Sherrod v. McHugh

• Court: District Court, District of Columbia
• Decided: September 25, 2018
• Docket: Civil Action No. 2016-0816
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VASHTI SHERROD, et al., : : Plaintiffs, : Civil Action No.: 16-0816 (RC) : v. : Re Document Nos.: 56, 65, 66, 68 : PHILLIP MCHUGH, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING 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

I. INTRODUCTION

This 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.

When a 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 topics.

II. FACTUAL BACKGROUND

A. The Traffic Accident

In 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.

2 In the 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.

B. The Initial Investigatory Steps

MPD 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

3 act was subsequently reclassified as a violent crime, felony-assault with a dangerous weapon.

SUMF ¶¶ 62–66.

Detective 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.

First, 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.

The day 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,

4 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.

After 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.

Finally, 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;

5 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.

As 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.

Detective 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

6 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.

C. The Car Search

On June 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.

Detective 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

7 that Mrs. Sherrod accompany him to the police station for further questioning, but Mrs. Sherrod

refused. Vashti Sherrod Dep. 155:15–22.

D. The Home Search

In 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.

According 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

8 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.

According 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. 1 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.

E. The Arrest

Despite 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.

1 The Sherrods also claim that the police team failed to announce their presence and did not give the Sherrods a chance to open the door before entering the home, but that claim is contradicted by the Sherrods’ admission that they heard pounding on their door. Id.

9 On July 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. 2 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.

The 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 this action.

F. Procedural History

The 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

2 The Sherrods imply that Mrs. Sherrod spent the night in jail, Pls. Opp’n at 24–25 (stating that Mrs. Sherrod surrendered on July 20 and was released on July 21), but they do not explicitly make this argument and it is unsupported by the documentary evidence. See Defs. Mem. Ex. 18; Pls. Opp’n Ex. 14, Ex. 15.

10 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 investigation. Id.

Having 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.

III. LEGAL STANDARD

A. Summary Judgment

A court 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).

The 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-

11 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. Cir. 1999).

B. 42 U.S.C. § 1983

The 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 and laws.

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. Cir. 1991).

Section 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.

12 C. Qualified Immunity

District 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).

Trial 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.

IV. ANALYSIS

District 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

13 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.

A. Probable Cause

As 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)).

The 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

14 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.

As an 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,

15 571 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)).

District 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.

In 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

16 “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 person's veracity”).

Defendants 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

17 eyewitness statements supporting probable cause, much less video evidence. Mancuso, 999 F.

Supp. 2d at 279–80.

Even 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.

Having 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

18 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

jury's verdict”). 3

Because 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

3 For what it is worth, the Court believes the video is more consistent with the Sherrods’ version of events than District Defendants’ version. Although the parties focus most of their attention on the video images of Mrs. Sherrod’s arms and hands, the Court’s view is significantly influenced by Ms. Schulz’s body language; she did not appear to react in a manner consistent with someone who had just been threatened point-blank with a gun. Detective McHugh himself acknowledged that her reaction “seemed hard to believe,” considering the alleged circumstances. McHugh Dep. 98:7–21.

19 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.

Having 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.

B. Constitutional Claims

The 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

20 claims challenging the searches of the Sherrods’ home and car and the arrest of Mrs. Sherrod

survive summary judgment.

1. Reliance on the Search and Arrest Warrants

While 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.

The 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

21 sustainable where without one it would fail.” United States v. Leon, 468 U.S. 897, 913–14

(1984) (internal quotation marks and citations omitted).

Under a 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)).

Applying 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

22 no longer have supported a finding of probable cause. 4 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 actions.

2. Claims Related to the Car Search

The 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. 5

4 Moreover, while District Defendants claim that Detective McHugh’s July 10, 2015 affidavit in support of the arrest warrant contained “the only knowable facts to Detective McHugh at the time,” Defs. Mem. at 33, the affidavit does not state that Detective McHugh unsuccessfully searched the Sherrods’ car on June 24. Defs. Mem. Ex. 17. This omission casts further doubt on the warrant’s validity. 5 As noted, evaluation of a police officer's claim to qualified immunity requires a two- pronged inquiry to determine “(1) whether the facts in the record show the officers' conduct violated a constitutional right, and if so, (2) whether the constitutional right was clearly established at the time of the incident.” Corrigan v. District of Columbia, 841 F.3d 1022, 1029 (D.C. Cir. 2016).

23 a. Initial Stop

The 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.

As an 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.

A 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

24 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. 2001)).

Detective 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 Detective McHugh’s confirmation that the Sherrods were involved in the

altercation, Detective McHugh had the “minimal level of objective justification” to stop and

question the Sherrods. Abdus-Price, 518 F.3d at 929.

Moreover, “if a flyer or bulletin has been issued on the basis of articulable facts

supporting a reasonable suspicion that [a] wanted person has committed an offense, then reliance

on that flyer or bulletin justifies a stop to check identification . . . to pose questions to the person,

or to detain the person briefly while attempting to obtain further information.” United States v.

Hensley, 469 U.S. 221, 232 (1985) (citation omitted). The stop must be “not significantly more

intrusive than would have been permitted” for the officer who issued the bulletin. Id. at 236.

Though “a detention might well be so lengthy or intrusive as to exceed the permissible limits of a

25 Terry stop,” id. at 235, the Supreme Court has consistently recognized that there are no rigid

time limitations for effectuating such a stop. United States v. Sharpe, 470 U.S. 675, 686 (1985).

Rather, courts have counseled that the constitutional duration of an investigative atop will “vary

to some extent with the particular facts and circumstances of each case[,]” but must last “no

longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491,

500 (1983).

There is no evidence that the Sherrods’ Terry detention was unreasonable. When

considering whether a detention’s duration was too long, courts consider whether the police

“diligently pursued a means of investigation that was likely to confirm or dispel their suspicions

quickly.” Sharpe, 470 U.S. at 686–87 (holding a detention of 20 minutes reasonable when a

DEA agent stopped a vehicle and waited for the State Highway Patrol to arrive to conduct a

search). The Sherrods allege that the Capitol Police detained them for between twenty and forty

minutes after the initial stop. Pls. Opp’n at 44. Detective McHugh stated that once the stop was

made the Capitol Police called him, and he immediately drove to the scene and sought the

Sherrods’ consent to search their car. McHugh Dep. 177:1–181:11. The Sherrods have not

provided evidence that the initial stop lasted any longer “than [was] necessary to effectuate the

purpose of the stop.” Royer, 460 U.S. at 500. Accordingly, Detective McHugh is entitled to

qualified immunity on this claim because the stop did not violate the Sherrods’ constitutional

rights or, at the very least, it was not clearly established that a stop of this duration violated the

Sherrods’ constitutional rights. The Court therefore grants District Defendants’ motion for

summary judgment on Counts I and III insofar as those Counts cover the initial stop of the

Sherrods’ car by the Capitol Police.

26 b. Detective McHugh’s Search

The Sherrods also claim that Detective McHugh unconstitutionally seized the Sherrods

and searched their vehicle without probable cause or a warrant once he arrived on the scene.

SAC ¶¶ 36–37, 60, 71. “It is well settled under the Fourth and Fourteenth Amendments that a

search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . .

subject only to a few specifically established and well-delineated exceptions.’” Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454–

455 (1971)); Chambers v. Maroney, 399 U.S. 42, 51 (1970); Katz v. United States, 389 U.S. 347,

357 (1967)). “It is equally well settled that one of the specifically established exceptions to the

requirements of both a warrant and probable cause is a search that is conducted pursuant to

consent.” Id. (citing Davis v. United States, 328 U.S. 582, 593–594 (1946); Zap v. United States,

328 U.S. 624, 630 (1946)). The Supreme Court has “long approved consensual searches because

it is no doubt reasonable for the police to conduct a search once they have been permitted to do

so.” Florida v. Jimeno, 500 U.S. 248, 250–51 (1991).

“The Fourth Amendment test for a valid consent to search is that the consent be

voluntary, and ‘[v]oluntariness is a question of fact to be determined from all the

circumstances.’” Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth, 412 U.S. at

248–49). In conducting this analysis, “a court may consider various factors, including the

consenting party's ‘age, poor education or low intelligence, lack of advice concerning his

constitutional rights, the length of any detention before consent was given, the repeated and

prolonged nature of the questioning, and the use of physical punishment.’” United States v.

Wilson, 605 F.3d 985, 1027 (D.C. Cir. 2010) (quoting United States v. Hall, 969 F.2d 1102, 1107

(D.C. Cir. 1992)).

27 District Defendants concede that Detective McHugh’s search of the Sherrods car was

subject to Fourth Amendment protection. See generally Defs. Mem. They argue, however, that

Mrs. Sherrod signed a consent form authorizing the search; “[o]ne of the ‘established exceptions

to the requirements of both a warrant and probable cause.” Defs. Mem. at 30 (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). District Defendants are correct on the

law, but the Sherrods have raised a dispute of fact regarding whether their consent was

voluntarily given. This dispute renders qualified immunity inappropriate at this stage.

Mrs. Sherrod’s signing of the consent form suggests that she voluntarily consented to

Detective McHugh’s search. Courts in this jurisdiction have held that consent was voluntary

where the plaintiffs signed forms stating “in clear and unambiguous language that the [plaintiffs]

could deny the search at any time and affirm[ing] that the [plaintiffs] were not ‘threatened,

ordered or intimidated’ into submitting to the search.” Fraternal Order of Police/Dep’t of Corr.

Labor Comm. v. Washington, 394 F. Supp. 2d 7, 14 (D.D.C. 2005); see Anderson v. Salter, No.

