Abney v. Coe ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JEANETTE RENE′ ABNEY, 
Administratrix of the Estate of
Gerald Benjamin Abney, Jr., and
The State of North Carolina ex rel.
Jeanette Rene′ Abney,
Administratrix of the Estate of
Gerald Benjamin Abney, Jr.,
Plaintiff-Appellee,
v.
JOEL RODNEY COE, Deputy,
individually and in his official
capacity as a Deputy of the  No. 06-1607
Randolph County Sheriff’s
Department; WESTERN SURETY
COMPANY,
Defendants-Appellants,
and
LITCHARD HURLEY, Sheriff,
individually and in his official
capacity as Sheriff of Randolph
County; RANDOLPH COUNTY,
Defendants.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(1:04-cv-00652-NCT)
Argued: May 22, 2007
Decided: July 3, 2007
2 ABNEY v. COE
Before WIDENER, WILKINSON, and KING, Circuit Judges.
Reversed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Widener and Judge King joined.
COUNSEL
ARGUED: Rachel Ellen Daly, WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for
Appellants. Elliot S. Richardson, RICHARDSON, STASKO, BOYD
& MACK, L.L.C., Chicago, Illinois, for Appellee. ON BRIEF: Allan
R. Gitter, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Winston-Salem, North Carolina, for Appellants. David S. Lipschultz,
RICHARDSON, STASKO, BOYD & MACK, L.L.C., Chicago, Illi-
nois; Brady A. Yntema, PINTO, COATES, KYRE & BROWN,
P.L.L.C., Greensboro, North Carolina, for Appellee.
OPINION
WILKINSON, Circuit Judge:
In this case a motorcyclist refused to stop for a sheriff deputy’s
flashing blue lights and siren over the course of an eight mile pursuit.
The pursuit ended when the deputy’s car and the motorcycle collided
killing the motorist, Gerald Abney. Abney’s estate brought suit under
42 U.S.C. § 1983 (2000) alleging, inter alia, that defendant Deputy
Rodney Coe used excessive force in violation of Abney’s Fourth
Amendment rights. The district court denied defendants’ motion for
summary judgment holding that — if intentional — Deputy Coe’s
conduct "would violate Mr. Abney’s Fourth Amendment right to be
free from unreasonable seizures," since Abney did not pose a serious
threat to others. Because Deputy Coe’s conduct was objectively rea-
sonable under Scott v. Harris, ___ U.S. ___, 127 S. Ct. 1769 (2007),
and necessary to stop conduct that put the safety of other motorists
ABNEY v. COE 3
at significant risk, we hold that Abney’s Fourth Amendment rights
were not violated and reverse the judgment.
I.
On August 3, 2001, Deputy Sheriff Rodney Coe was traveling
north on Old Country Farm Road near Asheboro, North Carolina. He
observed a motorcycle driven by Gerald Abney (who was later deter-
mined to be driving under the influence of methamphetamine) cross-
ing double yellow lines while passing a vehicle on a curve. Deputy
Coe turned around his patrol car and activated his blue flashing lights
and siren in an attempt to pull Abney over. Abney did not stop, how-
ever. Instead, Abney went around a second curve — again in the
opposite lane of traffic — and ran Thomas and Dorothy White off the
road. Abney was then able to lose Deputy Coe, who turned off his
lights and siren.
Deputy Coe caught up with Abney at the intersection of Caraway
Mountain and Old Lexington Road. Coe reactivated his lights and
siren. Instead of pulling over, however, Abney took off. He passed yet
another vehicle, again crossing over double yellow lines, and turned
left onto Green Farm Road.
The motorcycle and Coe’s patrol car made brief contact shortly
after the turn onto Green Farm Road. The parties disagree about who
hit whom. Deputy Coe relies upon bystander Thomas Whitman’s tes-
timony that when Abney "made his left turn, he ran through a ditch
. . . c[a]me back out toward the road and r[a]n into the side of the cop
car, knocking the mirror loose from the door." Plaintiff contends,
based on the observations of other witnesses, that Coe intentionally
struck the back of Abney’s motorcycle.
