                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0875n.06
                            Filed: December 20, 2007

                                        Case No. 06-6322

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 BRUCE T. WILLIAMS and                               )
 LILLIAN F. WILLIAMS,                                )
                                                     )
           Plaintiffs-Appellants,                    )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
                  v.                                 )       COURT FOR THE EASTERN
                                                     )       DISTRICT OF TENNESSEE
 BRIAN LEATHERWOOD and CITY                          )
 OF KNOXVILLE, TENNESSEE,                            )
                                                     )
       Defendants-Appellees.                         )
 _______________________________________             )

BEFORE:          BOGGS, Chief Judge; McKEAGUE, Circuit Judge; and COHN,* District
                 Judge.

AVERN COHN, District Judge. This is a civil rights action based on 42 U.S.C. §§ 1983 and

1988 and various provisions of Tennessee law. Plaintiffs-Appellants Bruce Williams and Lillian

Williams appeal from the district court’s order granting summary judgment to Defendants-

Appellees, the City of Knoxville, Tennessee (“Knoxville”) and Knoxville police officer Brian

Leatherwood (“Leatherwood”). The Williamses claim that Leatherwood violated the Fourth

Amendment when he detained Bruce Williams for approximately fifteen minutes during the

investigation of a possible aggravated assault, and that Leatherwood committed the state law

torts of deficient investigation and false arrest and violated the Tennessee Constitution. The



       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
premise of the Williamses’s claim against Knoxville is that the Knoxville Police Department had

a policy or custom of encouraging violations of the Fourth Amendment.

       For the reasons that follow, the decision of the district court will be affirmed.

                                        I. BACKGROUND

                                              A. Facts

       The following are the facts as gleaned from the record. None are in serious dispute.

       On April 4, 2005, Bruce and Lillian Williams were traveling along Interstate 40/75 in

Knox County, Tennessee, when they encountered dense traffic. To avoid the traffic problem,

Bruce Williams drove his white pick-up truck onto the right shoulder of the highway toward the

next exit. The driver of a tractor-trailer apparently took issue with Williams’s maneuver and

pulled onto the shoulder, forcing the Williamses’s vehicle onto the grass. The drivers exchanged

obscene gestures. Williams then continued driving on the shoulder toward the exit until

additional traffic forced him to come to a complete stop.

       At this time, the driver of the tractor-trailer exited his cab and approached the

Williamses’s vehicle in what they say was a threatening, aggressive manner. Williams retrieved

a loaded .357 Magnum revolver from the glove compartment of the pick-up truck and placed the

barrel on the edge of the open window. The parties exchanged words, and eventually the driver

of the tractor-trailer retreated to his truck. Several drivers caught in the traffic jam witnessed the

incident and called 911; at least one caller stated that Bruce Williams displayed a revolver. The

reports included a description and the license plate number of the Williamses’s pick-up truck.

       Approximately twenty-five minutes later, the Williamses’s pick-up truck was seen in

North Knoxville. Leatherwood responded to a dispatch and stopped the truck using his blue


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lights. By the time he initiated the stop, Leatherwood knew that the truck was registered to Bruce

Williams and that Williams had a license to carry a concealed weapon.

       Leatherwood approached the truck with his gun drawn but pointed away from the truck.

He asked Bruce Williams to step out and patted him for weapons. Leatherwood then handcuffed

Williams and placed him in the back seat of his police cruiser. Leatherwood says that he

intended to detain Williams until he could determine whether the victim of what he considered a

potential aggravated assault intended to file charges. Bruce Williams says that Leatherwood told

him that he was being handcuffed and placed in the police cruiser for his own safety.

       Within fifteen minutes, Leatherwood determined that the alleged victim would not file

charges. Leatherwood then released Bruce Williams and returned his revolver and ammunition.

Bruce Williams claims that the next day he began to suffer pains in his abdomen, eventually

requiring two surgeries for a double hernia that was allegedly caused by being roughly placed in

the police cruiser with his hands secured behind his back.

       Another police officer at the scene spoke with Lillian Williams. It is not clear whether or

not Mrs. Williams exited the pick-up truck. She says that she was humiliated and embarrassed

by the incident.

