In this § 1983 excessive force case, Willie Santonio Manders sued Sheriff Winston Peterson in his official capacity for injuries allegedly caused by the Sheriff's use-of-force policy at the jail and failure to train and discipline his deputies in that regard. We conclude that Sheriff Peterson functions as an "arm of the State" in establishing use-of-force policy at the jail and in training and disciplining his deputies in that regard, and is entitled to Eleventh Amendment immunity for these particular functions. Thus, we reverse the district court's denial of summary judgment for Sheriff Peterson.

As the elected sheriff, defendant Sheriff Peterson is responsible for the operation of the jail in Clinch County, Georgia, for establishing use-of-force policy at the jail, and for hiring, training, and disciplining his deputies who work in the jail. Sheriff Peterson's deputy and chief jailer is Alan Brown. In May 1997, police officers from the City of Homerville arrested plaintiff Manders and transported him to the jail.1 Because Manders had punched a police officer, the arresting officers charged him with felony obstruction of an officer, in violation of Georgia law, O.C.G.A. § 16-10-24(b).

As Manders was escorted into the jail's holding cell, a City police officer stated that Manders "hit him" earlier. According to Manders, Deputy Brown and a City police officer then repeatedly struck him across the head, neck, and face and banged his head against a wall. Manders suffered a bruised, swollen face. The beating affected him emotionally, resulting in a mental hospital stay.

The morning after the beating, Manders wrote a statement for jail officials, wherein he stated: "They had to be rough with me to let me know that they mean business." That same day, Manders was released from jail. Afterwards, Manders's mother met with Sheriff Peterson to discuss the beating. According to Manders's mother, Sheriff Peterson responded to her concerns this way: "[T]hat happens sometimes when they bite and scratch." Sheriff Peterson did not investigate the beating incident. In his deposition, Manders later testified that Sheriff Peterson and another officer forced him to write his statement.

Manders's evidence also included the Policy and Procedure Manual (the "Manual") of the Sheriff's Office containing the Sheriff's use-of-force policy. Sheriff Peterson published the Manual in 1989 or 1990, drafting some policies himself and adopting some State policies. The Manual requires that "[e]ach case involving physical or defensive force be reported in writing to the Sheriff:"2

(A) Notification of Supervisor

1. The Sheriff shall be immediately informed of each incident involving the use of force by officers of this Department. Such notification shall be on the same date of the incident.

2. Each case involving physical or defensive force shall be reported in writing to the Sheriff.

3. Each officer present or assisting in an arrest or incident requiring force shall be prepared to submit a report supplement describing the incident if requested.

In addition to the report requirement, the Manual discusses both non-deadly and deadly force by an officer in the performance of his duties. The Manual provides that non-deadly force may be used by an officer in these situations:

1. When necessary to preserve the peace, prevent commission of offenses, or prevent suicide or self-inflicted injury.

2. When preventing or interrupting a crime or attempted crime against property.

3. When making lawful arrests and searches, overcoming resistance to such arrest and searches, and preventing escapes from custody.

4. When in self defense, or defense of another against unlawful violence to his person.

The Manual also details when deadly force is justified. Sheriff Peterson has no other written or standard operating procedures for the use of force at the jail.

In this § 1983 case, Manders's amended complaint claims that defendants Clinch County and Sheriff Peterson, in his official capacity, are responsible for use-of-force policy at the jail, for training and disciplining deputies who work at the jail, and for ensuring that the policy is followed.3 According to Manders, Deputy Brown beat him, and Clinch County and Sheriff Peterson permitted Brown's use of excessive force at the jail. Manders also asserts that Clinch County and Sheriff Peterson failed to provide deputies proper training and supervision regarding use of force at the jail and failed to promulgate adequate rules to regulate deputies' conduct at the jail. Manders asserts that these failures caused his beating. Manders sought damages against Clinch County and Sheriff Peterson in his official capacity.4

The district court denied defendants' motion for summary judgment on Manders's § 1983 damage claims against Clinch County and Sheriff Peterson in his official capacity for the use-of-force policy at the jail and the training and disciplining of deputies in that regard.5 Sheriff Peterson alone filed this interlocutory appeal, claiming that he is a state actor and that the district court erred in denying him Eleventh Amendment immunity.6 This appeal does not address the individual liability of Sheriff Peterson or his deputies for using excessive force.7 Instead, this appeal involves only the immunity of Sheriff Peterson in his official capacity.

The Eleventh Amendment provides immunity by restricting federal courts' judicial power:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. The Eleventh Amendment protects a State from being sued in federal court without the State's consent.8 As a result, parties with claims against a non-consenting State must resort to the State's own courts. The Eleventh Amendment is "a recognition that states, though part of a union, retain attributes of sovereignty, including immunity from being compelled to appear in the courts of another sovereign against their will." McClendon v. Georgia Dep't of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir. 2001).

