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Staff reporter Sitting en banc, the 11th U.S. Circuit Court of Appeals on July 28 ruled that a Georgia sheriff is an “arm of the State” when it comes to setting “use-of-force” policy in a county jail and thus shares in the state’s immunity from liability under the 11th Amendment. Whether that constitutes a break with the law of its sister circuits depends on whether you believe the six-member majority or the five dissenting judges. In his 47-page opinion for the majority in Manders v. Lee, No. 01-13606, Judge Frank M. Hull cited no decisions from other circuits, explaining that “We focus on Georgia law, as opposed to how other circuits treat sheriffs under other states’ laws, because states have extremely wide latitude in determining their forms of government.” The dissenters, in opinions by judges R. Lanier Anderson and Rosemary Barkett, acknowledged that the Supreme Court test for immunity requires a fact-intensive look at the interaction of state and local government. But they claimed that the majority misapplied the test in ways that could have been corrected by looking at the practice of sister circuits. Beating alleged In 1997, Willie Santonio Manders was arrested for punching a police officer, according to Hull’s opinion. Manders alleged that when he was taken to jail in Clinch County, Ga., following his arrest, a sheriff’s deputy struck him and banged his head against a wall. Manders claimed that Sheriff Winston Peterson took no disciplinary action when Manders’ mother brought the beating to his attention. Manders said the beating was so traumatic that he had to check into a mental hospital. Manders filed suit against Peterson in both his individual and official capacities, alleging that he permitted the use of excessive force at the Clinch County jail and had failed to train his deputies properly. Peterson argued that he could not be sued in his official capacity because he was acting as an agent of the state, which has 11th Amendment immunity, and not the county, which, for most purposes, does not. The 11th Circuit majority agreed that Peterson wore a “state hat” and not a “county hat” when prescribing use-of-force policy at his jail. Hull pointed to a number of factors leading to that conclusion: Under the Georgia Constitution, only the Legislature and not the counties can establish the powers and duties of sheriffs; although sheriffs are elected by county residents, that indicates only their geographic jurisdiction and not their dependence on county government; sheriffs perform many functions for the state, such as shepherding defendants to state courts and incarcerating those convicted of minor state crimes; and, while counties bear most of the burden of funding sheriff’s departments, that burden does not translate into county authority to manage the affairs of the departments. The majority conceded that it could find no state law requiring the state to pick up the tab for any legal liability a sheriff might incur and that such a “state treasury drain” had been considered a relevant factor in Supreme Court precedents. But, Hull argued, the county couldn’t be forced to pick up the tab either and, in any event, the Supreme Court had never said that the absence of a drain decisively ruled out state agency. Among the dissenters, Barkett pointed with approval to decisions by five other circuits holding that sheriffs were not immune from suits over jailhouse rights violations. Anderson argued that decisions by five other circuits showed that the majority had underestimated the importance of the “state treasury drain” in the Supreme Court’s jurisprudence. Furthermore, Anderson took the majority to task for failing to consider the 7th Circuit’s 1998 decision, Franklin v. Zaruba, 150 F.3d 682, which held that an Illinois sheriff is not the creature of the state or the county but a local entity all its own-and by virtue of being local, not protected by the 11th Amendment. Young’s e-mail address is [email protected]

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