                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0247p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                       X
                               Plaintiffs-Appellants, -
 DONALD BENNETT, et al.,
                                                        -
                                                        -
                                                        -
                                                            No. 03-2204
           v.
                                                        ,
                                                         >
 CITY OF EASTPOINTE, et al.,                            -
                              Defendants-Appellees. -
                                                       N
                        Appeal from the United States District Court
                       for the Eastern District of Michigan at Detroit.
                  No. 00-70036—John Corbett O’Meara, District Judge.
                                           Argued: April 19, 2005
                                     Decided and Filed: June 8, 2005
                         Before: MARTIN, COOK, and LAY, Circuit Judges.*
                                            _________________
                                                  COUNSEL
ARGUED: J. Mark Finnegan, HEBERLE & FINNEGAN, Ann Arbor, Michigan, for Appellants.
Timothy S. Ferrand, CUMMINGS, McCLOREY, DAVIS & ACHO, Roseville, Michigan, for
Appellees. ON BRIEF: J. Mark Finnegan, HEBERLE & FINNEGAN, Ann Arbor, Michigan,
Michael J. Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit,
Michigan, Charles H. Chomet, KELMAN, LORIA, WILL, HARVEY & THOMPSON, Detroit,
Michigan, for Appellants. Timothy S. Ferrand, CUMMINGS, McCLOREY, DAVIS & ACHO,
Roseville, Michigan, Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia,
Michigan, for Appellees.
                                            _________________
                                                OPINION
                                            _________________
        BOYCE F. MARTIN, JR., Circuit Judge. In the present case, we again confront allegations
that the City of Eastpointe and its police officers violated the Fourth and Fourteenth Amendment
rights of young African-American bicycle riders. In this civil rights action brought pursuant to 42
U.S.C. § 1983, there were originally twenty-two plaintiffs and twelve separate incidents at issue.
On June 20, 2003, the district court heard arguments, and eleven days later granted summary


        *
           The Honorable Donald P. Lay, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.


                                                        1
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                             Page 2


judgment in favor of the defendants on all counts. On appeal, twelve plaintiffs remain, seeking
reversal on claims arising out of seven of the incidents.
        Approximately five months after the district court’s decision in this case, this Court issued
an opinion in King v. City of Eastpointe, 86 Fed. Appx. 790, 2003 WL 22976567 (6th Cir. 2003)
(unpublished), a case involving several claims, some with facts nearly identical to those at issue
here. The district court had likewise granted summary judgment on all counts to the City of
Eastpointe and its police officers. In King, this Court affirmed the district court’s judgment with
respect to all claims against the City of Eastpointe and the police supervisors, and also affirmed the
grant of summary judgment in favor of most of the officers who played secondary roles in the
alleged unconstitutional stops. The Court, however, reversed and remanded claims alleging Fourth
and Fourteenth Amendment violations by defendant-Officer Childs following an April 1996 stop
where the officer allegedly used a racial epithet, holding that this conduct raised an issue of fact as
to whether the stop was based on race, and also whether the pat-down search conducted by Officer
Childs was reasonable under the circumstances. The Court also reversed and remanded a claim
alleging a Fourth Amendment violation by Officer Keiser during a vehicle stop in February 1997.
Consistent with the holding in King, we AFFIRM in part and REVERSE in part, and REMAND for
further proceedings.
                                                   I.
        Eastpointe, formerly East Detroit, is a suburb adjacent to Detroit. The 2000 census figures
indicate that Eastpointe is 92.1 percent white and 4.7 percent African-American. Detroit was found
to be 12.3 percent white and 81.6 percent African-American. Eight Mile Road, made famous by the
popular movie 8 Mile divides the two cities and is commonly known as a racial dividing line. The
plaintiffs claim that they were subjected to racial discrimination when they crossed Eight Mile Road
into Eastpointe. Against the backdrop of each individual Fourteenth Amendment claim is reference
to the “DeWeese Memorandum.” This memorandum was drafted by Eastpointe’s current Chief of
Police, Fred DeWeese, following a meeting he had with Charles King, Sr., the plaintiff and next
friend to his minor-son-plaintiffs in King. In that memo, distributed only to the city manager,
DeWeese wrote that when he was a Lieutenant, “[f]rom May of 1995 to August of 95 . . . . I was
assigned as a Shift Commander on the Afternoon Shift . . . . My instructions to the officers were to
investigate any black youths riding through our subdivisions . . . . I would expect that our officers
would investigate younger black males riding bicycles.”
                                                  II.
         The plaintiffs proceed under theories of individual, supervisory, and municipal liability under
section 1983. At the summary judgment stage, the police officer-defendants’ motions for summary
judgment and all but one of their replies to the plaintiffs’ motions for summary judgment focused
exclusively on the Fourth Amendment claims. The district court, however, granted summary
judgment sua sponte to the officers on all claims, including the Fourteenth Amendment claims. In
addition to challenging summary judgment as to each specific incident, the plaintiffs argue that the
district court abused its discretion in granting summary judgment sua sponte for the various
individual defendants on the Fourteenth Amendment claims, and consequently, that we should
reverse and remand all of the Fourteenth Amendment claims so that the plaintiffs have a proper
opportunity to brief and respond to any motions for summary judgment. We begin by briefly
explaining why we hold that the district court abused its discretion procedurally in sua sponte
granting summary judgment on the Fourteenth Amendment claims against the police officer-
defendants. We then provide some substantive guidance on the Fourteenth Amendment claims in
our discussion of each individual incident.
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                              Page 3


                                                   A.
        “When a district court grants summary judgment sua sponte, its decision is subject to two
separate standards of review. The substance of the district court's decision is reviewed de novo
under the normal standards for summary judgment. The district court's procedural decision to enter
summary judgment sua sponte, however, is reviewed for abuse of discretion.” Shelby County Health
Care Corp. v. S. Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 931 (6th
Cir. 2000) (internal citations omitted). If we find no abuse of discretion in the district court’s
procedural decision, we review the decision substantively. If we find a procedural abuse of
discretion, we reverse and remand to provide the district court the opportunity to review all of the
evidence before making a substantive decision. See id.
        A district court does not abuse its discretion in sua sponte granting summary judgment so
long as “the losing party was on notice that it had to come forward with all of its evidence [and had
a] reasonable opportunity to respond to all the issues to be considered by the court.” Id. (internal
quotation marks and citations omitted). As noted above, the police officer-defendants’ motions for
summary judgment and all but one of their replies to the plaintiffs’ motions for summary judgment
focused exclusively on the Fourth Amendment, though the officers concluded their reply briefs with
the request that the district court dismiss “the claims of Plaintiffs.” The district court concluded that
the defendants were “seeking dismissal of the entire case” and then granted summary judgment in
their favor.
        We conclude that the district court abused its discretion in sua sponte granting summary
judgment to the police officer-defendants on the Fourteenth Amendment claims. True, some of the
defendants’ briefs below, responding to the plaintiffs’ motions for summary judgment, mentioned
the Fourteenth Amendment. But nothing gave the plaintiffs any notice that they would be forced
to defend against a nonexistent motion by the defendants for summary judgment on the Fourteenth
Amendment claims. The officers could have moved for summary judgment on this issue in their
own motion for summary judgment — but they did not. Thus, the plaintiffs were understandably
“surprised by the proceedings” when the district court granted the officers summary judgment
anyway. We therefore conclude that it was error for the district court to sua sponte grant summary
judgment on the issue.
                                                   B.
        With regard to the claims properly briefed below, this Court reviews a decision to grant
summary judgment on the substantive claims de novo. Gribcheck v. Runyon, 245 F.3d 547, 550 (6th
Cir. 2001). Summary judgment is only appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show 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). The burden is generally on the moving party to show that no genuine
issue of material fact exists, but that burden may be discharged by “showing— that is, pointing out
to the district court — that there is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (internal quotation marks omitted). In reviewing
a summary judgment motion, credibility judgments and weighing of the evidence are prohibited.
Rather, the evidence should be viewed in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, the facts and any inferences that
can be drawn from those facts, must be viewed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
        The plaintiffs bring their claims for violations of their Fourth and Fourteenth Amendment
rights pursuant to 42 U.S.C. § 1983. To succeed on a claim under section 1983, the claimant must
demonstrate both that the conduct complained of was committed by a person acting under color of
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                             Page 4


state law and that the conduct deprived the claimant of rights, privileges or immunities secured by
the Constitution or laws of the United States. McKnight v. Rees, 88 F.3d 417, 419 (6th Cir. 1996).
The police and officials in this case were acting under color of state law and there is no dispute as
to this factor. As in King, therefore, this dispute centers around whether the claimants suffered a
violation of their constitutional rights. The plaintiffs here allege that numerous individual police
officers violated their constitutional rights, that Police Chiefs DeWeese and Thomas Danbert are
liable due to their supervisory role, and that the City of Eastpointe is liable for its policy of racial
discrimination.
        It is axiomatic that the Equal Protection Clause of the Fourteenth Amendment protects
citizens from police action that is based on race. United States v. Avery, 137 F.3d 343, 352 (6th Cir.
1997). The plaintiffs’ claim here is one of selective enforcement, and therefore, they must establish
that the challenged police action “had a discriminatory effect and that it was motivated by a
discriminatory purpose.” Wayte v. United States, 470 U.S. 598, 608 (1985). To show
discriminatory effect, a plaintiff can proffer evidence showing similarly situated individuals of
another race were treated differently through statistical evidence or identifying a person of another
race who the police treated differently. King, 86 Fed. Appx. at 802 (citing United States v.
Armstrong, 517 U.S. 456, 465 (1996)). To show discriminatory purpose, a plaintiff can proffer
“evidence that an official chose to prosecute or engage in some other action at least in part because
of, not merely in spite of, its adverse effects upon an identifiable group.” King, 86 Fed. Appx. at 802
(citing Wayte, 470 U.S. at 610) (internal quotation marks omitted).
                               1. Supervisory Liability Under § 1983
       The plaintiffs seek to hold Chiefs DeWeese and Danbert liable based on their role in
supervising the officers who allegedly committed constitutional violations. For a claimant to
succeed on a claim of supervisory liability under § 1983, the claimant must show more than simply
a supervisor’s right to control employees, and cannot succeed solely on the theory of respondeat
superior. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). “At a minimum, a § 1983 plaintiff
must show that a supervisory official at least implicitly authorized, approved or knowingly
acquiesced in the unconstitutional conduct of the offending subordinate.” Id.
        In King, this Court held with respect to one of the incidents there that “[w]ith the possible
exception of DeWeese’s memorandum, plaintiffs’ evidence does not sufficiently show selective
enforcement based on race. However, [even if the Memorandum were discriminatory] the plaintiffs
cannot establish that Officer Childs was ever aware of the instructions given by DeWeese to the
officers on his afternoon shift or that Officer Childs was aware of the Memorandum.” King, 86 Fed.
Appx. at 802. Thus, the Court declined to decide whether the DeWeese Memorandum was
discriminatory, but held that even assuming the DeWeese Memorandum was discriminatory, “there
is no evidence of a causal connection between those instructions and the investigatory stop
conducted by Officer Childs on August 4, 1996.” Id. at 803 (emphasis added).
        Therefore, the King panel did not foreclose a finding of supervisory liability if the plaintiffs
could provide sufficient evidence of the “causal connection” between DeWeese’s instructions later
memorialized in his Memorandum, and the activities of his officers — especially those who worked
on the afternoon shift where he issued his instructions. We discuss, where appropriate, whether the
plaintiffs’ claims are sufficient to defeat a motion for summary judgment on supervisory liability
within our discussion of each individual incident.
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                           Page 5