94-2132, 1996 WL 434996, at *3 (D.D.C. Mar. 28, 1996) (“[T]here is no suggestion by the

plaintiffs that the consent form relinquishing the auto, signed by Ms. Mason, was involuntary

when given.”). The consent form signed by Mrs. Sherrod contained very similar language

informing her of her right to refuse Detective McHugh’s search. Defs. Mem. Ex. 19, ECF No.

68-21. Moreover, as District Defendants note, Mrs. Sherrod’s refusal to accompany Detective

McHugh to the police station after the search further indicates that she understood her rights.

Vashti Sherrod Dep. 155:15–22.

However, the Sherrods contend that considering their “advanced age,” their fear of arrest,

Mr. Sherrod’s blindness, and Detective McHugh’s threat that he would seize the Sherrods’ car if

Mrs. Sherrod did not consent to the search, their consent was coerced, not voluntary. Pls. Opp’n

28 at 46–47 (citing Vashti Sherrod Dep. at 149:10–13); see also Dep. of Eugene Sherrod at 59:17–

20, Pls. Opp’n Ex. 6, ECF No. 76-9. Courts in this jurisdiction have held that a show of force by

the police may render consent involuntary, particularly when the individual whose consent is

sought is susceptible to coercion. See United States v. Maragh, 756 F. Supp. 18, 22–23 (D.D.C.

1991) (holding that consent was coerced when given by a young, foreign-born individual in the

presence of three officers, one of whom was “formidable”). Verbal threats by the officer seeking

consent may also render that consent involuntary. See United States v. Holmes, 505 F.3d 1288,

1295 (D.C. Cir. 2007) (holding that search consent was involuntary where the officers seeking

consent informed the plaintiff that they had the authority to arrest him if he did not consent);

Jones v. Unknown Agents of FEC, 613 F.2d 864, 879–80 (D.C. Cir. 1979) (holding that a 59-

year-old retiree with “a serious heart condition” did not voluntarily give consent when an FEC

agent threatened to seize his home and imprison him).

In light of this well-established case law, and taking the Sherrods’ alleged circumstances

into account, a reasonable jury could conclude that the presence of multiple officers with

weapons, combined with Detective McHugh’s “implication” that the Sherrods only prayer for

keeping their vehicle was to consent to the search, created a “coercive situation” rendering

consent involuntary. Holmes, 505 F.3d at 1295; see United States v. Washington, 387 F.3d 1060,

1076 (9th Cir. 2004) (“[The officer’s] repeated reminders to [the plaintiff] that the officers could

arrest him at any time, in our view, appear to have been given as a tactic to coerce [the plaintiff]

into consenting to the search of his room.”). Moreover, it is clearly established that such a

coercive situation would violate the Sherrods’ constitutional rights. Holmes, 505 F.3d at 1295;

Jones, 613 F.2d at 879–80. Accordingly, Detective McHugh would not be entitled to qualified

immunity if the jury accepts the Sherrods’ account.

29 “At the summary judgment stage, qualified immunity will not protect a government

official from trial when there is a dispute of material fact in the record.” Gudger v. District of

Columbia, No. 14-576, 2015 WL 9047831, at *2 (D.D.C. Dec. 16, 2015) (citing Holcomb v.

WMATA, 526 F. Supp. 2d 20, 22 (D.D.C. 2007)); see also Gainor v. Rogers, 973 F.2d 1379,

1385 (8th Cir. 1992) (“the defense of qualified immunity shielding the defendant from trial must

be denied . . . [because] it is impossible for the court to determine, as a matter of law, what

predicate facts exist to decide whether or not the officer's conduct clearly violated established

law.”). Here, because there is a dispute of fact regarding the circumstances under which the

Sherrods consented to Detective McHugh’s car search, the Court cannot determine whether

Detective McHugh’s actions violated the Sherrods’ clearly established constitutional rights. The

Court therefore denies District Defendants’ motion on Counts I and III insofar as those Counts

cover Detective McHugh’s search of the Sherrods’ car.

3. Claims Related to the Home Search

The Court next addresses the Sherrods’ claims arising from the search of their home on

July 7, 2015. The Sherrods claim that their rights were violated both during the initial breach of

their front door and during the subsequent search. Having reviewed the record and the parties’

briefing, the Court concludes that the Sherrods’ constitutional rights were not violated during the

officers’ entrance into their home, but a reasonable jury may rule in the Sherrods’ favor on their

claims arising from Detective McHugh’s search of their home.

a. Initial Breach

In their opposition brief, the Sherrods claim that “Detective McHugh violated the

Sherrods’ Fourth Amendment rights by executing the search warrant in a constitutionally

unreasonable manner.” Pls. Opp’n at 41. The Sherrods’ complaint, however, does not make

30 clear that they are asserting an excessive force claim in addition to their unlawful search and

seizure claims. See generally SAC. In this Circuit, dismissal of a claim may be appropriate

where the complaint is “unclear or . . . fail[s] to give the defendants fair notice of

the claim[] against them.” Ciralsky v. CIA, 355 F.3d 661, 670 (D.C. Cir. 2004). While dismissal

is appropriate here for that reason alone, District Defendants address the claim on its merits in

their reply brief, and the Court will too. The Court concludes that even if the Sherrods properly

raised an excessive force claim, Detective McHugh would be entitled to qualified immunity

because the initial breach of the Sherrods’ home did not violate their clearly established

constitutional rights. 6

A search may violate the Fourth Amendment, and therefore give rise to a valid 42 U.S.C.

§ 1983 claim, if the use of force during that search was objectively unreasonable. Cty. of Los

Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017) (citing Saucier v. Katz, 533 U.S. 194, 207

(2001)); accord Hall v. District of Columbia, 867 F.3d 138, 157 (D.C. Cir. 2017). In conducting

this analysis, courts must balance the “nature and quality of the intrusion on the individual's

Fourth Amendment interests against the importance of the governmental interests alleged to

justify the intrusion.” Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (quoting Tennessee v.

Garner, 471 U.S. 1, 8 (1985)). The Court must pay “careful attention to the facts and

circumstances of [the] particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officer or others, and whether [s]he is

actively resisting arrest or attempting to evade arrest by flight.” Hall, 867 F.3d at 157 (internal

6 Again, the Court’s qualified immunity analysis requires a two-pronged inquiry to determine “(1) whether the facts in the record show the officers' conduct violated a constitutional right, and if so, (2) whether the constitutional right was clearly established at the time of the incident.” Corrigan, 841 F.3d at 1029.

31 citations and quotation marks omitted) (quoting Johnson v. District of Columbia, 528 F.3d 969,

974 (D.C. Cir. 2008)). “An officer's act of violence violates the Fourth Amendment's prohibition

against unreasonable seizures if it furthers no governmental interest, such as apprehending a

suspect or protecting an officer or the public.” Johnson, 528 F.3d at 976.

The Sherrods and District Defendants dispute whether Detective McHugh can be liable

for excessive force used during a breach that he may not have directly participated in. The Court

need not address that issue, however, because it concludes that the facts set forth by the Sherrods

do not rise to the level of unconstitutionally excessive force. Those facts, taken in the light most

favorable to the Sherrods, are as follows.

The Prince George’s County Police Department, in consultation with Detective McHugh

and considering the Sherrods’ age, determined that the search should be carried out by a smaller

team of officers rather than the SWAT team normally utilized for weapons searches. McHugh

Dep. 208:16–209:10. The team arrived at the Sherrods’ home around dusk, as it was beginning

to get dark. Vashti Dep. 166:19. To alert the Sherrods of their presence, the team rang the

Sherrods’ doorbell at least twice, pounded on their back door, and activated the police lights on

their cars in front of the Sherrods’ home. Vashti Dep. 166:20–169:20, 171:4–172:19, 181:9–

182:8; McHugh Dep. 207:11–208:1, 209:21–22. The team also called the Sherrods multiple

times, although the Sherrods claim that they did not hear the phone ringing because they kept

their cellphones in another room and did not keep a house phone in their bedroom. Vashti Dep.

170:8–16; McHugh Dep. 210:15–21. Finally, after half an hour, the team breached the Sherrods’

front door and announced their presence with guns drawn. Vashti Dep. 171:4–5, 185:7–186:1;

McHugh Dep. 212:2–213:1. The officers directed the Sherrods downstairs with their hands on

their heads, and they handcuffed Mr. Sherrod while they secured the house. Vashti Dep. 186:3–

32 7; McHugh 212:22–213:1. They then released Mr. Sherrod’s handcuffs and directed the

Sherrods to stay on the sofa while they conducted the search. Vashti Dep. 188:2–8; McHugh

213:8–18.

It was not constitutionally unreasonable for the officers searching the Sherrods’ home to

announce themselves and then breach the door with weapons drawn. “In executing a search

warrant officers may take reasonable action to secure the premises and to ensure their own safety

and the efficacy of the search.” Los Angeles Cty. v. Rettele, 550 U.S. 609, 614 (2007) (citing

Muehler v. Mena, 544 U.S. 93, 98–100 (2005)). To secure a home, particularly when officers

suspect that the home contains weapons, the officers are entitled to brandish their guns while

exercising “unquestioned command of the situation.” Id. at 615; see Croom v. Balkwill, 645

F.3d 1240, 1252–53 (11th Cir. 2011) (holding that it was not unreasonable for officers to push an

elderly woman to the ground “and hold[] her there with a foot . . . in the back for up to ten

minutes” while the officers secured a home to be searched). Given the circumstances here, the

officers reasonably took “immediate steps to secure their own safety by establishing control at

the outset of a surprise search for . . . weapons formally authorized by a warrant issued by a

judicial officer.” Wright v. United States, No. 95-0274, 1996 WL 34401516, at *6 (D.D.C. Feb.