It is also well-settled that Eleventh Amendment immunity bars suits brought in federal court when the State itself is sued and when an "arm of the State" is sued. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). To receive Eleventh Amendment immunity, a defendant need not be labeled a "state officer" or "state official," but instead need only be acting as an "arm of the State," which includes agents and instrumentalities of the State. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-30, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). Whether a defendant is an "arm of the State" must be assessed in light of the particular function in which the defendant was engaged when taking the actions out of which liability is asserted to arise. See Shands Teaching Hosp. & Clinics v. Beech St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) ("The pertinent inquiry is not into the nature of [an entity's] status in the abstract, but its function or role in a particular context."). The particular functions at issue are Sheriff Peterson's force policy at the jail and the training and disciplining of his deputies in that regard.9

In Eleventh Amendment cases, this Court uses four factors to determine whether an entity is an "arm of the State" in carrying out a particular function: (1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity. Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm., 226 F.3d 1226, 1231-34 (11th Cir.2000); Shands, 208 F.3d at 1311; Tuveson v. Fla. Governor's Council of Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir. 1984).

Given these factors, the resolution of the Eleventh Amendment issue in this case depends, in part, on state law. Therefore, before applying the four-factor test, we must examine Georgia law and the relationship among Sheriff Peterson, the State, and Clinch County. The issue of whether an entity is an "arm of the State" for Eleventh Amendment purposes is ultimately a question of federal law. But the federal question can be answered only after considering provisions of state law. Thus, we now journey through Georgia's legal terrain at some length.10

We first examine the governmental structure of Sheriff Peterson's office vis-à-vis the State and Clinch County under Georgia law. Next, we outline the functions Sheriff Peterson performs as they reflect the character of his office. Then we apply the Eleventh Amendment factors to the sheriff's functions in issue: promulgating force policy and training and disciplining deputies in that regard.

Georgia's Constitution has created the sheriff's office as an elected constitutional office in Georgia's governmental hierarchy. Ga. Const. art. IX, § 1, ¶ 1. The sheriff's office is not a division or subunit of Clinch County or its county governing body, and, thus, it is not a structural part of Clinch County government. See id.; Ga. Const. art. IX, § 2, ¶ 1(c)(1). Rather, the sheriff's office is a separate constitutional office independent from Clinch County and its governing body. See Ga. Const. art. IX, § 2, ¶ 1(c)(1).

Further, Georgia's Constitution grants the State legislature the exclusive authority to establish and to control a sheriff's powers and duties. Ga. Const. art. IX, § 1, ¶ 3(a)-(b).11 Interpreting this constitutional provision, the Georgia Supreme Court has explained that sheriffs are subject to the control of the Georgia legislature and are not county employees. Bd. of Comm'rs of Randolph County v. Wilson, 260 Ga. 482, 482, 396 S.E.2d 903 (1990) ("The sheriff ... is an elected, constitutional officer; he is subject to the charge of the General Assembly and is not an employee of the county commission."); see Chaffin v. Calhoun, 262 Ga. 202, 203, 415 S.E.2d 906 (1992); Warren v. Walton, 231 Ga. 495, 499-500, 202 S.E.2d 405 (1973).

In contrast to the State's authority and control over sheriffs, Georgia's Constitution grants counties no legislative power or authority over sheriffs and expressly prevents counties from controlling or affecting the sheriff's office or the personnel thereof.12 Ga. Const. art. IX, § 2, ¶ 1(c)(1). In this regard, the Georgia Supreme Court has concluded that this constitutional restriction on the legislative power granted to counties-home rule-prevents counties from taking action affecting the sheriff's office. Warren, 231 Ga. at 499, 202 S.E.2d 405;13 see Stephenson v. Bd. of Comm'rs of Cobb County, 261 Ga. 399, 401-02, 405 S.E.2d 488 (1991). As a result, counties exercise no authority or control over the sheriff's force policy, whether in making arrests on the streets or in quelling disruptive inmates at the jail.

Further, in Georgia, counties also do not delegate any of their governmental or police powers to sheriffs. Instead, the sheriffs' authority and duties are derived directly from the State. That counties delegate no power or authority to sheriffs further explains why counties have no authority or control over them and why the sheriff is not a subunit or division of county government.

Georgia law likewise makes the county entity itself, here Clinch County, a separate entity independent of the sheriff's office. Under Georgia law, Clinch County is a "body corporate" capable of suing and being sued and is headed by the county governing authority. Ga. Const. art. IX, § 1, ¶ 1 ("Each county shall be a body corporate and politic with such governing authority ... as provided by law."); O.C.G.A. §§ 36-1-3 ("Every county is a body corporate, with power to sue or be sued in any court."), 1-3-3(7) (defining "County governing authority" as "the board of county commissioners, the sole county commissioner, or the governing authority of a consolidated government"). As a separate entity, Clinch County is headed by its Board of Commissioners, which is given "exclusive jurisdiction over and control of county affairs." Ga. Laws 1933, p. 467, § 29. In contrast, under Georgia's Constitution, the State has exclusive authority and control over the duties and affairs of the sheriff's office. Although the State requires the county to fund the sheriff's budget, Georgia's Constitution precludes the county from exercising any authority over the sheriff, including how the sheriff spends that budget. Ga. Const. art. IX, § 2, ¶ 1(c)(1); Chaffin v. Calhoun, 262 Ga. 202, 203-04, 415 S.E.2d 906 (1992); see Boswell v. Bramlett, 274 Ga. 50, 52, 549 S.E.2d 100 (2001).