                               2. Municipal Liability Under § 1983
        A municipality, like a supervisor, may not be held liable under section 1983, simply upon
the theory of respondeat superior. Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). A
municipality may be held liable only “when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.” Id. at 694. Furthermore, for municipal liability, there must be an
“affirmative link between the policy and the particular constitutional violation alleged.” Oklahoma
City v. Tuttle, 471 U.S. 808, 823 (1985). The claimant has the burden of proof for establishing the
existence of an unconstitutional policy and demonstrating the link between the policy and the
alleged injuries at issue. King, 86 Fed. Appx. at 801.
         Here, the plaintiffs rely on the DeWeese Memorandum as the policy that wrought the
constitutional violations upon them. For the plaintiffs to prevail, therefore, they must demonstrate
that DeWeese had policymaking authority. The plaintiffs have failed, however, to account for the
fact that at the time of the instructions, now-Chief of Police DeWeese was simply a lieutenant, and
not a policy-making official. See King, 86 Fed. Appx. at 804 (“DeWeese was not Chief of Police
during the time these earlier bike stops occurred, so his action or inaction could not result in
ratification of a policy behind those incidents.”). The plaintiffs argue that when DeWeese became
Chief of Police, he did not rescind his earlier instructions, and therefore the Memorandum became
city policy. We decline to adopt such a broad reading of the Memorandum without any evidence
to support the assertion. The Memorandum, though arguably discriminatory, was only
memorializing prior and limited instructions, made to four or five officers under his command on
an afternoon shift. There is no evidence whatsoever, that after becoming Chief of Police, DeWeese
renewed these instructions or that they motivated the conduct of the officers, who were not on the
afternoon shift, years later. In sum, we hold that the DeWeese Memorandum did not constitute
official city policy and therefore affirm the district court’s grant of summary judgment in favor of
the City of Eastpointe.
                                  3. Qualified Immunity Defense
        “A government official who performs discretionary functions is entitled to qualified
immunity from civil suits for damages arising out of the performance of his official duties unless
his alleged conduct violated clearly established constitutional rights of which a reasonable person
would have known.” Christophel v. Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995). In Feathers v.
Aey, this Court wrote:
       Qualified immunity involves a three-step inquiry. First, we determine whether,
       based upon the applicable law, the facts viewed in the light most favorable to the
       plaintiffs show that a constitutional violation has occurred. Second, we consider
       whether the violation involved a clearly established constitutional right of which a
       reasonable person would have known. Third, we determine whether the plaintiff has
       offered sufficient evidence “to indicate that what the official allegedly did was
       objectively unreasonable in light of the clearly established constitutional rights.”
319 F.3d 843, 848 (6th Cir. 2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999)
(en banc)). The claimant must prove all three requirements or the officials are entitled to qualified
immunity. We address qualified immunity in the context of each of the individual claims.
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                             Page 6


                                                  III.
                                  A. Incident # 1, August 6, 1995
        Incident # 1 occurred on August 6, 1995, and involved plaintiff Weaver, his friend, non-
plaintiff Clark, and defendant-Officers Edward Lulko and Eric Keiser. Incident # 1 consisted of two
separate encounters. The parties, as in each incident, proffer quite different versions of the events.
The plaintiffs assert that Weaver and Clark were on their way to the home of Clark’s friend near the
intersection of Nine Mile and Gratiot Roads, and intended to reclaim one of Clark’s old bicycles,
which the friend had borrowed. Weaver asserts that he and Clark were peddling at a normal speed
through a public parking lot when they were pulled over by the defendants. The officers claim to
have first observed two bicycle riders proceeding slowly through a residential street “from house
to house . . . onto sidewalks . . . up driveway approaches . . . [and] looking into yards.” The officers
claim to have found the behavior suggestive of either criminal activity or that the riders were lost.
The officers claim that they drove up alongside the riders, rolled down the window, and engaged in
conversation. The officers asked Weaver and Clark what they were doing, and the plaintiffs stated
that they were en route to a friend’s house to pick up Clark’s other bike. According to the
defendants, Weaver provided his name, told the officers he was looking for a friend’s home, and the
contact was terminated. Weaver and Clark then continued on their way, picked up the bike, and
headed back to Detroit, pulling the second bike in tow.
        Moments later, the officers received a citizen’s call reporting “two suspicious African-
American males riding bicycles and pulling a third bike.” Responding to the call, the officers
stopped Weaver and Clark a second time. This time, both of the officers exited the car and made
Weaver and Clark put their hands on the car’s hood while patting them down. The officers then
ordered Weaver and Clark to sit on the curb, flipped over the bikes to read the serial numbers, and
explained that a lot of people were coming across Eight Mile Road to steal bikes. The officers
radioed the serial numbers into the LIEN system, a system wherein bike serial numbers are recorded
and reports of stolen bikes are kept. The officers were told that nobody had reported the bikes
stolen, and the boys were released.
                              1. § 1983 Racial Discrimination Claim
        Plaintiff Weaver asserts that the investigation by defendant Officers Lulko and Keiser
violated his Fourteenth Amendment right to be free from discrimination on the basis of race. He
asserts that the stop and investigation into his presence in Eastpointe was the result of an
unconstitutional Eastpointe policy to stop all black youths riding bicycles in the Eastpointe. Just as
in King, for evidence of the alleged discriminatory policy, Weaver points to the Memorandum
written by Chief DeWeese to the City Manager, which includes the statement of his instructions to
the officers under his command to “investigate any black youths riding through our subdivisions.”
Weaver also points to the other similar incidents described herein, as well as the incidents in King,
allegedly demonstrating unconstitutional action taken pursuant to the DeWeese Memorandum.
Furthermore, Weaver points to the allegedly racially loaded statement made by the officers that a
lot of people were coming across Eight Mile to steal bikes in Eastpointe.
         We have already determined above that the district court’s grant of summary judgment in
favor of the City of Eastpointe on the Fourteenth Amendment claims was appropriate. We have also
held that the district court erred procedurally in granting summary judgment to the defendants on
the Fourteenth Amendment claims against the officers. We now discuss whether supervisory
liability might attach to this incident rendering Chief DeWeese liable.
     In King, the Court found no evidence of a causal connection between the DeWeese
Memorandum and the actions of the officers, and thus rejected the plaintiffs’ claims against
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                             Page 7


DeWeese on the theory of supervisory liability. The plaintiffs here however, have proffered
evidence of a possible causal connection between the officers’ conduct and the DeWeese
Memorandum, because the allegedly unconstitutional conduct by Lulko and Keiser occurred on the
afternoon shift in August 1995, during the time in which the Memorandum states that DeWeese
instructed his officers to investigate any blacks youths riding through Eastpointe. Thus, because we
are remanding the Equal Protection claims against the officers, we think it prudent to remand the
claim against Chief DeWeese, in this incident, because the plaintiffs have put forth evidence of a
causal connection such that it could fairly be said that DeWeese “at least implicitly authorized,
approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate,”
Bellamy, 729 F.2d at 421, such that supervisory liability would attach.
                     2. § 1983 Fourth Amendment Search and Seizure Claim
        Weaver also alleges that the officers’ investigation was an unreasonable search and seizure
in violation of the Fourth Amendment. The parties dispute whether the first encounter was a “stop”
within the ambit of the Fourth Amendment. A purely consensual encounter between a police officer
and a citizen does not implicate the Fourth Amendment. It is only when an officer restrains an
individual’s liberty “by means of physical force or show of authority” that Fourth Amendment
protections attach. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). A person’s liberty is restrained if a
reasonable person in the circumstances would not believe that she were free to leave and ignore the
officer’s requests. See e.g., United States v. Mendenhall, 446 U.S. 544, 554 (1980).
        The district court correctly concluded that the first encounter between the officers and the
plaintiff was not a “stop” under the Fourth Amendment. Both parties describe what amounts to a
consensual encounter where the police approached two individuals and asked them some questions.
There is no indication in the record that the officers did anything to restrain the freedom of
movement of the plaintiff. The defendants do not dispute that the second encounter was a stop
within the Fourth Amendment. What the parties dispute, however, is whether there was reasonable
suspicion for the stop and whether the subsequent investigatory methods used were reasonable under
the circumstances.
        Here, towing the third bike was a violation of Michigan State Law, see Mich. Comp. Laws
§ 257.661, which prohibits a rider from carrying anything that prevents him from keeping both
hands on the handlebars. The officers, therefore, lawfully stopped and talked to Weaver and his
friend. This disposes of the question as to whether the initiation of the second stop was justified.
        Nonetheless, this Court must still inquire as to whether the subsequent detention and
intrusion was reasonably related to the scope of the stop. Terry v. Ohio, 392 U.S. 1, 17-19 (1968);
United States v. Hardnett, 804 F.2d 353, 356 (6th Cir. 1986) (asking “whether the degree of
intrusion into the suspect’s personal security 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.”). The facts here are troubling. During the first encounter, Weaver
was asked what he was doing and where he was going and he told the officers that he was going to
a friend’s house to pick up Clark’s bike. The officers, having no lingering suspicions after the first
encounter, just a few minutes later saw Weaver towing the third bike — doing exactly what he told
them he would be doing. This fact did not arouse the officers’ suspicions, but they chose to stop the
youths nonetheless, because of the dispatch call. Lulko stated at his deposition:
       Q.       Was there suspicion for your [second] encounter [with Weaver] at 17:25?
       A.       Was there suspicion?
       Q.       Were they suspicious at 17:25?
No. 03-2204               Bennett, et al. v. City of Eastpointe, et al.                                        Page 8


