United States District Court, District of Columbia
MEMORANDUM OPINION RE DOCUMENT NOS. 56, 65, 66,
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
In Part District Defendants' Motion for Summary Judgment;
Denying Defendant Schulz's Motion for Summary Judgment;
Granting in Part Plaintiffs' Motion in Limine Regarding
Lewis Hicks; and Denying Plaintiffs' Motion in Limine
Regarding Shana Mell
case illustrates the harm that may arise from even the most
trivial traffic dispute, when the full weight of the justice
system is brought to bear on that dispute. Plaintiffs Vashti
and Eugene Sherrod and Defendant Diane Schulz were involved
in a minor accident in the District of Columbia that devolved
into an intense shouting match. Hours after the incident, Ms.
Schulz reported to the District of Columbia Metropolitan
Police Department (“MPD”) that Mrs. Sherrod
threatened her with a handgun. MPD Detective Phillip McHugh,
another Defendant, was assigned to investigate Ms.
Schulz's accusation. He obtained a video of the incident
that allegedly proves Mrs. Sherrod's innocence, yet he
used the power afforded to him by the criminal justice system
to stop and search the Sherrods' car, search their home,
and ultimately arrest Mrs. Sherrod.
grand jury refused to indict Mrs. Sherrod, the Sherrods
brought this action against Ms. Schulz, Detective McHugh, and
the District of Columbia (together with Detective McHugh, the
“District Defendants”) on multiple constitutional
and common law grounds. The Defendants have moved for summary
judgment, arguing that Detective McHugh is entitled to
certain immunities and that the Sherrods have failed to
introduce facts supporting their claims. Both sides have also
moved to exclude certain testimony. As explained below,
because the Sherrods have, in fact, introduced facts that
would allow a reasonable jury to find in their favor on
certain claims, the Court denies the District Defendants'
motion for summary judgment in part and Ms. Schulz's
motion for summary judgment in full. The Court also grants
the parties' motions to exclude testimony about certain
early May 2015, the Sherrods and Ms. Schulz were involved in
a traffic accident in front of a flower shop in the District
of Columbia. See Defs.' Statement Undisputed
Material Facts (“SUMF”) ¶¶ 1-4, ECF No.
68-2; Statement Material Facts Not In Dispute
(“Schulz's Statement”) ¶¶ 3-4, ECF
No. 66. The Sherrods are elderly, and Mr. Sherrod is legally
blind. Schulz's Statement ¶ 1. According to the
Sherrods, when Ms. Schulz attempted to parallel park her
truck she collided with the side mirror of their car. SUMF
¶ 4; Schulz's Statement ¶ 3. This act
precipitated a lengthy squabble between the Sherrods and Ms.
Schulz, during which both sides cursed, made threats, and
allegedly used racial epithets. Schulz's Statement ¶
4. Before going their separate ways, the parties exchanged
insurance information and Ms. Schulz recorded the vehicle
identification number (“VIN”) for the
Sherrods' car. SUMF ¶¶ 23-24; Dep. Sapan Patel
(“Patel Dep.”) 26:1-26:17, District Defendants
Mem. P & A. Supp. Mot. Summ. J. (“Defs.
Mem.”) Ex. 7, ECF No. 68-9.
accident's aftermath, Ms. Schulz took several steps that
are key to this action. Shortly after the accident, Ms.
Schulz called her insurance company to report it. Dep. Diane
Schulz (“Schulz Dep.”) 67:18-77:15, Defs. Mem.
Ex. 4, ECF No. 68-6. Later that day Ms. Schulz called her son
and discussed the dispute, initially telling him that the
Sherrods threatened her with a gun, but later admitting that
she was “not sure if [she] really saw a gun.”
Dep. Luciano Carafano (“Carafano Dep.”)
31:17-34:3, Pls. Opp'n Defs. Mem. & Schulz Mem.
(“Pls. Opp'n.”) Ex. 2, ECF No. 76-5. Finally,
several hours after the dispute and at her son's
encouragement, Ms. Schulz called 911. SUMF ¶ 33;
Schulz's Statement ¶ 9. She described her dispute
with the Sherrods to the 911 operator, and she claimed that
the “little 80 year old lady” threatened her with
a gun and then “got her gun out, ” with
encouragement from Mr. Sherrod. SUMF ¶¶ 34-37. This
phone call triggered the investigation from which the
Sherrods' claims arise.
Initial Investigatory Steps
Officer Sapan Patel was dispatched to interview Ms. Schulz
after her 911 call. SUMF ¶¶ 38-41, 52-59;
Schulz's Statement ¶ 10. Ms. Schulz repeated to
Officer Patel that Mrs. Sherrod “attempted to
intimidate me with some sort of gun or weapon.” SUMF
¶ 39. She was unable to give Officer Patel “very
specific details” about the threat, but she claimed
that Mrs. Sherrod pulled a “big black gun” from
under her driver's seat. SUMF ¶¶ 54-57. Officer
Patel was able to identify the Sherrods as the primary
suspects based on the VIN that Ms. Schulz recorded during the
altercation. Patel Dep. 26:1-17; see also Dep.
Phillip McHugh (“McHugh Dep.”) 150:2-20, Pls.
Opp'n Ex. 3, ECF No. 76-6 (stating that he “ran the
VIN number” to obtain a picture of the Sherrods'
car, which he showed to Ms. Schulz during their initial
interview). Officer Patel initially classified Mrs.