The separate and distinct nature of Sheriff Peterson's office and Clinch County, and their independence from each other, are further demonstrated by how Georgia law treats sheriffs' employees. Sheriffs alone hire and fire their deputies. See O.C.G.A. § 15-16-23. Deputies, including those serving as jailers, are employees of the sheriff and not the county. Warren, 231 Ga. at 499, 202 S.E.2d 405 (recognizing that "[d]eputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge") (quotation marks omitted); Drost v. Robinson, 194 Ga. 703, 710, 22 S.E.2d 475 (1942); Brown v. Jackson, 221 Ga.App. 200, 201, 470 S.E.2d 786 (1996) (noting deputy sheriffs "were employees of the sheriff and not Peach County"); Wayne County v. Herrin, 210 Ga. App. 747, 751, 437 S.E.2d 793 (1993); Pettus v. Smith, 174 Ga.App. 587, 588, 330 S.E.2d 735 (1985); see Boswell, 274 Ga. at 51, 549 S.E.2d 100 ("[E]mployees of constitutionally elected officers of a county are considered employees of the elected officer and not employees of the county, as represented by the local governing authority."); Mobley v. Polk County, 242 Ga. 798, 801-02, 251 S.E.2d 538 (1979).14

Because sheriffs are elected by county voters, it is not surprising that Georgia's Constitution labels sheriffs as "county officers." Ga. Const. art. IX, § 1, ¶ 3(a). But, given how Georgia's Constitution also makes the sheriff's office a constitutional office independent from the county entity itself, precludes all county control, and grants only the State control over sheriffs, this "county officer" nomenclature necessarily reflects a geographic label defining the territory in which a sheriff is elected and mainly operates. It is entirely consistent for sheriffs to be independent of the county government and to be subject to State, not county, control but to be called "county officers" to reflect their geographic jurisdiction in the State.

Having established that Sheriff Peterson's office is independent from Clinch County and its governing authority and that only the State controls and grants powers and duties to sheriffs, we next examine the functions of the sheriff's office under Georgia law. The specific tasks that sheriffs perform also shed considerable light on the character of the sheriff's office under Georgia law.

As noted above, counties cannot, and do not, grant any law enforcement power to sheriffs and do not assign or control any of the sheriffs' duties. Instead, the State alone has delegated to sheriffs specific duties in three main areas: (a) law enforcement; (b) state courts; and (c) corrections. While we ultimately decide today only whether Georgia sheriffs wear a "state hat" in prescribing use-of-force policy, we outline the duties the State has assigned to sheriffs as they reflect the character of the sheriff's office under Georgia law. What duties the State assigns sheriffs is indicia of how the State defines that entity.

In Georgia, the office of sheriff is as old as the State of Georgia itself and carries with it the common law duties of sheriffs to enforce the laws and preserve the peace on behalf of the sovereign State, as well as other specific statutory duties imposed by the State legislature. O.C.G.A. § 15-16-10(a)(1)-(8); Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956) ("The office of sheriff carries with it ... all of its common-law duties and powers, except as modified by statute.") (citation and quotation marks omitted).15 Given the sheriff's continuing common law duties, the State legislature mandates that it is the express duty of the sheriff to perform not only "such ... duties as are or may be imposed by law," but also those duties "which necessarily appertain to his or her office." O.C.G.A. § 15-16-10(a)(8).

Georgia's Constitution also provides that "[t]he Governor shall take care that the laws are faithfully executed and shall be the conservator of the peace throughout the state." Ga. Const. art. V, § 2, ¶ 2. In enforcing the laws and conserving the peace, the Georgia Governor does not act alone, but necessarily acts through state agents, which include sheriffs for certain state functions.16 The United States Supreme Court recently acknowledged that sheriffs historically had geographic restrictions but in reality "represented the State in fulfilling [their] duty to keep the peace." McMillian v. Monroe County, 520 U.S. 781, 793, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (concluding that Alabama sheriffs act for the state as to the law enforcement function in issue). The Supreme Court reflected on the longstanding historical role of sheriffs, as follows:

As the basic forms of English government were transplanted in [the United States], it also became the common understanding here that the sheriff, though limited in jurisdiction to his county and generally elected by county voters, was in reality an officer of the State, and ultimately represented the State in fulfilling his duty to keep the peace.

Id. at 794, 117 S.Ct. 1734 (internal footnote omitted). Indeed, "in conserving the public peace, in vindicating the law, and in preserving the rights of the government, [the sheriff] represents the sovereignty of the State and he has no superior in his county." 1 W. Anderson, A Treatise on the Law of Sheriffs, Coroners and Constables 5 (1941), cited with approval in McMillian, 520 U.S. at 794, 117 S.Ct. 1734.

As we already have noted, sheriffs in Georgia derive their power and duties from the State, are controlled by the State, and counties cannot, and do not, delegate any law enforcement power or duties to sheriffs.17 In Georgia, this historical role of the sheriff thus continues to this day as the sheriff directly represents the sovereignty of the State, has no superior in his county, and performs state functions for the sovereign in enforcing the laws and keeping the peace.

