                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 10a0259p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                   X
                                                    -
 MONICA JOHNSON,
                                                    -
                                Plaintiff-Appellant,
                                                    -
                                                    -
                                                        No. 09-5046
             v.
                                                    ,
                                                     >
                                                    -
                                                    -
 CITY OF MEMPHIS; THE CITY OF MEMPHIS
                                                    -
 POLICE DIVISION; KENNETH ADAMS,
                                                    -
 individually and in his official capacity as an
 officer of the City of Memphis Police              -
                                                    -
                                                    -
 Department; MICHAEL DERRICK, as
                                                    -
 Administrator ad Litem of Melvin Rice,
                                                    -
 deceased, as said decedent acted in his
 individual capacity and as police officer of       -
                                                    -
                           Defendants-Appellees. -
 the City of Memphis,
                                                    -
                                                    -
                                                   N
                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
                 No. 04-02374—Samuel H. Mays, Jr., District Judge.
                                  Argued: January 12, 2010
                            Decided and Filed: August 24, 2010
    Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; WISEMAN,
                            District Judge.*
                                      _________________
                                           COUNSEL
ARGUED: Walter Lee Bailey, Jr., WALTER BAILEY & ASSOCIATES, Memphis,
Tennessee, for Appellant. Henry L. Klein, Sr., APPERSON CRUMP PLC, Memphis,
Tennessee, for Appellees. ON BRIEF: Walter Lee Bailey, Jr., WALTER BAILEY &
ASSOCIATES, Memphis, Tennessee, for Appellant. Henry L. Klein, Sr., APPERSON
CRUMP PLC, Memphis, Tennessee, for Appellees.



        *
        The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of
Tennessee, sitting by designation.


                                                 1
No. 09-5046           Johnson v. City of Memphis, et al.                                       Page 2


                                      _________________

                                            OPINION
                                      _________________

          ALICE M. BATCHELDER, Chief Judge. Plaintiff-Appellant Monica Johnson
(“Plaintiff”), widow of decedent Xavier Johnson (“Johnson”), appeals the district court’s
grant of summary judgment to Defendant-Appellee City of Memphis (“City”) in her 42
U.S.C. § 1983 action arising out of a home entry by Memphis police officers that
Johnson claims was in violation of the Fourth Amendment. Plaintiff also appeals the
district court’s denial of her motion to amend her complaint. For the reasons below we
affirm.

                                                  I.

          This matter arose out of the death of Xavier Johnson at his home in Memphis,
Tennessee on April 22, 2004. On that night, police officers Kenneth Adams (“Adams”)
and Melvin Rice (“Rice”) were both on duty, driving separate vehicles. At 9:11 P.M.,
they each received separate radio calls from their dispatcher to respond to a “911 hang
call” from 619 Knightsbridge.1 Rice was first on the scene and notified dispatch. He
approached the front of the house and found the front door wide open. He advised
dispatch of the open door, then announced that the police were present. Receiving no
response, he entered with his weapon drawn. Adams arrived and saw Rice inside the
doorway with his weapon drawn, so he drew his own weapon and followed Rice inside.
At some point after the officers entered, a second call came in to dispatch with sufficient
information to classify the call as a “mental consumer.”

          The parties contest the following sequence of events, though the dispute does not
affect this appeal. According to the Defendants, Rice, who is now deceased, told Adams
he saw someone moving down the corridor ahead of them. The officers agreed they
should sweep the building to make sure that no one was hurt or in need of assistance.


          1
          A 911 hang call occurs when a caller dials 9-1-1, hangs up before speaking with the operator,
and the operator is unable to reach the caller when attempting to return the call.
No. 09-5046        Johnson v. City of Memphis, et al.                              Page 3


As they rounded the corner near the stairs, Johnson appeared. Rice inquired as to why
Johnson did not respond to the officers’ calls. Johnson did not answer, but instead
jumped on Rice and a fight ensued. Rice pushed Johnson back into a wall, but Johnson
lunged forward and grabbed Rice’s gun hand. Rice yelled to Adams that Johnson was
going for his gun. Adams shouted repeatedly at Johnson to get down, then fired twice
at Johnson. After Adams fired, Johnson threw Rice into a wall and charged Adams.
Adams retreated, yelled at Johnson to get down, and continued to fire, but Johnson
reached him and hit him with enough force to throw Adams against a wall and knock
him out briefly. When Adams came to his senses, Johnson was dead at his feet.

