McMillian v. Johnson

PUBLISH
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-6369

D. C. Docket No. CV-93-699-N

WALTER McMILLIAN,

Plaintiff-Appellant,

versus

W. E. JOHNSON, MORRIS THIGPEN, TOM ALLEN,
MARIAN SHINBAUM, CHARLIE JONES, et al., in
their individual capacities,

Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of Alabama

(July 9, 1996)

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

COX, Circuit Judge:

*
Honorable Robert B. Propst, U. S. District Judge for the
Northern District of Alabama, sitting by designation.
 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

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

1
For a more detailed recitation of the facts, see our opinion
in No. 95-6123, also decided today.
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 (1985). We treat
McMillian's claims against Tate in his official capacity and the
claims against Monroe County as stating the same claims because
(continued...)

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, 115 S. Ct. 1203 (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 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

2
(...continued)
McMillian contends that Sheriff Tate represents Monroe County.
Whether McMillian's contention is meritorious is at issue on this
appeal.

3
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

Cincinnati, 475 U.S. 469, 106 S. Ct. 1292 (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,

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.

4
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 (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

5
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 (1989); City of

St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S. Ct. 915, 924

(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; Praprotnik, 108 S. Ct. 915. 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.

6
 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.

7
 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.

8
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

9
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, 115 S. Ct. 2566 (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 (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

10
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,

11
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

12
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

13
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

14
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 (1985). McMillian would have us

disregard Alabama's decision to make a sheriff a state official,

characterizing it as nothing more than a label.4 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

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.

15
the Sixth Circuit did not cite an Ohio county's law enforcement

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

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

16
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

17
administering jail), cert. denied, 114 S. Ct. 393 (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 § 11-12-22. 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

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.

18
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

county voters), cert. denied, 498 U.S. 1069, 111 S. Ct. 788

(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 (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

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 (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.

19
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 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

20
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.

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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

22
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 (1986); Church of

Scientology v. City of Clearwater, 2 F.3d 1514 (11th Cir. 1993),

cert. denied, 115 S. Ct. 54 (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.

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 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
24
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

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

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.

25
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.

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AFFIRMED.

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