8, 1996) (holding that it was not unreasonable for officers to breach the plaintiffs’ bedroom door,

handcuff them, push them, and hold guns to their heads while initially securing a home pursuant

to a search warrant). The Sherrods do not contend that the officers ever pointed guns at them,

and they do not contend that the officers continued to brandish their guns once the home was

secure.

Moreover, while handcuffing can in certain circumstances support an excessive force

claim, Mr. Sherrod’s handcuffing here was not unreasonable given that he was only handcuffed

33 while the officers secured the home and the handcuffs were released during the officers’ search.

See Pitts, 177 F. Supp. 3d at 377–79 (holding that it was not unreasonable for officers to

handcuff a “frail and disabled” plaintiff who was not suspected of committing a crime,

“particularly given that the need to ensure the officers' safety was heightened in light of the fact

that they were searching for guns and gun-related accessories”); United States v. Brinson-Scott,

714 F.3d 616, 619–21 (D.C. Cir. 2013) (holding that it was not unreasonable for officers to

handcuff an individual for the duration of a home search for guns, to ensure officers’ safety

during the search). Cases in which handcuffing has been found to violate the Fourth Amendment

involved far more aggressive action than that taken here. Turmon v. Jordan, 405 F.3d 202, 207–

08 (4th Cir. 2005) (holding that it was unreasonable to handcuff a suspect for an extended period

at gunpoint where the suspect was compliant and there was no evidence that the suspect posed a

danger to police); Nelson v. District of Columbia, 953 F. Supp. 2d 128, 131–32 (D.D.C. 2013)

(holding that it was unreasonable to handcuff the plaintiff for two hours after verifying that she

was unarmed and alone in the house). The Sherrods have not identified any case law involving

circumstances similar to those here in which handcuffing was found to violate the Fourth

Amendment. The Court therefore holds that no reasonable jury could conclude that Detective

McHugh used excessive force or caused it to be used, and Detective McHugh is thus entitled to

qualified immunity. The Court grants District Defendants’ motion for summary judgment on

Counts I and III insofar as those Counts cover the breach of the Sherrods’ home.

b. Detective McHugh’s Search

The Sherrods also claim that Detective McHugh unconstitutionally seized the Sherrods

and searched their home without probable cause. SAC ¶¶ 38–41, 60, 71. As with the car search,

the parties do not dispute that the search of the Sherrods’ home was subject to Fourth

34 Amendment protection. Furthermore, as noted above, “a search conducted without a warrant

issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically

established and well-delineated exceptions’” that District Defendants do not contend were

present with respect to Detective McHugh’s search. Schneckloth, 412 U.S. at 219.

District Defendants argue that Detective McHugh cannot be liable for any violations

related to the search of the Sherrods’ home because the search was conducted by the Prince

George’s County Police Department pursuant to a warrant supported by probable cause. Defs.

Mem. at 36–37. However, Detective McHugh himself has admitted that he participated in the

search, See McHugh Dep. 212:14–220:16; Pls. Opp’n at 22–23, and, as discussed above, there is

a question of fact regarding whether Detective McHugh’s affidavit rendered the search warrant

invalid. If the search warrant was invalid, it is clearly established that the search violated the

Sherrods’ constitutional rights, Schneckloth, 412 U.S. at 219, and that “because [Detective

McHugh] himself prepared the invalid warrant, he may not argue that he reasonably relied on the

[judge's] assurance that the warrant” established probable cause. Groh, 540 U.S. at 564.

Accordingly, Detective McHugh is not entitled to qualified immunity on the Sherrods’ claims

arising from the search of their home, and the Court denies District Defendants’ motion on

Counts I and III insofar as those Counts cover the search of the Sherrods’ home.

4. Claims Related to Mrs. Sherrod’s Arrest

Finally, the Court addresses the Sherrods’ claims arising from Mrs. Sherrod’s arrest and

her release after the grand jury failed to return an indictment. The Sherrods claim that Mrs.

Sherrod’s arrest was unconstitutional and that the grand jury’s failure to return an indictment

renders Detective McHugh liable for malicious prosecution. The Court agrees regarding Mrs.

35 Sherrod’s arrest, but it concludes that Detective McHugh is entitled to qualified immunity from

the malicious prosecution claim.

a. The Arrest

The Sherrods claim that Detective McHugh unconstitutionally arrested Mrs. Sherrod.

SAC ¶¶ 60. More specifically, they claim that Mrs. Sherrod’s constitutional rights were violated

when she surrendered to Detective McHugh after the issuance of an arrest warrant based on

Detective McHugh’s allegedly false or misleading affidavit. SAC ¶ 60; Vashti Sherrod ROG at

20–21. As discussed above, the Fourth Amendment prohibits “searches and seizures . . . without

a [valid] warrant,” Groh, 540 U.S. at 558–59.

District Defendants contend that Detective McHugh is entitled to qualified immunity

because Mrs. Sherrod’s arrest was authorized by a warrant supported by probable cause. Defs.

Mem at 32–35. However, as noted, a reasonable jury could conclude that Detective McHugh

recklessly or intentionally mischaracterized the security video in his arrest warrant affidavit,

rendering the warrant invalid and violating Mrs. Sherrod’s constitutional rights. Moreover, “it

is clearly established that ‘[p]olice officers cannot, in good faith, rely on a judicial determination

of probable cause when that determination was premised on an officer's own material

misrepresentations to the court.’” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015)

(quoting Gregory v. City of Louisville, 444 F.3d 725, 758 (6th Cir. 2006)); see also Franks, 438

U.S. at 155–56. Accordingly, qualified immunity is again unavailable to Detective McHugh and

the Court denies District Defendants’ motion for summary judgment on Counts I and III insofar

as those Counts cover Mrs. Sherrod’s arrest and subsequent temporary detention.

36 b. Malicious Prosecution

The Sherrods also claim that Detective McHugh is liable for constitutional malicious

prosecution arising from Mrs. Sherrod’s arrest and its aftermath. SAC ¶ 66. To support a

malicious prosecution claim under 42 U.S.C. § 1983, “a plaintiff must plead facts establishing

(1) that the defendant instituted or continued a criminal proceeding against the plaintiff; (2) that

the proceedings terminated in favor of the plaintiff; and (3) that a predicate constitutional

violation occurred as a result of the proceedings.” Turpin v. Ray, No. 17-2543, 2018 WL

3404149, at *7 (D.D.C. July 12, 2018) (citing Mehari v. District of Columbia, 268 F. Supp. 3d

73, 81–82 (D.D.C. 2017)); see also Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir.

1998) (holding malicious prosecution actionable under § 1983 if there is deprivation of liberty

“accompanying the prosecution”). Put more simply, “malicious prosecution is actionable under

the Fourth Amendment to the extent that the defendant's actions cause the plaintiff to be seized

without probable cause.” Pitt, 491 F.3d at 510.

District Defendants appear to conflate the Sherrods’ constitutional malicious prosecution

claim with the Sherrods’ common law malicious prosecution claim, arguing that the

constitutional claim fails for two reasons: (1) Detective McHugh had probable cause to arrest

Mrs. Sherrod; and (2) the Sherrods cannot prove malice. Defs. Mem. at 38. Malice is not an

element of a constitutional malicious prosecution claim, Pitt, 491 F.3d at 510, and as noted a

reasonable jury may conclude that Detective McHugh lacked probable cause to arrest Mrs.

Sherrod. However, because District Defendants also claim that Detective McHugh is entitled to

37 qualified immunity on this claim, Defs. Mem. at 37, the Court will address the claim in further

detail. 7

In evaluating whether Detective McHugh is entitled to qualified immunity, as discussed

above the Court must first determine whether the claim arises from a constitutional violation.

Corrigan, 841 F.3d at 1029. Unlike common law malicious prosecution or false arrest,

constitutional malicious prosecution requires a deprivation of liberty above and beyond the mere

institution of a criminal proceeding. For instance, in Pitt, the plaintiff was detained post-arrest

for ten days in a halfway house against his will. 491 F.3d at 511. Similarly, in Thorp v. District

of Columbia, the plaintiff was subjected to “burdensome” and “humiliating” pretrial conditions,

including drug testing and weekly interviews with court officials, that the court deemed an

unlawful seizure. 142 F.Supp.3d 132, 145–46 (D.D.C. 2015). On the other hand, in Spiller v.

District of Columbia, the court held that the plaintiff’s arrest and appearance in court alone were

insufficient to satisfy the “modest” showing of restriction of liberty necessary for his

constitutional malicious prosecution claim to survive a motion to dismiss. 302 F. Supp. 3d 240,

248 (D.D.C. 2018).

As the Spiller court noted, “[e]xactly what pretrial restrictions constitute ‘seizures’” for

purposes of a constitutional malicious prosecution claim is unclear. Spiller, 302 F. Supp. 3d at

246. However, other courts within this jurisdiction have held that relatively short periods of

detention, combined with cumbersome pretrial conditions, are sufficient to state a constitutional

malicious prosecution claim. See Mehari, 268 F. Supp. 3d at 81–82 (holding sufficient the

plaintiff’s allegations that he was detained for “several hours,” was “seized and deprived of his

7 District Defendants do not dispute that a criminal proceeding was instituted against Mrs. Sherrod, and that it was terminated in her favor.

38 liberty following his arraignment,” and “was subjected to burdensome limitations on his freedom

as a condition of his pretrial release”); Demery v. Montgomery Cty., 602 F. Supp. 2d 206, 209,

212 (D.D.C. 2009) (holding that the plaintiff sufficiently asserted a constitutional malicious

prosecution claim where he was jailed for several days, then released on 1,500 dollar bond

before the charges were dropped); see also Manuel v. City of Joliet, 137 S. Ct. 911, 915, 918–19

(2017) (holding that the plaintiff sufficiently alleged constitutional malicious prosecution where

he was held in pretrial detention for over two months based on false statements by police

officers).

