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Sherrod v. McHugh

United States District Court, District of Columbia

February 15, 2017

VASHTI SHERROD, et al., Plaintiffs,
PHILLIP MCHUGH, et al., Defendants. Re Document No. 16


          RUDOLPH CONTRERAS United States District Judge

         Denying District Defendants' Partial Motion to Dismiss


         This case involves allegations that, if true, drastically undermine the integrity of a District of Columbia police officer and illustrate the damage that the unscrupulous use of power can inflict upon citizens of the state. Vashti and Eugene Sherrod were involved in a routine traffic accident in the District of Columbia. According to the allegations in the complaint, the other driver falsely reported to police that Ms. Vashti Sherrod brandished a handgun after they discussed the accident. Detective Phillip McHugh allegedly discovered that the other driver's report was false, yet relentlessly used the criminal justice system to harass the Sherrods. When their defensive legal battles finally drew to a close, the Sherrods brought suit against the other driver, Det. McHugh, and the District of Columbia on multiple grounds, including for common law claims of assault, negligence, and negligent infliction of emotional distress. Det. McHugh and the District of Columbia move to dismiss these claims, contending that Det. McHugh did not assault the Sherrods through filing a false police report or fraudulent affidavit in support of an arrest warrant, that Plaintiffs did not properly plead their negligence claim and, in any event, that their negligence claim is duplicative of their assault claim, and that the Sherrods were never in a “zone of danger, ” which is required to maintain a negligent infliction of emotional distress claim.

         In large part because Defendants' arguments are factual in nature, the Court denies the motion to dismiss. Whether Det. McHugh “intentionally” caused the Sherrods to believe they would be harmed is a question best left for summary judgment or the factfinder. Additionally, Plaintiffs are entitled to allege, in the alternative, that Det. McHugh acted negligently. Finally, whether the Sherrods were actually in danger of physical harm through Det. McHugh's possible negligence is a question best left for a later stage of the proceedings, after the parties have engaged in factual discovery. The Court therefore denies Defendants' motion to dismiss.


         A. The Traffic Accident

         In May 2015, Plaintiffs Vashti and Eugene Sherrod were involved in a minor traffic accident with Defendant Diane Schulz.[2] See Am. Compl. (“Compl.”) ¶¶ 15-17, ECF No. 13. Both plaintiffs are elderly, and Mr. Sherrod is legally blind. See Compl. ¶ 4. According to Plaintiffs, when Ms. Schulz attempted to parallel park her truck, she collided with the side mirror of Plaintiffs' car. Compl. ¶¶ 16-17. After Ms. Sherrod and Ms. Schulz exited their vehicles to deal with the accident, Ms. Schulz started yelling obscenities at Ms. Sherrod and “gesturing with her finger . . . in a threatening and menacing manner, ” at times retreating to her truck. Compl. ¶¶ 18, 20. Plaintiffs further allege that Ms. Schulz used racial epithets and that, when she opened the passenger door of her truck, the door struck Plaintiffs' car, causing further damage. Compl. ¶¶ 21-22. Eventually, after Ms. Schulz allegedly further cursed and “physically confronted” Ms. Sherrod, the parties exchanged insurance information and Ms. Schulz drove away. Compl. ¶ 22.

         B. Detective McHugh's Investigation

         Later that day, Ms. Schulz called the D.C. Metropolitan Police Department about the incident. Compl. ¶ 23. MPD Detective Phillip McHugh-another defendant in this matter, employed by the Defendant District of Columbia (collectively, “District Defendants”)- responded by visiting Ms. Schulz's house and interviewing her about the incident. Compl. ¶ 23. Ms. Schulz told Det. McHugh that following the accident, Ms. Sherrod threatened Ms. Schulz with “the barrel of [her] gun, ” and that Mr. Sherrod encouraged his wife as she threatened her. Compl. ¶ 23. Then, Ms. Schulz allegedly said that Ms. Sherrod “went to her car and reached under the driver's seat, pulling out . . . a black semi-automatic pistol similar to what a police officer would carry, ” and then pointed the pistol at Ms. Schulz and walked toward her “in a threatening manner.” Compl. ¶ 23. After taking a statement from Ms. Schulz, Det. McHugh obtained and viewed video surveillance footage of the entire event between Ms. Schulz and the Sherrods. Compl. ¶ 24. The video that Det. McHugh carefully reviewed allegedly proves that Ms. Schulz's version of events was untrue. See Compl. ¶ 25. For the purpose of this motion, both parties seem to accept the allegation that the potential for probable cause evaporated upon Det. McHugh's viewing of the video. See District Defs.' Mem. P. & A. Supp. District Defs.' Mot. Partial Dismissal Am. Compl. (“Defs.' Mot. Dismiss”), ECF No. 16.

