Bruce T. Adkins, Plaintiff-appellant, v. United States of America, Defendant-appellee, 804 F.2d 677 (4th Cir. 1986)

Bruce Adkins alleges that federal officer Anderson assaulted him during a stop for a routine traffic violation. Adkins claims that Anderson yelled irately, and seemed unstable. Adkins also claims that he feared bodily harm because the officer had in his possession a lethal weapon.

The district court apparently interpreted Adkins' claim as attempting to raise a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court dismissed the suit because Adkins failed to state a constitutional violation. That conclusion is supported by the record.

Jurisdiction for this suit may also arise under the Federal Tort Claims Act. 28 U.S.C. § 1346(b). The United States can be found liable for personal injury resulting from the act or omission of its employees in the course of their duties. The standard for liability is judged by the law of the state in which the act or omission occurs.

Adkins was stopped for the traffic violation in Virginia. Under Virginia law, verbal threats and abuse may not constitute an assault unless there is an overt act indicating imminent danger. Harper v. Commonwealth, 196 Va. 723, 85 S.E.2d 249 (1955). There is no evidence that officer Anderson ever used his gun to threaten Adkins. Nor does Adkins allege that Anderson made any physical threats or approached him physically. Thus, Adkins has failed to state a claim for which relief can be granted.

We affirm the judgment of the district court. Because the dispositive issues have recently been decided authoritatively, we dispense with oral argument.

AFFIRMED.