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By KEVIN DUFFY
The Atlanta Journal-Constitution
Published on: 01/31/06

On a December night in 2003, Fayette County Marshal Mark Thayer saw a Ford Escort with no brake lights run a red light in Fayetteville.

Thayer pulled the car over, smelled alcohol and learned the driver had a suspended license. He administered a breath test and arrested the middle-aged woman.








She was taken to the Fayetteville Police Department, videotaped taking another breath test, and then driven to the Fayette County Jail.

But at the jail, the prisoner was turned away. The reason: Sheriff Randall Johnson, who runs the jail, says the Marshal's Office is a code enforcement agency, not a police force with arrest powers.

In his report, Thayer said the jailer told him if the Fayetteville police had made the arrest, the woman would have been locked up. Instead, a relative picked her up.

The incident ignited a legal battle that landed Monday at the Georgia Supreme Court, where Johnson is appealing superior court rulings after the county sued the sheriff over the jail incident.

"Out of the clear blue sky one day he said I'm not going to do this anymore," County Commission Chairman Greg Dunn said recently. "This marshal was stuck with this woman. What was he going to do with her? It was totally inappropriate what he did." Dunn and Johnson attended Monday's hearing.

The Fayette County Commission created the Marshal's Office in 1983 and six years later passed a resolution giving it police powers, including the power to arrest.

But the sheriff's attorney, Charles Byrd, argued Monday the marshals were not doing police work before state law was changed in 1992 requiring voter approval to create a police force.

"They have no evidence that resolution ever had life breathed into it," Byrd told the seven justices. He wants the state's highest court to reverse Superior Court Judge William Ison's summary judgments. According to Byrd, jurors should decide whether the county had a police force before 1992. If they decide no, voters must approve creating one.

"We want a chance to make our arguments to a jury," Byrd said.

Affidavits from a former county manager, Billy Beckett, and a former county commissioner, Dan Lakly, now a state representative from Peachtree City, claim the marshals were not supposed to be police.

From 1989 through 1991, one marshal made just two arrests and issued two tickets, indicating the Marshal's Office was not operating as a police force, Byrd said.

But Dennis Davenport, attorney for the county, said the jail had accepted marshals' prisoners before the episode in 2003 and that the legality of their arrests before then was never questioned.

He also said Beckett erred in his affidavit when he said marshals had never made felony arrests. As for Lakly's opinion, Davenport said, "one commissioner does not say what the intent of an ordinance is."

The Marshal's Office seldom makes arrests. Rather, the small force primarily enforces county ordinances and keeps an eye on county property.

The Sheriff's Office, a much bigger operation, staffs several courts, operates the jail, conducts criminal investigations, serves warrants, enforces traffic laws and frequently makes arrests.

Both offices are county funded, but the sheriff gets much more money — $13.8 million to $665,812 for the marshals. The sheriff also gets state and federal drug forfeiture funds.

Ed Collins, Fayette's chief marshal, said marshals don't patrol the highways, but if they see a lawbreaker, they must act.

"It's one of those things where you can't let them go," he said.

Johnson, sheriff for 29 years, said giving marshals police powers adds another layer of bureaucracy and wastes tax dollars.

"It's a duplication of services, is what it is," he said Monday after the hearing.

In Georgia, 19 counties and seven cities have marshal's offices, according to the Georgia Peace Officers Standards and Training Council. All 159 counties have sheriff's offices.

Law enforcement officials in Fulton, DeKalb and Cherokee counties, all of which have marshals, were surprised to hear the Fayette jail rejected the marshal's prisoner.

"I've never heard of that," said Sgt. Nikita Hightower of the Fulton Sheriff's Office. In Fulton, she said, marshals sometimes bring in prisoners and it's never a problem.

"They've made several cases and brought them to our jail and we've accepted them," Hightower said.

"If they see someone that is breaking the law — I mean, that's their oath to do something about it."

Kevin Roach, assistant chief marshal in Cherokee, called refusing to take the prisoner in Fayette "ludicrous."

"We're state certified officers," he said. "If it's an arrest it should have been a valid arrest."