         A.       No. I wouldn’t – no. The only reason we spoke to them [the second time]
                  was because of the radio run. It was suspicious to a citizen, but once we
                  pulled it, it was the same guys. And the story they told us [during the first
                  stop] sort of coincided with what was going on [just before the second stop].
J.A. at 607 (emphasis added). Nonetheless, the officers stopped Weaver and his friend, required
them to dismount from their bikes, required them to place their hands on the front of patrol car,
conducted pat-down searches of them, ordered them to sit on the curb, and called in the serial
numbers on the bikes to determine if they were stolen.
        Because of the observed violation of Michigan law, the officers were justified in stopping
the plaintiff.1 See Whren v. United States, 517 U.S. 806, 810 (1996) (holding that “the decision to
stop an automobile is reasonable where the police have probable cause to believe that a traffic
violation has occurred” regardless of any subjective motivations). Nonetheless, we hold that the
facts as alleged by the plaintiffs constitute a Fourth Amendment violation based on the officers’
conduct after the initial stop, and therefore reverse and remand the claim to the district court.
        A concern for officer safety permits a variety of police responses in differing circumstances,
including ordering a driver and passenger out of a car during a traffic stop, see Pennsylvania v.
Mimms, 434 U.S. 106 (1977) (driver) and Maryland v. Wilson, 519 U.S. 408 (1997) (passenger), and
conducting pat-down searches “upon reasonable suspicion that they may be armed and dangerous.”
Knowles v. Iowa, 525 U.S. 113, 118 (1998) (emphasis added) (citing Terry, 392 U.S. 1). A lawful
stop does not necessarily carry with it the authority to conduct a pat-down search. Terry, 392 U.S.
at 27 (“Our evaluation of the proper balance that has to be struck in this type of case leads us to
conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons
for the protection of the police officer, where he has reason to believe that he is dealing with an
armed and dangerous individual . . .”). To justify a pat-down search, the officers must articulate
specific facts that would warrant “a reasonably prudent man in the circumstances . . . . in the belief
that his safety or that of others was in danger.” Terry, 392 U.S. at 27.
         The officers’ justification for the search consists of only this statement in their appellate
filing: “They patted down Weaver for their safety during the encounter. The pat-down search to
preserve the status quo was appropriate, given the nature of the investigation, the potential for harm
to the officers investigating at close range, and the criminal act [towing the third bike] committed
in the officer’s presence . . .” Appellees’ Brief at 46. Despite this proffered justification, neither
the Supreme Court nor this Court has ever justified a pat-down search simply to “preserve the status
quo” or because officers were “investigating at close range.” The officers point to no facts
whatsoever to support any concern for their safety. In fact, in deposition, the officers specifically
disclaimed any and all suspicion. Thus, viewing the evidence in the light most favorable to the
plaintiff, the plaintiff has demonstrated a violation of the Fourth Amendment based on the
unreasonableness of the pat-down search and the intrusion during the stop. Therefore, we reverse
the district court’s grant of summary judgment in favor of Officers Lulko and Keiser and remand
for further proceedings.
        To the extent that plaintiffs might be alleging that Chiefs DeWeese and Danbert as well as
the City of Eastpointe may be held liable for Officers Lulko’s and Keiser’s searches and seizures
during the investigatory stop of August 6, 1995, summary judgment was proper. The plaintiffs have
introduced no evidence that Chiefs DeWeese or Danbert encouraged any Fourth Amendment-related
misconduct on the part of Lulko and Keiser, see Bellamy, 729 F.2d at 421, nor is there any evidence

         1
            While the stop was justified from a Fourth Amendment perspective due to the violation of state law, we note
that the lack of suspicion admitted by Officer Lulko may properly be considered in the plaintiffs’ selective-enforcement
claim.
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                              Page 9


of an unconstitutional city policy pursuant to which Lulko and Keiser acted, see Monell, 436 U.S.
at 694.
         Defendant police officers assert that they are entitled to qualified immunity with respect to
these claims. Officers Lulko’s and Keiser’s search of Weaver, viewing the facts in the light most
favorable to Weaver, however, does not warrant qualified immunity, as it would constitute a search
that is unreasonable under the Fourth Amendment and would be an objectively unreasonable search
by a police officer that would not entitle the officer to qualified immunity. See Terry, 392 U.S. at
27.
                                  B. Incident # 3, August 28, 1995
       Incident # 3 occurred on August 28, 1995, and involved plaintiffs Mitchell, Johnson,
Simpson, and Posey, and defendant-Officers Murdock, Deal, and Magrita. The plaintiffs were riding
bikes through the neighborhoods near their homes and, as they crossed Eight Mile Road into
Eastpointe, Officer Murdock stopped them.
        The evidence indicates that the Eastpointe police received an anonymous tip that four black
males were riding two bicycles, a violation of Mich. Comp. Laws § 257.658, and were “acting
suspicious.” Murdock used his siren and overhead lights, pulled behind the youths, and stopped
them for approximately ten minutes. During the stop, defendant-Officers Deal and Magrita arrived
to provide back-up support. Murdock got out of his car, approached the youths, and ordered them
off their bikes. The officers then separated the youths, searched them, and demanded personal
identification. Mitchell alleges that Murdock took his bike without asking if he owned it, checked
the serial number, and verified that the bike had not been reported stolen. Nonetheless, the officers
confiscated the bikes, ordered the youths into the patrol car, and transported them back across Eight
Mile road. The bikes were later sold at a police auction.
                               1. § 1983 Racial Discrimination Claim
      For the reasons stated in part II A., supra, we reverse the district court’s grant of summary
judgment in favor of the defendant-officers.
                     2. § 1983 Fourth Amendment Search and Seizure Claim
                                       i. Frisk of the Plaintiffs
        The plaintiffs’ claim under the Fourth Amendment in this incident is similar to their claim
in Incident # 1. Here, the facts indicate that the officers received a call regarding four bicycle riders
riding double, looking into garages, and acting suspicious. The officers observed the youths riding
double, a violation of state law, and therefore lawfully stopped the plaintiffs. See Mich. Comp.
Laws 257.658(1)-(2). Thus, the district court’s grant of summary judgment in favor of the officers
with regard to the initial lawfulness of the stop is affirmed.
        The plaintiffs further allege, however, that the even if there was a proper basis for the initial
stop, as we have held there was, the detention, frisk, and confiscation of the bikes was unreasonably
intrusive and not reasonably related to the scope of the initial detention and therefore a violation of
the Fourth Amendment. We agree that the frisk and seizure of the bikes was unreasonable, but the
length of the detention was not, and therefore reverse the district court’s grant of summary judgment
in favor of the officers and remand for further proceedings consistent with this holding.
        The facts, as alleged by the plaintiffs, make out a recoverable Fourth Amendment claim.
During this stop, the officers conducted pat-down searches of the plaintiffs, and again, their only
justification is a conclusory reference to “officer safety.” The officers have not, however, alleged
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                           Page 10


any facts that would create a reasonable suspicion that the plaintiffs were armed and dangerous.
Therefore, the pat-down searches violated the Fourth Amendment. Terry, 392 U.S. at 27. The mere
fact that an officer has the authority to arrest an individual does not, and never has, automatically
permitted the officer to conduct a pat-down search should he choose not to effectuate the arrest.
Knowles, 525 U.S. at 117-19. For an officer to conduct a search incident to arrest, there must be an
actual arrest. Otherwise, unless the officer points to specific facts that demonstrate reasonable
suspicion that the individual is armed and dangerous, the Fourth Amendment tolerates no frisk. Id.
                                       ii. Seizure of the bikes
        This incident also involves the seizure of the plaintiffs’ bikes. One of the bikes appears to
have been plaintiff Mitchell’s birthday present from his father and the other bike appears to have
been pieced together from spare parts by plaintiff Simpson. The officers allege that each of the
youths disclaimed ownership of the bikes, but viewing the facts in the light most favorable to the
plaintiffs, we cannot agree with the officers.
        After stopping the plaintiffs, and because of their alleged suspicions, the officers called in
the bike’s serial numbers into the LIEN system and found that they had not been reported stolen.
Nonetheless, the officers claim that conflicting explanations, coupled with the officers’s knowledge
of recent bike thefts from that area, provided “reasonable suspicion and probable cause” to seize the
bikes.
        The record does not support this claim when the facts are viewed in the light most favorable
to the plaintiffs. For example, plaintiff Mitchell, whose birthday present was seized, testified at his
deposition that he was scared and the officers did not speak directly to him, and therefore he never
asserted ownership of his bike. The officers still confiscated all of the bikes, possibly gave the
youths property tags for the bikes, and said the bikes could be picked up from the police station with
proof of ownership or a statement from a parent or guardian regarding ownership.
        This Court is limited to determining whether the facts, when viewed in the light most
favorable to the plaintiffs, make out a recoverable Fourth Amendment claim — here they do, and
therefore summary judgment was inappropriate. The facts, viewed in the light most favorable to the
plaintiffs, would support a finding that the officers did not have probable cause to believe the bikes
were stolen and therefore did not have probable cause to seize the bikes. After running the serial
numbers through the LIEN system and learning that the bikes were not reported stolen, the officers
would have to proffer some facts to demonstrate that they had probable cause to seize the bikes —
facts sufficient to warrant a person of reasonable caution in the belief that a crime is being or has
been committed. See, e.g., Carroll v. United States, 267 U.S. 132, 161-62 (1925). The plaintiffs’
deposition testimony indicates that one of the bikes was Mitchell’s birthday present and the other
was pieced together from spare parts. A check of the LIEN system did nothing to cast doubt on the
youths’ story, and provided no indication that the bikes were stolen. The officers’ “hunch” that the
stories were inconsistent or that the bikes looked too new, does not rise to the level of probable
cause sufficient to effectuate a permanent seizure of personal property.
        This does not end the inquiry. In general, seizures of property require probable cause.
United States v. Place, 462 U.S. 696, 701 (1983). As with brief detentions of the person, i.e., Terry
stops, however, the Supreme Court “has recognized that some brief detentions of personal effects
may be permitted based upon reasonable suspicion falling short of probable cause, provided that
such detentions are ‘minimally intrusive.’” Farm Labor Org. Comm. v. Ohio State Highway Patrol,
308 F.3d 523, 543-44 (6th Cir. 2002) (emphasis added) (quoting Place, 462 U.S. at 706). This Court
has explained that “‘seizures of personal effects when based on anything less than probable cause’
are permitted only to the extent that they satisfy the standards for reasonableness applicable to
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                           Page 11


