McMillian v. Johnson

United States Court of Appeals,

Eleventh Circuit.

No. 95-6369.

Walter McMILLIAN, Plaintiff-Appellant,

v.

W.E. JOHNSON, Morris Thigpen, Tom Allen, Marian Shinbaum, Charlie
Jones, et al., in their individual capacities, Defendants-
Appellees.

July 9, 1996.

Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-93-699-N), W. Harold Albritton, III,
Judge.

Before COX and BARKETT, Circuit Judges, and PROPST*, District
Judge.

COX, Circuit Judge:

I. FACTS AND PROCEDURAL BACKGROUND1

Walter McMillian was convicted of the murder of Ronda Morrison

and sentenced to death. He spent nearly six years on Alabama's

death row, including over a year before his trial. The Alabama

Court of Criminal Appeals ultimately overturned McMillian's

conviction because of the state's failure to disclose exculpatory

and impeachment evidence. McMillian v. State, 616 So.2d 933

(Ala.Crim.App.1993). The state then dismissed the charges against

McMillian and commenced a new investigation.

Finally released after six years on death row, McMillian

brought a § 1983 action against various officials involved in his

*
Honorable Robert B. Propst, U.S. District Judge for the
Northern District of Alabama, sitting by designation.
1
For a more detailed recitation of the facts, see our
opinion in No. 95-6123, also decided today.
arrest, incarceration, and conviction. McMillian alleges federal

constitutional claims, as well as pendent state law claims.

McMillian sued several defendants, including Thomas Tate, the

Sheriff of Monroe County, Alabama, in both his individual and

official capacities, and Monroe County itself. McMillian seeks

damages from Sheriff Tate individually and from Monroe County for,

inter alia, causing his pretrial detention on death row,

manufacturing inculpatory evidence, and suppressing exculpatory and

impeachment evidence.2

McMillian's theory of county liability is that Sheriff Tate's

"edicts and acts may fairly be said to represent [the] official

policy [of] ... Monroe County ... in matters of criminal

investigation and law enforcement." (First Amended Complaint ¶

53.) The district court granted Monroe County's motion to dismiss,

relying on our since-vacated decision in Swint v. City of Wadley,

Ala., 5 F.3d 1435 (11th Cir.1993), vacated sub nom. Swint v.

Chambers County Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d

60 (1995), to hold that Monroe County is not liable for Sheriff

Tate's actions under § 1983 because sheriffs in Alabama are not

final policymakers for their counties in the area of law

enforcement. In a later order, the district court granted in part

2
A suit against a public official in his official capacity
is, in all respects other than name, treated as a suit against
the local government entity he represents, assuming that the
entity receives notice and an opportunity to respond. Kentucky
v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d
114 (1985). We treat McMillian's claims against Tate in his
official capacity and the claims against Monroe County as stating
the same claims because McMillian contends that Sheriff Tate
represents Monroe County. Whether McMillian's contention is
meritorious is at issue on this appeal.
and denied in part various defendants' motions for summary judgment

in their individual capacities. Pursuant to 28 U.S.C. § 1292(b),

we granted McMillian permission to appeal the district court's

interlocutory orders.

II. ISSUES ON APPEAL

We address two issues on this appeal: (1) whether a sheriff

in Alabama is a final policymaker for his or her county in the area

of law enforcement; and (2) whether hearsay may be used to

establish the existence of a genuine issue of material fact to

defeat a motion for summary judgment when it is not shown that the

hearsay will be reducible to an admissible form at trial.3

III. DISCUSSION

A. Whether a Sheriff in Alabama is a Final County Policymaker

1. Contentions of the Parties

McMillian contends that our decision in Swint is of no

precedential or persuasive value because the Supreme Court granted

certiorari and then vacated our decision on jurisdictional grounds.

In any event, he contends, Swint was wrongly decided. McMillian

urges that this case is controlled by Pembaur v. City of

3
McMillian raises two other issues on this appeal. First,
he contends that the district court erroneously required him to
prove violence or torture on his claim that the state coerced
witnesses to give false testimony. We do not read the district
court's opinion to impose such a requirement on McMillian.

Second, McMillian contends that the district court
erred in granting partial summary judgment on certain of his
claims. The district court evaluated McMillian's
allegations incident by incident and determined whether a
genuine issue of material fact exists as to each incident.
McMillian's contention that the district court erred in
evaluating the evidence this way is meritless. See 11th
Cir.R. 36-1.
Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), in

which the Supreme Court affirmed the Sixth Circuit's holding that

an Ohio sheriff could establish county law enforcement policy under

appropriate circumstances. According to McMillian, the relevant

facts here are the same as in Pembaur: in Alabama, the sheriff is

elected by the county's voters, is funded by the county treasury,

and is the chief law enforcement officer within the county.