Sherrod's alleged act as a misdemeanor, but the act was
subsequently reclassified as a violent crime, felony-assault
with a dangerous weapon. SUMF ¶¶ 62-66.
McHugh was assigned to handle the investigation after Officer
Patel conducted the initial interview. SUMF ¶ 64;
Schulz's Statement ¶ 11. From the very beginning,
Ms. Schulz's claim should have been viewed skeptically.
Detective McHugh thought it was “strange” that
Ms. Schulz had waited several hours before reporting the
incident to the police. McHugh Dep. 83:2-15. Moreover, even
Detective McHugh thought it normally would strain credulity
for an elderly woman to be accused of such a violent
confrontation with a gun. See Email from Detective
McHugh to Susan Wittrock, June 24, 2015 (stating that
“the suspect is pushing 80 years old . . . if it
wasn't on video, not sure I would've believed it
myself”), Defs. Mem. Ex. 11, ECF No. 68-13. Detective
McHugh began his investigation in earnest on May 15, 2015.
on May 15, Detective McHugh interviewed Ms. Schulz. Dep.
Diane Schulz (“Schulz Dep.”) 93:9-95:5, Defs.
Mem. Ex. 4, ECF No. 68-6; McHugh Dep. 87:5-8; Schulz's
Statement ¶ 11. Ms. Schulz repeated the same allegations
to Detective McHugh that she had made to the 911 operator and
Officer Patel-Mrs. Sherrod threatened Ms. Schulz with a gun,
and then reached into the driver's seat area of her car,
pulled out a black gun, and pointed it at Ms. Schulz. SUMF
¶¶ 72-77. Again, Ms. Schulz could not identify the
gun's specific make, but she did tell Detective McHugh
that it was “semi-automatic” and similar to the
gun owned by one of her family members, who is a police
officer. SUMF ¶¶ 78-79.
after he interviewed Ms. Schulz, Detective McHugh emailed Ms.
Schulz his police report classifying the incident as an
assault with a dangerous weapon, including Ms. Schulz's
accusation that Mrs. Sherrod “brandished a large black
handgun.” Pls. Opp'n. Ex. 21, ECF No. 76-24. Ms.
Schulz responded to Detective McHugh's email and
clarified a minor detail in the report, but despite her
apparent reservations she did not express that Mrs. Sherrod
may not have wielded a gun. Pls. Opp'n Ex. 27, ECF No.
76-30. Notably, the record contains no evidence indicating
that Ms. Schulz ever indicated to MPD-during her 911 call,
her interview with Officer Patel, or her interview with
Detective McHugh-that she was not sure whether Mrs. Sherrod
had brandished a gun.
interviewing Ms. Schulz, despite his apparent skepticism and
before interviewing Mrs. Sherrod and seeking evidence and
witnesses at the flower shop, Detective McHugh issued a
“bulletin” over the Washington Area Law
Enforcement System (“WALES”) and the National
Crime Information System (“NCIS”). SUMF ¶
85; McHugh Dep. 125:17-22; Pls. Opp'n Ex. 19, ECF No.
76-22. The bulletin, captioned “Felony Vehicle, ADW
gun, ” notified all local law enforcement agencies that
the Sherrods' car was involved in a possible assault with
a deadly weapon and that it should be stopped so that
Detective McHugh could question its occupants. McHugh Dep.
127:16-128:14; SUMF ¶ 85; Defs. Mem. Ex. 10, ECF No.
68-12; Pls. Opp'n Ex. 19 & Ex. 20, ECF No. 76-23.
after interviewing Ms. Schulz and issuing the bulletin,
Detective McHugh went to the flower shop to interview
potential witnesses. SUMF ¶ 81. The lone employee
Detective McHugh interviewed heard the altercation between
Ms. Schulz and the Sherrods but did not see it, so he could
not corroborate Ms. Schulz's allegations. SUMF ¶ 82.
However, Detective McHugh obtained a video from the
store's security camera (hereafter, the “security
video”) that captured the altercation, albeit without
sound. SUMF ¶ 83. The security video shows that another
employee of the flower shop-Kenneth Wright-witnessed at least
some of the altercation, but Detective McHugh did not
interview Mr. Wright. McHugh Dep. 119:17-120:14; Decl. of
Kenneth Wright ¶ 4-6, ECF No. 76-16. Detective McHugh
also showed the video to his supervisor, Lieutenant Richard
Brady. SUMF ¶ 84, 98; Decl. of Richard Brady ¶ 5,
ECF No. 68-15.
discussed below, the parties dispute the conclusions to be
drawn from the security video, but they concede that the
video is authentic and that it captures the altercation.
See generally Partial Consent Mot. Def. Diane Lee
Schulz Summ. J. Dismissal (“Schulz Mem.”), ECF
No. 66; Defs. Mem., ECF No. 68; Pls. Opp'n, ECF No. 76.
The parties also agree that no gun is visible on the video.
McHugh Dep. 157:19-20; Pls. Statement Mat. Facts Genuine
Dispute (“Pls. Statement”) ¶ 97, ECF No.
76-1. Despite this admission Detective McHugh believes that
the video corroborates Ms. Schulz's allegations. McHugh
Dep. 158:7-160:2. The Sherrods, on the other hand, believe it
exonerates them. Pls. Statement ¶ 98. But, from this
point forward in the investigation there is no dispute that
all evidence developed was exculpatory of Mrs. Sherrod.