        The officers later learned that Johnson was not ordinarily dangerous, but was
bipolar and off his medication. Plaintiff had dialed 911 and then hung up in order to
leave the house. She called again a few minutes later and informed the dispatcher of the
medical situation. Sadly, this information did not reach the officers on the scene until
it was too late.

        Plaintiff claims that this account is not consistent with the evidence. She relies
on evidence from the medical examiner that the wounds were not characteristic of close
range fire, and the fact that one of the bullets found in Johnson’s body came from Rice’s
weapon.

        On May 18, 2004, Plaintiff filed a complaint asserting a number of claims against
the officers, the City, and the Memphis Police Department. In September, 2004, the
district court dismissed the claims against the police department, as well as Plaintiff’s
Fifth, Fourteenth, and Fifteenth Amendment claims against the City and the individual
officers. On February 3, 2006, Plaintiff consented to the dismissal of most of her
remaining claims, including those brought under state law. Plaintiff’s only remaining
claim was under the Fourth Amendment pursuant to 42 U.S.C. § 1983. On August 15,
2007, Plaintiff filed a motion to amend her complaint based on dispatcher negligence
and to reinstate the previously dismissed state law claims against the City. Defendants
Adams and the City filed separate motions for summary judgment. The district court
denied Plaintiff’s motion to amend her complaint, denied Adams’ motion for summary
No. 09-5046          Johnson v. City of Memphis, et al.                             Page 4


judgment, and granted the City’s motion for summary judgment. Adams was later
dismissed from the case with Plaintiff’s consent. Plaintiff filed a motion to reconsider
the denial of her motion to amend her complaint and the grant of the City’s motion for
summary judgment. The district court denied the motion and this timely appeal
followed.

                                             II.

          Although this Court will “generally review a denial of a motion to alter or amend
a judgment under Rule 59(e) for abuse of discretion, ‘when the Rule 59(e) motion seeks
review of a grant of summary judgment, . . . we apply a de novo standard of review.’”
Shelby County Health Care Corp. v. Majestic Star Casino, LLC, 581 F.3d 355, 375 (6th
Cir. 2009) (quoting Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir.
1998)).

          “The Fourth Amendment protects ‘[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures . . . .’”
United States v. McClain, 444 F.3d 556, 561 (6th Cir. 2006) (quoting U.S. Const. amend.
IV) (alteration in original). The “‘chief evil’” that the Fourth Amendment protects
against is the “‘physical entry of the home.’” Payton v. New York, 445 U.S. 573, 585
(1980) (quoting United States v. U.S. Dist. Court for the E. Dist. of Mich., 407 U.S. 297,
313 (1972)). Searches of the home must be reasonable. Thacker v. City of Columbus,
328 F.3d 244, 252 (6th Cir. 2003). “This reasonableness requirement generally requires
that police obtain a warrant based upon a judicial determination of probable cause prior
to entering a home.” Id. at 252. Warrantless entries into the home are “presumptively
unreasonable.” Payton, 445 U.S. at 586.

