Appeal from the United States District Court for the Middle District of Alabama. D.C. Docket No. CV-93-699-N. DISTRICT JUDGE: ALBRITTON, W.H.
Before Cox and Barkett, Circuit Judges, and Propst,*fn* District Judge. Propst, District Judge, concurring specially
I. FACTS AND PROCEDURAL BACKGROUND*fn1
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.*fn2
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 P 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, 131 L. Ed. 2d 60, 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.
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.*fn3
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, 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 ...