McHugh took several investigatory steps after viewing the
security video, many of which prompted the Sherrods'
claims. First, approximately one week after viewing the
video, Mrs. Sherrod and Detective McHugh spoke over the
telephone about the incident, and Mrs. Sherrod told Detective
McHugh that she did not own a gun and did not point a gun at
Ms. Schulz. SUMF ¶¶ 90, 93-94; McHugh Dep.
154:13-15 (agreeing that Mrs. Sherrod “vehemently
denied” brandishing a gun at Ms. Schulz). The parties
dispute whether Mrs. Sherrod independently brought up the
possible existence of a gun, without Detective McHugh
prompting her. SUMF ¶¶ 91-95; Pls. Statement ¶
91. Next, Detective McHugh contacted the Prince George's
County Police Department and the United States Bureau of
Alcohol, Tobacco, Firearms, and Explosives, and confirmed
that the Sherrods had not registered a firearm with either
agency. SUMF ¶¶ 86-87; Defs. Mem. Ex. 11; McHugh
Dep. 145:19-146:13. Then, Detective McHugh met with the
Assistant United States Attorneys (“AUSAs”)
assigned to the case, showed them the security video, and
recounted the statements of Ms. Schulz and Mrs. Sherrod.
McHugh Dep. 158:2-160:7. The AUSAs apparently did not believe
that the evidence presented was sufficient to arrest Mrs.
Sherrod at this stage of the investigation, even before the
investigation produced additional exculpatory facts.
Id. 160:3-7; Email from Detective McHugh to Susan
Wittrock, June 24, 2015 (stating that “the video
isn't clear enough for the [AUSAs] to sign a warrant
since we can't say definitively what is in suspect's
hand”), Defs. Mem. Ex. 11. At this point, Detective
McHugh determined that the proper course of action was to
continue the investigation and search the Sherrods' car
and home. McHugh Dep. 158:11-19, 160:8-19.
24, Detective McHugh's bulletin prompted two United
States Capitol Police patrol cars to pull the Sherrods over
as they drove near the Capitol. SUMF ¶ 101; Pls.
Statement ¶ 103. After Mrs. Sherrod pulled her car to
the curb, three police officers approached and two of them
pointed shotguns at the Sherrods. Pls. Statement ¶ 103.
The Sherrods claim that the officers' actions terrified
them to the point of tears. Id.
McHugh arrived on the scene ten to forty minutes later and
obtained Mrs. Sherrod's consent to search the car. SUMF
¶¶ 102-104; Pls. Statement ¶ 102-104. The
Sherrods assert that Detective McHugh told them he would
impound their car if Mrs. Sherrod did not consent, an
assertion that Detective McHugh denies. Pls. Statement ¶
104; McHugh Dep. 181:12-14. Detective McHugh searched the car
for approximately one hour but did not find a gun or any
other contraband. SUMF ¶ 105; McHugh Dep. at 183:6-13;
Vashti Sherrod Dep. 152:1-155:9, Pls. Opp'n Ex. 7, ECF
No. 76-10. After the search Detective McHugh requested that
Mrs. Sherrod accompany him to the police station for further
questioning, but Mrs. Sherrod refused. Vashti Sherrod Dep.
addition to the car search, Detective McHugh sought to search
the Sherrods' home. Because the Sherrods live in
Maryland, Detective McHugh coordinated the search with the
Prince George's County Police Department. SUMF ¶ 99.
Detective McHugh supplied information on the case, including
a description of the security video, to a Bowie, Maryland
detective who used the information to complete a search
warrant affidavit. SUMF ¶ 100; Pls. Statement ¶
100. The affidavit stated in part that:
The [security] video corroborates the victim's series of
events. The video shows Vashti Sherrod bend down at the
driver's seat of her Mercedes and emerge with her right
arm raised as if pointing something at the victim. Sherrod
walks toward the victim, who then abruptly reenters her
vehicle and leaves the scene. The video quality is not clear
enough to see what Sherrod has in her hand, but the victim
described it as a black pistol.
Pls. Opp'n Ex. 23 at 3, ECF No. 76-26. A magistrate judge
approved the warrant based on that information. Defs. Mem.
Ex. 14, ECF No. 68-16. On Wednesday, July 7 at approximately
9:00 p.m., Detective McHugh and a team of Maryland police
officers conducted a search of Plaintiffs' home. SUMF
¶¶105-106; Decl. of David Edelstein
(“Edelstein Decl.”) ¶ 5, Defs. Mem. Ex. 16,
ECF No. 68-18.
to District Defendants, the team knocked on the front and
back doors, announced themselves multiple times by shouting
into the house, turned their police lights on, and attempted
to call the Sherrods from both Detective McHugh's cell
phone and the Prince George's County 911 call center.
SUMF ¶¶ 108-114. Detective McHugh saw someone-
allegedly the Sherrods-look through an upstairs bedroom
window at the police, and he could see that a television was
on in that room. SUMF ¶ 110; McHugh Dep. 207:15-18.
Finally, after approximately thirty minutes, the officer in
charge ordered the team to force entry into the Sherrods'
home-to “breach” the front door. SUMF ¶ 114;
McHugh Dep. 210:7-211:21. Detective McHugh claims that he
asked the Prince George's County officers to use less
force than is normally used when serving a search warrant for
a possible weapon. McHugh Dep. 208:20-209:5. Detective McHugh
did not participate in the initial breach, and only entered
the Sherrods' house after it had been secured by the
team. SUMF ¶ 115.
to the Sherrods, on the night of the search they were
startled by a ringing doorbell, pounding on their back door,
and flashing lights visible through their
windows. Pls. Statement ¶ 16. The Sherrods
thought that they might have been experiencing a home
invasion, and they feared for their safety. Id. This
fear was exacerbated by Mr. Sherrod's blindness; he could
not see who was in his home. Id. After the police
breached the door, they briefly handcuffed Mr. Sherrod and
told Mrs. Sherrod to put her hands over her head.