McMillian argues that our decision holding that Alabama sheriffs

are final county policymakers in the area of jail administration,

see Parker v. Williams, 862 F.2d 1471 (11th Cir.1989), also compels

a holding that Alabama sheriffs are final policymakers in the area

of law enforcement.

Monroe County contends that Swint correctly held that Alabama

sheriffs are not county policymakers in the area of law enforcement

because, under state law, Alabama counties have no law enforcement

authority. In addition, according to the county, holding it liable

for the actions of a sheriff would be contrary to the Supreme

Court's reasoning in Monell in two respects. Monell v. New York

City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978). First, because counties have no control over

sheriffs, allowing county liability for a sheriff's actions would

ignore Monell 's conception of municipalities as corporations and

substitute a conception of municipalities as mere units of

geography. Second, holding the county liable for a sheriff's

actions would impose even broader liability than the respondeat

superior liability rejected in Monell. Finally, Monroe County

argues that cases from our circuit, as well as the better reasoned
cases from other circuits, require a "functional" analysis looking

to whether the county has control over the sheriff or has other

power in the area of the sheriff's actions.

2. County Liability for Acts of Final Policymakers

A municipality, county, or other local government entity is

a "person" that may be sued under § 1983 for constitutional

violations caused by policies or customs made by its lawmakers or

by "those whose edicts or acts may fairly be said to represent

official policy." Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38.

A municipality may be held liable for a single act or decision of

a municipal official with final policymaking authority in the area

of the act or decision. Jett v. Dallas Independent School

District, 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598

(1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108

S.Ct. 915, 924, 99 L.Ed.2d 107 (1988) (plurality opinion);

Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298. A municipality may

not be held liable, however, solely because it employs a

tortfeasor, that is, under a respondeat superior theory. Monell,

436 U.S. at 691, 98 S.Ct. at 2036. The line between actions

embodying official policy—which support municipal liability—and

independent actions of municipal employees and agents—which do not

support municipal liability—has proven elusive.

The Supreme Court has provided limited guidance for

determining whether an official has final policymaking authority

with respect to a particular action. In the Court's earliest

attempts to establish the contours of municipal liability, a

majority of the Court was unable to agree on the appropriate
approach to final policymaker status. See Pembaur, 475 U.S. 469,

106 S.Ct. 1292, 89 L.Ed.2d 452; Praprotnik, 485 U.S. 112, 108

S.Ct. 915, 99 L.Ed.2d 107. In Jett, though, Justice O'Connor's

approach in Praprotnik garnered the support of a majority of the

Court. See Jett, 491 U.S. at 737, 109 S.Ct. at 2723-24. We draw

from Justice O'Connor's opinion, as adopted in Jett, several

principles to guide our decision.

Most important is the principle that state law determines

whether a particular official has final policymaking authority.

Praprotnik, 485 U.S. at 123, 108 S.Ct. at 924. We must look to

state and local positive law, as well as custom and usage having

the force of law. Id. at 124 n. 1, 108 S.Ct. at 924 n. 1.

Identifying final policymakers may be a difficult task, but state

law always should direct us "to some official or body that has the

responsibility for making law or setting policy in any given area

of a local government's business." Id. at 125, 108 S.Ct. at 925.

We may not assume that final policymaking authority lies in some

entity other than that in which state law places it. Id. at 126,

108 S.Ct. at 925. To the contrary, we must respect state and local

law's allocation of policymaking authority. Id. at 131, 108 S.Ct.

at 928.

Two more principles guide our inquiry. First, "the authority

to make municipal policy is necessarily the authority to make final

policy." Id. at 127, 108 S.Ct. at 926. Second, the alleged

policymaker must have final policymaking authority with respect to

the action alleged to have caused the particular constitutional or

statutory violation. Id. at 123, 108 S.Ct. at 924; Jett, 491 U.S.
at 737, 109 S.Ct. at 2724. An official or entity may be a final

policymaker with respect to some actions but not others. See

Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. at 1300 n. 12. With

respect to a particular action, more than one official or body may

be a final policymaker; final policymaking authority may be

shared. Praprotnik, 485 U.S. at 126, 108 S.Ct. at 925.

3. Our Holding in Swint

We have already addressed whether, in Alabama, sheriffs are

final policymakers for their counties in the area of law

enforcement. Swint v. City of Wadley, Ala., 5 F.3d 1435. In

Swint, we held that sheriffs are not final policymakers for their

counties in the area of law enforcement because counties have no

law enforcement authority. Id. at 1451. We agree with McMillian

that, because the Supreme Court held that we lacked jurisdiction in

Swint and vacated our decision, Swint is not binding precedent.