‘Terry-type investigative detentions.’” Farm Labor, 308 F.3d at 544 (quoting United States v.
Saperstein, 723 F.2d 1221, 1231 (6th Cir. 1983)).
        This Terry-like inquiry for determining whether a seizure based upon less than probable
cause is constitutional involves two steps. “First, the Court must determine whether the detaining
officer has a reasonable and articulable suspicion that the property he wishes to seize is connected
with criminal activity,” id. (quoting Sanders, 719 F.2d at 887), and “[s]econd, the scope of the
seizure must be reasonable, both in duration and in intrusiveness,” id. (citing Place, 462 U.S. at
709). As for the second prong, this Court has stated that to determine whether “there is reasonable
suspicion, the Court must then ascertain whether the detention is reasonable, that is, (1) was it
sufficiently limited in time, and (2) were the investigative means used the least intrusive means
reasonably available.” Sanders, 719 F.2d at 887 (internal quotation marks omitted).
        We therefore engage in the Farm Labor analysis to determine whether the seizure, based on
reasonable suspicion alone, was constitutional. Assuming the officers had reasonable suspicion to
believe the bikes were stolen, even in light of the clean LIEN check, the inquiry also requires
determining whether the seizure was sufficiently limited in time and whether the investigative means
were the least intrusive. Id. In Place, the Supreme Court held that a ninety-minute detention of the
defendant’s luggage was unreasonable in duration. Place, 462 U.S. at 709. The Court noted that
in determining whether a Fourth Amendment violation has occurred, it is necessary to balance the
government interest in the temporary seizure against the individual’s interest in avoiding the
intrusion. Id. at 703. In Place, the governmental interest was in preventing the transportation of
narcotics and the ninety-minute detention was to arrange for a dog sniff of the luggage. Id. The
Court found that the government’s interest was substantial, but despite the substantial government
interest, the detention for ninety minutes was unreasonable without probable cause. Id. at 709. The
Court noted that the constitutional violation was complete based on the unreasonable detention, but
further exacerbated by the agent’s failure to tell the defendant where they were taking the luggage,
how long they would keep it, and how it would be returned to him. Id. at 710.
         Furthermore, in Farm Labor, this Court found the seizure of the motorists’ green cards for
four days to be unreasonable and therefore unconstitutional. Farm Labor, 308 F.3d 544-48. The
district court found and this Court agreed that only one day or less was needed for the officer to
contact and receive verification from the INS as to the card’s authenticity. Id. at 546-47. In looking
to the permissible time limitation for a seizure based on less than probable cause, the Supreme Court
has not adopted a per se time limitation, but rather has “emphasized the need to consider the law
enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate
those purposes.” United States v. Sharpe, 470 U.S. 675, 685 (1985).
        We see little, if any, investigative need for confiscating the bikes in this case. The
defendants assert no investigative rationale for the seizure, though the district court stated that the
bikes were confiscated “to do a more thorough investigation when [the officers] returned to the
station.” There is no indication, however, that the officers ever investigated further. Having already
run the LIEN check and asserting no additional investigative rationale, it appears to us that the
officers seized the bikes for no justifiable purpose. This is made even clearer by the fact that the
officers told the youths that they could come claim the bikes at any time, presumably immediately,
as long as they brought their parents along or provided some other proof of ownership. The fact that
the officers were willing to immediately turn over the bikes to a parent or to the youths upon proof
of ownership demonstrates no urgent or specific law-enforcement interest in seizing the bikes.
       If the officers had taken the bikes, immediately gone to the station, and engaged in a more
comprehensive investigation into the ownership of the bikes, and then, finding no indicia of criminal
wrongdoing, returned the bikes to the youths, there might not be any constitutional violation. In
United States v. Sharpe, the Supreme Court emphasized, as it had explained in Place, that “in
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                            Page 12


assessing the effect of the length of the detention, we take into account whether the police diligently
pursued their investigation.” 470 U.S. at 685 (quoting Place, 462 U.S. at 709). Thus, it is
“appropriate to 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” or his property. Sharpe, 470 U.S. at 686. Moreover, “the brevity of the invasion of the
individual’s Fourth Amendment interests” is key in determining whether a seizure can be justified
on reasonable suspicion. Sharpe, 470 U.S. at 685 (citations omitted and emphasis added). The
brevity or length of the detention is a flexible concept and needs to be evaluated in light of the law
enforcement needs “as well as the time reasonably needed to effectuate those purposes.” Id. Here,
the officers have provided no explanation of the law-enforcement needs, nor any indication of the
time necessary to confiscate bikes to conduct a more detailed investigation.
        Furthermore, the fact that the officers may have given the youths property claim tags does
not cure the constitutional violation. In Place, the Court held that the ninety-minute detention was
unreasonable and therefore unconstitutional, but that the violation itself was “exacerbated” by the
failure of the officers “to accurately inform respondent of the place to which they were transporting
his luggage, of the length of time he might be dispossessed, and of what arrangements would be
made for return of the luggage if the investigation dispelled the suspicion.” Place, 462 U.S. at 710.
While the possible presence of property tags here may have prevented such exacerbation, the
officers still made no provision for returning the bikes “if the investigation dispelled the suspicion.”
Id. The officers essentially reversed the onus under the Fourth Amendment and placed the burden
on the youths to demonstrate that the bikes were not stolen, whereas the burden, under the Fourth
Amendment, is on law enforcement to justify its intrusions. It is not up to individuals to demonstrate
the absence of criminal activity; rather, it is up to law enforcement, if they have appropriate
suspicions, to investigate and confirm or dispel those suspicions. Permanently keeping the bikes and
selling them at auction based on meager reasonable suspicion here violates the Fourth Amendment.
We therefore reverse and remand this claim against defendant-officers Murdock, Deal, and Magrita
for further proceedings.
        For the same reasons as in Incident # 1, we affirm the district court’s grant of summary
judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe to the extent
the plaintiffs have alleged a Fourth Amendment claim against those parties.
        Officers Murdock’s, Deal’s, and Magrita’s searches of plaintiffs Mitchell, Johnson, Simpson,
and Posey, and the seizure of the bikes, at least as the plaintiffs allege it took place, do not warrant
qualified immunity, as it would constitute a search and seizure that is unreasonable under the Fourth
Amendment and would be an objectively unreasonable search and seizure by a police officer that
would not entitle the officer to qualified immunity. See Terry, 392 U.S. at 27; Place, 462 U.S. at
709; Farm Labor, 308 F.3d 544-48.
                                   C. Incident # 5, April 18, 1996
        Incident # 5 occurred on April 18, 1996, involved plaintiff Wilson and his two friends, non-
plaintiffs Johnson and Traylor, and defendant-Officer Lulko. The plaintiff alleges that he and his
friends, all on their own bikes, were riding along the sidewalk at a normal pace, not doing tricks or
interfering with traffic, but once they crossed Eight Mile Road, Officer Lulko pulled his patrol car
into an intersection in front of the youths and blocked their path. Wilson alleges that Lulko then
interrogated them about what they were doing and where they were headed, that Lulko patted
Wilson down, and asked who owned the bikes and if they went to school around there.
      Officer Lulko asserts that he observed three bike riders riding between parked vehicles,
jumping the curb in front of businesses, and allegedly interfering with traffic in violation of state
law. Because this allegedly observed activity raised safety and theft concerns, Lulko stopped the
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                            Page 13