Id. Detective McHugh told the Sherrods that they
could not leave the home until he permitted them to, then he
personally searched their home, allegedly ransacking their
property in the process. Id. Detective McHugh did
not find any guns or ammunition in the house. Id.
not finding any evidence that the Sherrods owned or had
access to a gun, on July 10 Detective McHugh secured an
arrest warrant for Mrs. Sherrod. SUMF ¶ 116; Pls.
Statement ¶ 116; McHugh Dep. 231:18-21; Defs. Mem. Ex.
17, ECF No. 68-19. Detective McHugh's affidavit in
support of that warrant described the security video in
identical terms to the affidavit in support of the search
warrant. Defs. Mem. Ex. 17.
21, Mrs. Sherrod surrendered herself to MPD and was
processed, handcuffed, jailed, and ultimately released that
day on her personal recognizance pending a preliminary
hearing before a District of Columbia Superior Court
magistrate judge. Resp. of Vashti Sherrod to the Interrogs.
Propounded by Ms. Schulz (“Vashti Sherrod ROG”)
at 20, Pls. Opp'n Ex. 39, ECF No. 76-42; SUMF ¶ 117;
McHugh Dep. 240:4-6; Defs. Mem. Ex. 18, ECF No. 68-20. A
District of Columbia Superior Court magistrate judge
conducted the preliminary hearing, heard testimony from
Detective McHugh, and found that the case should be submitted
to a grand jury for a probable cause determination. SUMF
¶ 118-19; McHugh Dep. 240:22-242:9.
government's case against Mrs. Sherrod unraveled at the
grand jury stage. Before testifying, Ms. Schulz met with
Detective McHugh and the AUSA handling the case, and Ms.
Schulz had difficulty recalling the gun that Mrs. Sherrod
allegedly threatened her with. SUMF ¶ 120; Pls.
Statement ¶ 123; Schulz's Statement ¶ 12. She
also revealed that she was bipolar and taking medication to
treat that condition, factors that may have influenced her
memory and mental state. SUMF ¶ 121-22; Schulz's
Statement ¶ 2. The grand jury ultimately did not issue
an indictment. SUMF ¶ 124-125; Schulz's Statement
¶ 14. After the case was dropped, the Sherrods brought
Sherrods have challenged Detective McHugh's investigation
on multiple federal law and common law grounds. See
generally Second Amended Compl. (“SAC”), ECF
No. 41. They claim that the car and home searches, and Mrs.
Sherrods' arrest, were not supported by probable cause,
leading to several constitutional and common law violations.
Id. They also claim that Detective McHugh
negligently failed to follow proper police practices, and
that he intentionally or negligently inflicted emotional
distress on the Sherrods. Id. They claim that the
District of Columbia is vicariously liable for certain of
Detective McHugh's violations. Id. Finally, they
claim that Ms. Schulz is culpable for certain of their
injuries because she negligently or intentionally filed a
false police report, prompting Detective McHugh's
failed to obtain partial dismissal of the Sherrods'
claims, Sherrod v. McHugh, No. 16-0816, 2017 WL
627377 (D.D.C. Feb. 15, 2017), District Defendants and Ms.
Schulz now seek summary judgment. See generally
Schulz Mem.; Defs. Mem. As discussed below, the Court grants
District Defendants' motion in part, and it denies Ms.
Schulz's motion in full.
may grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A “material” fact is one
capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if
there is enough evidence for a reasonable jury to return a
verdict for the non-movant. See Scott v. Harris, 550
U.S. 372, 380 (2007).
principal purpose of summary judgment is to streamline
litigation by disposing of factually unsupported claims or
defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). The movant bears the initial burden of
identifying portions of the record that demonstrate the
absence of any genuine issue of material fact. See
Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323.
In response, the non- movant must point to specific facts in
the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering
a motion for summary judgment, a court must “eschew
making credibility determinations or weighing the evidence[,
]” Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007), and all underlying facts and inferences
must be analyzed in the light most favorable to the
non-movant, see Anderson, 477 U.S. at 255.
Nevertheless, conclusory assertions offered without any
evidentiary support do not establish a genuine issue for
trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.
U.S.C. § 1983
Sherrods have asserted multiple claims against Detective
McHugh under 42 U.S.C. § 1983. Section 1983 provides a
cause of action against:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
42 U.S.C. § 1983. A plaintiff bringing a § 1983
claim “must allege both (1) that he was deprived of a
right secured by the Constitution or laws of the United
States; and (2) that the defendant acted ‘under color
of' the law of a state, territory or the District of
Columbia.” Hoai v. Vo, 935 F.2d 308, 312 (D.C.
1983 claims are properly brought against government actors in
their personal capacity. See Jones v. Horne, 634
F.3d 588, 602 (D.C. Cir. 2011). Thus, to maintain a §
1983 suit, “a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior, ” and “vicarious
liability is inapplicable.” Id.
Defendants argue that Detective McHugh is entitled to
qualified immunity from the Sherrods' claims that he
violated their constitutional rights. Defs. Mem. at 25-38;
District Defs. Reply at 7-20, ECF No. 81. “Qualified
immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the
official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established' at the
time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). For a right to be
“clearly established, ” at the time of the
officer's conduct, “existing law must have placed
the constitutionality of the officer's conduct
‘beyond debate.'” District of Columbia v.