          As “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” there
are several exceptions to the warrant requirement that are ultimately grounded in that
standard. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Lists of recognized
exceptions are inclusive rather than exclusive. “Exigent circumstances” are one such
exception. See Mincey v. Arizona, 437 U.S. 385, 390 (1978) (“[W]arrants are generally
required to search a person’s home or his person unless the ‘exigencies of the situation’
No. 09-5046          Johnson v. City of Memphis, et al.                               Page 5


make the needs of law enforcement so compelling that the warrantless search is
objectively reasonable under the Fourth Amendment.”); Thacker, 328 F.3d at 253.
Exigent circumstances arise when an emergency situation demands immediate police
action that excuses the need for a warrant. United States v. Radka, 904 F.2d 357, 361
(6th Cir. 1990) (citing Welsh v. Wisconsin, 466 U.S. 740, 750 (1984)). The government
bears a “heavy burden” to demonstrate that such an exigency occurred. Welsh, 466 U.S.
at 749–50. We have repeatedly recognized four situations that may rise to the level of
exigency: “‘(1) hot pursuit of a fleeing felon, (2) imminent destruction of evidence, (3)
the need to prevent a suspect’s escape, and (4) a risk of danger to the police or others.’”
Thacker, 328 F.3d at 253 (quoting United States v. Johnson, 22 F.3d 674, 680 (6th Cir.
1994)).

          The Supreme Court has also recognized that another “exigency obviating the
requirement of a warrant is the need to assist persons who are seriously injured or
threatened with such injury.” Brigham City, 547 U.S. at 403. In Brigham City, police
responded to a call complaining of a loud party in the neighborhood. Id. at 400–01.
Through the home’s front window the police saw a fight breaking out in the kitchen,
although the only injury they witnessed was a cut lip. Id. The police announced their
presence, entered without consent or a warrant, prevented further violence, and made
several arrests. Reversing the Utah Supreme Court, the United States Supreme Court
held that the entry was objectively reasonable under the circumstances and constitutional
under the emergency aid exception. Id. at 406–07. “[L]aw enforcement officers ‘may
enter a home without a warrant to render emergency assistance to an injured occupant
or to protect an occupant from imminent injury.’” Michigan v. Fisher, 558 U.S. __, 130
S. Ct. 546, 548 (2009) (per curiam) (quoting Brigham City, 547 U.S. at 403).

          “Officers do not need ironclad proof of ‘a likely serious, life-threatening’ injury
to invoke the emergency aid exception.” Id. at 549. Nor do officers need to wait for a
potentially dangerous situation to escalate into public violence in order to intervene. Id.
“‘[T]he role of a peace officer includes preventing violence and restoring order, not
simply rendering first aid to casualties.’” Id. (quoting Brigham City, 547 U.S. at 406).
No. 09-5046         Johnson v. City of Memphis, et al.                               Page 6


The police’s entry must be based on an objectively reasonable belief, given the
information available at the time of entry, that a person within the house was “‘in need
of immediate aid.’” Fisher, 130 S. Ct. at 548 (quoting Mincy, 437 U.S. at 392).

        The district court below relied on United States v. Porter, 288 F. Supp. 2d 716
(W.D. Va. 2003) in granting the City’s motion for summary judgment. The police in
Porter responded to a home security system alarm. Id. at 718. After receiving
unconvincing explanations from several neighbors, the officers entered the house
through the unlocked rear door to perform a protective sweep and determine if anyone
was in need of assistance. Id. at 718–19. They found drugs and other contraband in the
home, which the defendants later moved to suppress. The district court judge found that
the police had an “objectively reasonable belief that ‘an emergency existed that required
immediate entry to render assistance or prevent harm to persons or property within.’”
Id. at 720, 722 (quoting United States v. Moss, 963 F.3d 673, 678 (4th Cir. 1992)). The
district court further noted that “there can be no doubt that the conduct of the officers in
this instance was exactly the type of police work the community would expect, and
possibly even demand.” Id. at 721.

