UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TABATHA CRUDEN,
Plaintiff-Appellant,

v.

GLENN BRINKLEY, in his official
capacity and individually as Sheriff
of Currituck County and the Office
of the Sheriff of Currituck County;
BARNEY MILLER, in his official
                                                                 No. 98-1224
capacity and individually; JOSEPH
DAVIDSON, in his official capacity
and individually,
Defendants-Appellees,

and

CURRITUCK COUNTY, NORTH
CAROLINA,
Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CA-96-47-2-BO)

Submitted: February 19, 1999

Decided: March 22, 1999

Before WIDENER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

J. Michael McGuinness, Elizabethtown, North Carolina; C. Everett
Thompson II, Elizabeth City, North Carolina, for Appellant. Robert
H. Sasser, III, Mark A. Davis, WOMBLE, CARLYLE SANDRIDGE
& RICE, P.L.L.C., Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Tabatha Cruden appeals from the district court's order granting
summary judgment to Sheriff Glenn Brinkley and Deputies Barney
Miller and Joseph Davidson of the Currituck County Sheriff's Depart-
ment in her action under 42 U.S.C.A. § 1983 (West Supp. 1998).
Finding no error, we affirm.

On November 20, 1995, Deputy Don Nichols of the Currituck
County Sheriff's Department received a tip from a confidential infor-
mant that two individuals known for selling drugs out of vehicles in
the area would be delivering a large quantity of cocaine in Camden
County that evening. Nichols contacted Chief Deputy Tony Perry of
the Camden County Sheriff's Department to inform him of the situa-
tion. Perry requested that Nichols get a search warrant and bring sev-
eral officers to assist in the execution of the warrant. Nichols then
contacted Sheriff Brinkley to inform him that Perry had requested
assistance. Nichols asked if Deputies Miller and Davidson could go
with him. Sheriff Brinkley consented on the conditions that the depu-
ties wore uniforms, drove a marked unit, and permitted the Camden
County officers to initially execute the warrant. Deputies Miller and
Davidson arrived with Nichols at the Camden Sheriff's Department
to assist in obtaining a search warrant. The officers, however, did not
have enough information at the time for a search warrant and decided

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to conduct further investigation to locate the two individuals. The
officers used Miller's unmarked Mustang on loan from a friend;
Davidson was the only officer wearing a uniform.

The two individuals were eventually spotted at a known drug house
getting into a car. The officers followed the individuals and then
pulled them over after they ran a stop sign. The officers had also
noted suspicious activity in the car, as if the occupants were hiding
something. At the same time, Cruden approached the intersection and
saw the three officers get out of the Mustang with guns drawn and
approach the suspects' car. Not recognizing the men as law enforce-
ment officers, Cruden backed up quickly, at one point squealing her
tires, turned around in the middle of the road, and sped away. Believ-
ing Cruden's vehicle may have been linked with the car they pulled
over, Nichols ordered Miller and Davidson to pursue it.

Miller and Davidson caught up to Cruden's car and flashed their
headlights to get her attention. Cruden claimed that Miller and David-
son were driving in a threatening and hostile manner. At one point
during the pursuit, Miller and Davidson came up beside Cruden, and
Cruden braked, forcing the officers to get in front of her. The officers
then attempted to stop Cruden by slowing down in front of her. Cru-
den did not stop but went around the officers and was in front of them
again. Cruden then drove to a well-lit convenience store, where she
finally stopped. The officers pulled up behind her, and Miller and
Davidson approached her vehicle with their weapons drawn. Miller
then ordered Cruden out of the car, at which time Cruden saw David-
son's uniform and asked if they were police officers. Miller pointed
to his badge, and Cruden then exited the car. Miller told Cruden to
put her hands on the car, and Cruden identified herself as the wife of
an assistant district attorney and produced identification from her
purse. Miller apologized to Cruden, and she left the scene. The pursuit
lasted only a few minutes and covered only two miles.

Cruden filed this action, asserting nine claims against the County
and the Defendants in both their individual and official capacities.
The court dismissed the County, and the Defendants filed a motion
for summary judgment, which the court granted. We review a district
court's grant of summary judgment de novo. See Henson v. Liggett
Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995). Summary judgment is

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appropriate when there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P.
56(c).

Cruden first asserts that the court erred in granting summary judg-
ment on her gross negligence claim under state law. Cruden claims
that the officers are liable under North Carolina common law tort
principles of gross negligence because high speed police chases have
been described as "possibly the most dangerous of all ordinary police
activities" and because the Defendants were not using an equipped
police vehicle.

In North Carolina, a law enforcement officer is not generally liable
for damages resulting from a vehicle pursuit unless that officer was
grossly negligent. See Young v. Woodall, 471 S.E.2d 357, 359-62
(N.C. 1996). "Gross negligence is wanton conduct done with con-
scious or reckless disregard for the rights and safety of others."
Bullins v. Schmidt, 369 S.E.2d 601, 603 (N.C. 1988). In Young, the
police officer pursued a suspect without using lights or sirens and
then collided with the fleeing vehicle. The North Carolina Supreme
Court held that the officer had not been grossly negligent even though
the officer violated an internal departmental policy and a state statute
requiring activation of a blue light and a siren.