youths. According to Lulko, he never left his vehicle, which contradicts Wilson’s claim that Lulko
patted him down. Lulko states the encounter lasted five minutes during which he explained the
safety concerns and provided the youths with directions.
                              1. § 1983 Racial Discrimination Claim
      For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary
judgment in favor of the defendant-officers.
                     2. § 1983 Fourth Amendment Search and Seizure Claim
       Viewing the facts in the light most favorable to the plaintiffs, we hold that a genuine issue
of material fact exists on this claim and reverse the district court’s grant of summary judgment.
Wilson claims that they were riding lawfully down the sidewalk when they were abruptly stopped
by Officer Lulko. Officer Lulko claims to have observed the youths riding between parked cars and
jumping curbs, and therefore violating state law prohibiting interference with traffic. Officer
Lulko’s version provides him with a lawful reason to stop and question the youths. Wilson’s version
of events does not provide Officer Lulko with any cause to stop the youths.
         At the outset, whether Officer Lulko effectuated a stop within the ambit of the Fourth
Amendment is disputed. Wilson claims that Officer Lulko pulled his car in front of them, blocked
their path, got out, and searched them. Officer Lulko claims to have stayed in his car, merely
advised the youths not to interfere with traffic, and provided them with directions. This dispute of
fact is similar to the dispute in King over the February 28, 1997 incident. In that incident, the police
officer pulled over the plaintiffs’ vehicle alleging that they were not wearing their seatbelts, had air
fresheners hanging more than four inches from the top of the windshield, and had a cracked
windshield. King, 86 Fed. Appx. at 810. The defendants in King simply asserted that traffic
violations occurred and therefore the stop was justified. The Court held that “[w]hat plaintiffs are
contesting, however, is whether these traffic violations did in fact occur . . . . Defendant’s reliance
on contested issues of fact demonstrates that summary judgment was not appropriate . . .” Id.
There, as here, a “genuine issue of fact [exists] as to whether the ensuing investigatory stop was
based on reasonable suspicion.” Id.
        If Officer Lulko had blocked the plaintiff’s path by a show of authority and the plaintiff
submitted to that show of authority, a seizure within the Fourth Amendment did occur. California
v. Hodari D., 499 U.S. 621, 626 (1991). Moreover, if Officer Lulko frisked Wilson, a search and
seizure occurred. The district court found that because Officer Lulko observed Wilson and his
friends violate state law by interfering with traffic, “[h]e, therefore, could briefly pat him down
(because he could have been arrested).” As discussed above, the mere fact that someone could be
arrested, does not justify a pat-down search if the officer chooses not to effectuate an arrest and has
no reason to suspect that the individual may be armed and dangerous. See generally Knowles, 525
U.S. at 117-19.
       In sum, there are genuine issues of material fact in dispute as to both whether Officer Lulko
had reasonable suspicion to stop the plaintiffs and whether Officer Lulko frisked Wilson. When
viewing the facts in the light most favorable to Wilson, it is clear that summary judgment for the
defendants was inappropriate.
        For the same reasons as in Incidents # 1 and # 3, we affirm the district court’s grant of
summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe to the
extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
       Officer Lulko asserts that he is entitled to qualified immunity for the Fourth Amendment
claim. The encounter, and search, however, at least as Wilson alleges it took place, does not warrant
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                            Page 14


qualified immunity, as it would constitute both a seizure, and then a search, that were unreasonable
under the Fourth Amendment, and would be an objectively unreasonable search and seizure by a
police officer not entitling that officer to qualified immunity. See Terry, 392 U.S. at 27.
                                   D. Incident # 6, June 24, 1996
        Incident # 6 occurred on June 24, 1996, and involved plaintiff Sanders and defendant-Officer
Childs. Sanders states that he was on his way home from a day at Metro Beach dressed in swim
trunks and a t-shirt. He had been riding his bike, which was purchased at a garage sale and salvaged
through spare parts, but got tired and decided to walk. Officer Childs approached Sanders from
behind and turned on the car’s siren. Childs got out of the car and instructed Sanders to “come
here.” Sanders submitted to the officer’s demand, and the officer told Sanders to put the bike down
and stand against a gate whereupon he conducted a pat-down search. The officer then interrogated
Sanders, asked whether the bike was his, whether it was stolen, where he got it, where he was
coming from, where he was going, and what he was doing “over there” in Eastpointe. After twenty
minutes, the officer allowed Sanders to leave.
        Officer Childs adds only that Sanders appeared “much too large” for the bicycle and he
stopped Sanders to investigate whether the bicycle was stolen, and whether Sanders was in violation
of curfew, or needed assistance.
                              1. § 1983 Racial Discrimination Claim
        For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary
judgment in favor of the defendant-officers on this issue. Substantively, however, we note that
Officer Childs was in the police academy during the time in which DeWeese issued his instructions
to the afternoon shift and never worked on DeWeese’s afternoon shift. Thus, when afforded the
proper opportunity to defend against the officers’ motion for summary judgment, should they file
one, the plaintiffs will have to submit sufficient evidence to overcome this fact in order to survive
the summary judgment stage on this claim.
                     2. § 1983 Fourth Amendment Search and Seizure Claim
        Sanders claims both that Officer Childs did not have reasonable suspicion to stop him and
that even if reasonable suspicion justified the stop, Officer Childs acted unreasonably in searching
him. Sanders asserts that he was simply walking his bike home from a day at the beach and was
unreasonably stopped and searched by Officer Childs. The defendants point to the fact that it was
10:30 p.m., Sanders was walking in an area where a number of bikes had been stolen, and according
to Officer Childs, Sanders appeared “much too large” for the bicycle to have been his own.
         First, a stop did occur at the outset when Officer Childs turned on his patrol car lights in a
show of authority and required Sanders to submit and stand up against a nearby gate. See Hodari
D., 499 U.S. 626. By no means is it clear that Officer Childs had reasonable suspicion to justify the
stop. Therefore, a genuine issue of material fact remains as to the reasonableness of the stop. While
officers can surely and appropriately take into account the fact that an area is a high crime area, that
alone, does not justify effectuating a seizure. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (finding
reasonable suspicion to exist when an individual engaged in unprovoked flight from officers
patrolling a high crime area). The only particularized suspicion of any wrongdoing here is the
officer’s belief that Sanders was “much too large” for his bike, and this subjective belief is an issue
of fact that may depend upon a credibility determination within the province of the jury.
        The defendants cite Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809
(6th Cir. 1999), for the proposition that an officer’s perception based on visual observations, even
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                            Page 15


if later determined to be inaccurate, provides reasonable suspicion. The defendants read Houston
too broadly. In that case, one of the officers
       observed and was assaulted in an uprising at Chuck's [bar], heard a sound that
       resembled gunfire, heard a voice exclaim, ‘He's been shot,’ observed a victim
       bleeding profusely from the head, noticed a passenger enter a car next to the victim,
       watched the same car speeding away from the bar’s parking lot, and identified the
       vehicle as best he could under hurried and otherwise difficult circumstances. These
       ‘specific and articulable facts,’ along with rational inferences therefrom, linked the
       crime at Chuck's to the vehicle that Deputy Schutte identified,
though the officers ended up stopping the wrong car. Id. at 813. While as a general matter, police
officers may rely on their own and other officers’ reasonable perceptions, those perceptions, the
inferences drawn therefrom, and their ensuing actions in response to those perceptions must
ultimately be reasonable. To say that Officer Childs’s belief that Sanders was too large for his bike
equates to the officers’ reasonable perceptions in Houston is not automatic, and at the very least,
generates a genuine issue of material fact as to whether reasonable suspicion existed for the stop.
        Second, even if there were reasonable suspicion for the stop, Sanders argues that a genuine
issue of material fact exists as to the reasonableness of the intrusion during the investigatory stop.
Here, yet again, another officer with absolutely no articulated suspicion conducted a pat-down
search — and in this case, Officer Childs required Sanders to stand against a gate while he was
frisked. To reiterate, “‘[w]hen an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently dangerous to the
officer or to others,’ he may conduct a limited protective search for concealed weapons.” Adams
v. Williams, 407 U.S. 143, 146, (1972) (emphasis added) (quoting Terry v. Ohio, 392 U.S. 1, 24
(1968)). Officer Childs attempts to justify the pat-down search by the fact that it was night and the
investigation was occurring at close range. This is insufficient to justify a pat-down search,
however, and the officer has not identified any reason at all for believing that Sanders was “armed
and presently dangerous.” Id. Therefore, we reverse the district court’s grant of summary judgment
in favor of Officer Childs on Sanders’s Fourth Amendment claim.
        For the same reasons as in Incidents # 1, # 3, and # 5, we affirm the district court’s grant of
summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe, to
the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
        Officer Childs asserts that he is entitled to qualified immunity for the Fourth Amendment
claim, but the seizure and search, at least as Sanders alleges they took place, do not warrant qualified
immunity, as they would constitute both a search and seizure that were unreasonable under the
Fourth Amendment, and would be an objectively unreasonable search and seizure by a police officer
not entitling that officer to qualified immunity. See Terry, 392 U.S. at 27.
                                   E. Incident # 8, April 29, 1997
        Incident # 8 occurred on April 29, 1997, and involved plaintiff-brothers James and Jermaine
Shaffer, non-plaintiffs McCree and Loker, and defendant-Officer Lulko. The youths rode to Arbor
Drugs to buy a carton of milk for the Shaffers’ mother and were on their way back to the Shaffers’
house, riding down Brock Street in Eastpointe, a few blocks from the Detroit border, when Officer
Lulko turned his car in front of the youths and blocked their paths. Officer Lulko exited the car and
ordered the boys to get off their bikes and put their hands on the car. Three of them submitted, while
James Shaffer did not stop and instead dismounted his bike and walked two blocks toward Eight
Mile Road. As he was about to cross back into Detroit, another Eastpointe officer pulled his patrol
car in front of James, threw him against the car, handcuffed him, and forcibly detained him in the
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                            Page 16