It is also entirely consistent for Georgia sheriffs to be elected by county voters and be called "county officers" to reflect their geographic jurisdiction, but for them still to act on behalf of the State in enforcing the laws and keeping the peace in that jurisdiction. See R. Cooley, Handbook on the Law of Municipal Corporations 512 (1914) ("Sheriffs ... clerks and other so-called county officers are properly state officers for the county. Their functions and duties pertain chiefly to the affairs of state in the county.").18

In addition to imposing certain law enforcement duties, the State has assigned sheriffs specific duties in the State's superior courts.19 Superior courts are the State's trial courts of general jurisdiction. See Ga. Const. art. VI, § 4, ¶ 1; O.C.G.A. § 15-6-8.20 That sheriffs perform an integral role in the state judicial system is further indicia of how sheriffs act for the State.

The State mandates that sheriffs must attend "all sessions" of superior courts in their respective counties and "never ... leave [court] without the presence of himself or his deputy." O.C.G.A. § 15-16-10(a)(2). The State also mandates that sheriffs must execute and return the processes and orders of the state courts. O.C.G.A. § 15-16-10(a)(1). Sheriffs also must publish sales, citations, and other proceedings as required by law, keep an execution docket, keep a book of all sales made by process of state courts, and keep many other specified records. O.C.G.A. § 15-16-10(a)(4)-(6). This same statute provides that "[i]f any sheriff or deputy fails to comply with any provision of [O.C.G.A. § 15-16-10(a)], he shall be fined for a contempt." O.C.G.A. § 15-16-10(b). Thus, the State directs sheriffs to enforce state court orders and punishes them if they do not. The superior court clerk also delivers to the sheriff or his deputy a "precept containing the names of the persons drawn as grand jurors," and the sheriff or his deputy serves the summons on each grand juror in person or by mailing, as determined by the sheriff. O.C.G.A. § 15-12-65.21

The State also has assigned sheriffs the function of determining which companies may make bonds in their jurisdictions. O.C.G.A. § 17-6-15. While state judges decide whether a county jail inmate, charged with a felony, is entitled to bond, sheriffs approve bonding companies in their counties for the State's criminal cases. Sheriffs must "publish and make available written rules and regulations defining acceptable sureties and prescribing under what conditions sureties may be accepted." O.C.G.A. § 17-6-15(b)(1). The State also prescribes the qualifications of "professional bondspersons." O.C.G.A. § 17-6-50. The State in effect "places the authority to accept sureties in felony cases in the office of the sheriff and not in the superior court."22 Jarvis v. J & J Bonding Co., 239 Ga. 213, 215, 236 S.E.2d 370 (1977) (construing Georgia Code § 27-418 (1933), which is the precursor to O.C.G.A. § 17-6-15).

The State also requires sheriffs to "deposit cash bonds held by the sheriff in one or more interest-bearing trust accounts," O.C.G.A. § 15-16-27(a), and to remit that interest to a state agency, the Georgia Indigent Defense Council. O.C.G.A. §§ 15-16-27(b), 17-12-32. That Council then redistributes the money to local indigent defense programs. O.C.G.A. §§ 15-16-27(b), 17-12-30 et seq.23

These state court and bond-related duties do not stem from laws of general application, but from statutes whereby the State requires sheriffs to perform specific tasks that are state functions in the State's criminal justice system. These statutes are not mere general regulatory control. Instead, they represent the State delegating discrete state functions in the State's criminal justice system specifically to sheriffs.

The State also assigns sheriffs specific corrections duties regarding state offenders. The State requires that the sheriff take custody of all inmates in the jail in his county. O.C.G.A. § 42-4-4. The Georgia legislature mandates that "[i]t shall be the duty of the sheriff ... [t]o take from the outgoing sheriff custody of the jail and the bodies of such persons as are confined therein" and to furnish inmates "medical aid, heat, and blankets, to be reimbursed if necessary from the county treasury." O.C.G.A. § 42-4-4(a)(1)-(2). Sheriff Peterson's authority and duty to administer the jail in his jurisdiction flows from the State, not Clinch County. See In re Irvin, 254 Ga. 251, 253, 328 S.E.2d 215 (1985) ("It is clear that the legislature has vested broad authority in the office of sheriff to administer the jails."). Sheriffs who refuse to take custody of an inmate may be charged with a misdemeanor. O.C.G.A. § 42-4-12.

It is important to outline how the State uses county jails to incarcerate its state offenders and, in turn, requires sheriffs to administer them. To begin with, sheriffs must take custody of inmates arrested and awaiting trial in state superior courts on state felony and misdemeanor charges.24 No sheriff's approval is required. For example, a City of Homerville police officer arrested plaintiff Manders for felony obstruction of an officer — in violation of state law, O.C.G.A. § 16-10-24(b) — and took Manders to the Clinch County jail.

As custodians of pre-trial detainees charged with state felonies, sheriffs transfer inmates to and from the State's superior courts for pre-trial and trial proceedings, as well as attend all sessions of those courts. If a change of venue for the trial is granted by the state trial judge, the sheriff must transport the person to the county to which the change of venue is directed and deliver that person to the sheriff of that county. O.C.G.A. § 42-4-11.