After the collision on Green Farm Road, Abney returned to the
roadway and took off again. Deputy Coe called in to report the colli-
sion and his continued pursuit of Abney down Green Farm Road. As
Coe followed, Abney ran a stop sign while swerving around a van
which was stopped at the sign. The driver of the vehicle, Linda
Flecken, testified that while she was stopped she "saw a motorcycle
come flying around [her], cross the yellow line, into the other lane of
traffic, [and] pull[ ] out."
4 ABNEY v. COE
Deputy Jerry Rozier responded to the scene for back-up. He joined
the pursuit from the opposite direction, traveling down Old Lexington
Road toward Abney and Coe. In an effort to stop Abney, Rozier
parked his vehicle in the center of the two-lane road — directly in
Abney’s path — and started to get out of his patrol car. Abney, how-
ever, did not stop; he swerved around Deputy Rozier and sped away.
Abney continued to flee down Old Lexington Road and the two
deputies followed. The suspect crossed into the opposite lane of traf-
fic while passing several vehicles on a sharp curve. Abney then turned
onto Highway 64, running the stop sign, and causing several motorists
to slow down quickly. The traffic on Highway 64 was fairly heavy
and neither Abney nor Deputy Coe exceeded the 55 mile-per-hour
speed limit.
Abney made a right hand turn onto Mount Shepherd Road and
Deputy Coe followed. A few seconds after the vehicles turned, Coe’s
patrol car and the motorcycle collided for the second time. The motor-
cycle was knocked off the road and into an embankment where the
patrol car ran over it. Gerald Abney was pronounced dead on the
scene.The parties offer conflicting versions of events surrounding the
collision. Deputy Coe claims that Abney lost control of his motorcy-
cle during the turn. He contends that the motorcycle went into a skid
directly in front of him and decelerated rapidly; Coe slammed on his
brakes and swerved to miss Abney, but was unable to avoid a colli-
sion. Plaintiff, on the other hand, has a very different view. Plaintiff
alleges that Abney never lost control of the motorcycle but that Dep-
uty Coe intentionally rammed the rear of Abney’s motorcycle.
Abney’s estate brought suit against Deputy Coe, Sheriff Lichard
Hurley, and Western Surety Company (as the writer of an Official
Bond as surety for defendant Sheriff Hurley pursuant to N.C. Gen.
Stat. § 58-76-5). The estate raised claims under federal and North
Carolina law based on the alleged use of unreasonable force. The dis-
trict court granted defendants’ motion for summary judgment as to all
claims against Sheriff Hurley, and plaintiff does not appeal that order.
This appeal concerns plaintiff’s allegation that Coe used excessive
force in violation of the Fourth Amendment. All of plaintiff’s claims
rise and fall on this question.
ABNEY v. COE 5
Adopting the Magistrate Judge’s Recommended Ruling, the district
court denied summary judgment on the federal claims brought against
Coe in his individual capacity. The district court found that plaintiff’s
evidence "was sufficient to create a genuine issue of material fact as
to whether Deputy Coe intentionally struck" and thus "seized" Abney.
The court then held that, if Abney had in fact been seized, Deputy
Coe’s "conduct would constitute ‘deadly force’ and would violate Mr.
Abney’s Fourth Amendment right to be free from unreasonable sei-
zures," because there was no evidence "from which a reasonable offi-
cer could conclude that Mr. Abney posed a serious threat to others."
In the district court’s view, Deputy Coe was not entitled to qualified
immunity because "the ‘state of the law’ at the time of the events . . .
gave [Deputy Coe] ‘fair warning’ that his [conduct] was unconstitu-
tional." The court also denied summary judgment as to plaintiff’s
state law claims for gross negligence and wrongful death against Dep-
uty Coe in both his individual and official capacities. Coe now
appeals.
II.
