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Brown v. Dorsey11/14/2005
superior theory; instead, it is only when the execution of its policy or custom inflicts the subject injury that liability can attach to the entity under § 1983. To make this showing, a plaintiff must prove that, through a deliberate and official policy, the local governmental entity was the moving force behind the constitutional tort. "A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality." A custom is a practice that is so settled and permanent that it takes on the force of law. As succinctly stated by the late United States Supreme Court Chief Justice Rehnquist, " f the sheriff's actions constitute county `policy,' then the county is liable for them."
The United States Supreme Court has held that "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." However, "municipal liability under § 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Moreover, " ven though a single decision by municipal policymakers . . . may be sufficient to establish that a municipal policy or custom caused the alleged deprivation, liability may not be imposed pursuant to 42 USC § 1983 for a single incident of unconstitutional conduct . . . without proof that the conduct was taken pursuant to a municipal policy or custom."
1. Mrs. Brown would have us rule that Dorsey, as Sheriff of DeKalb County, was invested with final policymaking authority sufficient to render the County liable under § 1983 for his evil, ultra vires actions. We decline to make that ruling.
No Georgia appellate court has squarely addressed the issue of whether the sheriff acts with final policymaking authority for the county or for the state in the context of a § 1983 action. However, in Grech v. Clayton County an exhaustive 6-6 plurality opinion, the Eleventh Circuit Court of Appeals held that although Ga. Const. of 1983, Art. IX, Sec. I, Par. III (a) - (b) designates the sheriff as a "county officer," the same paragraph grants the state legislature the exclusive authority to establish and control a sheriff's powers, duties, qualifications, and minimum salary. The court also noted that in interpreting this constitutional provision, the Georgia Supreme Court has stated that " he sheriff is an elected, constitutional officer; he is subject to the charge of the General Assembly and is not an employee of the county commission." Based on these findings, and noting that "local governments such as counties can never be liable under § 1983 for the acts of those officials whom the local government has no authority to control," the Eleventh Circuit held that Clayton County, could not be held liable under 42 USC § 1983 for the sheriff's improper maintenance of the Criminal Justice Information System network because the county had no control over the sheriff's performance of this function. As the appeals court presciently noted, " he counties' lack of authority and control over sheriffs explains why counties have no § 1983 liability for their conduct. For example, if a rogue sheriff adopted an unconstitutional law enforcement policy or practice, the county has no authority to prevent or alter it and, in turn, incurs no § 1983 liability for it."
Although Grech is not binding precedent, we find its reasoning very persuasive. Moreover, the Georgia Supreme Court has recently reaffirmed that " he sheriff is an elected constitutional county officer and not an empl
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