        We have not previously decided whether a 911 call, hang or otherwise, is by
itself sufficient to allow officers to enter a home without a warrant or consent. Thacker,
328 F.3d at 254 (noting cases from the Seventh and Eighth Circuits which have done so).
In Thacker, police and paramedics responded to a 911 call reporting a stabbing or cutting
injury. Id. at 249. Upon approaching the door the police saw broken glass, liquid stains
on the wall, and the intoxicated, belligerent plaintiff bleeding profusely from his wrist.
Id. The police entered over plaintiff’s protests to secure the area for the paramedics and
investigate whether anyone else needed assistance. Id. at 249–50. We upheld the
district court’s grant of summary judgment for the police defendants on this claim,
holding that the police were justified in entering without a warrant due to the exigencies
of the situation. Id. at 254–55. The panel noted, however, that it did not decide the
question of whether the 911 call alone justified entry. Id. at 254 & n.2.
No. 09-5046        Johnson v. City of Memphis, et al.                                Page 7


       A 911 hang call with an unanswered return call from the dispatcher has been
found to be sufficient to justify an officer’s objectively reasonable belief that someone
inside the residence is in immediate need of assistance. Hanson v. Dane County, 599 F.
Supp. 2d 1046, 1053 (W.D. Wisc. 2009). In Hanson, the police received a 911 hang call
and no one answered the return call. Police responded and entered the open garage
without a warrant or consent. Id. at 1051. An investigation followed which resulted in
the plaintiff’s arrest. The plaintiff then sued the police for a § 1983 violation, claiming
that the entry violated the Fourth Amendment. Id. at 1049–50. The district court
granted summary judgment to the defendants, holding that “[t]he hang-up 911 call and
the unanswered 911 return call made it reasonable for [the police officers] to believe that
somebody inside required immediate assistance.” Id. at 1053–54. The district court
explained:

       In this case defendants did not have specific information about the call,
       but that did not diminish their need to investigate further. If anything, a
       911 hang-up call with an unanswered return call from the 911 dispatcher
       may present even more reason to believe that someone inside the
       residence is in immediate need of assistance. An unanswered 911 return
       call suggests that someone in the residence is injured or otherwise
       incapacitated so as to be unable to answer the return call.

Id. at 1053 (citing United States v. Elder, 466 F.3d 1090, 1090 (7th Cir. 2006)).

       We hold that the combination of a 911 hang call, an unanswered return call, and
an open door with no response from within the residence is sufficient to satisfy the
exigency requirement. The district court was correct in finding that the police were
justified in entering the home to sweep for a person in need of immediate assistance
under the emergency aid exception. The whole point of the 911 system is to provide
people in need of emergency assistance an expeditious way to request it. Indeed, in
many communities, the use of 911 for any purpose other than to report an emergency or
to request emergency assistance is at least a misdemeanor offense. See, e.g., Tenn. Code
Ann. § 7-86-316(a) (LexisNexis Supp. 2009) (“A 911 call for a communication that is
for some purpose other than to report an emergency or an event that the person placing
the call reasonably believes to be an emergency is a Class C misdemeanor.”); Mich.
No. 09-5046         Johnson v. City of Memphis, et al.                               Page 8


Comp. Laws Ann. § 750.411a (West 2004) (punishing any false reporting of crimes,
including through the 911 system); Ohio Rev. Code Ann. § 4931.49(D) (LexisNexis
2000) (“No person shall knowingly use the telephone number of the 9-1-1 system to
report an emergency if he knows that no emergency exists.”); Columbus, Ohio, Code of
Ordinances § 2317.33 (2010) (“No person shall knowingly use the telephone number of
the 9-1-1 system if he knows that no emergency exists or for non-emergency telephone
calls” subject to a “misdemeanor of the first degree.”); Cleveland, Ohio, Codified
Ordinances § 605.071 (2009) (punishing any knowingly improper use of the 9-1-1
system as a misdemeanor of the first degree). Because a 911 call is by its nature an
appeal for help in an emergency, the emergency aid exception best fits the attitude of
police responding to a 911 call under the circumstances present here. Given the
information he had, Adams had “‘an objectively reasonable basis for believing’ that ‘a
person within [the house] [was] in need of immediate aid.’” Fisher, 130 S.Ct. at 548
(internal citation omitted) (first alteration in original) (quoting Mincy, 437 U.S. at 392).
The officers’ actions—announcing their presence and, after receiving no answer,
entering in order to perform a cursory search for any endangered or injured
persons—was an objectively reasonable response.