Plaintiff contends that Deputy Coe’s actions were unconstitutional
because "Abney did not pose any risk to the public that justified using
force that placed him at risk of serious injury or death." According to
plaintiff, a "high-speed chase of a suspect fleeing after a traffic infrac-
tion does not amount to the ‘substantial threat’ of imminent physical
harm that Garner requires before deadly force can be used." Plaintiff
also argues that Deputy Coe is not entitled to qualified immunity
because Coe was on notice that his conduct was unconstitutional.
In any qualified immunity analysis, we must first ask whether an
officer violated a constitutional right at all. Saucier v. Katz, 533 U.S.
194, 201 (2001). If he did not violate any right, he is hardly in need
of any immunity and the analysis ends right then and there. In this
case, the right involved is the right to be free from excessive force.
A claim of "excessive force" in the course of a seizure is analyzed
"under the Fourth Amendment’s ‘objective reasonableness’ standard."
Graham v. Connor, 490 U.S. 386, 388 (1989).
The reasonableness inquiry is a balance. It requires courts to weigh
"the nature and quality of the intrusion on the individual’s Fourth
6 ABNEY v. COE
Amendment interests" against the governmental interests which
prompted the intrusion in the first place. Id. at 396; United States v.
Place, 462 U.S. 696, 703 (1983) (same). The requirement of reason-
ableness does not, however, demand statistical precision: it accords
police officers "latitude in exercising what are inescapably discretion-
ary functions replete with close judgment calls." Gooden v. Howard
County, 954 F.2d 960, 964 (4th Cir. 1992) (en banc). Accordingly,
reasonableness is evaluated from the perspective of the officer on the
scene, not through the more leisurely lens of hindsight. Graham, 490
U.S. at 396-97; Milstead v. Kibler, 243 F.3d 157, 163 (4th Cir. 2001).
When public safety is the interest supporting a seizure, courts "con-
sider the risk of bodily harm that [the officer’s] actions posed to [the
suspect] in light of the threat to the public that [the officer] was trying
to eliminate." Scott, 127 S. Ct. at 1778. An officer’s actions are rea-
sonable when "preventing possible harm to the innocent justifies
exposing to possible harm the person threatening them." Id. at 1778
n.10.
The parties agree that plaintiff’s evidence is "sufficient to create a
genuine issue of material fact as to whether Deputy Coe intentionally
struck" and thus "seized" Abney.1 See Brower v. County of Inyo, 489
U.S. 593, 596-97 (1989) ("[A] Fourth Amendment seizure [occurs]
. . . when there is a governmental termination of freedom of move-
ment through means intentionally applied.") (emphasis omitted).
Thus, we assume that Abney was seized, and turn to the threshold
inquiry: whether Deputy Coe’s conduct was reasonable under the
Fourth Amendment.
1
In their briefs, the parties argue at great length about the cause of the
Green Farm and Mount Shepherd Road collisions. Plaintiff contends that
Deputy Coe intentionally struck Abney’s motorcycle on both occasions.
Coe remembers events differently: He claims that both collisions were
unavoidable accidents and that because he did not "intentionally appl[y]"
force to stop Abney no seizure occurred under Brower v. County of Inyo,
489 U.S. 593, 596-97 (1989). During oral argument, however, Deputy
Coe’s counsel conceded that there is a good deal of conflicting evidence
on this point and that it was not an appropriate basis on which to ground
judgment in Coe’s favor.
ABNEY v. COE 7
III.
Plaintiff contends that Deputy Coe plainly violated the Fourth
Amendment in attempting to bring the chase to a halt. Abney had,
after all, committed "only a minor [and thus presumably not danger-
ous] traffic infraction." Abney and Coe were "not engaged in a dan-
gerous high-speed pursuit that threatened the lives of innocent
bystanders," and Deputy Coe did not have "probable cause to believe
that Mr. Abney posed . . . a serious threat to others." Thus, plaintiff
asserts "it is abundantly clear" that the force Coe applied was dispro-
portionate to any public risk.