Another class of inmates in the county jails are those serving state sentences for felonies. When convicted of a felony offense, the felon by operation of Georgia law is committed to the custody of the Georgia Department of Corrections ("DOC"), which determines the place of confinement. O.C.G.A. §§ 42-5-50(b), 42-5-51(b).25 In at least five situations, convicted felons serve their state sentences in county jails.

First, a convicted felon, although in DOC custody, serves his state felony sentence in the county jail pending appeal if his attorney certifies his presence is necessary for the appeal. O.C.G.A. § 42-5-50(c). No sheriff or DOC approval is required.26 The DOC's regulations even provide that the State will pay for the cost of maintaining felony prisoners in county jails after conviction and sentencing until their appeals are concluded. Ga. Comp. R. & Regs. § 125-2-4-.02(d).27

Second, due to prison overcrowding, the DOC has broad discretion to assign convicted felons to serve their state sentences in county jails and to reimburse counties for their incarceration at a daily rate.28 The state trial court must notify the DOC that a person is convicted of a felony within thirty days. O.C.G.A. § 42-5-50(a). The DOC then has fifteen days to elect to transfer the inmate or to start paying for his incarceration. O.C.G.A. § 42-5-51(c). No sheriff's approval is required.

Third, if a convicted felon's state probation is revoked, a state judge has discretion to sentence the felon to serve his state sentence in the county jail in certain circumstances. O.C.G.A. § 17-10-1(a)(3)(A). No sheriff's approval is required.

Fourth, convicted felons serving a paroled state sentence, under the DOC's authority, who violate parole may be held in county jails until a state judge formally revokes their state parole. Ga. Op. Atty. Gen. No. 82-33 (1982). No sheriff's approval is required.

Fifth, convicted felons in DOC custody may serve their state sentences in county jails if they are participating in a state-sponsored project and the sheriff approves. O.C.G.A. § 42-5-51(d).

Yet another class of inmates in county jails are those serving state misdemeanor sentences. If a defendant is convicted of a state misdemeanor offense, the state judge has discretion to sentence the defendant to, among other locations, the "county jail."29 O.C.G.A. § 17-10-3(a)(1)-(3).

Because the State uses the statewide network of county jails to incarcerate its felony and misdemeanor offenders, it is not surprising that the State expressly authorizes sheriffs to act beyond their respective counties and to transfer prisoners to the county jails of other sheriffs.30 In addition to venue changes, the State requires sheriffs to take persons arrested to a jail of another county if the sheriff's county jail is in an "unsafe condition." O.C.G.A. § 42-4-4(a)(3).31

The State also permits sheriffs to exercise their discretion to "transfer[] a prisoner to another jail in another county if the sheriff concludes that such transfer is in the best interest of the prisoner or that such transfer is necessary for the orderly administration of the jail." O.C.G.A. § 42-4-4(b). In a similar vein, "[w]hen there is no secure jail in a county or when it is deemed necessary by the sheriff, any person committing an offense in the county may be sent to a jail in another county determined to be suitable by the sheriff." O.C.G.A. § 17-7-1.32

Given sheriffs' significant corrections role for state offenders, the State further requires sheriffs to keep detailed records of persons committed to county jails. O.C.G.A. § 42-4-7. These records include the "age, sex, race, under what process such person was committed and from what court the process issued, the crime with which the person was charged, the date of such person's commitment to jail, the day of such person's discharge, under what order such person was discharged, and the court from which the order issued." O.C.G.A. § 42-4-7(a). The State mandates that a sheriff or a deputy who fails to comply with these state requirements shall be fined for contempt and subject to removal from office. O.C.G.A. § 42-4-4(c).

In sum, these requirements are not state laws of general application but represent the State's managing and controlling where state offenders are incarcerated, designating that certain state offenders serve state time in county jails, and then assigning sheriffs specific corrections duties regarding those state offenders.33 In contrast, counties have no authority over what corrections duties sheriffs perform, or which state offenders serve time in county jails, or who is in charge of the inmates in the county jails.34

Having examined Georgia's law governing sheriffs, we now specifically apply the Eleventh Amendment factors to Sheriff Peterson's particular functions in issue. We need not, and do not, decide today whether Georgia sheriffs wear a "state hat" for Eleventh Amendment purposes for all of the many specific duties assigned directly by the State. We have recounted these duties as relevant Georgia law that reflects on the nature and character of the sheriff's office. We, however, must decide here only whether Sheriff Peterson is an "arm of the State" in establishing force policy at the jail and in training and disciplining his deputies in that regard.

The first factor in the Eleventh Amendment analysis is how Georgia law defines the sheriff's office. In Georgia, the office of sheriff is an elected constitutional office. Although a sheriff performs his duties mainly, although not always, within the geographical confines of a county, the essential governmental nature of his office is (a) to continue to perform his historical common law duties to enforce the law and preserve the peace on behalf of the sovereign State and (b) to perform specific statutory duties, directly assigned by the State, in law enforcement, in state courts, and in corrections. Most of those duties are an integral part of the State's criminal justice system and are state functions.