        Plaintiff’s cited cases are either distinguishable or not as persuasive as Fisher,
Porter, and Hanson. United States v. McClain involved an investigation of a possible
burglary, not an emergency aid situation. 444 F.3d 556, 564 (6th Cir. 2006) (requiring
the government to show both probable cause and exigent circumstances to justify the
warrantless search under the circumstances). In Kerman v. City of New York, the Second
Circuit reversed the district court’s ruling that an anonymous 911 call was a sufficient
basis for the police’s conclusion that exigent circumstances justified their entry without
a warrant, but the Circuit Court relied entirely on the unreliable nature of the anonymous
911 call. 261 F.3d 229, 235–36 (2d Cir. 2001) (citing Florida v. J.L., 529 U.S. 266
(2000)). No anonymous caller issues are presented here.

        Plaintiff’s reliance on United States v. Meixner is also misplaced. No. 00-20025,
2000 WL 1597736 (E.D. Mich. Oct. 26, 2000) (unpublished). In Meixner, police
No. 09-5046         Johnson v. City of Memphis, et al.                                Page 9


responded to a 911 hang call where dispatch received no answer to its return call. Id. at
*2. The police approached the house, where they were met at the door by the defendant.
The defendant, intoxicated and irascible, opened the front door when the police knocked,
but locked the storm door and refused them entrance. Id. at *3. Police saw a woman
crying inside, who also told them to leave. Id. The police instead searched the house
for anyone else in need of assistance, finding guns in the bedrooms. Id. at *3–4. The
defendants filed a motion to suppress. The district court granted the motion, finding that
the information available to the officers did not give rise to an objectively reasonable
belief that exigent circumstances were present. Id. at *9–10. The district court gave
great weight to its determination that the 911 hang call “conveyed no information. It
was a hang-up call. There was no conversation at all, much less a report of an
emergency.” Id. at *8. Because of this, the court found that the officers could only
establish a subjective possibility of there being someone in need of immediate assistance,
which is insufficient to justify entry based on exigent circumstances. Id. at *9–10.

        Besides being greatly different from the factual circumstances before us here,
where the officers did not speak with the occupants of the house and were not
specifically refused entry, Meixner’s discussion of the 911 hang-up call is unpersuasive.
911 hang-up calls do convey information. They do not convey certainties, but certainties
are not required. See Hill v. California, 401 U.S. 797, 804 (1971) (“[S]ufficient
probability, not certainty, is the touchstone of reasonableness under the Fourth
Amendment . . . .”). 911 hang-ups inform the police that someone physically dialed 9-1-
1, the dedicated emergency number, and either hung up or was disconnected before he
or she could speak to the operator. An unanswered return call gives further information
pointing to a probability, perhaps a high probability, that after the initial call was placed
the caller or the phone has somehow been incapacitated. In some percentage of cases
involving this set of facts, a person is in need of emergency assistance. Because the
“ultimate touchstone” of the Fourth Amendment is reasonableness, certainty is not
required.
No. 09-5046            Johnson v. City of Memphis, et al.                                         Page 10


         We hold that it was objectively reasonable for the police in this situation, given
the information they had, to enter the house. We decline to establish a per se rule for all
911 hang calls and instead rest our decision on the specific facts of this case.2

                                                   III.

         Plaintiff also appeals the denial of her motion to amend her complaint to add
several state law claims. Plaintiff, however, appeals only the denial of permission to add
her negligence claim based on the dispatcher’s failure to inform the officers on the scene
that Johnson was bipolar and off his medication. Plaintiff asserts that if this information
had been properly acted upon, the officers would not have entered the house and a
specialized unit would have been called in to resolve the situation without violence. The
district court denied the amendment of this claim as futile because of the City’s
sovereign immunity. We agree and affirm.