Wesby, 138 S.Ct. 577, 589 (2018) (quoting
Aschroft, 563 U.S. at 741). The legal principle to
be applied must be “dictated by ‘controlling
authority' or ‘a robust consensus of cases of
persuasive authority, ” that “clearly prohibit
the officer's conduct in the particular circumstances
before him.” Id. at 589-90 (quoting
Ashcroft, 563 U.S. at 741-42).
courts have discretion to decide which qualified immunity
prong to address first. Pearson v. Callahan, 555
U.S. 223, 236 (2009); see Rasul v. Myers, 563 F.3d
527, 530 (D.C. Cir. 2009) (noting that ”lower federal
courts have the discretion to decide only the more narrow
‘clearly established' issue ‘in light of the
circumstances of the particular case at hand.'”
(quoting Pearson, 555 U.S. at 236)). The defendant
bears the burden of pleading and proving the defense of
qualified immunity. Harlow, 457 U.S. at 815.
Defendants and Ms. Schulz seek summary judgment on nearly all
of the Sherrods' constitutional and common law claims.
Because the existence or lack of probable cause for Detective
McHugh to act is material to many of the Sherrods' claims
and the Defendants' arguments, the Court will address
probable cause first, then the Sherrods' claims against
District Defendants, and finally the Sherrods' claims
against Ms. Schulz. For the reasons explained below, the
Court grants District Defendants' motion in part, and it
denies Ms. Schulz's motion in full.
noted, most of the Sherrods' claims turn on whether
Detective McHugh had probable cause to conduct various
searches and seizures during his investigation. A police
officer has probable cause to conduct a search if “the
facts available to [him] would warrant a [person] of
reasonable caution in the belief that contraband or evidence
of a crime is present.” Florida v. Harris, 568
U.S. 237, 243 (2013) (quoting Texas v. Brown, 460
U.S. 730, 742 (1983) (plurality opinion)); see also
Safford Unified School Dist. # 1 v. Redding, 557 U.S.
364, 370-371 (2009). Similarly, an officer has probable cause
to arrest a suspect if, “at the moment the arrest [i]s
made . . . the facts and circumstances within [the
officer's] knowledge and of which [the officer] had
reasonably trustworthy information [a]re sufficient to
warrant a prudent man in believing' that the suspect has
committed or is committing a crime.” Smith v.
United States, 843 F.3d 509, 515 (D.C. Cir. 2016)
(internal quotation marks omitted) (citing Wesby v.
District of Columbia, 765 F.3d 13, 19 (D.C. Cir. 2014),
rev'd on other grounds, 138 S.Ct. 577 (2018)).
Supreme Court has emphasized that probable cause is “a
fluid concept-turning on the assessment of probabilities in
particular factual contexts-not readily, or even usefully,
reduced to a neat set of legal rules.” Illinois v.
Gates, 462 U.S. 213, 232 (1983). Therefore, in
evaluating whether an officer has met this practical and
commonsensical standard, a court must look to the totality of
the circumstances. See Maryland v. Pringle, 540 U.S.
366, 371 (2003); Gates, 462 U.S. at 243-46. In other
words, if Detective McHugh possessed sufficient information
to support a reasonable belief that Mrs. Sherrod threatened
Ms. Schulz with a gun during their dispute, there was
probable cause for him to take further investigative steps
and, eventually, to arrest Mrs. Sherrod. Considering these
principles and the record, at this stage the Court cannot
conclude that Detective McHugh's actions were supported
by probable cause at any point during the investigation.
initial matter, the parties dispute whether the existence of
probable cause is a question of fact to be determined by a
jury at trial, or a question of law that the Court may
resolve at the summary judgment stage. Both sides are
correct, because “[t]he existence of probable cause is
a mixed question of law and fact.” Pitt v. District
of Columbia, 491 F.3d 494, 502 (D.C. Cir. 2007) (quoting
Smith v. Tucker, 304 A.2d 303, 306 (D.C. 1973));
see also Cousins v. Hathaway, No. 12-1058, 2014 WL
4050170, at *6 (D.D.C. Aug. 15, 2014) (citations omitted).
District Defendants correctly assert that “[w]here the
facts are not in dispute[, ] the question of probable cause
is one of law to be decided by the court.” Jackson
v. District of Columbia, 541 F.Supp.2d 334, 341 (D.D.C.
2008) (quoting Dent v. May Dept. Stores Co., 459
A.2d 1042, 1044 (D.C. 1982)); see also Smith v. United
States, 843 F.3d at 515 (affirming the district
court's grant of summary judgment on the issue of
probable cause because a video indisputably supported the
defendant officer's contention that the plaintiff nearly
struck the officer with a vehicle). However, the existence of
the facts underlying a probable cause determination is a
question for the jury. See Bolger v. District of
Columbia, 608 F.Supp.2d 10, 21 (D.D.C. 2009)
(“This factual dispute, which goes to the heart of the
central element of the [offense at issue], makes it
impossible to evaluate the totality of the circumstances at
the time of the arrests . . . and therefore the [c]ourt
cannot determine as a matter of law whether [the defendant
officers] had probable cause to arrest [the]
plaintiffs.”); Dingle v. District of Columbia,
571 F.Supp.2d 87, 96 (D.D.C. 2008) (denying summary judgment
where the plaintiff and the defendant officer provided
differing accounts of an arrest). Therefore, “[o]nly
where the facts are undisputed or clearly established does
probable cause become a question of law for the court.”