patrol car. During this time, Lulko ordered the youths to place their hands on the hood of the police
car and conducted pat-down searches of the other three youths and told them they should have
receipts for their bikes when they come over “Eight Mile” into Eastpointe. Eventually, the boys
were released, but as they walked back toward Eight Mile Road, the officers followed behind in the
police car until they crossed back into Detroit.
        Officer Lulko claims to have encountered four bicyclists riding double, which is in contrast
to the youths’ claims that they were all riding their own bikes, and would conflict with the fact that
James got off of his own bike and continued toward Eight Mile disregarding Lulko’s order to stop.
The defendants also note that James admits to riding “four abreast” through side streets, which
would be a violation of state-law.
                              1. § 1983 Racial Discrimination Claim
        For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary
judgment in favor of the defendant-officers. Moreover, in this instance, summary judgment was
particularly inappropriate because of the alleged racial tones to the officers’s conduct — specifically,
Officer Lulko’s statement that the youths should have receipts for their bike when coming into
Eastpointe and the officers’ conduct in driving their police cruisers behind the youths until they
crossed over Eight Mile back into Detroit. These allegations at the very least raise a genuine issue
of material fact as to whether the stop was more burdensome or intrusive than it otherwise would
have been because of race. We hold that a genuine issue of material fact does exist as to whether
race contributed to the stop and intrusions during the stop, and therefore reverse the grant of
summary judgment in favor of Officer Lulko.
        In King, a stop on April 4, 1996, was found to be justified by reasonable suspicion of truancy
and/or suspicion that criminal activity might be afoot, but this Court held that a genuine issue of
material fact existed as to whether the officer’s use of the allegedly racially derogatory term “boy,”
though a “close” question, “raises an issue of fact as to whether Officer Childs actions . . . following
the stop were based on race.” King, 86 Fed. Appx. at 803.
        In this case, the district court found that the use of the phrase “Eight Mile” and reference
thereto, was “racially loaded” as Eight Mile is known by all to be a racial dividing line between
Detroit, which is predominately African-American, and Eastpointe, which is predominately white.
Viewing the facts and inferences in the light most favorable to the plaintiffs, the statement that the
plaintiffs should have receipts for their bikes when coming across Eight Mile, and the fact they were
followed, for no discernible purpose, back across Eight Mile, made summary judgment for the
defendants particularly inappropriate in this incident.
                     2. § 1983 Fourth Amendment Search and Seizure Claim
        While it may be disputed whether the youths were riding double or whether they were riding
four abreast down the street, either version amounts to a violation of state law, see Mich. Comp.
Laws §§ 257.658, 257.660, and therefore provides reasonable suspicion for the initial stop.
Furthermore, James failed to obey a lawful order of a police officer, a violation of Eastpointe
Ordinance § 658.03, and that justified stopping him. The parties do not dispute that a stop within
the Fourth Amendment occurred. Because Officer Lulko had reasonable suspicion for the initial
stop, the only remaining issue is whether his actions during the stop were justified. For the reasons
discussed above in each of the other incidents, we reverse the district court’s grant of summary
No. 03-2204              Bennett, et al. v. City of Eastpointe, et al.                                    Page 17


judgment in favor of the defendants with regard to Jermaine Shaffer.2 The officers point to no facts
that would justify a pat-down search of Jermaine.
        For the same reasons as in Incidents # 1, # 3, # 5, and # 6, we affirm the district court’s grant
of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe
to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
        Officer Lulko asserts that he is entitled to qualified immunity for the Fourth Amendment
claim, but the search, at least as Jermaine Shaffer alleges it took place, does not warrant qualified
immunity, as it would constitute a search that was unreasonable under the Fourth Amendment, and
would be an objectively unreasonable search by a police officer not entitling that officer to qualified
immunity. See Terry, 392 U.S. at 27.
                                       F. Incident # 10, June 27, 1998
        Incident # 10 occurred on June 27, 1998, and involved plaintiff Bush and his two friends,
non-plaintiffs Thrasher and Ware, and defendant-Officer Magrita. All three youths allege that they
were riding on separate bikes home from the Eastland Mall. While riding one block north of Eight
Mile Road into Eastpointe, the youths were pulled over by Officer Magrita, who pulled behind them
and flashed his overhead lights. The defendants allege that two of the youths were riding double.
Magrita states that he observed the youths riding bikes behind closed businesses. After driving by
and making eye contact with the youths, he continued on his way. Five minutes later he returned
to see the youths still riding in the same place.
       Bush alleged that Magrita asked whether the youths knew “anything about people coming
across Eight Mile and stealing bikes on this side of Eight Mile.” Bush also alleged that Magrita
made a joke about a “monkey” and ordered the youths to get off their bikes and walk “back across
Eight Mile,” and waited to observe that they do so.
                                  1. § 1983 Racial Discrimination Claim
      For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary
judgment in favor of the defendant-officers.
                                   2. § 1983 Fourth Amendment Claim
         It is not disputed that Bush and his friends were riding bikes and hanging out in an alley
behind closed businesses. In essence, the facts are agreed upon, but the parties dispute whether a
stop occurred at all. Both sides agree that the officer approached in his car and activated his flashing
lights, but disagree as to whether this led to a Fourth Amendment encounter. Both sides support
their position with Galas v. McKee, 801 F.2d 200 (6th Cir.1986), where we held that a high-speed
traffic chase was not itself a seizure, because the pursued driver refused to stop, i.e., the driver did
not submit to the officers’ show of authority. The City argues that if a high-speed chase with sirens
and lights does not qualify as a “stop,” neither does mere usage of lights without a chase. Pursuant
to this logic, however, no traffic stop would be a true “stop,” absent some unusual show of force.
Key in Galas is that the suspect failed to stop, despite a show of authority and therefore his liberty
was not restrained. This rationale comports with California v. Hodari D., 499 U.S. 621, 626 (1991),
which held that a Fourth Amendment seizure occurs when there is (1) a show of authority, and
(2) submission to a show of authority. In Galas and in Hodari D., there was a show of authority,
but because the suspect fled, no submission to that show of authority. Here, however, Officer

        2
         We affirm the district court with regard to James’s claims — he admits that he was not patted down, and his
temporary detention was justified based on his flight from the officers.
No. 03-2204                Bennett, et al. v. City of Eastpointe, et al.                                          Page 18


Magrita activated his siren — a show of authority3 — and Bush and his friends stopped riding their
bikes and gave attention — submission to Magrita’s show of authority. Thus, the Fourth
Amendment applies to this encounter. While we conclude that a stop did occur, we also conclude
that Magrita had reasonable suspicion for the stop, based on his observations of the youths’ loitering
in an alley behind closed businesses and apparently suspicious behavior.
         Unlike all of the other incidents in this case, Bush does not allege that he was frisked. He
claims, however, that the officer ordered him to walk his bicycle out of Eastpointe back to Detroit,
and then “escorted” him there. His deposition testimony indicates that the officer watched him cross
Eight Mile to ensure that he complied, but that he was not physically escorted into Detroit. Fourth
Amendment jurisprudence suggests a person is seized not only when a reasonable person would not
feel free to leave an encounter with police, but also when a reasonable person would not feel free
to remain somewhere, by virtue of some official action. See Florida v. Bostick, 501 U.S. 429, 439
(1991) (whether seizure occurred depends upon whether a reasonable person would believe he was
“not free to decline the officers’ requests or otherwise terminate the encounter”); Evans v. Ball, 168
F.3d 856, 861 (5th Cir. 1999) (collecting cases holding that pre-trial restriction on interstate travel
is a seizure); Kernats v. O’Sullivan, 35 F.3d 1171, 1177-78 (7th Cir. 1994) (denial of freedom to
remain in a place can be a seizure); Beverlin v. Grimm, 1995 U.S. Dist. LEXIS 11145, *8 n.1 (N.D.
Ill. Aug. 4, 1995) (“[W]e think the Terry rationale is applicable to unlawful interference with
freedom of movement, whether it be exerted by preventing a person from leaving or forcing her to
leave.”). We conclude that Bush’s allegations, viewed in the light most favorable to him, establish
an unreasonable seizure in violation of the Fourth Amendment by virtue of his being ordered back
across Eight Mile.
       For the same reasons as in Incidents # 1, # 3, # 5, # 6, and # 8, we affirm the district court’s
grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of
Eastpointe to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
        Officer Magrita asserts that he is entitled to qualified immunity for the Fourth Amendment
claim, but the seizure, at least as Bush alleges it took place, does not warrant qualified immunity,
as it would constitute a seizure that was unreasonable under the Fourth Amendment, and would be
an objectively unreasonable seizure by a police officer not entitling that officer to qualified
immunity. See Terry, 392 U.S. at 27.
                                         G. Incident # 11, August 3, 1998
         Incident # 11 occurred on August 3, 1998, and involved plaintiffs Phillips and McQueen,
their friends, non-plaintiffs Riser, Elliot, and Graham, and defendant-Officers Diegel and Borowsky.
The youths claim that they were riding bicycles to an Eastpointe bicycle shop with the intention of
purchasing new bikes with money from McQueen’s and Phillips’s mothers. They rode on four
bicycles with one of the bikes occupied by two of the youths. After leaving the bike shop without
purchasing any new bikes, the youths stopped and bought candy at an Amoco gas station
convenience store. The officers state that off-duty police officer Patrick O’Connor observed the
youths riding double and casing the front of a store. While near the store, one of the youths riding
double approached some unattended bikes while the others hid behind a brick wall. When a car
pulled into the lot, the youths changed their plans and walked away. O’Connor, who is not a party
to the suit, believed the youths were “casing” the front of the store with the intent to abscond with
unattended bicycles. O’Connor called the police department with his observations and then
followed the youths in his car. Officer Diegel was dispatched and watched McQueen riding with

         3
           We do not mean to imply that in all cases, the mere usage of a patrol car’s siren constitutes a show of authority.
In this case, however, viewing the facts in the light most favorable to plaintiffs, and looking at the totality of the
circumstances, we believe that a show of authority occurred.
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                            Page 19