In light of this case law, the Court concludes that Mrs. Sherrod did not suffer an unlawful

seizure, independent from her arrest, which could support a constitutional malicious prosecution

claim. Viewing the facts in the light most favorable to the Sherrods, Mrs. Sherrod surrendered

following the issuance of the arrest warrant, at which point she was fingerprinted, handcuffed,

temporarily jailed, and then released the same day after a hearing before a magistrate judge.

Vashti Sherrod ROG at 20–21; Defs. Mem. Ex. 18; Pls. Opp’n Ex. 14, Ex. 15. She does not

allege that she was required to post a bond to obtain her release, that she was subjected to

conditions of release other than the requirement that she attend a preliminary hearing, or that she

was further detained before the grand jury refused to bring an indictment against her. While the

deprivation of Mrs. Sherrod’s liberty was slightly more intrusive than the mere arrest and release

that the Spiller court found insufficient, 302 F. Supp. 3d 248–49, the intrusion did not rise to the

level of a ten-day detention that this Circuit held supported a malicious prosecution claim in Pitt,

491 F.3d at 511, nor did it involve the invasive pretrial conditions supporting other constitutional

malicious prosecution claims in this District. See Mehari, 268 F. Supp. 3d at 81–82.

39 Accordingly, because Detective McHugh did not commit a constitutional violation

necessary to support a constitutional malicious prosecution claim or, at least, not one that was

clearly established, he is entitled to qualified immunity. The Court thus grants District

Defendants’ motion for summary judgment on Count II.

C. Common Law Claims Against District Defendants

Having addressed the Sherrods’ constitutional claims, the Court now turns to the

Sherrods’ common law claims against District Defendants. The Sherrods assert the following

claims: (1) assault; (2) false arrest and imprisonment; (3) malicious prosecution; (4) negligence;

(5) negligent infliction of emotional distress; and (6) intentional infliction of emotional distress. 8

District Defendants argue that they are entitled to summary judgment on all of the claims. The

Court will address each in turn.

1. Assault

First, the Court addresses the Sherrods’ Count VII claim that Detective McHugh is liable

for assault. SAC ¶¶ 91–94. As noted in this Court’s prior memorandum opinion, “to

successfully plead assault, a plaintiff must plausibly show that the defendant intentionally

created ‘an imminent apprehension of . . . a harmful or offensive . . . contact,’ and that the

plaintiff did indeed experience such an apprehension.” 9 Sherrod, 2017 WL 627377, at *5

(quoting Jackson v. District of Columbia, 412 A.2d 948, 956 (D.C. 1980)); accord Evans-Reid v.

District of Columbia, 930 A.2d 930, 937 (D.C. 2007). A defendant acts intentionally if he knows

8 The Sherrods argue that the District of Columbia is vicariously liable for Detective McHugh’s actions taken in his capacity as an MPD officer. See, e.g., Blakeney v. O’Donnell, 117 F. Supp. 3d 6, 19 (D.D.C. 2015); SAC ¶ 152. District Defendants do not contest that theory of liability. 9 The parties do not dispute that District of Columbia law applies to the Sherrods’ common law causes of action.

40 with substantial certainty that a harmful or offensive apprehension will result from his action.

See Konah v. District of Columbia, 915 F. Supp. 2d 7, 23 (D.D.C. 2013) (quoting Restatement

(Second) of Torts § 18, cmt. e). A tortfeasor may intentionally create such an apprehension

through the actions of a third party. See Restatement (Second) of Torts § 25, cmt.; accord Judah

v. Reiner, 744 A.2d 1037, 1042 n.8 (D.C. 2000).

While these principles govern assault generally, “a police officer is privileged to use

force so long as the ‘means employed are not in excess of those which [he] reasonably believes

[are] necessary.’” Rogala v. District of Columbia, 161 F.3d 44, 57 (D.C. Cir. 1998)

(quoting Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C. 1993)). The officer's

judgment is to be reviewed “from the perspective of a reasonable officer on the scene,” with

allowance for the officer's need to make quick decisions under potentially dangerous

circumstances. Etheredge, 635 A.2d at 916 (quoting Graham v. Connor, 490 U.S. at 396–

97). This standard is similar to the excessive force standard applied in the 42 U.S.C. §

1983 context. See id. at 915 n.10.

The Sherrods allege that they were assaulted when “Defendant McHugh and/or police

officers acting on his behalf and/or direction” (1) “pointed shotguns at Plaintiffs who sat terrified

in their car”; and (2) “kicked down the door to Plaintiffs’ home in the middle of the night,

without first announcing themselves and allowing Plaintiffs the opportunity to answer, in order

to execute a search warrant that Defendant McHugh knew, or should have known, was invalid.”

Pls. Opp’n at 51–52; SAC ¶¶ 91–92. District Defendants’ summary judgment briefing regarding

the Sherrods’ assault claims is cursory, to say the least. They do not at all address the Sherrods’

41 allegation that they were assaulted during the stop and search of their car. 10 See Pls. Opp’n at

52. As to the Sherrods’ allegation that they were assaulted during the search of their home,

District Defendants argue that (1) the search was conducted pursuant to a warrant based on

probable cause; and (2) “Detective McHugh did not execute nor direct the forced entry of the

Sherrods’ front door.” Defs. Mem. at 40. Neither of these points entitle District Defendants to

summary judgment.

First, as discussed above, the existence of probable cause in this case turns on a factual

issue that must be resolved by the jury. Furthermore, even if the warrant authorizing the search

of the Sherrods’ home was supported by an accurate affidavit indicating probable cause, the

officers involved in that search, including Detective McHugh, still could have committed an

assault. See Hall v. District of Columbia, 73 F. Supp. 3d 116, 121 (D.D.C. 2014) (evaluating the

plaintiffs’ claims for assault and battery arising from an arrest, having already held that the

officers had probable cause to make the arrest); Jackson, 412 A.2d at 955 (“Even though the

arrest was lawful, a claim for assault and battery may be established if excessive force was used

to maintain the arrest.”).

Second, in its prior Memorandum Opinion, this Court rejected District Defendants’

argument that Detective McHugh could not be liable for assault as a matter of law because he did

not personally breach the Sherrods’ front door with his gun drawn. As the Sherrods correctly

note, Pls. Opp’n at 53, the Court explained that “if a defendant acts knowing with substantial

certainty that his actions will cause a third party to create the apprehension of imminent harmful

10 An argument not raised in a movant’s opening brief is waived. See New York v. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005); Verizon Tel. Cos. v. FCC, 292 F.3d 903, 911–12 (D.C. Cir. 2002).

42 or offensive contact in another, he is liable for assault.” Sherrod, 2017 WL 627377, at *5. In his

deposition, Detective McHugh stated that:

PG County uses their SWAT team for every violent-crime-related warrant that they do. And they do just go knock on the door. If they don’t get an answer, they knock down the door. They go in, body armor, helmets, flash bangs.

McHugh Dep. 208:20–209:3. While Detective McHugh also claimed that he “did not want [the

PG County police] to do that in this case,” id. 209:4–5, a reasonable jury could infer from this

testimony that he knew that the home search was likely to be traumatizing to an elderly couple

such as the Sherrods. See Konah, 915 F. Supp. 2d at 23. Furthermore, Mrs. Sherrod testified

that the officers conducted the search late in the evening while the Sherrods “cowered inside

their home, suspecting a home invasion.” Vashti Sherrod ROG at 18.

A reasonable jury could therefore conclude that Detective McHugh intentionally created

“an imminent apprehension of (a harmful or offensive) contact” through the actions of the Prince

George’s County Police Department. Jackson, 412 A.2d at 956 (quoting Restatement (Second)

of Torts § 21(a)). A reasonable jury could also conclude that even if the Prince George’s County

officers on the scene did not use unconstitutionally unreasonable force, Officer McHugh could

have committed an assault in initiating the search, given his knowledge of the security video.

See Flythe v. District of Columbia, 791 F.3d 13, 18 (D.C. Cir. 2015) (noting that at trial, the jury

found an officer liable for assault but not excessive force); Qutb v. Ramsey, 285 F. Supp. 2d 33,

51 (D.D.C. 2003) (holding that the defendant officer’s “gratuitous” physical contact with the

plaintiff was not privileged, although it did not violate the Fourth Amendment). Finally, because

a reasonable jury could conclude that Detective McHugh acted unreasonably in seeking the

search warrant, he is not entitled to the common law privilege. See Rogala, 161 F.3d at 57.

Accordingly, the Court denies District Defendants’ motion for summary judgment on the

Sherrods’ assault claims.

43 2. Malicious Prosecution

Second, the Court addresses the Sherrods’ claims in Counts VI and XIII that Detective

McHugh and the District are liable for common law malicious prosecution arising from the arrest

and prosecution of Mrs. Sherrod. SAC ¶¶ 87, 143. Under District of Columbia law, a plaintiff

alleging malicious prosecution must prove (1) a criminal proceeding instituted or continued by

the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3)

absence of probable cause for the proceeding; and (4) malice, defined as “a primary purpose in

instituting the proceeding other than that of bringing an offender to justice.” 11 DeWitt v. District

of Columbia, 43 A.3d 291, 296 (D.C. 2012) (quoting Jarett v. Walker, 201 A.2d 523, 526 (D.C.