         Ordinarily we review for abuse of discretion the district court’s denial of a
motion to amend a pleading. Bennett v. MIS Corp., 607 F.3d 1076, 1100 (6th Cir. 2010).
When the district court denies the motion because the amendment would be futile,
however, we review de novo. Id.

         Tennessee codified its sovereign immunity law in the Tennessee Governmental
Tort Liability Act (“TGTLA”). Tenn. Code Ann. §§ 29-20-101 et seq. Section 29-20-
201(a) provides that “[e]xcept as may be otherwise provided in this chapter, all
governmental entities shall be immune from suit for any injury which may result” from
the exercise of government duties. “No party may bring a suit against ‘the State’ except
‘in such manner and in such courts as the Legislature may by law direct.’” Davidson v.
Lewis Bros. Bakery, 227 S.W.3d 17, 19 (Tenn. 2007) (quoting Tenn. Const. art. I, §17).
“The State” includes municipalities. Id. (citation omitted). Tennessee courts will not
find a waiver of sovereign immunity “unless there is a statute clearly and unmistakably



         2
           We specifically acknowledge the importance in these situations of the information the
responding officers do not have, and note that further facts, such as a yard full of children and a parent’s
explanation that one had dialed 911 and hung up, would significantly alter the analysis. Here the absence
of other information is critical to the reasonableness of the officers’ entry.
No. 09-5046         Johnson v. City of Memphis, et al.                               Page 11


disclosing an intent upon the part of the Legislature to permit such litigation.” Id.
(internal quotation marks and citation omitted). The TGTLA removes immunity for
“injury proximately caused by a negligent act or omission of any employee within the
scope of his employment,” but provides a list of exceptions to this removal of immunity.
Tenn. Code Ann. §§ 29-20-205. Injuries that “arise[] out of . . . civil rights” are one such
exception, that is, sovereign immunity continues to apply in those circumstances. Id.
TGTLA’s “civil rights” exception has been construed to include claims arising under 42
U.S.C. § 1983 and the United States Constitution. See Hale v. Randolph, 2004 U.S.
Dist. Lexis 10173, *51 (E.D. Tenn. Jan. 30, 2004).

        The district court found that “[a]ll of Plaintiff’s claims against the City as an
employer are in essence claims for violation of Johnson’s constitutional rights.” The
district court found that the claim fell under the “civil rights” exception, and that the City
is therefore immune under the TGTLA. This is consistent with the results reached by
the majority of district courts addressing this question. See, e.g., Campbell v. Anderson
County, 695 F. Supp. 2d 764, 778 (E.D. Tenn. 2010) (“These torts are alleged to have
been committed solely in the context of the violation of [plaintiff’s] civil rights–this is
in essence a civil rights suit.”); Hale, 2004 U.S. Dist. Lexis 10173 at *51. But see
McKenna v. City of Memphis, 544 F. Supp. 415, 419 (W.D. Tenn. 1982) (finding that the
TGTLA “only restores municipal immunity for civil rights claims as such, not those for
negligence as a matter of common law”). Plaintiff’s claim regarding the dispatcher’s
negligence arises out of the same circumstances giving rise to her civil rights claim
under § 1983. It therefore falls within the exception listed in § 29-20-205, and the City
retains its immunity. Plaintiff’s reliance on DePalma v. Metro. Gov’t of Nashville &
Davidson County, Tenn., 40 F. App’x 187 (6th Cir. 2002) (unpublished) is misplaced
because, despite the factual similarities, the opinion does not address the civil rights
exception. Id. at 193.

        Because the plain language of the TGTLA preserves immunity for suits claiming
negligent injuries arising from civil rights violations, we find that the district court did
not err in denying Plaintiff’s motion to amend and reinstate her state law claim. Because
No. 09-5046        Johnson v. City of Memphis, et al.                     Page 12


we decide this issue under the TGTLA, we need not address the related abandonment,
waiver, or statute of limitations arguments.

                                          IV.

       Accordingly, we affirm the district court’s grant of summary judgment to
Defendants and denial of Plaintiff’s motion to amend her complaint.