McMillian argues further that the Supreme Court questioned our

holding on the merits in Swint and that Swint is of no persuasive

value. Though we decline to draw any inference from the Supreme

Court's grant of certiorari, we have taken a fresh look at Swint

and the issue before us.

We recognized in Swint that an official with final

policymaking authority in a particular area of a municipality's

business may subject the municipality to § 1983 liability through

her actions within that authority. Id. at 1450 (citations

omitted). In Swint, the plaintiff sought to hold Chambers County,

Alabama, liable for raids authorized by its sheriff. To determine

whether the Chambers County Sheriff possessed final policymaking
authority for Chambers County in the area of law enforcement, we

looked to Alabama law, as required by Jett and Praprotnik. Id. We

noted that a sheriff is a state rather than a county official under

Alabama law for purposes of imposing respondeat superior liability

on a county. Id. (citing Parker v. Amerson, 519 So.2d 442

(Ala.1987)). However, that fact was not dispositive. Id. (citing

Parker v. Williams, 862 F.2d at 1478).

The critical question under Alabama law, we emphasized, is

whether an Alabama sheriff exercises county power with final

authority when taking the challenged action. Id. (citing Parker v.

Williams, 862 F.2d at 1478). Our examination of Alabama law

revealed that Alabama counties have no law enforcement authority.

Id. Alabama counties have only the authority granted them by the

legislature. Id. (citing Lockridge v. Etowah County Comm'n, 460

So.2d 1361, 1363 (Ala.Civ.App.1984)). Alabama law assigns law

enforcement authority to sheriffs but not to counties. Id. (citing

Ala.Code § 36-22-3(4) (1991)). Thus, we concluded that a sheriff

does not exercise county power when he engages in law enforcement

activities and, therefore, is not a final policymaker for the

county in the area of law enforcement. Id. at 1451. We continue

to believe that this is the correct analysis.

The Supreme Court has not addressed whether a municipality

must have power in an area to be held liable for an official's acts

in that area. Still, we think that such a requirement inheres in

the Court's municipal liability analysis. As Justice O'Connor

explained in Praprotnik, a municipal policymaker is the official

with final responsibility "in any given area of a local
government's business." 485 U.S. at 125, 108 S.Ct. at 925. A

threshold question, therefore, is whether the official is going

about the local government's business. If the official's actions

do not fall within an area of the local government's business, then

the official's actions are not acts of the local government. That

Swint properly asked this threshold question is confirmed by our

precedent, as well as cases from other circuits. See Owens v.

Fulton County, 877 F.2d 947, 950 (11th Cir.1989) (asking whether

district attorney was exercising county or state authority);

Parker v. Williams, 862 F.2d at 1478 (asking whether sheriff was

implementing county's or state's duty); Familias Unidas v.

Briscoe, 619 F.2d 391, 404 (5th Cir.1980) (asking whether county

judge was exercising county or state authority). Accord, e.g.,

Eggar v. City of Livingston, 40 F.3d 312, 314 (9th Cir.1994)

(asking whether judge's acts were performed under municipality's or

state's authority), cert. denied, --- U.S. ----, 115 S.Ct. 2566,

132 L.Ed.2d 818 (1995); Dotson v. Chester, 937 F.2d 920, 924 (4th

Cir.1991) (asking whether sheriff wields county or state authority)

(citing Owens and Parker ); Baez v. Hennessy, 853 F.2d 73, 77 (2nd

Cir.1988) (asking whether district attorney represents county or

state), cert. denied, 488 U.S. 1014, 109 S.Ct. 805, 102 L.Ed.2d 796

(1989); Soderbeck v. Burnett County, Wisconsin, 821 F.2d 446, 451-

52 (7th Cir.1987) (Soderbeck II ) (asking whether sheriff acts on

behalf of county or state).

McMillian contends that, even if Swint 's analytical framework

is sound, Swint nevertheless was wrongly decided. He questions

Swint 's conclusion that Alabama sheriffs do not exercise
policymaking authority for the county in the area of law

enforcement. He argues that, since their decisions are

unreviewable, sheriffs must set policy for some entity. If Swint

is correct that they do not set county policy, he reasons, then the

only alternative is that they set state law enforcement policy.

According to McMillian, though, sheriffs simply cannot set state

law enforcement policy. Thus, they must set county policy.

We are unpersuaded by this argument. We need not, and do

not, decide whether sheriffs are state policymakers to hold that

they are not county policymakers. But, to respond to McMillian's

argument, we note that state law could make sheriffs final

policymakers for the state, notwithstanding that they are elected

by county voters and have county-wide jurisdiction. McMillian's

arguments to the contrary involve the power to "set policy" in a

generic sense. "Policymaker" in § 1983 jurisprudence, however, is

a term of art that refers to the official or body that speaks with

final authority with respect to a particular governmental decision

or action. Jett, 491 U.S. at 737, 109 S.Ct. at 2724.