Amobi v. District of Columbia, 755 F.3d 980, 990
(D.C. Cir. 2014) (citing Bradshaw v. District of
Columbia, 43 A.3d 318, 324 (D.C. 2012)).
Defendants assert that “information from a single
eyewitness can be sufficient to establish probable
cause.” Defs. Mem. at 22 (citing Page v.
Mancuso, 999 F.Supp.2d 269, 280 (D.D.C. 2013)). They
correctly note that it is undisputed that Ms. Schulz
unequivocally told a 911 operator, Officer Patel, and
Detective McHugh that Mrs. Sherrod had threatened her with a
gun during their traffic dispute. See generally
Schulz Dep.; see also Patel Dep. 23:10-25:16; McHugh
Dep. 87:6-13, 92:18-93:4; Pls. Opp'n at 5, 10, 14. They
therefore argue that “Ms. Schulz's statements to
law enforcement on May 14 and 15, 2015 alone established
probable cause to search and seize Plaintiffs.” Defs.
Mem. at 23. That argument, however, fails to account for the
balance of information in Detective McHugh's possession
at the time of the challenged searches and seizures.
Pendergast v. United States, a case cited by
District Defendants, the D.C. Circuit established the
circumstances under which a victim's statement alone may
provide probable cause for a search or arrest. The Circuit
held that “probable cause is established where (a) the
victim of an offense (1) communicates to the arresting
officer information affording credible ground for believing
that the offense was committed and (2) unequivocally
identifies the accused as the perpetrator, and (b) materially
impeaching circumstances are lacking.” 416 F.2d 776,
785 (D.C. Cir. 1969); see Garay v. Liriano, 943
F.Supp.2d 1, 18-19 (D.D.C. 2013) (holding that an officer had
probable cause to make an arrest based on an eyewitness
statement when the officers “had no reason to believe
that the eyewitness was lying or providing them with false
information”). Other circuits have similarly held that
an “eyewitness identification will constitute
sufficient probable cause ‘unless, at the time of the
arrest, there is an apparent reason for the officer to
believe that the eyewitness was lying, did not accurately
describe what he had seen, or was in some fashion mistaken
regarding his recollection of the confrontation.'”
Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999)
(quoting United States v. Amerson, No. 93-6360, 1994
WL 589626, at *2-3 (6th Cir.1994) (unpublished table
decision)); see also Curley v. Village of Suffern,
268 F.3d 65, 70 (2d Cir. 2001) (“When information is
received from a putative victim or an eyewitness, probable
cause exists, unless the circumstances raise doubt as to the
are therefore correct that in certain circumstances, Ms.
Schulz's statements to the 911 operator, Officer Patel,
and Detective McHugh would, on their own, provide probable
cause for Detective McHugh to take further investigatory
steps. Here, however, Detective McHugh had “reason to
believe that [Ms. Schulz] was lying” or at least
mistaken. Garay, 943 F.Supp.2d at 18-19. First, and
as discussed in greater detail below, the security video
provided ample ground for Detective McHugh to question Ms.
Schulz's accusation. Pls. Opp'n at 16. Second, Ms.
Schulz waited several hours before reporting the alleged
incident; “strange” behavior for someone who had
been threatened with a gun. McHugh Dep. 83:2-15. Third, Mrs.
Sherrod-an elderly woman-did not fit the profile of the
typical perpetrator of an assault with a deadly weapon.
See Defs. Mem. Ex. 11. Accordingly, District
Defendants' reliance on Mancuso is misguided
because the Sherrods, unlike the Mancuso plaintiff,
raised “genuine issues regarding the circumstances that
[Detective McHugh] confronted” when arresting Mrs.
Sherrod, and in Mancuso there was no indication that
the officer possessed any evidence contradicting the
eyewitness statements supporting probable cause, much less
video evidence. Mancuso, 999 F.Supp.2d at 279-80.
setting aside the other factors giving Detective McHugh
reason for skepticism, there is a material question regarding
whether a reasonable officer would have concluded that the
security video tended to corroborate or contradict Ms.
Schulz's allegations. District Defendants argue that Ms.
Schulz's allegations “were supported by the
surveillance video, ” and therefore that “it was
reasonable for Detective McHugh and his supervisors to
believe that Mrs. Sherrod had committed a crime and that the
handgun would be found in Plaintiffs' vehicle or their
home.” Defs. Mem at 25. The Sherrods, on the other
hand, contend that “the video was sufficiently clear to
enable an objective and reasonable viewer to see that when
Mrs. Sherrod raised her right arm, she was merely pointing
her hand and was certainly not pointing a gun.” Pls.
Opp'n at 31-32 (citing Hayden Decl. Ex. 1 at 4). Based on
this interpretation, the Sherrods conclude that “the
video contradicted the allegations of the only complaining
witness, ” and therefore that Detective McHugh could
not have had probable cause to believe that Mrs. Sherrod had
committed an assault with a deadly weapon. Id.
reviewed the video, the Court cannot conclude that the
District Defendants' interpretation-the video
corroborates Ms. Schulz's accusations-is the only
defensible interpretation. It is true that a court need not
credit the non-movant's interpretation of a video where
the “videotape quite clearly contradicts the version of
the story told by [the non-movant].” Scott v.
Harris, 550 U.S. 372, 378-80 (2007) (“When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.”). Here, however, the video is far too
pixelated for the Court to conclude that it shows Mrs.
