904. “Thus, when an action is in

essence one for the recovery of money from the

state, the state is the real, substantial party in

interest and is entitled to invoke its sovereign

immunity from suit.” Jd. at 429, 117 S. Ct. at

903-04 (internal quotation marks omitted).

339 F3d at 1314. (citing Regents of the Univ. of Cal. v.

Doe, 219 U.S. 425, 429, 117 S. Ct. 990, 187 L. Ed. 2d 55

(1997)).

20

The other two factors of the Hines/Vierling test “are

mixed but tend to weigh towards a finding of no

immunity” just as they did in Hines when no sovereign

immunity was found even though the Ports Authority

was “performing an essential governmental function.”

CONCLUSION

The Defendant deputy sheriff was acting as a county

official and in violation of the strictures of the U.S.

Constitution, Articles, IV, XI and XIV and 42 U.S.C.A.

§ 1983 and clearly showed actual malice all of which

eliminate his entitlement to eleventh amendment

immunity. The trial and appellate courts erred in

granting him eleventh amendment sovereign immunity

contrary to ruling of the Georgia Supreme Court, the

highest court in Georgia and of this Honorable Court.

Respectfully submitted,

FRED S. CLARK

CLARK AND CLARK

PO. Box 8151

Savannah, GA 31412

(912) 233-0300

Attorneys for Petitioner