A federal judge has decided the Chattooga County sheriff and one of his investigators, who are accused in a lawsuit of using an altered warrant to search a couple's home, should be immune from the suit as county employees.
Nor can the county be held responsible, the judge said.
But Sheriff John Everett and Investigator Kandy Dodd still can be sued as individuals, which is why the case will continue, said the couple's attorney, Bobby Lee Cook.
"It doesn't make one bit of difference," said Cook, a longtime Summerville, Ga., defense attorney. "We're going to kick their butt."
The lawsuit doesn't ask for a specific amount, but Cook said the county has up to "a $1 million worth of insurance."
A federal lawsuit filed in May claims that Dodd altered a search warrant, with Everett's knowledge, in order to search Mark and Connie Gordons' house without any probable cause. The suit also claims this isn't the first time Everett has encouraged one of his employees to give false statements to obtain a search warrant.
Both Everett and Dodd deny the claims in their response filed in Rome, Ga., in early June. Both contend that the suit should be immediately dropped.
Chattooga County attorney Steve Rodham, who is representing Dodd and Everett, declined to comment on the case.
The suit also cited Chattooga County as a defendant, but it was dropped from the case.
Qualified immunity shields law enforcement from federal lawsuits unless it is can be proven that they violated an established law - which usually means a constitutional right, said Tom Eaton, a University of Georgia Law professor who specializes in constitutional law. The immunity depends on "how bad the behavior is," he said.
If the sheriff and investigator are found to have altered the warrant, that is a Fourth Amendment violation, Eaton said, and there are many case laws against knowingly filing false information to secure a warrant.
To win the case, the plaintiffs also must prove that the investigator knowingly gave the false information and that the sheriff was involved directly, Eaton said.
"Close calls go to law enforcement," he said. "That's the way the Supreme Court has consciously set up the law."
Authorities claim Dodd was investigating a burglary and learned that some of the stolen items had been sold to Fleetwood Pawn Shop, which is owned by the Gordons, court records show. On April 14, Dodd obtained a search warrant through the county magistrate's office to search the pawn shop.
But the lawsuit claims Dodd went back to the magistrate and said the first warrant had an error and needed to be changed. Instead, the lawsuit claims, Dodd wrote the Gordons' home address in the place of the pawn shop address and police then searched the home for four hours.
In Dodd's response, she admitted going to the judge a second time to cite an inaccuracy - the incorrect name of an investigator - in the first search warrant, but she denied deceiving the judge. The response contains no mention of whether she actually obtained a warrant for the Gordons' house.
Meanwhile, the county must pay $5,000 in insurance costs for Everett and Dodd. The county's insurer, ACCG, covers the rest of the fees, said County Sole Commissioner Jason Winters.
But Winters said officials are worried that the suit could drive up the cost of liability insurance in the future.
Winters declined to comment on how much insurance would cover in the lawsuit.
Contact Joy Lukachick at email@example.com or 423-757-6659.