                                     B. Procedural History

       In April 2005, the Williamses filed a complaint against Knoxville and Leatherwood,

seeking damages in excess of $500,000 pursuant to 42 U.S.C. §§ 1983 and 1988 and the

Tennessee Governmental Tort Liability Act, TENN . CODE. § 29-20-101 et seq. They claimed that

Knoxville failed to provide adequate training to its police officers and had an unconstitutional

policy or custom regarding investigatory stops and the handcuffing of detainees. The Williamses


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also claimed that Leatherwood effected a seizure in violation of the Fourth Amendment, that he

committed the state law torts of deficient investigation and false arrest, and that he violated the

Tennessee constitution. The district court granted summary judgment to both Knoxville and

Leatherwood, finding that Leatherwood did not violate the Williamses’s Fourth Amendment

rights or commit any tort.

       On appeal, the Williamses claim that the district court erred (1) in holding that

Leatherwood’s detention of Bruce Williams was permissible under the Fourth Amendment, (2) in

refusing to apply Tennessee law where it was more advantageous than federal law pursuant to 42

U.S.C. § 1988(a), (3) in holding that the Due Process Clause and the Equal Protection Clause did

not provide a basis for liability under § 1983, (4) in declining to rule on Leatherwood’s claim of

qualified immunity, (5) in granting summary judgment on the state law claims, and (6) in

denying the Williamses’s motion to amend their complaint.

                                 II. STANDARD OF REVIEW

       The court reviews an order granting summary judgment de novo. Holloway v. Brush, 220

F.3d 767, 772 (6th Cir. 2000) (en banc). Summary judgment will be granted when the moving

party demonstrates that there is “no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” FED . R. CIV . P. 56(c). There is no genuine

issue of material fact when “the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986).

       The nonmoving party may not rest upon his pleadings; rather, the nonmoving party’s

response “must set forth specific facts showing that there is a genuine issue for trial.” FED . R.


                                                  4
CIV . P. 56(e). Showing that there is some metaphysical doubt as to the material facts is not

enough; “the mere existence of a scintilla of evidence” in support of the nonmoving party is not

sufficient to show a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). Rather, the nonmoving party must present “significant probative evidence” in

opposition to the motion for summary judgment in order to defeat the motion. See Moore v.

Philip Morris Co., 8 F.3d 335, 340 (6th Cir. 1993); see also Anderson, 477 U.S. at 249-50.

Additionally, and significantly, “affidavits containing mere conclusions have no probative value”

in summary judgment proceedings. Bsharah v. Eltra Corp., 394 F.2d 502, 503 (6th Cir. 1968).

       The court must decide “whether the evidence presents a sufficient disagreement to require

submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter

of law.” In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson, 477 U.S. at

251-52). The court “must view the evidence in the light most favorable to the non-moving

party.” Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir. 1995).

Determining credibility, weighing evidence, and drawing reasonable inferences are left to the

trier of fact. See Anderson, 477 U.S. at 255. Only where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law may summary judgment be

granted. Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001).

                                       III. SECTION 1983

       The Williamses claim that Leatherwood violated their Fourth Amendment rights because

there were no articulable facts to which he could point to justify an investigatory stop of their

vehicle and because the detention of Bruce Williams ripened into an arrest without the requisite

probable cause. We find that these claims are without merit and therefore do not reach the


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subsidiary issues of Leatherwood’s defense of qualified immunity and Knoxville’s potential

municipal liability for an unconstitutional policy or custom.

                                      A. Investigatory Stop

       Police may briefly stop an individual for investigation if they have a “reasonable

suspicion” that the individual has committed a crime. United States v. Palomino, 100 F.3d 446,

449 (6th Cir. 1996); Terry v. Ohio, 392 U.S. 1, 27 (1968). The same standard applies to vehicle

stops. Palomino, 100 F.3d at 449; see also Delaware v. Prouse, 440 U.S. 648, 663 (1979). The

Sixth Circuit has explained that the “reasonable suspicion” standard requires that law

enforcement officers possess specific facts tending to indicate criminal activity before initiating

an investigative detention:

               “Reasonable suspicion” is more than an ill-defined hunch; it must
               be based upon a particularized and objective basis for suspecting
               the particular person of criminal activity. It requires specific and
               articulable facts which, taken together with rational inferences
               from those facts, reasonably warrant an investigatory stop. The
               standard outlined in Terry and its progeny is not onerous. The
               requisite level of suspicion is considerably less than proof of
               wrongdoing by a preponderance of the evidence. Moreover,
               reasonable suspicion can arise from evidence that is less reliable
               than what might be required to show probable cause.