Sherrod pointing a gun at Ms. Schulz, which would directly
corroborate Ms. Schulz's allegation. The more difficult
question is whether, considering the sequence of events
evident from the video, the actions and body language of the
Sherrods and Ms. Schulz, and the positioning of Mrs.
Sherrod's hands, the security video supports Ms.
Schulz's allegation or contradicts it. The jury, not this
Court, is the proper mechanism by which that question should
be resolved. See Westfahl v. District of Columbia,
No. 11-2210, 2015 WL 6746479, at *6 (D.D.C. Nov. 4, 2015)
(refusing to adopt the defendant officers' interpretation
of an MPD video where “the MPD video does not compel
only one reasonable set of inferences at odds with the
there is a material dispute of fact regarding whether, after
first watching the security video, Detective McHugh had
probable cause to suspect that Mrs. Sherrod had committed an
assault with a deadly weapon, the Court cannot conclude that
Detective McHugh had probable cause at any point in the
investigation. District Defendants do not argue that
Detective McHugh discovered any evidence-aside from the
video-supporting Ms. Schulz's allegation. Nor could they,
because at each point in the investigation it became less
likely that Mrs. Sherrod had committed a crime. Mrs. Sherrod
denied threatening Ms. Schulz with a gun, or even owning one.
SUMF ¶ 94. Detective McHugh determined that there were
no guns registered to the Sherrods. Id. ¶ 87.
The AUSAs assigned to the case declined to authorize Mrs.
Sherrod's arrest before Detective McHugh searched the
Sherrods' car and home. Email from Detective McHugh to
Susan Wittrock, June 24, 2015 (stating that “the video
isn't clear enough for the [AUSAs] to sign a warrant
since we can't say definitively what is in suspect's
hand”), Defs. Mem. Ex. 11. The car search did not bear
fruit. SUMF ¶ 105. Nor did the home search. Pls.
Statement ¶ 16. Therefore, if Detective McHugh did not
have probable cause at the outset of his investigation, he
never had probable cause.
decided that issue, the Court will consider the
Defendants' summary judgment arguments. The Sherrods'
claims arise from three distinct events: (1) the stop and
search of the Sherrods' car; (2) the search of the
Sherrods' home; and (3) Mrs. Sherrod's arrest.
Certain of their claims relate to specific events, while
others cover the investigation as a whole. The Court will
organize its analysis accordingly, focusing first on the
Sherrods' claims against District Defendants, followed by
the Sherrods' claims against Ms. Schulz.
Sherrods claim that District Defendants violated their
constitutional rights at several different points, and in
several different ways, during Detective McHugh's
investigation. The Court will first address the validity of
the warrants to search the Sherrods' home and arrest Mrs.
Sherrod, as those warrants are material to many of the
Sherrods' constitutional claims and District
Defendants' summary judgment arguments. The Court will
then address the constitutional claims, which are captured
rather vaguely in Counts I, II, and III of the complaint. As
noted above, where, as here, a defendant official claims
qualified immunity, the Court must determine (1) whether the
official “violated a statutory or constitutional right,
” and (2) whether “the right was clearly
established at the time of the challenged conduct.”
Ashcroft, 563 U.S. at 735. Having made this
determination, the Court concludes that only the
Sherrods' constitutional claims challenging the searches
of the Sherrods' home and car and the arrest of Mrs.
Sherrod survive summary judgment.
Reliance on the Search and Arrest Warrants
Detective McHugh may not have had probable cause to
independently search the Sherrods' car and home and to
arrest Mrs. Sherrod, it is undisputed that the Sherrods'
home search and Mrs. Sherrod's arrest were authorized by
warrants signed by judges. The Court must determine the
significance of those warrants because, as District
Defendants correctly note, “[w]hen police officers
obtain a warrant before executing an arrest, they are
ordinarily entitled to rely on the issuing judge's
determination that probable cause exists.” Defs. Mem.
at 32-33 (citing United States v. Spencer, 530 F.3d
1003, 1006-07 (D.C. Cir. 2008)). However, as explained below,
Detective McHugh may not rely on the warrants to immunize his
allegedly unconstitutional actions because a reasonable jury
may conclude that Detective McHugh himself procured those
warrants through materially false statements.
Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const. amend. IV. It prohibits “searches and seizures .
. . without a [valid] warrant.” Groh v.
Ramirez, 540 U.S. 551, 558-59, 564 (2004); see,
e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
A warrant is valid, in turn, only if it is based “upon
probable cause, supported by [o]ath or affirmation, ”
and only if it “particularly describ[es] the place to
be searched, and the persons or things to be seized.”
U.S. Const., amend. IV. “Because a search warrant
provides the detached scrutiny of a neutral magistrate,
” the Supreme Court has “expressed a strong
preference for warrants and [has] declared that in a doubtful
or marginal case a search under a warrant may be sustainable
where without one it would fail.” United States v.
Leon, 468 U.S. 897, 913-14 (1984) (internal quotation
marks and citations omitted).
rule established by the Supreme Court in Franks v.
Delaware, deference to a warrant “gives way when
the affidavit upon which the magistrate relied
‘contain[ed] a deliberately or recklessly false
statement.'” Lane v. District of Columbia,
211 F.Supp.3d 150, 173 (D.D.C. 2016) (quoting
Franks, 438 U.S. 154, 165 (1978)). A finding of
deliberate or reckless falsity does not, however, end the
inquiry. The Court must also consider whether the false
statements were “material.” Id. at 173.
