ON PETITION FOR PANEL REHEARING AND SUGGESTION OF REHEARING EN BANC
The opinion reported at 88 F.3d 1554 (11th Cir.1996), is amended by substituting the following for section "F" under part IV of the opinion, pages 1571-73.
F. Tate's Sovereign Immunity From State Law Claims
The district court found that McMillian had presented sufficient evidence to create a genuine issue of material fact on three state law claims against Tate, Ikner, and Benson: malicious prosecution (Count Twenty); abuse of process (Count Twenty-One); and outrage (Count Twenty-Six). In addition, the court found that a genuine issue exists as to a state law outrage claim against Tate and the DOC defendants (Count Twenty-Five). The court rejected Tate's state law sovereign immunity and state law discretionary immunity defenses, holding that neither form of state law immunity shields officials sued for intentional or malicious wrongdoing in their individual capacities.
We find in decisions by Alabama's appellate courts no clear answer to the question presented. Some Alabama decisions, including the most recent ones, seem to support Tate's position. Karrick v. Johnson, 659 So.2d 77 (Ala.1995)(deputy sheriff immune from suit for malicious prosecution and false imprisonment); Drain v. Odom, 631 So.2d 971 (Ala.1994)(sheriff is immune from suit in his official capacity for negligent performance of his statutory duties); Parker v. Amerson, 519 So.2d 442 (Ala.1987)(sheriff is an executive officer of State of Alabama and is immune from suit under Article I, § 14, Alabama Constitution of 1901, in the execution of duties of his office); Alexander v. Hatfield, 652 So.2d 1142 (Ala.1994)(deputy sheriffs are immune from suit to the same extent as sheriffs). Some Alabama decisions point in the other direction. Phillips v. Thomas, 555 So.2d 81 (Ala.1989)(Clearly, a state officer or employee is not protected by § 14 when he acts willfully, maliciously, illegally, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of law); Unzicker v. State, 346 So.2d 931 (Ala.1977)(State immune when impleaded as defendant, but governor, commissioner of conservation, and state highway director, in their respective capacities, were not also immune where it was alleged that those officers acted fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law); Milton v. Espey, 356 So.2d 1201 (Ala.1978)(Section 14 does not necessarily immunize State officers or agents from individual civil liability); DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1982)(defense of sovereign immunity afforded university and its president did not extend to employee whose alleged tortious act was the basis of the claim); Lumpkin v. Cofield, 536 So.2d 62 (Ala.1988)(defense of sovereign immunity does not bar suits against state officers and employees for torts committed willfully, maliciously, and outside the scope of their authority); See also Gill v. Sewell, 356 So.2d 1196 (Ala.1978).
But a recent decision by this court, Tinney v. Shores, 77 F.3d 378 (11th Cir. 1996), holds that under Alabama law a sheriff and deputy sheriff are shielded by sovereign immunity against claims based upon intentional torts. Some of the language in Tinney is confusing; the court says that "[u]nder Alabama law, sheriffs and deputy sheriffs, in their official capacities and individually, are absolutely immune from suit when the action is, in effect, one against the state." Id. at 383. The claim under consideration in Tinney was against the sheriff and deputy sheriff in their individual capacities. However, no consideration was given to whether the action was, in effect, one against the state. Federal law controls a determination relative to whether a state is the real party-in-interest to the action, and under federal law the claim in Tinney was not one against the state. See Kentucky v. Graham, 473 U.S. 159, 167-68, 105 S.Ct. 3099, 3106-07, 87 L.Ed.2d 114 (1985); and Jackson v. Georgia Dep't of Transp., 16 F.3d 1573, 1577 (11th Cir.1994). Notwithstanding this confusing language in Tinney, the holding of the case is clear: under Alabama law, a claim against an Alabama sheriff in his individual capacity is barred by the doctrine of sovereign immunity. We are bound to follow Tinney, and do so. We hold that the district court erred in rejecting Tate's sovereign immunity defense to the state law claims.
The petition for panel rehearing is, except as granted hereby, DENIED, and no member of this panel nor other judge in regular active service on the court having requested that the court be polled on rehearing en banc
PROPST, Senior District Judge, specially concurring:
I join the court's opinion on petition for rehearing. I write separately to address broader issues relating to qualified immunity.