Using "policy" generically, McMillian may be correct that,

under principles of representative government, an official elected

locally should not set statewide "policy." And he may be correct

that, generically speaking, "policy" of a state connotes a single

policy rather than one state "policy" per county. But when

"policy" is understood as a § 1983 law term of art, we see no

reason why a county sheriff may not be a final policymaker for the

state in the area of law enforcement insofar as state law assigns

sheriffs unreviewable state law enforcement power.
 McMillian insists that state policy cannot be different in

each county. That different entities may share final policymaking

authority, Praprotnik, 485 U.S. at 126, 108 S.Ct. at 925, however,

presumes that one policymaker's actions may subject a municipality

to liability even if another policymaker has a different policy.

Thus, we see no anomaly in having different state policymakers in

different counties. Such a situation would be no different than if

each of a city's police precinct commanders had unreviewable

authority over how arrestees were processed. Each commander might

have a different processing policy, but that does not render a

commander's policy that of her precinct as opposed to that of the

city when the city is sued under § 1983 for her unconstitutional

treatment of arrestees.

McMillian also argues that Swint conflicts with precedent from

the Supreme Court and our circuit. We address those arguments

below.

4. The Supreme Court's Decision in Pembaur

McMillian argues that the Supreme Court's decision in Pembaur

controls his case. Based on Ohio law, the Sixth Circuit held in

Pembaur that, in a proper case, a sheriff's acts may represent the

official policy of an Ohio county. Pembaur v. City of Cincinnati,

746 F.2d at 341 (6th Cir.1984). Though reversing on other grounds,

the Supreme Court did not question the Sixth Circuit's conclusion

that a sheriff could be a county policymaker, 475 U.S. at 484, 106

S.Ct. at 1301, explaining that the Supreme Court "generally

accord[s] great deference to the interpretation and application of

state law by the courts of appeals." Id. at n. 13, 106 S.Ct. at
1301 n. 13 (citations omitted). McMillian contends that the

Supreme Court explicitly affirmed the Sixth Circuit's reasoning and

holding and, therefore, that the Sixth Circuit's analysis controls

here. We disagree.

We do not read the Supreme Court's decision as an affirmation

of the Sixth Circuit's analysis of policymaker status. The Supreme

Court simply deferred to the Sixth Circuit's conclusion that a

sheriff is a county policymaker because the question is one of

state law. The Court did not describe or discuss the state law

factors on which the Sixth Circuit based its conclusion, nor did it

address any arguments about whether a sheriff is a county

policymaker. Instead, the Supreme Court's analysis and holding

addressed whether—assuming policymaker status—a decision by a

municipal policymaker on a single occasion may subject a

municipality to § 1983 liability. Id. at 471, 106 S.Ct. at 1294.

Thus, Pembaur does not control the issue presented here.

Even if we were to read the Supreme Court's Pembaur opinion as

implicitly approving the Sixth Circuit's policymaker analysis, it

would not follow that an Alabama sheriff is, like an Ohio sheriff,

a policymaker for her county. State law determines whether a

particular official has final policymaking authority. Praprotnik,

485 U.S. at 123, 108 S.Ct. at 924. Ohio law determined the Sixth

Circuit's conclusion. But Alabama law controls our conclusion.

McMillian contends that the Ohio law factors relevant to the

Sixth Circuit's decision are the same in Alabama. In both Ohio and

Alabama, he argues, sheriffs are elected by the residents of their

counties; receive their salaries, expenses, offices, and supplies
from their counties; and serve as the chief law enforcement

officers in their counties. According to McMillian, other aspects

of Alabama law are either not dispositive or irrelevant. That

Alabama law deems sheriffs state rather than county officials, he

argues, constitutes merely a non-dispositive label. And, he

contends, whether Ohio counties have any law enforcement authority

under state law was irrelevant to the Sixth Circuit's analysis,

except to the extent that Ohio counties financially support the

sheriff's law enforcement apparatus.

We are unpersuaded by McMillian's argument that Ohio and

Alabama law are the same in all relevant respects. While we agree

that similarities exist, there are differences. Under Alabama law,

but not under Ohio law, a sheriff is a state officer according to

the state constitution. Parker v. Amerson, 519 So.2d at 442. The

Constitution of Alabama of 1901 provides that the state executive

department "shall consist of a governor, lieutenant governor,

attorney-general, state auditor, secretary of state, state

treasurer, superintendent of education, commissioner of agriculture

and industries, and a sheriff for each county." Ala. Const. art.

