                                                                            [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                         ________________________
                                                                      FILED
                                 No. 98-8517           U.S. COURT OF APPEALS
                           Non-Argument Calendar         ELEVENTH CIRCUIT
                         ________________________             11/02/98
                    D. C. Docket No. 5:95-Cv-445-1-WDO    THOMAS K. KAHN
                                                                       CLERK
JAMES D. MAUGHON,
                                                                      Plaintiff-Appellant,

                                    versus

BIBB COUNTY; BUTTS COUNTY;
JOSEPH E. EVANS, et al.,
                                                                    Defendants-Appellees,
                          ______________________

                                No. 98-8518
                          Non-Argument Calendar
                         ______________________
                    D.C. Docket No. 5:95-CV-446-2-WDO

HERMAN E. MAUGHON and BETTY J. MAUGHON,

                                                                     Plaintiffs-Appellants,

                                    versus

BIBB COUNTY; BUTTS COUNTY;
JOSEPH E. EVANS, et al.,

                                                                    Defendants-Appellees.
                          _______________________

                  Appeals from the United States District Court
               for the Middle District of Georgia, Macon Division
                          _______________________
                              (November 2, 1998)
Before HATCHETT, Chief Circuit Judge; BARKETT, Circuit Judge, and GODBOLD, Senior
Circuit Judge.

PER CURIAM:

       James Dan Maughon and his mother Betty Maughon appeal from judgments entered by

the district court granting summary judgment to the defendants Bibb County, Butts County,

Joseph Evans, and John Doe #1-5. Because the facts in these cases are identical and each appeal

raises the same issues, we consolidate their cases for the purposes of this decision.

        Plaintiffs each own land located in Butts County, Georgia. Their property shares a

common boundary, road and fence. The land is undeveloped and neither party resides there.

The defendants received tips that James Maughon had stolen a backhoe from Bibb County

Public Works and that the backhoe was located on the land. Evans obtained a search warrant for

the property but he was unaware that half of the property was owned by Betty Maughon, thus the

warrant described the property as the “Dan Maughon Farm.” Barry Fincher, a game warden to

whom the Maughons had given a gate key, let the officers onto the property. From the dirt road

on the property the officers visually located the backhoe, and a Bibb County employee identified

it as the one stolen. The employee also saw the backhoe’s buckets and streetpads lying in plain

view on Betty Maughon’s property. The officers seized the equipment, signed a receipt for the

backhoe, bucket, and pads and left the property. The Maughons contend that the backhoe, pads,

and bucket belonged to them and were wrongfully seized, and Betty Maughon claims that tools

and logging chains belonging to her were stored in the cab of the backhoe when it was seized.

       The Maughons brought suit against the defendants under 42 U.S.C. § 1983 alleging

violations of their Fourteenth and Fourth Amendment rights. They also alleged state law claims

for trespass and conversion of property. The district court granted summary judgment in favor of

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all of the defendants on all claims. The court found that the individual defendants were entitled

to qualified immunity for the constitutional allegations. It further held that the Maughons’

constitutional claims against the counties were without merit because they did not offer proof

that the counties had an official policy or custom that caused the alleged constitutional

violations. As for the Maughons’ state law claims, the court found that the counties were

entitled to sovereign immunity and that the plaintiffs had provided no basis for it to conclude that

the counties had waived this immunity. The district court did not address the state law claims

against the individual defendants.

       After reading the briefs and record in this case, subject to our de novo review, we affirm

the district court’s decision granting summary judgment in favor of Bibb County and Butts

County. The district court correctly concluded that the Maughons failed to offer any proof that

the counties maintained an official policy or custom that caused the alleged violations of their

rights. Without proof of a custom or policy that furthered the unconstitutional behavior of

individual officers, municipalities are not subject to liability under § 1983. See Monell v.

Department of Social Services, 436 U.S. 658, 691-92 (1972). The district court also correctly

ruled for the counties on the Maughons’ state law claims. Counties are entitled to sovereign

immunity under the Georgia Constitution. Ga. Const. of 1983, art. I, § II, ¶ IX(e). Georgia has

not statutorily waived this immunity with regard to counties, and the Maughons have not offered

any sufficient basis for this court to find a waiver of sovereign immunity.1


  1
   The Maughons assert in their briefs that the procurement of liability insurance by the counties
waives immunity. Georgia law does recognize a waiver of immunity to the extent an entity is
insured; however the Maughons did not offer any proof of this insurance in the district court nor
did they even note its existence. Furthermore, they have not explained whether the insurance
covers liability for the type of torts for which they brought suit. Because the Maughons failed to

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       We also affirm the grant of summary judgment in favor of the individual defendants for

the reasons specified in this opinion. The Maughons assert that the district court settled disputed

factual issues in favor of the defendants, ignoring its burden to consider all evidence in the light

most favorable to the nonmoving party and that these findings of fact caused the district court to

rule in favor of the defendants. The district court may have improperly decided credibility issues

in favor of the defendants, but we find that construing these factual issues in the plaintiffs’ favor

does not make the grant of summary judgment improper.