Plaintiff, however, argues the facts as she wishes them, not as the
record reveals them. The record is replete with examples of reckless
driving designed to elude the police and executed with little consider-
ation for the lives and safety of other motorists. Deputy Coe first
noticed Gerald Abney when the motorcycle driven by Abney crossed
a double yellow line to pass a vehicle on a curve at an estimated ten
to fifteen miles per hour above the speed limit. Diane Davis, who
drove the front vehicle in a line of three or four vehicles passed by
Abney, testified that she was "literally scared to death"; "thought
[Abney] was going to hit [her]"; and "felt in danger."
Deputy Coe turned on his blue flashing lights and siren — to no
avail. Abney did not stop. Instead, he led Coe on an eight mile chase
during the course of which he committed numerous dangerous traffic
violations. Abney, for example, illegally passed vehicles by crossing
double yellow lines on no less than five occasions — many of which
involved speed, sharp curves, or both. On one occasion, Abney ran
Thomas and Dorothy White off the road when he took a curve in the
wrong lane of traffic. Ms. White testified that her husband "jerked the
car and ran off the road. And I looked up, and there was a motorcycle
on our side of the road." While plaintiff argues that Deputy Coe did
not actually see Abney run the Whites off the road, the incident amply
confirms Coe’s assessment of the nature and risks to others posed by
Abney’s conduct.
Even the Green Farm Road collision between Abney’s motorcycle
and Deputy Coe’s patrol car did not stop Abney. He instead continued
to flee, running two stop signs. At the first, Abney not only refused
8 ABNEY v. COE
to stop but also illegally passed a vehicle that was stopped at the sign.
The driver of the vehicle, Linda Flecken, testified that, while she was
stopped "a motorcycle c[a]me flying around [her], cross[ed] the yel-
low line, into the other lane of traffic, [and] pulled out." At the second
stop sign, other witnesses testified that Abney pulled "straight into"
traffic, causing several vehicles to slow down quickly. When Deputy
Rozier attempted to stop Abney by placing his vehicle and his person
directly in front of the motorcycle, Abney again refused to pull over.
Instead, Abney swerved around Deputy Rozier and sped away.
To review the record is to conclude that Abney’s August 3, 2001
driving behavior put other motorists at substantial risk of serious
harm. There is abundant and uncontradicted evidence supporting
Deputy Coe’s conclusion that Abney’s driving over the course of the
eight-mile pursuit "was a danger for the life of others." It was, there-
fore, eminently reasonable to terminate the chase in order to avoid
further risks to the lives of innocent motorists.
The Supreme Court held as much in Scott v. Harris, 127 S. Ct.
1769 (2007). In that case, the Court concluded that an officer’s "at-
tempt to stop a fleeing motorist from continuing his public-
endangering flight by ramming the motorist’s car from behind" was
consistent with the Fourth Amendment. Id. at 1772. In Scott, a county
deputy attempted to pull over Victor Harris for speeding. Id. Harris
repeatedly refused to pull over and, unable to stop the suspect, Deputy
Scott bumped Harris’s vehicle. Id. at 1773. As a result, Harris lost
control, crashed, and was gravely injured. Id. He then brought suit
against Deputy Scott under 42 U.S.C. § 1983 alleging a violation of
his Fourth Amendment rights to be free from unreasonable seizures.
Id.
The Eleventh Circuit denied Deputy Scott’s motion for summary
judgment. Harris v. Coweta County, 406 F.3d 1307 (11th Cir. 2005).
That court concluded that Deputy Scott was not entitled to qualified
immunity because a reasonable juror could conclude that the deputy’s
attempt to terminate the chase by forcing Harris off the road consti-
tuted "deadly force" and was therefore unreasonable. Id. at 1315.
The Supreme Court reversed. It had "little difficulty in concluding
it was reasonable for Scott to take the action that he did," Scott, 127
ABNEY v. COE 9
S. Ct. at 1778, and "la[id] down [the] sensible rule" that "[a] police
officer’s attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the Fourth
Amendment, even when it places the fleeing motorist at risk of seri-
ous injury or death," id. at 1779.