one other youth seated on the front handlebars and another standing on the rear foot pegs. The
plaintiffs claim that Officer Diegel swerved his patrol car “menacingly to cut [the plaintiffs] off and
stop them.” Over the car’s loudspeaker system, Diegel ordered the youths off their bikes and they
complied. Officer Diegel then “patted them down for officer safety” and called for back-up
assistance. Thereupon, two other patrol cars arrived.
         Of the youths, Graham is white, and the others are African-American. The plaintiffs allege
that the defendants searched, temporarily handcuffed, and temporarily detained in the patrol cars
only the African-American youths. Graham was neither searched, handcuffed, or detained in the
cruiser.
        While in the back of the police car, Phillips claims to have thrown a gun wrapper out the
window. In response, one of the officers allegedly called Phillips a “nigger” and told him to “get
your black ass out of that car and pick that piece of paper up, because you’re not at home.” The
youths were detained for twenty-five minutes, issued two citations, released, and told that they had
“five minutes to get [y]our black ass[es] back across Eight Mile,” and the officers followed them in
their police cruisers to the city limits.
                              1. § 1983 Racial Discrimination Claim
        For the reasons stated in part II, A., supra, we reverse the district court’s grant of summary
judgment in favor of the defendant-officers. Moreover, summary judgment was particularly
inappropriate in this instance. There is very clearly a genuine issue of material fact, as in Incident
# 8, as to whether the stop was more burdensome or intrusive than it otherwise would have been
because of race.
        The officers do not dispute much of the allegations. They note that one of the citations was
issued to Graham, the white youth, for possession of tobacco by a minor. Viewing the facts in the
light most favorable to the plaintiffs, nonetheless, there is a genuine issue of material fact as to
whether the officers’ actions during the stop were based on race. In King, this Court found the use
of the term “boy,” sufficient to create a genuine issue of material fact as to whether the officer’s
actions “following the stop were based on race,” 86 Fed. Appx. at 803, and in our view, the
allegations in this incident are much more egregious.
                     2. § 1983 Fourth Amendment Search and Seizure Claim
        The initial stop, we believe, was justified based on the officers’ reasonable suspicion. The
question remains, however, whether the frisk, handcuffs, and detention in the police cruiser were
reasonable under the Fourth Amendment. As described in the previous incidents, the officers
conducted pat-down searches of the youths they detained. In each instance, the asserted justification
was “officer safety.” The defendants, however, have not pointed to one single fact which supports
a concern for officer safety. The officers do not even attempt to assert that they had any belief, let
alone a reasonable one, that the youths were armed and dangerous. Even if a Terry stop is justified
at the outset, a frisk may take place only if the officer has a reasonable belief that the suspect may
be armed and dangerous. Terry, 392 U.S. at 27. A reasonable belief that the suspect has contraband
is not sufficient. United States v. Sibron, 392 U.S. 41, 63-65 (1968). A frisk is permissible if there
is probable cause for the arrest, an arrest does in fact occur, and the frisk is incident to arrest. See
Knowles, 525 U.S. at 117-19. The mere authority to arrest, however, without an actual arrest, does
not justify a pat-down search in the absence of a reasonable belief that the suspect is armed and
dangerous. Id. Once again, the officers in this incident did not conduct an arrest, and had no
reasonable belief that the plaintiffs were armed and dangerous. Therefore, summary judgment was
inappropriate.
No. 03-2204                Bennett, et al. v. City of Eastpointe, et al.                                         Page 20


         We next determine whether the plaintiffs’ Fourth Amendment rights were violated when they
were handcuffed and detained in the back of the police car during the Terry stop.4 A Terry stop
cannot be excessively intrusive and must be reasonably related in scope and duration to the purposes
of the investigation. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). “When establishing that a
detention, which was not supported by probable cause, was reasonable, the government must
demonstrate that the detention and investigative methods used were reasonable under the
circumstances.” United States v. Jacob, 377 F.3d 573, 578 (6th Cir. 2004) (internal quotation marks
and citations omitted). The “scope of the intrusion permitted” in the course of a Terry stop “will
vary . . . with the particular facts and circumstances of each case,” but in all cases the “detention
must be temporary and last no longer than is necessary” and “the investigative methods employed
should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion
in a short period of time.” Florida v. Royer, 460 U.S. 491, 500 (1983)
        “The use of handcuffs is the use of force, and such force must be objectively reasonable
under the circumstances.” Muehler v. Mena, 125 S. Ct. 1465, 1472 (2005) (Kennedy, J., concurring)
(citing Graham v. Connor, 490 U.S. 386 (1989)). Consequently, this Court has held that “[d]uring
a Terry stop, officers may draw their weapons or use handcuffs ‘so long as circumstances warrant
that precaution.’” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 309 (6th Cir. 2005) (quoting
Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir.1999)). To
justify a pat-down search during a Terry stop the Fourth Amendment requires a reasonable belief
that the suspect is armed and dangerous; likewise, for the use of handcuffs during a Terry stop, the
Fourth Amendment requires some reasonable belief that the suspect is armed and dangerous or that
the restraints are necessary for some other legitimate purpose, evaluated on the facts of each case.
In Radvansky, this Court found that officers did not exceed the permissible bounds of a Terry stop
when handcuffing a suspect after responding to a call that a burglary was in progress, it was late at
night, and the suspect informed the officers he was armed with a stun-gun. Radvansky, 395 F.3d at
309. Likewise, in United States v. Foster, this Court found that an officer did not exceed the
permissible bounds of a Terry stop when he handcuffed a suspect he reasonably believed to be under
the influence of PCP, knowing that individuals under the influence of PCP can quickly become
extremely violent. 376 F.3d 577, 587 (6th Cir. 2004). In United States v. Hurst, this Court stated
that when a person “was reasonably suspected of having just burglarized a home and might
reasonably have been deemed armed and dangerous,” the use of handcuffs might be justified “as a
precautionary measure for officer safety.” 228 F.3d 751, 758 n. 3 (6th Cir. 2000). All of these cases
adhere to the proposition we first clearly stated in Houston v. Clark County, supra, that the use of
handcuffs during a Terry stop may be permissible so long as the circumstances warrant the restraint.
Houston, 174 F.3d at 815. Other circuits have concluded the same. In United States v. Bautista, the
Ninth Circuit stated that “handcuffing substantially aggravates the intrusiveness of an otherwise
routine investigatory detention and is not part of a typical Terry stop,” but the court did not preclude
the possibility that circumstances would arise during a Terry stop that would permit handcuffing an
individual. 684 F.2d 1286, 1289 (9th Cir. 1982). In fact, in Bautista, the court permitted
handcuffing the suspect during this Terry stop because, in the words of the officer, “the suspects
appeared extremely nervous and suspect Bautista kept pacing back and forth and looking, turning
his head back and forth as if he was thinking about running.” Id.; see also United States v.


         4
            The issue of whether handcuffing and detention in the back of a police car violates an individual’s rights often
arises in two different contexts. In the first scenario, an individual argues that handcuffing and detention in the back of
a police car constitutes an arrest, and unless there was probable cause, the individual’s Fourth Amendment rights have
been violated. That inquiry requires determining whether in fact the individual has been arrested, and if so, whether there
was probable cause to support the arrest. The second scenario involves a Terry stop and the question is whether
handcuffing or detention in the back of the police car was reasonable under the circumstances. While the plaintiffs were
stopped, searched, handcuffed, and detained in the back of a police car, the parties have not addressed the issue in the
context of an “arrest” and therefore we consider only whether, based on the facts in the light most favorable to the
plaintiffs, the handcuffing and detention that occurred here was reasonable during and in relation to this Terry stop.
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                            Page 21


Thompson, 597 F.2d 187, 190 (9th Cir. 1979) (finding that handcuffing suspect during Terry stop
was not unreasonable because the suspect “repeatedly attempted to reach for his inside coat pocket,
despite the officers’ repeated warnings not to.”); see also United States v. Perdue, 8 F.3d 1455, 1463
(10th Cir.1993) (collecting cases to the same effect).
        With this principle applied to the facts of this incident, we easily conclude that handcuffing
the youths violated their Fourth Amendment rights. We previously concluded that the pat-down
searches of the youths violated their Fourth Amendment rights because the officers had no
reasonable belief that the youths were armed and dangerous. In any event, the officers did conduct
pat-down searches, and uncovered no weapons or anything else to warrant further concern for their
safety. That makes it truly remarkable (not in a good way) that the officers then handcuffed the
youths. In addition to the fact that the officers had no reasonable belief that the youths were armed
and dangerous, they have alleged no facts that would indicate that the youths attempted to flee or
do anything else that would warrant this use of force. In sum, we see no circumstances here
warranting the handcuffs as a precaution for officer safety or otherwise and therefore conclude that
the use of handcuffs during this Terry stop violated the plaintiffs’ Fourth Amendment rights.
        We next consider whether the detention of the youths in the back of the police car violated
their Fourth Amendment rights. We first note that no circuit has concluded that detention in the
back of a police car automatically turns a Terry stop into an arrest — that is, while it is one of the
factors to consider in determining whether an arrest has occurred, detention in the back of a police
car is not per se an arrest. See e.g., United States v. Bradshaw, 102 F.3d 204, 211 (6th Cir. 1996);
United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988); United States v. Rodriguez, 831 F.2d
162, 166 (7th Cir. 1987); United States v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir. 1985);
United States v. Manbeck, 744 F.2d 360, 377-78 (4th Cir. 1984). That being said, determining that
detention in the back of a police car is not an arrest does not resolve the question of whether the
detention in the back of the police car was reasonably necessary based on the circumstances of the
Terry stop. See generally Florida v. Royer, 460 U.S. at 500; Jacob, 377 F.3d at 578.
        In the traffic stop context, courts have found some detentions in the back of police cars to
be reasonable. In Parr, where the Ninth Circuit held that detention in the back of a police car is not
per se an arrest, the court did not disapprove of the detention where in the process of pulling over
the motorist, the officer observed the driver and passenger “bend towards the floorboard and ‘make
furtive movements,’” Parr, 843 F.2d at 1229, though the court did find that a warrantless search of
the car based on those facts was not supported by probable cause. Likewise in Thompson, when the
driver failed to produce identification, the court approved of a temporary detention in the back of
the police car while the officer attempted to verify the suspect’s identity. Thompson, 597 F.2d at
190. The Seventh Circuit’s decision in Rodriguez also involved an attempt to establish a suspect’s
identity. Rodriguez, 831 F.2d at 166. The Fourth Circuit in Manbeck permitted detention in the
back of a police car when the officers demonstrated that there was “no feasible alternative” and the
defendant was neither “frisked or handcuffed.” Manbeck, 744 F.2d at 377-78.
        This Court confronted the issue of a detention in the back of a police car during a traffic stop
in Bradshaw, 102 F.3d 204. After pulling over Bradshaw’s vehicle for having an altered drive-out
tag, Bradshaw got out of his car and approached the officer. Id. at 206. The officer testified that
Bradshaw was acting “‘nervous and jittery’ and had actually begun to sweat.” Id. At this point, the
officer asked Bradshaw to sit in the back of the police car while he conducted an investigation of
the altered drive-out tag, as well as Bradshaw’s identification and vehicle certification. Id. On
appeal, this Court noted that Bradshaw was detained in the police car “for 2 reasons: (1) Officer
Kula was performing radio checks on him and issuing him a citation and (2) [Bradshaw’s] ‘nervous’
and ‘jittery’ demeanor raised safety concerns for Officer Kula,” and therefore concluded that the
detention was not unreasonable under the circumstances. Id. at 212.
No. 03-2204                Bennett, et al. v. City of Eastpointe, et al.                                           Page 22