V, § 112 (emphasis added). The Alabama Supreme Court has held that

sheriffs are employees of the state, not their counties, and thus

that counties may not be held vicariously liable for sheriffs'

actions. Hereford v. Jefferson County, 586 So.2d 209, 210

(Ala.1991); Parker v. Amerson, 519 So.2d at 442. See also Cofield

v. Randolph County Commission, 844 F.Supp. 1499, 1502

(M.D.Ala.1994) (dismissing county from § 1983 suit because, under

Alabama law, a county may not be held vicariously liable for
sheriff's actions). Moreover, as state executive officers, Alabama

sheriffs generally are protected by the state's sovereign immunity

under Article I, § 14, of the Alabama Constitution. Hereford, 586

So.2d at 210; Parker v. Amerson, 519 So.2d at 442. Thus, sheriffs

enjoy a special status as state officers under Alabama law.

We recognize that a sheriff's designation as a state official

is not dispositive, Parker v. Williams, 862 F.2d at 1478, but such

a designation is relevant to whether a sheriff exercises state or

county power. See Soderbeck II, 821 F.2d at 451-52; Soderbeck v.

Burnett County, Wisconsin, 752 F.2d 285, 292 (7th Cir.) (Soderbeck

I ) (finding provision of Wisconsin constitution prohibiting county

respondeat superior liability for sheriff's acts "powerful

evidence" that sheriff is not county policymaker), cert. denied,

471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 261 (1985). McMillian

would have us disregard Alabama's decision to make a sheriff a
4
state official, characterizing it as nothing more than a label.

Instead, we heed the Supreme Court's admonition that federal courts

respect the way a state chooses to structure its government. See

Praprotnik, 485 U.S. at 126, 108 S.Ct. at 925.

We also reject McMillian's argument that Pembaur shows that

whether a county has law enforcement power is irrelevant. Though

the Sixth Circuit did not cite an Ohio county's law enforcement

authority as a factor in its decision, we are not convinced that

4
We recognize that a state cannot insulate local governments
from § 1983 liability simply by labelling local officials state
officials. Parker v. Williams, 862 F.2d at 1479. We base our
decision not on a sheriff's "label" but on a county's lack of law
enforcement power, of which a sheriff's designation as a state
official is evidence.
the existence of county law enforcement authority was irrelevant to

its decision. The Ohio law cited by the Sixth Circuit strongly

suggests that Ohio counties have law enforcement responsibilities

beyond simply providing sheriffs with funds. Ohio law provides

that "[i]n the execution of the duties required of him, the sheriff

may call to his aid such persons or power of the county as is

necessary." Ohio Rev.Code Ann. § 311.07 (Baldwin 1982). It could

be that the Sixth Circuit did not mention this factor because "it

is obvious that the Sheriff is a County official," Pembaur, 746

F.2d at 341, or simply because the county did not argue that it had

no law enforcement power. In any event, regardless of its

relevance to the Sixth Circuit, we believe that the existence of

county law enforcement power is a prerequisite to a finding that a

sheriff makes law enforcement policy for a county.

5. Our Holding in Parker v. Williams

Relying on our decision in Parker v. Williams, McMillian

contends that Alabama counties have the same degree of power in the

area of law enforcement that we have found sufficient for county

liability in the area of hiring and training jail personnel. In

Parker, we held that a sheriff exercised county power with final

authority when hiring and training a jailer who raped an inmate.

862 F.2d at 1478. We determined that counties, not the state of

Alabama, have the responsibility for running jails under Alabama

law, because "[i]n practice, Alabama counties and their sheriffs

maintain their county jails in partnership." Id. at 1478-79.

Inherent in Parker's finding that counties and sheriffs

maintain jails "in partnership" was a finding that counties have
some duty or authority in the area of running county jails. Put

another way, only because Alabama law gives both counties and

sheriffs certain power with respect to running county jails could

it be said that a county's power in that area takes the form of a

partnership with the sheriff. McMillian correctly notes that

Parker does not require that a municipality act "in partnership"

with a government official to be liable for the official's actions.

But McMillian errs to the extent that he suggests that Parker

disavows any requirement that a municipality possess power in a

particular area for an official's actions in that area to be

attributed to the municipality. Parker holds that a county need

not directly control the sheriff to be held liable for the

sheriff's actions. 862 F.2d at 1480. It does not even suggest,

however, that a county need not have power in an area for a sheriff

to be said to exercise county power in that area.

McMillian contends that Monroe County possesses the degree of

law enforcement power required by Parker. Parker listed several

features of Alabama law demonstrating that, in practice, counties

share authority for running jails with sheriffs. Parker, 862 F.2d

at 1479. Cf. Strickler v. Waters, 989 F.2d 1375, 1390 (4th Cir.)

