United States District Court, District of Columbia
RUDOLPH CONTRERAS United States District Judge
District Defendants' Partial Motion to Dismiss
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.
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
The Traffic Accident
2015, Plaintiffs Vashti and Eugene Sherrod were involved in a
minor traffic accident with Defendant Diane
Schulz. 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.
Detective McHugh's Investigation
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.
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.
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. ¶
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.
The Capitol Police Stop
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.
The Search of the Sherrod Home
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. ¶
The Criminal Case Against Ms. Sherrod
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 ...