Houston v. Clark County Sheriff Deputy John Does, 174 F.3d 809, 813 (6th Cir. 1999) (citations

and internal quotation marks omitted). Reasonable suspicion need not arise from an officer’s

own observations; rather, it may arise from informant tips and dispatcher information. Smoak v.

Hall, 460 F.3d 758, 779 (6th Cir. 2006).

       Under the totality of circumstances present in this case, Leatherwood had information

sufficient to form a reasonable suspicion that Bruce Williams had engaged in criminal activity.


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At the time he initiated the traffic stop, Leatherwood knew at least that (1) there had been an

incident of “road rage” involving a potential aggravated assault on a nearby stretch of highway

within the past half hour; (2) several persons called 911 to report the incident, and gave a

description of the vehicle and a license plate number matching the Williamses’s vehicle; (3) at

least one caller stated that the driver of the vehicle had displayed a firearm; (4) the owner of the

vehicle was named Bruce Williams; and (5) Bruce Williams had a license to carry a concealed

weapon. These facts were sufficient to raise a reasonable belief that a crime had occurred along

the highway and that Bruce Williams was involved in that crime.

       The Williamses argue that under Florida v. Royer, 460 U.S. 491 (1983), Leatherwood

was not permitted to detain Bruce Williams against his will for any length of time. This is

incorrect. The Royer Court approved of police questioning of individuals in the absence of

reasonable suspicion, in which case the individuals may decline to answer and go on their way.

Id. at 497-98. However, the Court also noted “that reasonable suspicion of criminal activity

warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.”

Id. at 498. This case is of the latter variety: Leatherwood had a reasonable suspicion of Bruce

Williams’s involvement in criminal activity, and such reasonable suspicion provided a proper

basis for temporarily detaining Bruce Williams for investigatory purposes.

                                           B. Detention

       After concluding that the initial basis for an investigatory stop was proper, the court must

determine “whether the degree of intrusion . . . was reasonably related in scope to the situation at

hand, which is judged by examining the reasonableness of the officials’ conduct given their

suspicions and the surrounding circumstances.” United States v. Garza, 10 F.3d 1241, 1245 (6th


                                                  7
Cir. 1993). The reasonableness of the detention is judged on two distinct criteria: (1) whether it

was sufficiently limited in time, and (2) whether the law enforcement officials used the least

intrusive investigative means reasonably available. Bennett v. City of Eastpointe, 410 F.3d 810,

825-26 (6th Cir. 2005).

       As to the temporal element, an investigative detention that is constitutionally permissible

at the outset may eventually “ripen into a defective seizure that must be based on probable

cause.” United States v. Heath, 259 F.3d 522, 530 (6th Cir. 2001) (citing United States v. Place,

462 U.S. 696, 709 (1983)). “[A]n investigative detention must be temporary and last no longer

than is necessary to effectuate the purpose of the stop.” Royer, 460 U.S. at 500. “There is no

rigid time limitation on the lawfulness of a Terry stop,” United States v. Winfrey, 915 F.2d 212,

217 (6th Cir. 1990) (citing United States v. Sharpe, 470 U.S. 675, 686-87 (1985)), but a court

must “examine whether the police diligently pursued a means of investigation that was likely to

confirm or dispel their suspicions quickly, during which time it was necessary to detain the

defendant,” Sharpe, 470 U.S. at 686.

       The manner and length of the detention here were reasonably related to the reasons for

which Leatherwood initially stopped the Williamses’s vehicle. The reports that Bruce Williams

displayed a firearm during a road rage incident were sufficient to create a reasonable concern that

the driver of the vehicle was armed and dangerous; therefore, it was reasonably necessary for

Leatherwood’s own protection to approach the vehicle with a weapon drawn and to order Bruce

Williams out of the vehicle. See Garza, 10 F.3d at 1246. Neither the use of handcuffs nor

detention in a police cruiser transform an investigatory stop into an arrest so long as the

circumstances make it reasonable for the officer to take these precautions. Houston, 174 F.3d at


                                                  8
815; United States v. Critton, 43 F.3d 1089, 1092-94 (6th Cir. 1995). Based on the reports that

Leatherwood had received over his police radio, it was reasonable for him to protect himself and

others by handcuffing Bruce Williams and placing him in the back of the police cruiser.