This case is similar to Scott. Indeed, plaintiff’s opening brief stated
as much: "The Harris case is very similar to this matter." In both
cases, a motorist refused to stop for police after committing a routine
traffic violation; the police pursued the motorist; the motorist
employed various tactics to escape capture thereby endangering other
motorists and bystanders; a law enforcement officer terminated the
chase; and the motorist was injured. The fact that, unlike Scott, Abney
did not accelerate to 85 miles-per-hour is not dispositive; indeed, the
narrow, winding, two-lane roads in this case all but prohibited such
speeds. The fact that Abney was driving during the day and Harris "in
the dead of the night," Scott, 127 S. Ct. at 1775, means only that
Abney had the opportunity to scare more motorists to death. Simi-
larly, the fact that Abney was driving a motorcycle, rather than a car,
does not require a different result since the probability that a motorist
will be harmed by a Precision Intervention Technique is high in either
circumstance. See Scott, 127 S. Ct. at 1778 (holding that although
Deputy Scott clearly "posed a high likelihood of serious injury or
death to [Harris]" that risk was justified by the possibility that inno-
cent bystanders or motorists might be killed).
In accordance with Scott v. Harris, 127 S. Ct. 1769 (2007), we hold
that Deputy Coe’s "attempt to terminate a dangerous . . . car chase
that threaten[ed] the lives of innocent bystanders d[id] not violate the
Fourth Amendment, even [though] it place[d] the fleeing motorist at
risk of serious injury or death." Id. at 1779. Because we hold that
Deputy Coe’s conduct was reasonable, plaintiff cannot prevail, see
Jones v. Buchanan, 325 F.3d 520, 526 (4th Cir. 2003), and we need
not address whether Deputy Coe was entitled to qualified immunity
for a constitutional violation.
IV.
Plaintiff nonetheless contends that — Scott v. Harris notwithstand-
ing — "Deputy Coe’s actions were not objectively reasonable," but
10 ABNEY v. COE
"unjustified and unwarranted." In plaintiff’s view, Deputy Coe is not
entitled to judgment because (A) Deputy Coe’s actions were unneces-
sary — the officer could simply have let Abney go; (B) It is a viola-
tion of Randolph County Sheriff’s Department policy to use precision
intervention techniques to halt a fleeing motorist; and (C) Eyewitness
testimony creates "genuine issues of material fact . . . with respect to
whether Deputy Coe acted reasonably." We find these contentions to
be without merit.
A.
Plaintiff first argues that a precision intervention tactic was unnec-
essary because Deputy Coe had obtained Abney’s license plate num-
ber and could have tracked him down at a later date. According to
plaintiff, concern for the safety of other motorists did not justify stop-
ping Abney. Any risk to other motorists caused by Abney’s driving
would have been eliminated if the police had simply abandoned the
chase and let Abney go.
We doubt that upon cessation of Coe’s pursuit Abney would have
been transformed into a model driver. Indeed, Deputy Coe began pur-
suing Abney because Abney was driving dangerously: When Coe
first observed Abney, the motorcyclist had just passed three or four
cars on a curve against the double yellow lines. The driver of the first
car estimated Abney’s speed at ten to fifteen miles per hour over the
posted limit and testified that she was "literally scared to death." In
sum, Abney’s disregard for the rules of the road and lack of concern
for the lives of fellow motorists needed no catalyst: Abney drove
recklessly before anyone was giving chase. And, even assuming that
a post-chase Abney would have driven safely, there is no reason to
believe that Abney would have seen Deputy Coe’s abandonment of
the chase as a true abandonment rather than the employment of a new
pursuit tactic. See Scott, 127 S. Ct. at 1779. Abney had in fact already
lost Deputy Coe once — only to have the deputy reappear and resume
his pursuit.