(state law requiring city to fund jail and keep it in good order

not enough to render city liable for sheriff's actions in

administering jail), cert. denied, --- U.S. ----, 114 S.Ct. 393,

126 L.Ed.2d 341 (1993). McMillian seizes on certain of these

features to argue that counties have the requisite power in the

area of law enforcement as well. McMillian is correct that certain

features of Alabama law with respect to jail maintenance, primarily
those relating to county funding of the sheriff's operations, also

obtain with respect to law enforcement. But McMillian's analogy

fails because important aspects of Alabama law evincing county

power in the jail maintenance area find no parallel in the law

enforcement area.

As Parker notes, for example, in the area of jail

maintenance, the county commission is described by state law as the

"body having control over the jail," to which the state board of

corrections must submit certain jail inspection reports. 862 F.2d

at 1479 (citing Ala.Code § 14-6-81). Though not cited in Parker,

other provisions of the Alabama Code further demonstrate county

authority over jails. For instance, the chairman of the county

commission has the power to inspect jails weekly and report the

results to the grand jury. Ala.Code § 11-14-22. In contrast,

Alabama law allocates to counties no similar powers in the area of

law enforcement. County involvement is limited: county voters

elect the sheriff and the county funds her operations.5 Thus, it

cannot be said that sheriffs and counties hold power in partnership

as in Parker, or that counties otherwise possess the degree of law

enforcement authority necessary to say that a sheriff exercises

county power in that area. But see Turner v. Upton County, 915

F.2d 133, 136 (5th Cir.1990) (holding that sheriff is county

policymaker in area of law enforcement by virtue of election by

5
McMillian seems to suggest that the provision requiring
sheriffs to perform certain actions in their respective counties,
Ala.Code § 36-22-3(4), amounts to a grant of law enforcement
power to counties. It is true that state law limits a sheriff's
jurisdiction to her county. But such a geographical limitation
on the sheriff's power is fundamentally different from a grant of
law enforcement power to the county itself.
county voters), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112

L.Ed.2d 850 (1991).6
Our conclusion that, under Alabama law, law enforcement is an

exercise of state power, whereas jail maintenance is an exercise of

county power, accords with our other precedent. McMillian argues

that Lucas v. O'Loughlin, 831 F.2d 232 (11th Cir.1987), cert.

denied, 485 U.S. 1035, 108 S.Ct. 1595, 99 L.Ed.2d 909 (1988), and

the two Fifth Circuit cases upon which it relied demonstrate that

a sheriff is a county policymaker in the area of law enforcement.

He contends that the factors we relied on to hold that a Florida

sheriff's termination of a deputy was an act of the county, id. at

235, are the same under Alabama law: the sheriff is elected by the

county, carries out his duties within the county, is funded by the

county, and has absolute authority over the subject matter. He

concedes two differences between Lucas and his case. Lucas

involved appointment and control of deputies, while he challenges

law enforcement activities; and sheriffs in Alabama are state

officers, while sheriffs in Florida are county officers.

Nevertheless, McMillian argues that these differences are not

dispositive. Once again, we disagree. We have already explained

that an Alabama sheriff's designation as a state official is

6
We note that the Fifth Circuit seems to view an officer's
election by county voters as a significant, if not dispositive,
factor in holding counties liable for the officer's actions under
§ 1983. E.g., id.; Crane v. State of Texas, 766 F.2d 193, 195
(5th Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 570, 88
L.Ed.2d 555 (1985). But see Keathley v. Vitale, 866 F.Supp. 272,
276 (E.D.Va.1994) (holding that election is not sufficient basis
to attribute sheriff's acts to city). As we have explained, we
do not view a sheriff's election by county voters as dispositive,
particularly when other factors demonstrate that a sheriff is not
exercising county power.
relevant to whether she exercises county law enforcement power; we

shall not belabor that point.

We also disagree with McMillian's argument that the type of

action challenged makes no difference. He contends that because

Sheriff Tate has absolute authority over law enforcement, just as

the sheriff in Lucas had absolute authority over the termination of

his deputy, Sheriff Tate must be a final policymaker for the county

in the area of law enforcement. This argument fails for at least

two reasons. First, that an official has absolute authority over

an area shows only that she is a final policymaker in the area; it

says nothing about whose authority she exercises in that area,

i.e., whether she is a final policymaker for the county or the

state. Keathley v. Vitale, 866 F.Supp. at 275. Second, whether

the action challenged involves termination of an employee or

traditional law enforcement activity is critical to whether a

sheriff exercises county or state authority. Lucas bears this out.

In holding that the Florida sheriff acted as a county

policymaker, Lucas relied on the distinction between an official's

local power in administrative matters and her state power in other

matters. We quoted two Fifth Circuit cases drawing the distinction

between local duties and state duties. Lucas, 831 F.2d at 235.