       "[T]he issue of a government official's qualified immunity from suit presents a question

of law, and 'like the generality of such questions, must be resolved de novo on appeal.' " Jordan

v. Doe, 38 F.3d 1559, 1563 (11th Cir.1994) (quoting Elder v. Holloway, 510 U.S. 510 (1994)).

Qualified immunity shields government agents engaged in discretionary functions from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). The relevant inquiry, then, is first, whether “the defendant government

official was performing a discretionary function” and second, whether “the defendant should

reasonably have known that the action violated an individual's clearly established federal

statutory or constitutional rights.” Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997).

Evans and the unnamed co-defendant officers were acting within their discretionary authority

during the incidents involved in this case. Thus, it is only the second part of the inquiry that is

relevant here. We must decide whether the officers violated clearly established law. The




offer proof of this waiver in its response to the defendant’s motion for summary judgment, we
decline to consider it now.

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Maughons contend that the search warrant was invalid because it was not based on a sufficient

affidavit and because it did not properly describe the property to be searched as belonging to two

different owners. They also contend that even if the warrant was valid the seizure of property

was unreasonable because it was not the property stolen from Bibb County.

       Even viewing the facts in the light most favorable to the plaintiff, we find the warrant to

be valid and the seizure of the property reasonable. Negligent or innocent mistakes do not

violate the Fourth Amendment. See Franks v. Delaware, 438 U.S. 154, 171 (1978); see also

Maryland v. Garrison, 480 U.S. 79, 87 (U.S. 1987)(recognizing the "need to allow some latitude

for honest mistakes that are made by officers in the dangerous and difficult process of making

arrests and executing search warrants"). To invalidate a warrant based on incorrect information

provided in a supporting affidavit one must show that officers intentionally or recklessly

included false information or omitted necessary true information. Franks, 438 U.S. at 171.

Neither of the Maughons has offered proof of intentional or reckless wrongdoing on the part of

the officers in obtaining the warrant. Failure to ascertain that Betty Maughon owned one half of

the land to be searched was at most a negligent mistake. This mistake did not invalidate the

search warrant. Likewise the seizure of property was not unreasonable. An officer is entitled to

qualified immunity for the seizure of property if “the facts known to him at the time of the

seizure at least arguably created a reasonable suspicion ‘associat[ing] the property with criminal

activity.’" Lindsey v. Storey, 936 F.2d 554 559 (11th Cir. 1991)(quoting Payton v. New York,

445 U.S. 573, 587 (1980)).

       Furthermore, even if the warrant were invalid the officers would still be entitled to

qualified immunity for two reasons. First, that an officer conducts a warrantless search does not


                                                5
prevent his being immune. "[I]t is inevitable that law enforcement officials will in some cases

reasonably but mistakenly conclude that probable cause is present, and we have indicated that in

such cases those officials--like other officials who act in ways they reasonably believe to be

lawful--should not be held personally liable." Anderson v. Creighton, 483 U.S. 635, 641 (1987).

Second, the search was conducted on uninhabited property or an “open field” that is subject to

search without a warrant. See Oliver v. U.S., 466 U.S. 170, 179(1984)(“[O]pen fields do not

provide the setting for those intimate activities that the Amendment is intended to shelter from

government interference or surveillance [, and] . . . [i]t is not generally true that fences or ‘No

Trespassing’ signs effectively bar the public from viewing open fields in rural areas.”); U.S. v.

Berrong, 712 F.2d 1370, 1374 (11th Cir. 1983) (“there is no legitimate expectation of privacy in

outbuildings and open fields, even if fenced, unless they are part of the curtilage”).

       No characterization of the facts of this case or of existing law would allow this court to

find that the officers violated the clearly established constitutional rights of the Maughons.

Therefore, we affirm the district court’s grant of qualified immunity to the individual defendants

on each of the federal causes of action.

       As for the state claims against the individual defendants, we agree with the defendants

that they are entitled to official immunity under Georgia law. The Georgia Constitution provides

that employees of the state shall be subject to suit for performing their discretionary functions

only “if they act with actual malice or with actual intent to cause injury in the performance of

their official functions.” Ga. Const. of 1983, art. I, § II, ¶ IX(d); Gilbert v. Richardson, 452

S.E.2d 476, 483 (Ga. 1994)(deputy sheriff immune from personal liability when performing

official law enforcement function). Because sheriff’s department employees are entitled to this


                                                  6
immunity and because the Maughons have presented no proof that the defendants acted with

intent to cause them harm, we hold Georgia’s doctrine of official immunity extends to the

individual defendants in this case.

       The judgment of the district court is AFFIRMED.




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