1964)); see also Moore v. United States, 213 F.3d 705, 710 (D.C. Cir. 2000). As District

Defendants correctly note, “[l]ack of probable cause is an essential element [of a malicious

prosecution claim] and a showing of probable cause is thus a valid defense which warrants a

directed verdict for the defendants." Defs. Mem. at 61 (quoting Ammerman v. Newman, 384

A.2d 637, 639 (D.C. 1978)). Additionally, “[t]he determination of malice is ‘exclusively for the

factfinder,’ and ‘the requisite malice can be established from the existence of a willful, wanton,

reckless, or oppressive disregard for the rights of the plaintiff.’” Pitt, 491 F.3d at 504 (quoting

Tyler v. Cent. Charge Serv., Inc., 444 A.2d 965, 969 (D.C. 1982)); see Amobi, 755 F.3d at 993

(noting that “it is axiomatic that malice may be presumed from the lack of probable cause”).

Parroting their argument regarding the Sherrods’ constitutional malicious prosecution

claim, District Defendants argue that this claim fails for two reasons: (1) “Detective McHugh

had probable cause to believe that Mrs. Sherrod assaulted Mrs. Schulz”; and (2) “Plaintiff cannot

11 District Defendants do not dispute that a criminal proceeding was instituted against Mrs. Sherrod, and that it was terminated in her favor.

44 prove malice.” Defs. Mem. at 62. 12 The Sherrods counter that despite an “utter lack of probable

cause, Detective McHugh continued to pursue a criminal investigation of the Sherrods,” and that

this “unfounded investigation culminated in Mrs. Sherrod’s arrest pursuant to an invalid arrest

warrant,” rendering Detective McHugh and the District liable for malicious prosecution. Pls.

Opp’n at 49. The Court concludes that a reasonable jury may agree with the Sherrods.

As discussed above, under the Sherrods’ version of events, Detective McHugh lacked

probable cause to search and arrest the Sherrods. Furthermore, while the record may not directly

indicate that Detective McHugh acted with malice, the jury may infer it from the facts. In Pitt,

for instance, evaluating a similar malicious prosecution claim against officers who submitted a

misleading warrant affidavit, the D.C. Circuit held that “a reasonable jury could have concluded

that [the defendant officers] acted with malice because the arrest report and the affidavit

submitted to prosecutors contained several material misstatements and omissions.” 491 F.3d at

504. In particular, the affidavit mischaracterized the timeline of events underlying the officers’

arrest of the plaintiff shortly after the crime was committed, and it failed to include information

suggesting that the plaintiff was not the perpetrator. Id. at 504–05.

Similarly, under the Sherrods’ characterization of events here, Detective McHugh

repeatedly failed to note in his affidavits that the security video contradicted Ms. Schulz’s

12 District Defendants also make the conclusory argument that District Defendants “had no involvement in bringing criminal charges against Plaintiff.” Defs. Mem. at 61. However, Detective McHugh drafted the complaint against Mrs. Sherrod, supplied the affidavit underlying Mrs. Sherrod’s arrest warrant, and testified at her preliminary hearing. Vashti Sherrod ROG at 19–21; Pls. Opp’n Ex. 24, ECF No. 76-27; Pls. Opp’n Ex. 25. “‘[A]ppearing in court and testifying and keeping the prosecution alive’ creates a genuine issue of fact as to whether a defendant continued a malicious prosecution.” Amobi, 755 F.3d at 992 (quoting Viner v. Friedman, 33 A.2d 631, 632 (D.C.1943)); see also Cousins v. Hathaway, 2014 WL 4050170, at *11 (D.D.C. Aug. 15, 2014). Moreover, the District may be held vicariously liable for Detective McHugh’s involvement because it was undertaken while Detective McHugh acted within the scope of his employment. Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C. 2007).

45 accusation and he repeatedly mischaracterized the timeline of events captured by the video,

suggesting that Ms. Schulz took actions more consistent with having been threatened by a gun

than what the video shows. See Defs. Mem. Ex. 14, Ex. 17. A reasonable jury could conclude

that these misstatements and omissions indicate that Detective McHugh had a “reckless

disregard” for Mrs. Sherrod, and therefore acted with malice. Pitt, 491 F.3d at 504.

Accordingly, because the existence of probable cause here hinges on a dispute of fact, and

because a reasonable jury may infer malice on the part of Detective McHugh, the Court denies

District Defendants’ motion for summary judgment on this claim.

3. False Arrest and False Imprisonment

Third, the Court addresses the Sherrods’ claims in Counts IV, V, and XII that District

Defendants are liable for common law false arrest and false imprisonment. SAC ¶¶ 76, 81, 133.

To support a viable claim of false arrest, a plaintiff must allege that she was unlawfully

detained. See Dent v. May Dep't Stores Co., 459 A.2d 1042, 1044 (D.C. 1982) (“The gist of any

complaint for false arrest or false imprisonment is an unlawful detention.”). 13 The concept of

“arrest” is substantially malleable, and “[c]onfinement, no matter how brief, suffices to establish

a prima facie case of false arrest.” Marshall v. District of Columbia, 391 A.2d 1374, 1381 (D.C.

1978). “The plaintiff must produce evidence showing ‘a restraint against [his] will, as where

[he] yields to force, to the threat of force or to the assertion of authority.’” Dingle v. District of

Columbia, 571 F. Supp. 2d 87, 95 (D.D.C. 2008) (quoting Faniel v. Chesapeake and Potomac

Tel. Co. of Maryland, 404 A.2d 147, 152 (D.C. 1979)).

13 Under District of Columbia law, “‘[f]alse arrest’ is indistinguishable as a practical matter from the common law tort of ‘false imprisonment.’” Enders v. District of Columbia, 4 A.3d 457, 461 (D.C. 2010).

46 “In actions for false arrest and false imprisonment, the central issue is whether the

arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the

arresting officer is privileged and the action fails.” Bradshaw, 43 A.3d at 323 (quoting Scott v.

District of Columbia, 493 A.2d 319, 321 (D.C. 1985)). “A police officer may justify an arrest by

showing that he or she had probable cause, in the constitutional sense, to make the

arrest.” District of Columbia v. Murphy, 631 A.2d 34, 36 (D.C. 1993). However, the officer

“need not demonstrate probable cause in the constitutional sense . . . it will suffice if the officer

can demonstrate that (1) he or she believed, in good faith, that his [or her] conduct was lawful,

and (2) this belief was reasonable.” Id. (alterations in original) (citation and internal quotation

marks omitted); see also Minch v. District of Columbia, 952 A.2d 929, 937 (D.C. 2008) (“The

Metropolitan Police Department is immune from claims for both false arrest and false

imprisonment if it can affirmatively demonstrate either that probable cause existed to arrest or

that the arresting officer believed, reasonably and in good faith, that probable cause existed.”).

District Defendants argue that Detective McHugh is immune from these claims under the

qualified privilege defense because “Detective McHugh had a good faith belief that his conduct

was lawful under the facts and circumstances he faced, probable cause existed to arrest the

Plaintiff Vashti Sherrod, and he did not arrest Plaintiff Eugene Sherrod.” 14 Defs. Mem at 39–40.

14 Under District of Columbia law, an arrest occurs “where a show of authority or actual force by an officer would lead a reasonable person to conclude he was not free to leave.” In re D.T.B., 726 A.2d 1322, 1235 (D.C. 1999) (citing In re J.M., 619 A.2d 497, 500 (D.C. 1992); Johnson v. United States, 468 A.2d 1325, 1327 (D.C.1983)). During the search of the Sherrods’ home, in which Detective McHugh participated, Mr. Sherrod was allegedly handcuffed, surrounded by officers with guns drawn, and not free to leave. Vashti Sherrod ROG at 18; McHugh Dep. 213:19–20. A reasonable jury could conclude, on the basis of these facts, that Detective McHugh arrested Mr. Sherrod. See In re D.T.B., 726 A.2d at 1234–36 (holding that the appellant had been seized where an officer, with a service firearm at his waist, blocked the only exit to a room and ordered the appellant, in a “stern voice,” to “come here”); Scott v.

47 The Sherrods respond that whether Detective McHugh “reasonably could have believed that

there was probable cause to arrest” the Sherrods, and is therefore entitled to the qualified

privilege defense, “is inherently an issue of fact for the jury to decide.” Pls. Opp’n at 50–51.

The Sherrods are correct again.

If there is a dispute regarding the key facts underlying a probable cause determination,

courts typically conclude that they cannot make a qualified privilege determination at the

summary judgment stage. For instance, in Bradshaw, the District of Columbia Court of Appeals

evaluated whether a defendant officer was entitled to the qualified privilege, where the officer

gave conflicting testimony regarding whether he was told before he arrested the plaintiff that the

plaintiff had committed a crime. 43 A.3d at 325–26. The District of Columbia Court of Appeals

concluded that “we cannot say as a matter of law either that the [witness’s] communication gave

[the officer] probable cause to believe that [the plaintiff] had committed an arrestable offense, or

that the inference (if that is what it was) that [the officer] drew from the [witness's] statement or

‘motion’—the inference that [the plaintiff] had tried to fight another patron—was a reasonable

one.” Id. at 327; see Amobi, 755 F.3d at 991 (holding that the defendant officers who misstated

the information underlying the plaintiff’s arrest warrant were not entitled to summary judgment

because “[f]ailing to disclose . . . material facts evinces a lack of good faith”); Mazloum v.

District of Columbia Metro. Police Dep't, 576 F. Supp. 2d 25, 34–35 (D.D.C. 2008) (“The jury,

then, might reasonably have decided that—given the facts known to the officers at the time (as

construed by the jury)—the officers could not have credibly determined that [the plaintiff] . . .

had committed or was about to commit a crime.”).

District of Columbia, 101 F.3d 748, 754 (D.C. Cir. 1996) (holding that the plaintiff had been arrested for purposes of a false arrest claim when the officers “had handcuffed him and placed him in a secure transport vehicle; in no sense was he free to leave”).