Familias Unidas distinguished between a Texas county judge's

traditional role in the administration of county government and his

role in implementing a state statute. Familias Unidas, 619 F.2d at

404. In that case, the Fifth Circuit held that the judge's role in

implementing a state statute, "much like that of a county sheriff

in enforcing a state law," effectuated state policy. Id. Van
Ooteghem similarly distinguished between a county treasurer's

"effectuation of the policy of the State of Texas [and] ...

discretionary local duties in the administration of county

government," holding that the treasurer's "decisions regarding

termination of [an employee] fall on the local not the state side

of his duty: he was about the business of county government ..."

Van Ooteghem v. Gray, 774 F.2d 1332, 1337 (5th Cir.1985). In

Lucas, we determined that the same principle applied to the Florida

sheriff's termination of a deputy; thus, the sheriff was about the

business of county government, rendering the county liable for his

actions under § 1983. Lucas, 831 F.2d at 235.

Our holding here that Sheriff Tate is not a final policymaker

for Monroe County in the area of law enforcement, because Monroe

County has no law enforcement authority, really is just another way

of saying that when Sheriff Tate engages in law enforcement he is

not about the business of county government. The sheriff in Lucas,

in contrast, was about the business of county government in

terminating a deputy. And the sheriff in Parker was about the

business of county government when negligently hiring the jailer.

The county and sheriff maintain county jails in partnership, and

hiring a jailer falls on the local, administrative side of the

sheriff's duties.

We drew this distinction between local, administrative duties

and state duties in our post-Parker decision in Owens v. Fulton

County, 877 F.2d 947. In Owens, we held that a Georgia district

attorney acts for, and exercises the power of, the state rather

than the county when making prosecutorial decisions. 877 F.2d at
951, 52. Citing Parker, we noted that an official simultaneously

may exercise county authority over some matters and state authority

over others. Id. at 952 (citing Parker, 862 F.2d at 1479). We

found that a Georgia district attorney's relationship to the county

involves merely budgetary and administrative matters. Id. See

also Parker, 862 F.2d at 1478 ("The relationship between [the

sheriff] and the county ... is central to the evaluation of whether

the county can be liable for [his] actions.") Thus, we determined,

a district attorney's acts with respect to budgetary and

administrative matters—such as terminating an employee—may be

exercises of county authority. But we held that the prosecution of

state offenses is an exercise of state authority. Owens, 877 F.2d

at 952.

B. Whether Hearsay May Be Used to Defeat Summary Judgment

In Count Three of his complaint, McMillian alleges that three

officials—Sheriff Tate, Larry Ikner, an investigator in the

prosecutor's office, and Simon Benson, an Alabama Bureau of

Investigation agent—coerced prosecution witnesses into giving false

testimony at McMillian's trial and thus knowingly used perjured

testimony. The district court granted partial summary judgment to

Tate, Ikner, and Benson on McMillian's claim that they coerced Bill

Hooks and Joe Hightower into testifying falsely, holding that

McMillian had failed to present sufficient evidence to raise a

genuine issue of material fact as to whether Tate, Ikner, and

Benson coerced Hooks and Hightower or knowingly used their perjured

testimony. The district court held that McMillian could not create

a genuine issue for trial with Hooks and Hightower's hearsay
statements to Alabama Bureau of Investigation agents because the

statements would be inadmissible at trial. In the hearsay

statements, Hooks and Hightower say that they were pressured to

perjure themselves; now they say in sworn affidavits that they

were not coerced and testified truthfully at trial.

McMillian contends that the district court erred in refusing

to consider the hearsay evidence on summary judgment. He contends

that the Supreme Court's decision in Celotex and our decisions in

Church of Scientology and Offshore Aviation permit the use of

hearsay to defeat a motion for summary judgment. Celotex Corp. v.

Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);

Church of Scientology v. City of Clearwater, 2 F.3d 1514 (11th

Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 54, 130 L.Ed.2d

13 (1994); Offshore Aviation v. Transcon Lines, Inc., 831 F.2d

1013 (11th Cir.1987). Tate, Ikner, and Benson contend that the

district court properly refused to consider the hearsay. Tate

contends that McMillian misreads Celotex.

We do not read Celotex to permit McMillian to defeat summary

judgment with the type of hearsay evidence offered in this case.

In Celotex, the Supreme Court said:

We do not mean that the nonmoving party must produce evidence
in a form that would be admissible at trial in order to avoid
summary judgment. Obviously, Rule 56 does not require the
nonmoving party to depose her own witnesses. Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves, and it is from this list
that one would normally expect the nonmoving party to make the
showing to which we have referred.

477 U.S. at 324, 106 S.Ct. at 2553. We read this statement as

simply allowing otherwise admissible evidence to be submitted in
inadmissible form at the summary judgment stage, though at trial it

must be submitted in admissible form. See Offshore Aviation, 831

F.2d at 1017 (Edmondson, J., concurring).