Moreover, the sheriff's office is a separate and independent office from both Clinch County and its governing body. Counties delegate no powers or duties to sheriffs. Sheriff Peterson and his deputies at the jail are not employees of Clinch County. Indeed, Georgia's Constitution precludes Clinch County from having any control over the sheriff's office.

Although the specific duties the State assigns to sheriffs shed considerable light on the character of the sheriff's office, we must focus on the nature of the particular function at issue here: force policy. The sheriff's authority to use force or the tools of violence, whether deadly or non-deadly force, and the sheriff's obligation to administer the jail are directly derived from the State and not delegated through the county entity. In addition, use of force and creating force policy are quintessential policing functions, exercised by sheriffs in initial arrests, in subduing inmates in sessions of state superior courts, or in quelling disruptive inmates in county jails.

While we must consider context, the location where the sheriff's policing function is performed does not automatically transmute the function into a state function or a county function. In administering the jail, the sheriff does not check his arrest powers or force authority at the door. Instead, he and his deputies bring them into the jail and exercise them in the jail setting. This case is not a case of feeding, clothing, or providing medical care to inmates, which necessarily occur within the jail. Instead, it involves Sheriff Peterson's force policy, which happens to be at issue in the jail context in this particular case. While the jail context is important, it likewise is significant that the sheriff's force policy is at issue in many settings and that location alone does not control. It is also material that the State uses the county jail to incarcerate not only pretrial detainees charged with state offenses, such as Manders, but also state offenders serving state sentences after conviction.

Based on our review of Georgia law, we conclude that the sheriff wears a "state hat" when he creates and implements force policy in the jail.35 Thus, this first factor weighs heavily in favor of immunity.

The second factor of the Eleventh Amendment analysis examines where Georgia law vests control. In addition to mandating and controlling sheriffs' specific duties as outlined above, only the State possesses control over sheriffs' force policy and that control is direct and significant in many areas, including training and discipline.

1. State Requires Annual Training of Sheriffs

The State requires annual specialized training of sheriffs in all counties by the Georgia Sheriffs' Association with the assistance of the Georgia Public Safety Training Center.36 O.C.G.A. § 15-16-3. The annual training of sheriffs "shall be generally devoted to contemporary law enforcement, investigation, judicial process, and corrections practices and specifically shall be germane to the ... office of sheriff in the several counties of this state." O.C.G.A. § 15-16-3(a). The "purpose of this Code section [O.C.G.A. § 15-16-3] is to promote professionalism within the office of sheriff by ensuring the highest possible quality of law enforcement training is offered to each sheriff on an annual basis." O.C.G.A. § 15-16-13(a). It is reasonable to assume that such training includes instruction on force policy and hiring and training deputies. Sheriff Peterson testified that in preparing the force policy in his Manual he adopted some state policies. Furthermore, the Georgia Sheriffs' Association uses state funds (or federal funds distributed to the State) to cover all training costs. See O.C.G.A. § 15-16-3(d).

Notably, if a sheriff fails to comply with the annual training requirements, the Governor — the State's chief — may suspend the sheriff without pay for ninety days. O.C.G.A. § 15-16-3(e)(4). The State also mandates that a sheriff's failure to complete annual training requirements will result in the loss of arrest powers. O.C.G.A. § 15-16-3(e)(1),(4). Again, these rules are not laws of general application, but are specific statutes whereby the State directly requires annual training of all sheriffs, controls the training subject matter, pays for the training, and sanctions sheriffs for non-compliance. In contrast, counties have no control over sheriffs or their training.

In addition, the Governor has broad investigation and suspension powers regarding any misconduct by a sheriff in the performance of any of his duties. O.C.G.A. § 15-16-26.37 If a sheriff's policy permits excessive force in the county jail, plainly the Governor may discipline the sheriff. If a sheriff fails to take custody of state offenders in the county jail, plainly the Governor may discipline the sheriff. The State legislature expressly has made Sheriff Peterson answerable to the Governor for his conduct and policies.

Specifically, the Governor may initiate an investigation of any suspected misconduct by any sheriff and may suspend the sheriff. O.C.G.A. § 15-16-26(a), (c). The Governor selects two sheriffs, who along with the State Attorney General, conduct the investigation for the Governor. O.C.G.A. § 15-16-26(a). The State funds the investigation. Id.

If the Governor's committee recommends suspension to the Governor, the Governor may suspend the sheriff for sixty days and extend that suspension for thirty additional days. O.C.G.A. § 15-16-26(c). This disciplinary procedure is direct, substantial, and immediate state control over the sheriff's acts. If Sheriff Peterson permits excessive force, all the Governor must do is have a committee immediately investigate and report, and the Governor can suspend him.38

Moreover, if the Governor believes the sheriff should be removed from office, the Governor is "authorized to request the district attorney of the county of the sheriff's residence to bring a removal petition against the sheriff" based upon the evidence reported by the Governor's investigation committee.39 Id. The Governor may order additional investigation "by the committee, by the Georgia Bureau of Investigation, by other law enforcement agencies ... or by any special committee appointed by the Governor for such purpose." O.C.G.A. § 15-16-26(c).