At a recent Eleventh Circuit Judges' Workshop, a speaker remarked that "Keeping up with qualified immunity law is a fulltime job." As a trial judge, I can well see how one might reach that conclusion. I concur in the denial of rehearing as to federal qualified immunity asserted by the defendants in their individual capacities. In doing so, I humbly make some suggestions which may reduce the workload of the followers of this still developing law. Although I, as a trial judge, granted qualified immunity to the two individual defendants in Jenkins v. Talladega City Board of Education, 95 F.3d 1036 (11th Cir.1996), and later concurred in the denial of qualified immunity in this case, I submit that there is no inconsistency.
Our holding in this case is premised on the holding in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Bell clearly holds that "under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Id., 441 U.S. at 535, 99 S.Ct. at 1872. Having held that punishment of pretrial detainees violates the Due Process Clause, the Court proceeded to determine what factors are considered in determining whether conduct constitutes "punishment."
The Court, after stating that factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963), "[provide] useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word," concluded that, "A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.... Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination will generally turn `on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].' Kennedy v. Mendoza-Martinez, supra, at 168-69, 83 S.Ct. at 567-68 ...." (emphasis added). Id., 441 U.S. at 538, 99 S.Ct. at 1874. The Court added,
Id., 441 U.S. at 539, 99 S.Ct. at 1874.
Whether discussed in the context of "expressed intent" to punish, or in the context of determining the existence of a legitimate governmental goal, the purpose of the conduct is significant, and the purpose may be inferred from the total evidence. Both purpose and intent are fact related and it is difficult for me to see how such issues can be determined as a matter of law; particularly when the claim is that it was necessary to place a pretrial detainee on death row in order to protect him. Such is the issue in this case.
On the other hand, Jenkins, supra, is not a case involving the Due Process Clause nor the subjective intent or purpose of the alleged
Having noted this distinction, I further suggest that the holding in Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150 (11th Cir.1994) (en banc), that "Courts must not permit plaintiffs to discharge their burden by referring to general rules and to the violation of `abstract rights,'" is more easily applied in cases, such as Fourth Amendment cases, where the underlying inquiry is one of objective reasonableness. I thus distinguish the facts and issues of this case from those in Jenkins. In Jenkins the issue is whether reasonable officials would know that their conduct was objectively unreasonable.
Perhaps no case provides a better example of the requirement of prior concrete law in Fourth Amendment cases that does Wright v. Whiddon, 951 F.2d 297 (11th Cir.1992). Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) clearly established that the use of deadly force to apprehend a fleeing, non-dangerous felony suspect is a constitutionally unreasonable seizure under the Fourth Amendment.
In the recent case of Foy v. Holston, cited supra, the court attempted to strike a balance in cases in which intent is an element of the underlying claim. The court in Foy stated,
In note 9, the court added:
Crawford-El v. Britton, 93 F.3d 813 (D.C.Cir.1996) (en banc), proposes another solution, in cases involving the intent or motive of public officials, to preserving the holding in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) that requires some protection to such officials from the costs of lawsuits that unduly chill their exercise of discretion in the performance of their public duties. The apparent majority of the court held that when motive or intent is an essential element of a constitutional tort claim, the plaintiff, in opposition to a motion for summary judgment based on qualified immunity, has to present clear and convincing evidence that the defendant acted with an unconstitutional motive. The court split with regard to the amount of discovery to be allowed to plaintiffs on the intent or motive issue before the trial court rules on such motions. While the number of concurring opinions makes it difficult to ascertain the holdings of the court, at least one commentator
In note 5 of Foy, the court remarked on the difference between constitutional torts which require proof of intent or motive and those that don't. The court stated:
Jenkins involves the type case discussed in note 5 in Foy. Our instant case does implicate the subjective intent of the defendant. An issue is whether claims involving subjective intent are appropriate for summary judgment based upon qualified immunity if a legitimate motive is simply posited. I find it difficult to see how such cases can be determined at the summary judgment stage if there is any substantial evidence of an illegal motive in view of the established law which precludes a trial court's making credibility determinations, weighing the evidence, and interfering with a jury's drawing of legitimate inferences from the evidence. See Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992).
I fully agree with the concerns expressed by various judges about the exponential growth of such claims against public officials.
I suggest that the qualified immunity issues cry out for further en banc consideration, especially as to the claims involving intent or motive as an element vis a vis those which do not.
The Jenkins majority would apparently require the defendants, in the acknowledged absence of clearly established Eleventh Circuit law, to, by inductive consideration of a factually distinct Supreme Court case and one Associate Justice's dicta, decide what the Eleventh Circuit would likely hold.