McMillian does not contend that Hooks and Hightower's

statements are admissible for their truth, that is, as substantive

evidence that they were coerced into testifying falsely. Nor does

McMillian contend that the content of the statements will be

reduced to admissible form at trial. He contends that Hooks and

Hightower might change their sworn affidavit testimony and admit to

being coerced, but a suggestion that admissible evidence might be

found in the future is not enough to defeat a motion for summary

judgment. McMillian alternatively contends that he can use the

statements to impeach Hooks and Hightower if they testify,

consistently with their affidavits, that they were not coerced and

did not testify falsely at McMillian's criminal trial. While the

statements may be admissible for that purpose, the district court

correctly noted that such impeachment evidence is not substantive

evidence of the truth of the statements alleging coercion. Such

potential impeachment evidence, therefore, may not be used to

create a genuine issue of material fact for trial. Because Hooks

and Hightower's statements will be admissible at trial only as

impeachment evidence, the statements do not create a genuine issue

of fact for trial.7
Neither Church of Scientology nor Offshore Aviation holds that

7
McMillian also argues that there is other evidence that
creates a genuine issue of fact for trial as to whether Tate,
Ikner, and Benson coerced Hooks and Hightower into testifying
falsely. We agree with the district court that the evidence is
insufficient to raise a genuine issue for trial.
inadmissible hearsay may be used to defeat summary judgment when

the hearsay will not be available in admissible form at trial. In

Church of Scientology, we held that the district court should have

considered newspaper articles offered as evidence that Clearwater's

city commission conducted its legislative process with the

intention of singling out the Church of Scientology for burdensome

regulation. 2 F.3d at 1530-31. There was no argument that the

events recounted in articles could not be proven with admissible

evidence at trial, and we expressed no opinion as to whether the

articles themselves would be admissible at trial. Id. at 1530-31

& n. 11. Indeed, there was every indication that witnesses would

be able to testify at trial from their personal knowledge of the

events recounted in the articles. Here, in contrast, McMillian

points to no witness with personal knowledge who will testify at

trial that Hooks and Hightower were coerced into testifying

falsely.

In Offshore Aviation, we held that the district court should

have considered a letter offered in opposition to a motion for

summary judgment. 831 F.2d at 1015. The party moving for summary

judgment argued for the first time on appeal that the letter was

inadmissible hearsay. Id. We held that the objection to the

letter's admissibility was untimely and that the district court

should have considered the letter in its summary judgment decision.

Id. at 1016. We also noted that the fact that the letter itself

would be inadmissible at trial did "not undercut the existence of

any material facts the letter may [have] put into question." Id.

at 1015. Though we agree with McMillian that this and certain
other language in our opinion suggests that inadmissible hearsay

may be used to defeat summary judgment, we do not read Offshore

Aviation to hold that inadmissible hearsay may be used even when it

cannot be reduced to admissible evidence at trial. There was no

indication in Offshore Aviation that the letter could not be

reduced to admissible evidence at trial. Indeed, that the letter

at issue was based on the writer's personal knowledge, id. at 1016,

indicates that there was no impediment to the writer testifying at

trial as to the facts described in the letter.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court's

judgment.

AFFIRMED.

PROPST, District Judge, concurring specially:

I concur in Judge Cox's well-reasoned opinion. I write

separately only to address the opinion in Parker v. Williams, 862

F.2d 1471 (11th Cir.1989).

I recognize that Parker v. Williams apparently holds that

Alabama counties and sheriffs are "partners" in the operation of

jails. I do not agree that Alabama law provides a reasonable basis

for such a holding. I respectfully suggest that sheriffs and

counties have independent obligations with reference to jails. The

counties' sole responsibilities, under Alabama law, relate to the

jail facilities.

I find no Alabama law which gives counties any authority to

run or operate jails. Under Alabama law, the sole authority for

"running" or operating jails and hiring jailors is placed with
sheriffs. In my opinion, the mere fact that counties provide jail

facilities and funds for salaries, etc. does not make them
1
"partners" of the sheriff in the operation of jails. Counties

have no more "control" over the "running" or operation of jails

than they have over law enforcement by the sheriffs. Sheriffs also

"hire and train" law enforcement officers with county funds. My

full reasoning is addressed in Turquitt v. Jefferson County, ---

F.Supp. ----, (N.D.Ala. Jan. 19, 1996).

1
"Partnerships" generally involve agreements to share
profits and losses. I assume that the term "partner" in Parker
was used in some analogous sense. To the extent that payment of
expenses and hiring and training of officers with county funds
arguably makes the county a "partner," it would appear to be
equally applicable to law enforcement activities.