In contrast, counties have no authority, control over, or involvement in Sheriff Peterson's force policy at the jail, or his training and disciplining of deputies in that regard. While Georgia counties have obligations involving the jail structure and inmates' food, clothing, and medical necessities, such duties involve wholly separate and distinct matters from the sheriff's force policy at the jail and his training and disciplining of deputies in that regard.40

Because of the State's direct and substantial control over the sheriff's duties, training, and discipline and the county's total lack thereof, this control factor also weighs heavily in favor of Sheriff Peterson's entitlement to Eleventh Amendment immunity.41

The third factor in the Eleventh Amendment analysis is where the entity derives its funds. The State funds the annual training of sheriffs, funds the Governor's disciplinary procedure over sheriffs for use of excessive force, and pays for certain state offenders assigned to the county jails under the sheriff's supervision.42 Thus, state funds are involved to some extent in the particular functions of Sheriff Peterson at issue.

While Clinch County bears the major burden of funding Sheriff Peterson's office and the jail, it is because the State so mandates. By state statutes, Clinch County must (1) maintain the jail structure, (2) appropriate funds for necessities to inmates (such as food, bedding, clothing, electricity, and sanitation) and the salaries of Sheriff Peterson and his deputies, and (3) pay the premium for the Sheriff's official bond. O.C.G.A. §§ 36-9-5, 42-5-2(a), 15-16-20, 45-4-7.

Manders relies on O.C.G.A. § 42-5-2(a), which provides, in part, that "it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention."43 But Manders does not allege that Sheriff Peterson denied him necessities in O.C.G.A. § 42-5-2. Rather, Manders challenges only Sheriff Peterson's force policy at the jail and the training and disciplining of his deputies.

Furthermore, Clinch County's financial control is attenuated because (a) the State mandates Sheriff Peterson's minimum salary and official bond amount, and (b) Clinch County sets the total budget but cannot dictate how Sheriff Peterson spends it. The Georgia Supreme Court has held that counties "must provide reasonably sufficient funds to allow the sheriff to discharge his legal duties," and that "the county commission may not dictate to the sheriff how that budget will be spent in the exercise of his duties." Chaffin v. Calhoun, 262 Ga. 202, 203-04, 415 S.E.2d 906 (1992);44 see Boswell v. Bramlett, 274 Ga. 50, 52, 549 S.E.2d 100 (2001). Georgia's Constitution further prevents counties from taking any action affecting any elective county office or the personnel thereof. Ga. Const. art. IX, § 2, ¶ 1(c)(1).

Payment of Sheriff Peterson's budget, when required by the State, does not establish any control by Clinch County over his force policy at the jail or how he trains and disciplines deputies.45 By virtue of State mandates, both state and county funds are involved in the particular functions in issue. This state involvement is sufficient to tilt the third factor of the Eleventh Amendment analysis toward immunity.

D. Liability for and Payment of Adverse Judgments

The fourth factor is the source of the funds that will pay any adverse judgment against Sheriff Peterson in his official capacity. Before applying this factor, we discuss three recent cases addressing it.

In Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 35-39, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994), the Supreme Court denied Eleventh Amendment immunity to an interstate railway-port authority, created under the U.S. Constitution's Interstate Compact Clause and controlled by the federal government and two states. Because the federal government was one of the "multiple creator-controllers," the five-justice majority in Hess concluded that the states had ceded a portion of their sovereignty to Congress and that having the "Compact Clause" entity respond in federal court did not affront "the dignity" of the states. Id. at 47, 115 S.Ct. 394. Hess further concluded that "both legally and practically" neither state was obligated to pay any judgment against the entity. Id. at 51-52, 115 S.Ct. 394. Rather, the entity was financially independent, with funds from private investors, tolls, fees, and investment income. Id. at 36, 49-50, 115 S.Ct. 394. Although weighing this source-of-payment factor heavily, Hess never suggests that for Eleventh Amendment immunity a state treasury drain is required per se and Hess notes that "current Eleventh Amendment jurisprudence emphasizes the integrity retained by each State in our federal system." Hess, 513 U.S. at 39, 115 S.Ct. 394.46

The focus of the Supreme Court in Regents of the University of California v. Doe, 519 U.S. 425, 430-31, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997), was on "potential legal liability" and "the risk of adverse judgments," as opposed to requiring that state funds actually pay the judgment. In Regents, the federal government indemnified a state university, and the litigation had "no impact" on the state treasury. Id. Nevertheless, the Supreme Court determined that this full indemnity did not affect the university's immunity. Id. The Supreme Court emphasized that "[t]he Eleventh Amendment protects the State from the risk of adverse judgments even though the State may be indemnified by a third party," and "it is the entity's potential legal liability, rather than its ability or inability to require a third party to reimburse it, or to discharge the liability in the first instance, that is relevant." Id. at 431, 117 S.Ct. 900.47

Thereafter, this Court applied these principles in Shands Teaching Hospital and Clinics, Inc. v. Beech Street Corp., granting immunity to private corporations that contracted with the state to administer its health insurance program and to provide a network of medical services. 208 F.3d at 1310-11, 1313. We stated that "although these are private corporations that are neither controlled nor funded by the state, they are protected by governmental immunity when they are clearly acting as agents of the state." Id. at 1311. Noting that other circuits had not adopted an approach of total or no immunity, Shands looked to the relief sought and whether the judgment against the private corporation "would implicate the state treasury or interfere with the administration of [a] state ... program." Id. Given that the State could be sued for the negligence of the agent corporations in untimely paying claims, we determined that the judgment against the private corporations "would implicate state funds" and that the private corporations would indemnify the state was immaterial. Id. at 1313.