       The Williamses object that, at his deposition, Leatherwood testified that he placed Bruce

Williams in the cruiser to prevent him from fleeing rather than for safety reasons. This argument

is unconvincing since a detainee’s flight obviously affects the safety of the detainee, the detaining

officer, and other citizens. In any case, Bruce Williams admitted in his own deposition that

Leatherwood stated that he was placing him in the patrol car for safety reasons.

       As to the length of the stop, detaining the Williamses for fifteen minutes was reasonable

under the circumstances. As an initial point, this is substantially less than the investigative stop

of thirty-five minutes to an hour that this court approved in Houston, 174 F.3d at 815. Moreover,

the record indicates that Leatherwood expeditiously sought to determine whether Bruce Williams

had committed a crime and whether the driver of the tractor-trailer wished to press charges

against him. Upon determining that an arrest was not appropriate, Leatherwood immediately

released Bruce Williams and returned his firearm and ammunition. See Michigan v. Summers,

452 U.S. 692, 700 n.12 (“If the purpose underlying a Terry stop – investigating possible criminal

activity – is to be served, the police must under certain circumstances be able to detain the

individual for longer than the brief time period involved in Terry”).

       Because there is no evidence of any undue delay on Leatherwood’s part, the Williamses’s

invocation of United States v. Davis, 430 F.3d 345 (6th Cir. 2005), is unavailing. In Davis,

officers prolonged an investigatory stop for an hour after a drug-sniffing dog had failed to alert

positively to the presence of narcotics in the vehicle in order to allow for a second examination


                                                  9
by another dog. The court reasoned that, as the first dog had already confirmed that there were

no narcotics present, the continued detention served no investigative purpose and therefore ran

afoul of the Fourth Amendment. In this case, by contrast, Leatherwood released the Williamses

without any delay after determining that an arrest was not appropriate.

                      C. State Law Standards Under 42 U.S.C. § 1988(a)

       The Williamses contend that where a plaintiff cannot prevail on a constitutional claim in

a § 1983 suit, federal courts should “borrow” state law in cases where it affords more robust

protection of the plaintiff’s civil rights pursuant to 42 U.S.C. § 1988(a).1 The Williamses read

the statute incorrectly. According to § 1988(a), state law is appropriately considered in a § 1983

claim only where there is no rule of federal law on point and state law is consistent with the

Constitution and laws of the United States. “The express terms of § 1988(a) prevent us from

replacing federal law with more favorable state law, as plaintiffs would have us do.” Wilson v.

Morgan, 477 F.3d 326, 332 (6th Cir. 2007); see also Monell v. Dep’t of Soc. Serv. of New York,

436 U.S. 658, 701 n.66 (1978) (“42 U.S.C. § 1988 cannot be used to create a federal cause of

action where § 1983 does not otherwise provide one”); Moor v. County of Alameda, 411 U.S.




       1
          Section 1988(a) provides in relevant part: “The jurisdiction in civil and criminal matters
conferred on the district courts . . . for the protection of all persons in the United States in their
civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws
of the United States, so far as such laws are suitable to carry the same into effect; but in all cases
where they are not adapted to the object, or are deficient in the provisions necessary to furnish
suitable remedies and punish offenses against law, the common law, as modified and changed by
the constitution and statutes of the State wherein the court having jurisdiction of such civil or
criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the
United States, shall be extended to and govern the said courts in the trial and disposition of the
cause.”

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693, 703-04 (1973) (“[W]e do not believe that the section [1988], without more, was meant to

authorize the wholesale importation into federal law of state causes of action”).

       Here, the Fourth Amendment to the United States Constitution and cases decided

thereunder supply the standard for evaluating the Williamses’s claim. As discussed above, the

Williamses do not have a valid claim for violation of their Fourth Amendment rights. Section

1988 does not allow the Williamses simply to discard the Fourth Amendment in search of some

more favorable provision of Tennessee law.

                               D. Fourteenth Amendment Claims

       The Williamses argue that apart from the Fourth Amendment, the Due Process and Equal

Protection clauses of the Fourteenth Amendment provide an “independent constitutional basis for

Section 1983 liability” based on alleged violations of their “right to liberty.” As this Court made

clear in a recent decision, these claims are unavailing.