         Just over a week later, Ms. Sherrod and Det. McHugh spoke over the telephone about the incident, and Ms. Sherrod told Det. McHugh that she did not own a gun and did not point a gun at Ms. Schulz. Compl. ¶¶ 28-29. Det. McHugh “persisted and told [Ms.] Sherrod that he could have searched her car, seized her vehicle, and had her arrested” days before. Compl. ¶ 29.

         According to Plaintiffs, Det. McHugh then filed a false official police report stating that the Sherrods' car was stolen, which caused a broadcast to be issued to all law enforcement personnel in the Washington metropolitan area. Compl. ¶ 30.[3] The broadcast stated that the Sherrods' car was stolen, and instructed police to “immediately stop and arrest the driver” if they saw the car. Compl. ¶ 30. In late June, Det. McHugh contacted the police department in Prince George's County, Maryland, about applying for a search warrant of the Sherrods' home. Compl. ¶ 31. In doing so, Plaintiffs allege, Det. McHugh falsely stated that the video he viewed corroborated Ms. Schulz's account, which the Maryland police officer used in his affidavit in support of the warrant. Compl. ¶ 32. Relying on the affidavit, a Maryland judge issued a warrant for the police to search the Sherrods' home. Compl. ¶ 32.

         C. The Capitol Police Stop

         The same day that the warrant was issued, the Sherrods drove their car through the District of Columbia, where they were pulled over by two United States Capitol Police patrol cars. Compl. ¶ 34. After Ms. Sherrod pulled her car over to the curb, three police officers approached, and two of them pointed shotguns at Mr. and Ms. Sherrod. Compl. ¶ 34. The lead Capitol Police officer told Ms. Sherrod that there was a report that their car was stolen, which Ms. Sherrod immediately denied. Compl. ¶ 35. The officer then said that he was “not going to arrest any ‘senior citizens' and instructed them to wait inside the car.” Compl. ¶ 35 A few minutes later, Det. McHugh arrived on the scene, ordered the Sherrods out of their car, and said “Remember me? I am going for your gun and [to] seize your vehicle.” Compl. ¶ 36. After searching the car, Det. McHugh did not find a gun or any other contraband. Compl. ¶ 36 Plaintiffs were so visibly upset by the ordeal that the lead Capitol Police officer consoled Mr. Sherrod. Compl. ¶ 36. The time from when the Sherrods were pulled over until they were released lasted approximately 90 minutes. Compl. ¶ 37.

         D. The Search of the Sherrod Home

          Just over a week later, at approximately 9:00 p.m. on a weeknight, MPD Det. McHugh, along with a group of Maryland police officers, conducted a search of Plaintiffs' home. Compl. ¶ 38. Plaintiffs, in bed when police arrived, were awakened by pounding on their front door and flashing lights visible through their windows. Compl. ¶ 38. According to Plaintiffs, the police “either purposefully or negligently” failed to announce their presence and did not give them a chance to open the door before entering their home. Compl. ¶ 38. Thus, the Sherrods thought that they might have been experiencing a home invasion and feared for their safety. Compl. ¶ 39. After the police kicked in the door, they handcuffed Mr. Sherrod and told Ms. Sherrod to put her hands over her head. Compl. ¶ 39. Because of his blindness, Mr. Sherrod could not see who was in his home. Compl. ¶ 39. Before the search began in earnest, Det. McHugh ordered Plaintiffs to produce their guns and ammunition. Compl. ¶ 40. When they responded that they did not have any guns or ammunition, Det. McHugh responded by saying that the “search is on.” Compl. ¶ 40. Det. McHugh told Plaintiffs that they could not leave until he permitted them to, then personally searched their home. Compl. ¶ 41. According to Plaintiffs, Det. McHugh unnecessarily and negligently caused damage to their property. Compl. ¶ 41. Det. McHugh did not find any evidence relating to firearms or ammunition. Compl. ¶ 41.

         E. The Criminal Case Against Ms. Sherrod

         Later in the week, despite not finding any evidence in the course of his search, Det. McHugh swore a complaint against Ms. Sherrod and an affidavit in support of an arrest warrant, which plaintiffs allege Det. McHugh knew was false. Compl. ¶¶ 42-43. After a judge issued the warrant, Ms. Sherrod surrendered herself to police. Compl. ¶ 46. Later that day, a District of Columbia Superior Court magistrate judge released her on her personal recognizance. Compl. ¶ 47. At a later preliminary hearing, Det. McHugh allegedly offered the false testimony that his report ...

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