As Scott made clear, an officer’s decision whether to let a suspect
go in the hopes of catching him later is not governed by just how dan-
gerous the suspect can make the pursuit. Id. To require an officer to
end a chase whenever the suspect creates a sufficiently great risk to
ABNEY v. COE 11
others is but an invitation to rash conduct. See id. There is, of course,
no Fourth Amendment right to "impunity-earned-by-recklessness." Id.
Plaintiff’s claim that the police should just have let Abney go
amounts to an exhortation to let crime claim its victims. It also
ignores the fact that Deputy Coe was faced with a dreadful choice.
There are high costs to the use of intervention tactics to terminate a
police pursuit: such tactics can place fleeing suspects at risk of serious
harm — as the loss of human life here sadly illustrates. But the costs
of inaction are also great: If innocent motorists, like the White family,
had been the ones to lose their lives, that too would have been a trag-
edy. In such circumstances, it is "appropriate . . . to take into account
not only the number of lives at risk, but also their relative culpabil-
ity." Scott, 127 S. Ct. at 1778. It was, after all, Abney "who intention-
ally placed himself and the public in danger by unlawfully engaging
in the reckless . . . flight that ultimately produced the choice between
two evils that [Deputy Coe] confronted." Id.
Plaintiff’s suggestion that Deputy Coe should have done this or
should have done that fails for an additional reason. Those who were
not on Old Country Farm Road should be cautious in applying the
very hindsight analysis which the Supreme Court has disfavored. It
is fundamental that "[a]n officer’s use of force is ‘judged from the
perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.’" Milstead, 243 F.3d at 163 (quoting Gra-
ham, 490 U.S. at 396). We thus decline plaintiff’s invitation to
second-guess the reasonableness of Deputy Coe’s conduct based on
what plaintiff later argues may have been a preferable course of
action. See Gooden, 954 F.2d at 965.
B.
Plaintiff next claims that Deputy Coe’s conduct was unreasonable
because the Randolph County Sheriff’s Department policy in effect
in 2001 "strictly prohibited" "striking a fleeing vehicle to terminate a
police chase"; because Sheriff Hurley testified that the intentional
bumping of a fleeing suspect’s vehicle constitutes excessive force;
and because Deputy Coe himself believed that using an intervention
tactic to stop Abney would have been excessive.
12 ABNEY v. COE
We are not persuaded. To begin with, the fact that the Randolph
County Sheriff’s Department may, as a matter of general policy, for-
bid precision intervention techniques says nothing about whether such
tactics are constitutional. It is, in fact, settled law that a violation of
departmental policy does not equate with constitutional unreasonable-
ness. See Davis v. Scherer, 468 U.S. 183, 193-96 (1984). Thus, the
fact that Randolph County deputies are discouraged from using inter-
vention techniques is irrelevant to the question of whether Deputy
Coe’s conduct was consistent with the Fourth Amendment: The
touchstone of that inquiry is reasonableness. See Scott, 127 S. Ct. at
1773 n.1 ("It is irrelevant to our analysis whether Scott had permis-
sion to take the precise actions he took.").
So too for Sheriff Hurley and Deputy Coe’s views that, assuming
Deputy Coe had intentionally terminated the pursuit of Abney, such
conduct would constitute excessive force under the Fourth Amend-
ment. These subjective beliefs as to the reasonableness of an interven-
tion technique are as irrelevant to the constitutional inquiry as the
Randolph County policy which prohibited such conduct (and perhaps
formed the basis for Deputy Coe’s views). Indeed, an officer’s subjec-
tive belief that a particular use of force was unreasonable is no more
proof of a constitutional violation than an officer’s subjective belief
that a particular use of force was reasonable is proof of constitutional-
ity; the test is one of objective reasonableness. See, e.g., Brigham City
v. Stuart, ___ U.S. ___, 126 S. Ct. 1943, 1948 (2006); Bond v. United
States, 529 U.S. 334, 338 n.2 (2000).
C.