48 This case law dictates that the jury is entitled to weigh in on Detective McHugh’s

entitlement to the qualified privilege defense. As discussed above, a reasonable jury could

conclude that the security video contradicted Ms. Schulz’s allegation, and that Detective

McHugh mischaracterized the video in his search and arrest warrant affidavits. Failing to

properly characterize the video, a material aspect of the probable cause determination, “evinces a

lack of good faith” on Detective McHugh’s part. Amobi, 755 F.3d at 991. Because at this stage

the Court cannot determine as a matter of law that Detective McHugh had “probable cause to

believe that [Mrs. Sherrod] had committed an arrestable offense, or that the inference (if that is

what it was) that [Detective McHugh] drew from the [security video] . . . was a reasonable one,”

it must deny District Defendants’ motion for summary judgment on the false arrest and

imprisonment claims. Bradshaw, 43 A.3d at 327.

4. Negligence

Fourth, the Court addresses the Sherrods’ claims in Counts VIII and XIV that District

Defendants are liable for negligence. SAC ¶ 100–103, 150–152. Under District of Columbia

law, “[t]he plaintiff in a negligence action bears the burden of proof on three issues: ‘the

applicable standard of care, a deviation from that standard by the defendant, and a causal

relationship between that deviation and the plaintiff's injury.’” Butera v. District of Columbia,

235 F.3d 637, 659 (D.C. Cir. 2001) (quoting Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.

1988)). To prove that a defendant deviated from the standard of care, a plaintiff must “put on

expert testimony to establish what that standard of care is if the subject in question is so

distinctly related to some science, profession, or occupation as to be beyond the ken of the

average layperson.” Messina v. District of Columbia, 663 A.2d 535, 538 (D.C. 1995)

(quoting District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C. 1987)). In cases involving

49 allegations of police misconduct, including “excessive use of force, the applicable standard of

care is that of a reasonably prudent police officer.” Dormu v. District of Columbia, 795 F. Supp.

2d 7, 29 (D.D.C. 2011) (citing Smith v. District of Columbia, 882 A.2d 778, 788 (D.C. 2005)).

“Expert testimony to establish the applicable standard of care is required in such cases because

‘[t]he applicable standard of care in cases of this kind is beyond the ken of the average lay

juror.’” Id. (quoting Etheredge, 635 A.2d at 917).

To establish a national standard of care, an expert must do more than rely on his own

experience or “simply . . . declare that the District violated the national standard of care.”

Butera, 235 F.3d at 659 (quoting Clark v. District of Columbia, 708 A.2d 632, 635 (D.C. 1997))

(internal quotation marks omitted). Rather, the expert “must refer to commonly used police

procedures, identifying specific standards by which the jury could measure the defendant's

actions.” Id. (citing Scott, 101 F.3d at 758); Doe v. Dominion Bank of Washington, 963 F.2d

1552, 1563 (D.C. Cir. 1992); Phillips v. District of Columbia, 714 A.2d 768, 775 (D.C. 1998));

see also Hargraves v. District of Columbia, 134 F. Supp. 3d 68, 95–96 (D.D.C. 2015). In so

doing, however, the expert need not “enumerate the facilities across the country at which that

standard is in effect.” District of Columbia v. Wilson, 721 A.2d 591, 599 (D.C. 1998).

District Defendants argue that they are entitled to summary judgment on these claims

because the Sherrods have failed to establish a standard of care and have failed to establish a

breach of that standard. Defs. Mem. at 40–43. While the Sherrods have submitted an expert

report by Dr. Phillip Hayden, as required to establish the standard of care in a typical police

negligence case, District Defendants argue that the report is so deficient that the Court should

50 disregard it. Id. 15 District Defendants also argue that the Sherrods cannot show that Detective

McHugh “deviat[ed] from the appropriate” standard of care. Defs. Mem. at 43. Having

considered the case law and the Sherrods’ expert report, the Court concludes that the report

meets the criteria necessary to establish the applicable standard of care, and that a reasonable

jury could conclude that Detective McHugh breached that standard in certain respects during the

investigation. The Court therefore denies District Defendants’ motion with respect to the

negligence claims.

a. Reliance on Policies and Procedures

First, District Defendants challenge Dr. Hayden’s reliance on certain policies and

procedures in formulating his report. Specifically, they challenge Dr. Hayden’s reliance on (1)

the International Association of Chiefs of Police (“IACP”) Concepts and Issues Papers; (2)

certain IACP model policies; and (3) MPD policies, including its General Orders. Defs. Mem. at

45–47. District Defendants argue that none of these sources are sufficient to establish a standard

of care against which Detective McHugh’s actions may be compared. Id. Predictably, the

Sherrods argue that “[g]iven the numerous concrete bases for his expert testimony, under District

of Columbia law, Dr. Hayden’s analysis of the policies of police departments nationwide and the

model policies of the IACP is sufficient to establish the national standard of care.” Pls. Opp’n at

60–61 (internal quotation marks and citation omitted).

The Court concludes that Dr. Hayden’s report, while rather cursory, sufficiently

establishes a standard of care for Detective McHugh’s investigation. The Sherrods have

15 District Defendants argue both that Dr. Hayden’s report is insufficient to establish the elements of the Sherrods’ negligence claim, and that it should be excluded as inadmissible under Federal Rule of Evidence 702. Defs. Mem. at 42–43. Because the Sherrods make certain similar arguments in their motion to exclude District Defendants’ expert report, the Court will discuss those arguments together below.

51 presented Dr. Hayden as an expert based on his forty-eight years of law enforcement experience,

which included experience as a SWAT commander and as a police tactics instructor. Hayden

Report at 3, Defs. Mem. Ex. 21, ECF No. 68-23. Rather than relying on this experience in the

abstract to proffer a national standard of care, Dr. Hayden set forth concrete bases for his expert

testimony: his review of the MPD’s General Orders, his consultation with personnel from

hundreds of law enforcement agencies, and his assessment of

the principles of police practices, policies, and procedures as thoroughly discussed by several national law enforcement organizations, including: The IACP, Federal Bureau of Investigation the Force Science Research Center, the National Officer Tactical Association, the Commission on Accreditation for Law Enforcement Agencies, Inc., the Institute for the Prevention of In-Custody Deaths, Inc. and Americans for Effective Law Enforcement.

Hayden Report at 2–3. See Butera, 235 F.3d at 660 (holding that the plaintiff’s expert

established a national standard of care where he relied on “his consultation with police officers in

Prince George’s County, his review of the MPD's General Orders, and his examination of the

U.S. Department of Justice Drug Enforcement Administration Handbook and Manual, and the

Narcotics Investigators' Manual of the Institute of Police Technology and Management,

University of North Florida, which provides training for police officers.”).

District Defendants’ arguments to the contrary are again conclusory. They challenge Dr.

Hayden’s reliance on certain IACP model policies as being not reflective of actual police

practice, Defs. Mem. at 43–45, but Dr. Hayden’s report and declaration make clear that Dr.

Hayden concluded that the model policies were substantially similar to policies adopted by a

number of law enforcement agencies throughout the United States. 16 Decl. of Philip Hayden

16 Moreover, District Defendants’ expert, Lewis R. Hicks, also relies on IACP policies. See Pls. Mot. Limine Exclude Trial Testimony Lewis R. Hicks (“Hicks Mem.”) Ex. A at 8, ECF No. 65-3.

52 (“Hayden Dec.”) ¶ 6–9, ECF No. 76-15. District Defendants cite one case with respect to the

IACP policies, and that case supports the proposition that such policies may be used to establish

a standard of care. See Hetzel v. United States, No. 91-2986, 1993 WL 294794, *3–4 (D.D.C.

June 1, 1993). Furthermore, District Defendants concede that MPD General Orders “may have

some bearing on the applicable standard of care,” particularly where, as here, they are not relied

upon exclusively. Defs. Mem. at 46–47; see also Dormu, 795 F. Supp. 2d at 29 (holding that

“internal guidelines and policies do not establish a standard of care . . . but may properly be

received in evidence as bearing on the standard of care” (citations and internal quotation marks

omitted)). District of Defendants’ sufficiency challenge fails.

b. Reliance on Dr. Klotz’s Report

Second, District Defendants challenge Dr. Hayden’s reliance on a report by Robert Klotz,

the Sherrods’ previous police practices expert. Defs. Mem. at 43–45. They claim that such

reliance is improper under Federal Rule of Evidence 703, which authorizes an expert to rely on

information that is otherwise inadmissible in evidence only if it is “of a type reasonably relied

upon by experts in the particular field in forming opinions or inferences upon the subject.” Id. at

44 (quoting In re A.B., 999 A.2d 36, 42 (D.C. 2010)); see also Fed. R. Evid. 703. According to

District Defendants, “neither Mr. Klotz nor his report” are the types of information that Dr.

Hayden may rely upon under Rule 703. However, they cite only one District of Columbia Court

of Appeals case in support of this rather conclusory argument, In re A.B., and that case supports,

rather than undercuts, Dr. Hayden’s citations to Dr. Klotz’s findings.

In In re A.B., the District of Columbia Court of Appeals considered whether a doctor

lacking expertise in genetics could rely on a geneticist’s report in rendering an opinion on

whether an individual suffered from a genetic disorder. 999 A.2d at 41. In allowing the expert’s

53 reliance on the geneticist, the court noted that the expert was sufficiently qualified to opine on

the genetics issue on her own, despite her lack of specialization, and that while an expert “is not

permitted to be the [mere] mouthpiece of [an expert] in a different specialty,” in most cases

“objections to the reliability of out-of-court material relied upon by [an expert witness] will be

treated as affecting only the weight, and not the admissibility, of the evidence.” Id. at 43

(citations and internal quotation marks omitted).