               The Equal Protection Clause prohibits states from making
               “distinctions which either burden a fundamental right, target a
               suspect class, or intentionally treat one differently from other
               similarly situated without any rational basis for the difference.”
               Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.
               2005). As in Radvansky, plaintiffs cannot make out an equal
               protection claim because plaintiffs merely allege that they were
               treated unfairly by defendants, not that they were members of a
               protected class or treated differently from others. Likewise, the
               plaintiff in Radvansky also argued that the defendants deprived
               him of liberty without due process by arresting him without
               probable cause. We flatly rejected that theory because “it is the
               Fourth Amendment which establishes procedural protections in
               this part of the criminal justice area.” Id. at 313.

Wilson, 477 F.3d at 333. As to the Williamses’s claims under the Fourteenth Amendment, this

case is essentially identical to Wilson and Radvansky. The Williamses cannot make out an equal



                                                 11
protection claim and may not substitute the standards of the Due Process Clause for those of the

Fourth Amendment.

                                      IV. State Law Tort Claims

                                       A. Deficient Investigation

       The Williamses press a claim against Leatherwood for “deficient investigation.” This is a

negligence claim based on the theory that Leatherwood failed to conduct a reasonably prudent

investigation. Knoxville has waived its immunity for claims that its employees committed

negligent torts. TENN . CODE § 29-20-205. Where a city has waived immunity for such acts,

municipal employees are granted immunity from suit. TENN . CODE § 29-20-310(b).

Accordingly, Leatherwood is immune from suit, and the Court will dismiss this claim. See

Robinson v. City of Memphis, 340 F. Supp. 2d 864, 873 (W.D. Tenn. 2004) (dismissing

negligence claim against police officer)

                                             B. False Arrest

       For Bruce Williams to prevail on his state law claim of false arrest, he must show that (1)

he was restrained or detained against his will, and (2) the restraint or detention was unlawful.

Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990). “The law is well

settled in Tennessee that an investigative detention requires only a showing of reasonable

suspicion rather than probable cause.” State v. Wilhoit, 962 S.W.2d 482, 487 (Tenn. Crim. App.

1997). As discussed above, Leatherwood did have a reasonable suspicion that a crime had been

committed and that Bruce Williams committed it. Williams’s claim for false arrest is therefore

without merit.




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                             C. Violation of Tennessee Constitution

       Tennessee does not recognize a private right of action for violations of the Tennessee

Constitution. Bowden Bldg. Corp. v. Tenn. Real Estate Comm’n, 15 S.W.2d 434, 444-45 (Tenn.

Ct. App. 1999); Cline v. Rogers, 87 F.3d 176, 180 (6th Cir. 1996). The district court was correct

to dismiss this claim.

                           V. Denial of Motion to Amend Complaint

       The Williamses filed a motion to amend their complaint with the district court after entry

of the order granting defendants’ motion for summary judgment and dismissing the case. The

Williamses now attack the district court’s decision to deny the motion for leave to amend.

Denial of a motion for leave to amend is reviewed for abuse of discretion. Wade v. Knoxville

Util. Bd., 259 F.3d 452, 459 (6th Cir. 2001).

               Undue delay in filing, lack of notice to the opposing party, bad
               faith by the moving party, repeated failure to cure deficiencies by
               previous amendments, undue prejudice to the opposing party, and
               futility of amendment are all factors which may affect the decision.
               Delay by itself is not sufficient reason to deny a motion to amend.
               Notice and substantial prejudice to the opposing party are critical
               factors in determining whether an amendment should be granted.

Id. at 458-59. “When amendment is sought at a late stage in the litigation, there is an increased

burden to show justification for failing to move earlier.” Id. at 459.

       In this case, the district court found that (1) the Williams were aware of the factual basis

of their complaint from the outset of the litigation; (2) they did not offer any reason for failing to

move for leave to amend until after entry of the order granting summary judgment; (3) granting

leave to amend would substantially prejudice defendants by requiring them to engage in new

discovery, prepare new defenses, and file additional motions; (4) the amendments would likely


                                                  13
be futile in light of the district court’s holding that Leatherwood did not violate the Fourth

Amendment or commit a tort in the course of the investigative detention. Even on appeal, the

Williamses fail to offer any explanation for the lateness of their motion. In the exercise of its

discretion, the district court found that justice did not require that the Williamses be granted

leave to amend. We find no abuse of discretion in this regard.

                                          VI. Conclusion

       For all of the above-stated reasons, the district court’s grant of summary judgment is

AFFIRMED.




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