Finally, plaintiff argues that minor differences in eyewitness testi-
mony reveal "genuine issues of material fact" "with respect to
whether Deputy Coe acted reasonably." Plaintiff relies upon, for
example, the testimony of one eyewitness who "didn’t even realize
Mr. Abney was being chased"; Deputy Rozier’s testimony that he
"did not feel threatened" when Abney drove around him; and the testi-
mony of other witnesses whose description of the collision on Mount
Shepherd Road in some way differs from the account given by Dep-
uty Coe.
It is, however, elementary that "the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise prop-
ABNEY v. COE 13
erly supported motion for summary judgment." Scott, 127 S. Ct. at
1776 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Rather, to withstand summary judgment, a plaintiff must
identify a genuine dispute of material fact. See Fed. R. Civ. Proc.
56(c); Anderson, 477 U.S. at 247-48; Harleysville Mutual Ins. Co. v.
Packer, 60 F.3d 1116, 1120 (4th Cir. 1995). It is not realistic to
expect every eyewitness to recall events identically or for every recol-
lection to mesh in every detail. The reality is that eyewitnesses in fact
see different things; they do not always share the same vantage point
or temporal window into an event. As a result, "[i]t will nearly always
be the case that witnesses . . . differ over what occurred." Gooden,
954 F.2d at 965.
It is especially unrealistic to expect identical accounts of a long
police pursuit. Such chases are by nature dynamic events in which a
fleeing suspect attempts often dangerously to evade capture. Changes
in speed, road conditions, neighborhoods, traffic patterns, flight strat-
egy, or intervention tactics are just a few of the many variables that
can make one witness account of a chase differ from another. Thus
the fact that a witness might testify to a moment of apparent control
over the course of an eight-mile chase is hardly remarkable.
For precisely these reasons, the inevitable difference in witness tes-
timony does not always "signify a difference of triable fact." Id. To
demand perfect seamlessness in such testimony is to insist upon the
impossible. In the case at hand, while there may be genuine disputes,
they are not over material facts; and while there may be disputes over
material facts, they are not genuine. "Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’" Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This long chase
was punctuated by traffic violation piled upon traffic violation as
Abney repeatedly employed reckless maneuvers to elude the police.
An officer could certainly conclude that Abney’s erratic driving
behavior (ignoring curves, double yellow lines, stop signs, a police
vehicle, oncoming traffic, and flashing blue lights and sirens) placed
innocent motorists at risk of, among other things, head-on collisions.2
2
Plaintiff’s state claims against Deputy Coe for gross negligence and
wrongful death fail for the same reasons noted above. North Carolina law
14 ABNEY v. COE
Thus, the judgment of the district court must be reversed and the case
remanded for entry of judgment for defendant.
REVERSED
sets a high bar for such relief: "North Carolina’s standard of gross negli-
gence, with regard to police pursuits, is very high and is rarely met."
Eckard v. Smith, 603 S.E.2d 134, 142 (N.C. 2004). Gross negligence is
defined as "wanton conduct done with conscious or reckless disregard
for the rights and safety of others." Bullins v. Schmidt, 369 S.E.2d 601,
603 (N.C. 1998); see also Parish v. Hill, 513 S.E.2d, 547 551-52 (N.C.
1999) (gross negligence requires, at a minimum, "reckless indifference
to the rights of others"). And, in North Carolina, a claim for wrongful
death "exists if and only if the decedent could have maintained an action
for negligence or some other misconduct if [ ]he had survived." Nelson
v. United States, 541 F. Supp. 816, 818 (M.D.N.C. 1982); see N.C. Gen.
Stat. § 28A-18-2 (2005).
For the reasons explained above, plaintiff has failed to present evi-
dence that Deputy Coe’s actions were unreasonable, much less "wanton"
acts of "reckless disregard for the rights and safety of others." See Bul-
lins, 369 S.E.2d at 603. Accordingly, plaintiff’s claims for gross negli-
gence and wrongful death are meritless, and the case must be dismissed.