Similarly, here, District Defendants have not sufficiently demonstrated that Dr. Hayden’s

report is “the mere mouthpiece” of Dr. Klotz. District Defendants do not challenge Dr. Hayden’s

qualifications to render his own opinion on Detective McHugh’s practices. See generally Defs.

Mem. They also “overstate[] the extent to which [Dr. Hayden] relied on [Dr. Klotz’s] findings,”

In re A.B., 999 A.2d at 41, as Dr. Hayden cites Mr. Klotz’s report only three times in his nine-

page report, and two of those citations appear to merely be in support of his independent opinion.

See Hayden Report at 3, 4. These citations do not raise a question of whether Dr. Hayden “lacks

an adequate foundation for [his] opinion apart from the judgment of the other expert,” In re A.B.,

999 A.2d at 41, and the Court therefore declines to strike Dr. Hayden’s report on these

grounds. 17

17 District Defendants also argue, with no legal support, that “any reference to the opinions held by Mr. Klotz should be excluded under Rule 403 because its probative value is outweighed by the unfair prejudice to the Defendants who had no opportunity to depose Mr. Klotz.” Defs. Mem. at 44–45. Because Dr. Hayden merely cites Dr. Klotz’s report in support of his own opinions, rather than as independent evidence, and because the Defendants have had the opportunity to depose Dr. Hayden, the Court fails to see how those citations prejudice the Defendants. See Dormu, 795 F. Supp. 2d at 28 n.16 (holding that a party’s late-filed affidavit did not prejudice the opposing party because it “sets forth references, not new opinions, and therefore does not blindside defendants with new information”). The Court therefore declines to exclude Dr. Hayden’s citations to Dr. Klotz’s report. But that is not to say that Dr. Klotz’s report itself would be admissible at trial.

54 c. Dr. Hayden’s Opinions

Third, failing to successfully argue that Dr. Hayden’s report does not establish the

standard of care, District Defendants argue that Dr. Hayden’s report “offers opinions that have

no relevance to the claims in this case, are based on misleading factual scenarios, lacks a factual

basis, represents his personal opinions, and are purely speculative.” Defs. Mem. at 47. In other

words, District Defendants argue that “[Dr.] Hayden fails to meet his burden of proving that Det.

McHugh’s conduct during his criminal investigation deviated from the standard of care relating

to police practices.” Defs. Mem. at 47. As explained in further detail below, in the Court’s

discussion of the Sherrods’ motions in limine, these arguments go to the weight of Dr. Hayden’s

testimony rather than its admissibility. They are not appropriate for the summary judgment

stage. 18

A reasonable jury may conclude that Detective McHugh should have known that the

security video contradicted Ms. Schulz’s allegation, or at the very least that the video warranted

additional investigatory steps before Detective McHugh searched the Sherrods’ car and home

and arrested Mrs. Sherrod. The jury may credit Dr. Hayden’s testimony in reaching this

conclusion, or it may discount Dr. Hayden’s testimony in favor of District Defendants’ expert.

Either way, the jury is “the arbiter of disputes between conflicting opinions” and “questions

relating to the bases and sources of an expert's opinion affect the weight to be assigned

that opinion rather than its admissibility and should be left for the jury's consideration.” Viterbo

18 That said, as discussed in further detail below, because Detective McHugh acted constitutionally in issuing the car stop bulletin, District Defendants are entitled to summary judgment on the Sherrods’ assertion that Detective McHugh was negligent in issuing the bulletin without “good cause.” Hayden Report at 7.

55 v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). District Defendants are not entitled to

summary judgment merely because they disagree with Dr. Hayden’s conclusions.

5. Negligent Infliction of Emotional Distress

Fifth, the Court assesses the Sherrods’ claims in Counts IX and XV that District

Defendants are liable for negligent infliction of emotional distress (“NIED”) arising from the car

stop, home search, and arrest of Mrs. Sherrod. SAC ¶¶ 108–17, 154–62. To state a cognizable

NIED claim under District of Columbia law, a plaintiff must show that (1) the plaintiff was in a

zone of physical danger; (2) which was created by the defendant’s negligence; (3) the plaintiff

feared for her own safety, and (4) the plaintiff’s emotional distress was serious and

verifiable. 19 See Rice v. District of Columbia, 774 F. Supp. 2d 25, 33 (D.D.C. 2011). For

plaintiffs to be in the zone of physical danger, a defendant must have “actually expose[d] them to

danger.” Arias v. DynCorp, 752 F.3d 1011, 1018 (D.C. Cir. 2014) (citing Williams v. Baker, 572

A.2d 1062, 1064 (D.C. 1990)).

Considering the “strong public policy considerations [that] counsel against imposing

‘virtually infinite liability’ for negligent conduct,” the “zone of danger” test is stringent. Mackey

v. United States, 8 F.3d 826, 831 (D.C. Cir. 1993) (quoting Cauman v. George Washington

Univ., 630 A.2d 1104, 1107 (D.C. 1993)). That said, showing reasonable fear for one’s safety

suffices to satisfy the “zone of danger” element. See Asare v. LM-DC Hotel, LLC, 62 F. Supp.

3d 30, 35 (D.D.C. 2014). Such a fear may be based upon “a high risk . . . of physical impact.”

Golden v. World Sec. Agency, Inc., 884 F. Supp. 2d 675, 697 (N.D. Ill. 2012). “A classic

example is that of the reckless driver who speeds by a pedestrian, missing her by only inches.”

19 District Defendants do not dispute that the Sherrods suffered serious and verifiable emotional distress.

56 Arias, 752 F.3d at 1017. In the context of false arrests, depending on the circumstances of the

arrest “[a] reasonable jury could . . . conclude[] . . . that . . . [an officer’s] negligent conduct in

effecting [a] false arrest . . . create[s] a zone of danger and caused [the arrestee] to fear for [the

arrestee’s] safety, resulting in emotional distress.” David v. District of Columbia, 436 F. Supp.

2d 83, 90 (D.D.C. 2006).

District Defendants argue that they are entitled to summary judgment on these claims

because “Detective McHugh did not cause Plaintiffs’ [sic] to be in fear of physical harm.” Defs.

Mem. at 67. More specifically, District Defendants contend that with respect to the car stop,

Detective McHugh “did not direct the Capitol Police to approach the Sherrods with shot guns or

their service weapons pointed at the car,” and with respect to the home search, Detective

McHugh “did not direct the actions of the Prince George’s County police.” Id. Unsurprisingly,

the Sherrods contend that “there are issues of material fact regarding Plaintiffs’ NIED claims

which require the denial of the summary judgment on this issue.” Pls. Opp’n at 88. District

Defendants are correct in part.

As discussed above, the Court has concluded that Detective McHugh’s car stop bulletin

did not violate the Sherrods’ constitutional rights because Detective McHugh had reasonable

suspicion—at the time he issued the bulletin—that Mrs. Sherrod had committed an assault with a

deadly weapon. The Sherrods appear to claim that Detective McHugh was negligent in issuing

the bulletin because he lacked “good cause,” Hayden Report at 7, but the Court’s conclusion

disposes of that theory. Accordingly, Detective McHugh cannot be liable for NIED resulting

from the Capitol Police’s actions taken while stopping the Sherrods’ car, because the Sherrods

have failed to show that Detective McHugh was negligent in prompting that stop. See Harris v.

U.S. Dep’t of Veteran Affairs, 776 F.3d 907, 917 (D.C. Cir. 2015) (holding that “probable cause

57 for arrest defeats [NIED] claims” arising from the mere fact of the arrest); Hargraves v. District

of Columbia, 134 F. Supp. 3d 68, 95–96 (D.D.C. 2015) (holding that because the defendant

officers properly effected a Terry stop, their “conduct did not amount to any deviation from the

standard of care by either defendant officer” that could support a claim for NIED).

Moreover, a reasonable jury could not conclude that Detective McHugh placed Mrs.

Sherrod in a zone of physical danger during her arrest. As discussed above, Mrs. Sherrod

surrendered to Detective McHugh following the issuance of an arrest warrant, at which point she

was fingerprinted, handcuffed, temporarily jailed, and then released the same day after a hearing

before a magistrate judge. Vashti Sherrod ROG at 20–21; Defs. Mem. Ex. 18; Pls. Opp’n Ex.

14, Ex. 15. She was accompanied by her lawyer when she surrendered, and the record indicates

that she spent only a short period of time in jail. Vashti Sherrod ROG at 20–21. She has not

alleged, nor provided evidence, that she was in any physical danger during the arrest or that she

reasonably feared physical danger, only that the arrest was emotionally traumatic. 20 See SAC ¶

113 (alleging that Detective McHugh caused Mrs. Sherrod “to experience extreme humiliation

when she was forced to appear in shackles before the D.C. Superior Court”). Mrs. Sherrod’s

“claim that [she] suffered psychological injury is not, ‘in the absence of physical injury or

impact,’ enough” to show that Detective McHugh placed her in a zone of physical danger.

Minch v. District of Columbia, 952 A.2d 929, 942 (D.C. 2008) (quoting Waldon v.

Covington, 415 A.2d 1070, 1076 (D.C. 1980)); see also Drejza v. Vaccaro, 650 A.2d 1308, 1312

20 The Sherrods do allege that Mrs. Sherrod experienced “extreme fear for her physical safety” during the arrest, SAC ¶ 113, but this conclusory assertion is unsupported by the record and is not sufficient at the summary judgment stage to show that Mrs. Sherrod’s fear was reasonable. See Montgomery v. Risen, 875 F.3d 709, 713 (D.C. Cir. 2017) (“[P]arty assertions ‘so conclusory’ as to put a jury in ‘no position to assess’ whether they are based in fact will not suffice”) (quoting Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999)).