Applying these principles to this case, we first determine that under Georgia law Clinch County would not pay a damages award against Sheriff Peterson. Georgia courts speak with unanimity in concluding that a defendant county cannot be held liable for the tortious actions or misconduct of the sheriff or his deputies and is not required to pay the resulting judgments.48 Likewise, Georgia courts have concluded that counties are not liable for, and not required to give sheriffs money to pay, judgments against sheriffs in civil rights actions. See Wayne County Bd. of Comm'rs v. Warren, 236 Ga. 150, 152, 223 S.E.2d 133 (1976) ("[A] county has no liability in connection with the violations of the civil rights of any person by a county officer."). The Georgia Supreme Court in Warren quoted a Georgia statute stating that "[a] county is not liable to suit for any cause of action unless made so by statute." Id. at 151, 223 S.E.2d 133 (quotation marks omitted).49 Thus, by statute, the county was not liable. In addition, the Georgia Supreme Court concluded that "there is no duty of the county to furnish the sheriff with money to settle a civil rights judgment entered against him." Id. at 152, 223 S.E.2d 133.50

Although Clinch County is not required to pay and although Sheriff Peterson argues that "the `legal liability' for sheriffs in Georgia rests with the State of Georgia, not individual counties," we can locate no Georgia law expressly requiring the State to pay an adverse judgment against Sheriff Peterson in his official capacity. Sheriff Peterson thus apparently would have to pay any adverse federal court judgment against him in his official capacity out of the budget of the sheriff's office. In turn, this payment would reduce his budget, and the practical reality is that Sheriff Peterson must recoup that money from somewhere. If a significant adverse judgment occurs, both county and state funds are implicated because Sheriff Peterson would need to seek a greater total budget from the county for his office and a greater daily rate from the State for felony offenders serving their state sentences in the county jail.

Never has the Supreme Court required an actual drain on the state treasury as a per se condition of Eleventh Amendment immunity.51 See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 117 S.Ct. 900, 137 L.Ed.2d 55; Hess, 513 U.S. 30, 115 S.Ct. 394, 130 L.Ed.2d 245; Shands, 208 F.3d 1308. This is because the Eleventh Amendment "is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty," and a purpose of the Eleventh Amendment is to "accord[] the States the respect owed them as members of the federation" and not to affront the "dignity" or "integrity" of a state by requiring a state to respond to lawsuits in federal courts. Hess, 513 U.S. at 39-40, 115 S.Ct. 394 (citation and quotation marks omitted). "[C]urrent Eleventh Amendment jurisprudence emphasizes the integrity retained by each State in our federal system." Id. at 39, 115 S.Ct. 394. The State's "integrity" is not limited to who foots the bill, and, at a minimum, the liability-for-adverse-judgment factor does not defeat Sheriff Peterson's immunity claim.

Having applied the Eleventh Amendment factors, we conclude that Sheriff Peterson in his official capacity is an arm of the State, not Clinch County, in establishing use-of-force policy at the jail and in training and disciplining his deputies in that regard.52 Therefore, Sheriff Peterson is entitled to Eleventh Amendment immunity in this case.53 We need not answer, and do not answer, today whether Sheriff Peterson wears a "state hat" for any other functions he performs. We conclude only that he does as to the limited functions at issue in this case.

The first two factors weigh heavily in favor of immunity, and the third factor tilts that way as well. Sheriffs' duties and functions are derived directly from the State, performed for the State, and controlled by the State. The State of Georgia has exercised its managerial prerogative: (a) to incarcerate state offenders, pretrial and post-conviction, in county jails, among other locations; (b) to assign sheriffs certain specific state functions in law enforcement, state courts, and corrections, including making sheriffs in charge of state offenders in county jails; (c) to control sheriffs' duties, train sheriffs in those duties, and discipline sheriffs; (d) to preclude any county control over sheriffs but nonetheless require counties to fund the jail structure and sheriffs' budgets; and (e) for the State to pay for sheriffs' training and discipline, as well as certain state offenders in the county jail. Given these principles of Georgia law, we conclude that sheriffs act for the State, not counties, as to the functions in issue.54

As to the final fourth factor in the Eleventh Amendment analysis, although the State and the county are not required to pay an adverse judgment against the sheriff, both county and state funds indirectly are implicated. In any event, the State's sovereignty and thus its integrity remain directly affected when federal court lawsuits interfere with a state program or function. At a minimum, this final factor does not defeat immunity.

Accordingly, we reverse the district court's order denying Sheriff Peterson's motion for summary judgment and remand this case to the district court for proceedings consistent with this opinion.

REVERSED AND REMANDED.