         In a footnote, the Court asserted that “reasonable suspicion [need not] be present ‘up front’
for an officer to detain a motorist in his squad car while conduct a records search that is related to
the traffic violation for which the motorist was stopped.” Id. at 212 n. 18. The Court also concluded
that the “initial detention of [Bradshaw] in the police car clearly did not exceed the scope of the
traffic stop. Officer Kula could lawfully detain [Bradshaw] until he finished performing the radio
checks and issuing the citation.” Id. at 212. We read this language not to grant police officers carte
blanche authority to throw any motorist pulled over for a traffic violation into the back of a squad
car while they check the motorist’s license and registration, but rather to stand only for the
conclusion that the facts and circumstances in that case — the altered drive-out tag combined with
Bradshaw exiting his car and approaching the officer in a nervous and jittery manner —
“demonstrate[d] that the detention and investigative      methods used were reasonable under the
circumstances.” Jacobs, 377 F.3d at 578.5 Reading Bradshaw to create a bright line rule
authorizing detention in the back of a police car for every traffic stop would run contrary to the body
of this Court’s and the Supreme Court’s Fourth Amendment jurisprudence that the “scope of the
intrusion permitted” in the course of a Terry stop “will vary . . . with the particular facts and
circumstances of each case.” Royer, 460 U.S. at 500; see also Pennsylvania v. Mimms, 434 U.S.
106, 108-09 (1977) (“The touchstone of our analysis under the Fourth Amendment is always the
reasonableness in all the circumstances of the particular governmental invasion of a citizen's
personal security.”) (internal quotation marks and citations omitted).
         Moreover, were Bradshaw to allow officers to detain ordinary motorists in the back of a
police car, it would create an ill-conceived spectrum of what is and is not permitted during a routine
traffic stop — an officer would be able to order   the driver out of the car and detain him in the back
of the police car, but could still not frisk him.6 See Mimms, 434 U.S. at 110 (holding that ordering
a driver out of his or her car during a routine traffic stop is not inconsistent with the Fourth
Amendment, and noting that Pennsylvania did not go so far as to argue that frisking a driver during
a routine traffic stop would always be consistent with the Fourth Amendment). Finally, underlying
Mimms and its progeny, is a concern for officer safety in the context of a traffic stop; that is, the
concern that a driver, sitting in his car can make unobserved movements leading to an assault of the
officer. Id. at 109-11. This concern, the Supreme Court has held, justifies allowing an officer to
require a motorist to stand alongside his car instead of remaining seated inside of it — thus, a face-
to-face confrontation diminishes the concern for an assault of the officer. Id. In this context — that
is, the ordinary traffic stop — we see no additional justification that would warrant extending
Mimms to permit officers to detain all motorists, or any individual in the course of a Terry stop, in
the back of a police car, without circumstances that warrant the additional intrusion. While standing
alongside one’s car during a traffic stop is only a minor inconvenience and “not a serious intrusion
on the sanctity of the person,” id. at 111 (quotation marks omitted), we think that detention in the
back of a police car involves the same, if not more “serious intrusion on the sanctity of the person,
which may inflict great indignity, and arouse strong resentment, and it is not to be undertaken
lightly.” Terry, 392 U.S. at 17.

         5
          See also United States v. Wellman, 185 F.3d 651 (6th Cir. 1999). In Wellman, this Court cited Bradshaw
approvingly and as justification for an officer’s detention of a motorist in the back of the police car during a traffic stop.
Like Bradshaw, upon being pulled over, Wellman got out of his motor home and approached the officer’s patrol car.
“[Wellman]’s quick exit from his vehicle, instead of waiting for the officer to approach him, triggered in Officer Jones
a suspicion that there may be some illegal activity such as drugs, weapons, a wanted person, or illegal immigrants hidden
in the home.” Id. at 653. Thus, the intrusion was reasonable under the circumstances — Wellman was not detained in
the back of the police car during a routine traffic stop — but was rather detained because of his unusual and suspicious
behavior upon being stopped.
         6
            Allowing detention in the back of a police car during a routine stop, in our opinion, might actually put officers
at greater risk of being assaulted. It is absolute that an officer may not frisk a motorist without reasonable suspicion that
the individual is armed and dangerous. But, if an officer can automatically put any motorist in the back of the police car,
but cannot frisk the individual, officers may be open to assault from behind by an individual concealing a weapon.
No. 03-2204               Bennett, et al. v. City of Eastpointe, et al.                                      Page 23


        Turning to this case, we see no facts that warrant detention in the back of a police car. First,
here the officers were not dealing with a nervous and jittery motorist who could step on the gas at
any second and flee at high speeds, but rather the officers were approaching children on bicycles.
Whatever can be said regarding officer safety during a traffic stop is less persuasive, we think, when
an officer confronts a child riding on a bicycle. The youths made no movements consistent with
flight and the officers do not assert that this was a concern. The youths answered the officers
questions. There was no allegation that the youths failed to identify themselves. There was no
indication the youths were armed and dangerous. Moreover, by the time the officers made the
decision to detain the youths in the back of the police cars, they had already searched and
handcuffed  them. We fail to see how any concern for officer safety could have remained at this
juncture.7
        In this incident, of course, the officers did eventually issue citations to two of the youths —
one for riding double, and one for underage possession of tobacco. On the facts of this case and for
the reasons described above, nonetheless, we think that detention in the back of a police car solely
for the purpose of writing the citations was also unreasonable. We write further only to note that
the issuing of two citations is a weak justification for the detention of the four youths (in addition
to the obvious problem with detaining only the African-American youths). This incident involved
five youths riding on four bikes and therefore only one of the bikes was occupied by multiple
youths. Thus, only one of the youths could have been cited for a violation the ordinance prohibiting
riding double. Upon the unconstitutional searches, the officers discovered tobacco on one of the
African-American youths, but it was immediately clarified that he was only holding it for Graham,
the white youth. The officers detained in the back of the police cars, however, only the African-
American youths, though they issued the citation to Graham. The detention in the police cars of the
African-American youths for the purpose of issuing the citation to Graham is, therefore, a
preposterous justification. Furthermore, the detention of all four African-American youths when
only one of them could be cited for riding double renders the justification likewise unpersuasive.
We therefore reverse the district court’s grant of summary judgment in favor of the defendants on
the frisks, handcuffing, and detention in the back of the police car, and remand for further
proceedings.
        For the same reasons as in Incidents # 1, # 3, # 5, # 6, # 8, and # 10, we affirm the district
court’s grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of
Eastpointe to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties.
       The officers here assert that they are entitled to qualified immunity on the plaintiffs’ Fourth
Amendment claims, but the search, handcuffing, and detention in the back of the police car, at least
as the plaintiffs allege it took place, does not warrant qualified immunity, as it would be
unreasonable under the Fourth Amendment, and would be an objectively unreasonable Fourth
Amendment violation by a police officer not entitling that officer to qualified immunity.
                                                     *    *     *
        It goes without saying that we both recognize the risks and appreciate the sacrifices that law
enforcement officers make on a daily basis. We are compelled to comment here, however, that we
are both frustrated and concerned with what appears to be consistent disregard for basic Fourth
Amendment principles by the Eastpointe Police Department and its officers, and an apparent
misunderstanding by counsel as to the legal requirements for Terry stops. Counsel may shout
“officer safety” until blue-in-the-face, but the Fourth Amendment does not tolerate, nor has the


         7
          We also note that in the cases where courts have found detention in the back of a police car to be reasonable
under the circumstances, the individuals were not also handcuffed.
No. 03-2204           Bennett, et al. v. City of Eastpointe, et al.                           Page 24


Supreme Court or this Court ever condoned, pat-down searches without some specific and
articulable facts to warrant a reasonable officer in the belief that the person detained was armed and
dangerous. The Supreme Court has, in interpreting the Fourth Amendment, struck a balance
between the justifiable concern for officer safety when confronting an individual and the substantial
individual interest in being free from unreasonable intrusion. The Framers’ concerns and clear intent
to protect individuals from arbitrary government intrusion was enshrined in the Fourth Amendment
to prevent situations such as those alleged here — officers, having no reason to fear for their safety,
may not require citizens, whom they have not arrested, to stand up against gates or place their hands
on police cars, and submit to searches. This has long been the law.
                                                  IV.
        For the reasons given above, we AFFIRM the district court in part, REVERSE in part, and
REMAND for further proceedings consistent with this opinion. In particular, we REVERSE and
REMAND for further proceedings all claims against the officers, including Chief DeWeese, based
on the Equal Protection Clause because the district court erred procedurally in sua sponte granting
summary judgment. Furthermore, we REVERSE and REMAND for further proceedings the
following additional claims: Incident # 1: The Fourth Amendment claim for the allegedly excessive
pat-down searches by Officers Lulko and Keiser; Incident # 3: The Fourth Amendment claim for
the allegedly excessive pat-down searches by Officers Murdock, Deal, and Magrita, and the
allegedly unconstitutional seizure of the bikes by the same officers; Incident # 5: The Fourth
Amendment claim for the allegedly unconstitutional stop and unconstitutional pat-down searches
by Officer Lulko; Incident # 6: The Fourth Amendment claim for the allegedly unconstitutional stop
and unconstitutional pat-down search by Officer Childs; Incident # 8: The Fourth Amendment claim
for the allegedly unconstitutional stop and pat-down searches by Officer Lulko with regard to
Jermaine Shaffer; Incident # 10: The Fourth Amendment claim for the allegedly unconstitutional
seizure of Bush; Incident # 11: The Fourth Amendment claims for the allegedly unconstitutional pat-
down searches, handcuffing, and placement in the back of the police cruiser. On all other claims
and with respect to all other defendants, we AFFIRM the district court’s grant of summary
judgment.