Cruden fails to establish that the officers' pursuit of her amounted
to gross negligence. The chase went no more than two miles, there is
no evidence that either car grossly exceeded the speed limit, and the
officers did not cause any physical injury or crash into Cruden's vehi-
cle during the chase. Further, there was no evidence that other cars
were involved or had to be avoided or that the chase took place on
a busy highway. Cf. Parish v. Hill, 502 S.E.2d 637, 642 (N.C. App.
1998). Also, the officers were not grossly negligent in drawing their
weapons once Cruden stopped at the convenience store. Their conduct
served to secure the scene and did not involve the reckless disregard
of others' safety. See State v. Dark, 207 S.E.2d 290, 293 (N.C. App.
1974).

Cruden next asserts that the court erred in granting summary judg-
ment on her common law and statutory assault claims. Cruden claims

                    4
that the officers assaulted her when they "drove the automobile to the
point of imminent impact" with her car and pointed their guns at her.
Under North Carolina law, a law enforcement officer has the right to
use such force as is reasonably necessary to overcome any resistance
and properly discharge his duties. See State v. Anderson, 253 S.E.2d
48, 50 (N.C. App. 1979). The evidence established that the officers
acted reasonably in that the degree of force used, including the brief
display of firearms, was commensurate with their justified belief that
Cruden may have been a fleeing drug suspect.

Cruden next asserts that the court erred in granting summary judg-
ment based upon qualified immunity on her Fourth Amendment and
substantive due process claims. Qualified immunity shields govern-
ment officials from liability for civil damages insofar as their conduct
does not violate clearly established federal statutory or constitutional
rights of which a reasonable person would have known. See Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). "Once the defendant raises
a qualified immunity defense, the plaintiff carries the burden of show-
ing that the defendant's alleged conduct violated the law and that such
law was clearly established when the alleged violation occurred."
Bryant v. Muth, 994 F.2d 1082, 1086 (4th Cir. 1993).

The Fourth Amendment protects against unreasonable searches and
seizures, and a seizure occurs under the Fourth Amendment when
physical force is applied or when a person submits to an official show
of authority. See California v. Hodari D., 499 U.S. 621, 626 (1991).
A police vehicle pursuit in and of itself does not constitute a seizure
under the Fourth Amendment. See County of Sacramento v. Lewis,
118 S. Ct. 1708, 1715 (1998). Rather, the pursuit by Miller and
Davidson was a show of authority to which Cruden did not submit.
Thus, Miller and Davidson did not seize Cruden until they
approached her car with weapons drawn at the convenience store. The
record discloses that Miller and Davidson had a reasonable and
articulable suspicion to stop Cruden. The officers had information
from a reliable confidential informant that a drug deal would be hap-
pening that evening, and in their experience, drug dealers often used
two vehicles. When Cruden sped away, her conduct reasonably raised
suspicion among the police officers.

Further, Cruden fails to establish a violation of her substantive due
process rights. In order to state a claim for a substantive due process

                     5
violation under § 1983 a plaintiff must show that the defendant's con-
duct "shocks the conscience." Temkin v. Frederick County Com'rs,
945 F.2d 716, 723 (4th Cir. 1991). In other words, that the officers'
conduct amounted to "a brutal and inhumane abuse of official power
[that is] literally shocking to the conscience." Id. at 720 (internal quo-
tation marks omitted). We find that the actions of the officers in pur-
suing Cruden do not "shock the conscience." Cruden's assertion that
the constitutional tort of governmental "danger creation" is a clearly
established constitutional right that removes her claim from the stric-
tures of the "shocks the conscience" test is without merit. Temkin
made clear that "danger creation" is not the standard under which we
analyze police pursuit cases and substantive due process claims. Thus,
we find that the district court properly granted summary judgement
on the ground of qualified immunity.

Cruden next asserts that the court improperly granted summary
judgment on her claim of supervisory liability against Sheriff Brink-
ley, both in his individual and official capacities, for failing to prop-
erly train and discipline his deputies. To establish supervisory liability
under § 1983, a plaintiff must show that: (1) the supervisor had actual
or constructive knowledge that a subordinate was engaging in conduct
that posed a pervasive and unreasonable risk of constitutional injury;
(2) the supervisor's failure to respond amounted to deliberate indiffer-
ence to or tacit authorization of the alleged offensive practices; and
(3) there was a causal link between the supervisor's inaction and the
constitutional injury. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
1994).

Cruden failed to establish that the deputies' actions were wide-
spread and continuous so as to pose a pervasive and unreasonable risk
of constitutional injury to other citizens. Further, there is no evidence
that Sheriff Brinkley "tacitly" authorized the deputies' conduct. In
fact, following the events that are the subject of this litigation, Sheriff
Brinkley counseled Davidson about the dangers of engaging in any
pursuit without the use of a blue light and siren, and demoted Miller
from corporal to deputy sheriff due in part to the incident involving
Cruden. Thus, Cruden's claim against Sheriff Brinkley in his individ-
ual capacity fails. Also, Cruden's claim against Sheriff Brinkley in his
official capacity fails because Cruden fails to establish an underlying
constitutional violation by the officer charged with the misconduct.

                     6
See e.g. Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir.
1996).

Accordingly, we affirm the district court's order granting summary
judgment to the Defendants and dismissing Cruden's complaint. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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