“[A]llegedly false information in an affidavit is
material only if, when it is ‘set to one side, the
affidavit's remaining content is insufficient to
establish probable cause.'” United States v.
Ali, 870 F.Supp.2d 10, 27 (D.D.C. 2012) (quoting
Franks, 438 U.S. at 156). Similarly, “omitted
facts are only material if ‘their inclusion in the
affidavit would defeat probable cause.'”
Id. (quoting United States v. Spencer, 530
F.3d 1003, 1007 (D.C. Cir. 2008)).
this standard, the Sherrods have raised a genuine dispute
regarding whether the warrants at issue here were valid. The
affidavits drafted by Detective McHugh in support of both
warrants state that the security video “corroborates
the victim's series of events.” Defs. Mem. Ex. 14
at 3, ECF No. 68-16; Defs. Mem Ex. 17 at 2, ECF No. 68-19. As
discussed above, a reasonable jury could, if it determines
that the security video clearly contradicts Ms. Schulz's
accusation, conclude that Detective McHugh acted with at
least recklessness in submitting affidavits stating that the
video corroborated Ms. Schulz's accusation. Moreover,
this recklessness would be material because in the absence of
Detective McHugh's characterization of the security video
and with the addition of the Sherrods' characterization,
the affidavits would no longer have supported a finding of
probable cause. Therefore, the warrants would not be
entitled to this Court's deference. Franks, 438
U.S. at 165. Moreover, regardless of whether other officers
could rely in good faith on the warrants, “because
[Detective McHugh] himself prepared the invalid warrant[s],
he may not argue that he reasonably relied on the
[judge's] assurance that the warrant[s]”
established probable cause. Groh, 540 U.S. at 564;
see S.H. v. District of Columbia, 270 F.Supp.3d 260,
286 (D.D.C. 2017); Pitts v. District of Columbia,
177 F.Supp.3d 347, 364 (D.D.C. 2016); Davis v. District
of Columbia, 156 F.Supp.3d 194, 202-03 (D.D.C. 2016);
Lane, 211 F.Supp.3d at 178. At this stage, the
warrants therefore cannot immunize Detective McHugh's
Claims Related to the Car Search
Court first addresses the Sherrods' claims arising from
the stop and search of their car on June 24, 2015. SUMF
¶ 101. The Sherrods claim that their rights were
violated both during the initial car stop by the Capitol
Police and during Detective McHugh's subsequent search of
their car. The Court concludes that (1) the initial stop did
not violate the Sherrods' clearly established
constitutional rights; but (2) there is a dispute of fact
regarding whether the search did. Accordingly, Detective
McHugh is entitled to qualified immunity from claims arising
from the stop but not the search.
Sherrods claim that Detective McHugh's
“false” felony vehicle bulletin caused them to be
unconstitutionally seized by the District of Columbia Capitol
Police without probable cause. SAC ¶¶ 27, 60, 71.
District Defendants counter that the bulletin and the
resulting stop needed only to be supported by reasonable
suspicion, rather than probable cause, and that Detective
McHugh “possessed probable cause, much more than
reasonable suspicion.” Defs. Mem. at 27. They argue
that Detective McHugh is therefore entitled to qualified
immunity on this claim because his actions did not violate
the Sherrods' constitutional rights. Id. at
27-28. The Court agrees.
initial matter, the precise contours of the Sherrods'
claims with respect to the car stop are unclear. They admit
that they are not asserting claims against the Capitol
Police. Pls. Opp'n at 43. However, they appear to claim
that the Capitol Police violated their constitutional rights
by stopping their car and detaining them for
“approximately 20-40 minutes” while they awaited
Detective McHugh's arrival. Id. at 44. According
to the Sherrods, Detective McHugh caused this
unconstitutional detention because he “lacked probable
cause to post the felony lookout for the Sherrods'
vehicle.” Id. at 43. This claim must fail
because, even drawing all factual inferences in favor of the
Sherrods, they have not demonstrated that Detective McHugh or
the Capitol Police violated their constitutional rights
during the initial car stop.
police officer may “stop and briefly detain a person
for investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal
activity ‘may be afoot,' even if the officer lacks
probable cause.” United States v. Sokolow, 490
U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S. 1,
30 (1968)). Reasonable suspicion exists if “the
totality of the circumstances” presents “a
particularized and objective basis for suspecting the
particular person stopped of criminal activity.”
United States v. Cortez, 449 U.S. 411, 417-18
(1981). “This is not a particularly high bar: ‘a
Terry stop requires only a minimal level of
objective justification.'” United States v.
Abdus-Price, 518 F.3d 926, 929 (D.C. Cir. 2008) (quoting
United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir.
McHugh issued the bulletin, directing police to stop the
Sherrods' car, based on Ms. Schulz's unequivocal
allegations-to a 911 operator, Officer Patel, and Detective
McHugh-that Mrs. Sherrod threatened her with a gun. The
record indicates that Detective McHugh issued the bulletin
before viewing the allegedly exculpatory security video.
See McHugh Dep. 125:17-22 (stating that he issued
the bulletin at 1:15 p.m. on May 15); id. 116:21- 22
(stating that he visited the flower shop at 2:45 p.m. on May
15). And even if Detective McHugh had issued the bulletin
after viewing the security video, the Sherrods have not
argued that Detective McHugh lacked reasonable
suspicion to take further investigatory steps. See
generally SAC, Pls. Opp'n. Under the totality of the
circumstances, considering Ms. Schulz's allegations and