58 n.9 (D.C. 1994) (rejecting NIED claim by rape victim subjected to verbal, but not physical, abuse

during investigation by police officer at police station). Accordingly, District Defendants are

entitled to summary judgment on this claim.

However, to the extent the Sherrods’ claim arises from Detective McHugh’s search of the

Sherrods’ home, the claim survives. Again, as discussed above, a reasonable jury may conclude

that Detective McHugh knew or should have known that he lacked probable cause to search the

Sherrods’ home after viewing the security video, and that he at the very least negligently

mischaracterized the security video in his affidavits in support of the search warrant. Pursuant to

those negligently obtained warrants, officers breached the Sherrods’ door with guns drawn,

causing the Sherrods to fear a break-in. See Gregory v. Burnett, 577 Fed. Appx. 512, 520 (6th

Cir. 2014) (holding that the plaintiff’s NIED claim arising from an arrest should survive

summary judgment because the jury could conclude, based on a video, that the defendant officer

lacked probable cause to effect the arrest). Accordingly, because the Sherrods’ NIED claim

survives with respect to the home search but not the car search or arrest of Mrs. Sherrod, the

Court grants in part District Defendants’ motion for summary judgment on the Sherrods’ NIED

claim.

6. Intentional Infliction of Emotional Distress

Sixth, and finally, the Court assesses the Sherrods’ claims in Counts X and XVI that

District Defendants are liable for intentional infliction of emotional distress (“IIED”) arising

from the car stop, home search, and arrest of Mrs. Sherrod. SAC ¶¶ 118–23, 163–70. Under

District of Columbia law, to establish a prima facie case of IIED, a plaintiff must show “(1)

extreme and outrageous conduct on the part of the defendants, which (2) intentionally or

recklessly (3) cause[d] the plaintiff severe emotional distress.” Competitive Enter. Inst. v. Mann,

59 150 A.3d 1213, 1260 (D.C. 2016) (quoting Williams v. District of Columbia, 9 A.3d 484, 493–94

(D.C. 2010)). The conduct must be “so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.” Id. (quoting Williams, 9 A.3d at 494); see also Cooke-Seals v.

District of Columbia, 973 F. Supp. 184, 188 (D.D.C. 1997). In other words, “[t]he requirement

of outrageousness is not an easy one to meet.” Drejza v. Vaccaro, 650 A.2d 1308, 1312 (D.C.

1994).

In seeking summary judgment on these claims, District Defendants argue that the

Sherrods’ evidence “is insufficient to establish that Detective McHugh’s actions rose to the level

of extreme and outrageous conduct” necessary to support the claims. 21 Defs. Mem. at 64. The

Sherrods, on the other hand, argue that their evidence is “more than sufficient” to support IIED

liability. Pls. Opp’n at 80. The Court agrees.

While each individual step of Detective McHugh’s investigation alone may not have been

outrageous, a reasonable juror could conclude that the investigation, in totality, was. Drawing all

inferences in favor of the Sherrods, Detective McHugh mischaracterized the security video in

warrant affidavits and aggressively investigated the Sherrods when he knew or should have

known that the video contradicted Ms. Schulz’s allegation. This conduct is sufficient to raise an

IIED claim.

Courts applying District of Columbia law have held that false reporting causing police

action is sufficiently outrageous to state a claim for IIED. See Smith, 121 F. Supp. 3d 124–25

(holding that alleged misrepresentations by a defendant officer about the plaintiff were not

21 Again, District Defendants do not dispute that the Sherrods suffered severe emotional distress.

60 sufficiently outrageous only because “the alleged misrepresentations . . . were, at most,

an exaggeration of conduct that already justified arrest, and not a full-fledged fabrication of

criminal conduct”); District of Columbia v. Tulin, 994 A.2d 788, 802–03 (D.C. 2010) (holding

that the defendant officer’s false statement that the plaintiff caused a car accident was

sufficiently outrageous); Carter v. Hahn, 821 A.2d 890, 895 (D.C. 2003) (holding that

intentionally filing a false police report “may rise to [the] level” of outrageous conduct sufficient

to support an IIED claim). Moreover, Detective McHugh was aware that his actions were likely

to weigh especially hard on the Sherrods, considering their age. See McHugh Dep. 208:20–

209:8 (stating that he asked the Prince George’s County Police Department to use a smaller team

to search the Sherrods’ home “[c]onsidering the age of Mr. and Mrs. Sherrod”); see also Mann v.

Bahi, 242 F. Supp. 3d 6, 11–12 (D.D.C. 2017) (holding that offensive conduct may become

outrageous when “the tortfeasor has knowledge that the [victim] is peculiarly susceptible to

emotional distress, by reason of some physical or mental condition or peculiarity” (internal

quotation marks omitted) (quoting King v. Kidd, 640 A.2d 656, 668 (D.C. 1993)). Accordingly,

the Court denies District Defendants’ motion for summary judgment on the Sherrods’ IIED

D. Common Law Claims Against Ms. Schulz

The Court next turns to the Sherrods’ common law claims against Ms. Schulz. The

Sherrods assert claims for: (1) malicious prosecution; (2) intentional infliction of emotional

distress; and (3) negligence. The Court will again address each claim in turn.

Before the Court addresses the claims, however, it must address the Sherrods’ contention

that Ms. Schulz’s summary judgment arguments should be disregarded because she has not

provided “any factual or legal basis” for them. Pls. Opp’n at 75–76. The Court tends to agree

61 with the Sherrods. It is well established in this circuit that “perfunctory and undeveloped

arguments, and arguments that are unsupported by pertinent authority, are deemed waived.”

Johnston v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (citing Krupa v. Naleway, No. 06-

1309, 2010 WL 145784, *8 (N.D. Ill., Jan. 12, 2010); see Raines v. DOJ, 424 F. Supp. 2d 60, 66

n.3 (D.D.C. 2006) (noting that it is not the obligation of the court to research and construct legal

arguments open to parties, especially when they are represented by counsel). “It is not enough

merely to mention a possible argument in the most skeletal way, leaving the court to do

counsel’s work.” Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (quoting

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). That said, the Court will address the

merits of Ms. Schulz’s arguments.

1. Malicious Prosecution

First, the Court addresses the Sherrods’ claim in Count VI that Ms. Schulz is liable for

common law malicious prosecution. SAC ¶¶ 85–87. As discussed above, “four elements make

up the tort of malicious prosecution: (1) the defendant's initiation or procurement of a criminal

proceeding against the plaintiff; (2) absence of probable cause for the proceeding; (3) malicious

intent on the part of the defendant; and (4) termination of the proceeding in favor of the

plaintiff.” Moore, 213 F.3d at 710. With respect to the first element, “a person who ‘procures’ a

criminal proceeding may be liable for malicious prosecution.” Moore, 213 F.3d at 710. See also

Restatement (Second) of Torts § 653 (1977). “In order to find that a defendant procured a

prosecution, the plaintiff must establish ‘a chain of causation’ linking the defendant's actions

with the initiation of criminal proceedings.” Id. (quoting Dellums v. Powell, 566 F.2d 167, 192

(D.C. Cir. 1977)).

62 Ms. Schulz argues—albeit without any legal support—that summary judgment is

appropriate on this claim because her actions “cannot be considered extreme and outrageous

conduct and/or intentionally reckless conduct,” and her “act of making a police report cannot be

considered the ‘proximate cause’ of [the Sherrods’] claim.” Schulz Mem. at 10–11. In response,

the Sherrods argue that, despite Detective McHugh’s actions taken without Ms. Schulz’s

involvement, Ms. Schulz’s “false police report” may still constitute the proximate cause of the

Sherrods’ injuries. Pls. Opp’n at 77–78. They also argue that the “act of filing a false criminal

police report” and the alleged use of a racial epithet during the initial altercation with the

Sherrods demonstrate the malice necessary to support a malicious prosecution claim. Id. at 76–

77.

Ms. Schulz’s argument that she did not “cause” the prosecution at issue here, Schulz

Mem. at 10, does not hold up against the principles laid out above. Her allegation that Mrs.

Sherrod threatened her with a gun—made to a 911 operator, Officer Patel, and Detective

McHugh—initiated Detective McHugh’s investigation and served as a basis for the arrest

warrant for Mrs. Sherrod. Schulz’s Statement ¶¶ 9–11; SUMF ¶¶ 34–37, 39, 72–77; Defs. Mem

Ex. 17. Ms. Schulz has supplied no evidence that the chain of causation between her allegedly

false accusation and Mrs. Sherrod’s arrest and the presentment of her case to the grand jury was

broken at any point during Detective McHugh’s investigation, and the record shows that her

accusation was used to justify each of Detective McHugh’s steps. See Logan v. Caterpillar, Inc.,

246 F.3d 912, 922 (7th Cir. 2001) (noting that “[l]egal causation will be attributed to a private

citizen [for purposes of a malicious prosecution claim] . . . if the plaintiff can demonstrate that

the defendant . . . knowingly made false statements to the police”); Moore, 213 F.3d at 711

(holding that postal inspectors could be liable for malicious prosecution if their false statements

63 to a grand jury witness caused that witness to implicate the plaintiff); Dellums, 566 F.2d at 192–

93 (holding that the defendant could be liable for malicious prosecution because he supplied

false information to prosecutors, leading to the filing of informations against the plaintiffs); Defs.

Mem. Ex. 18, ECF No. 68-20. Furthermore, the jury may infer malice from Ms. Schulz’s

allegedly false statement, and her failure to correct that statement when given the opportunity.

Pitt, 491 F.3d at 503–04; see Defs. Mem. Ex. 21. The Court therefore denies Ms. Schulz’s

motion for summary judgment on this claim.

2. Intentional Infliction of Emotional Distress

Second, the Court addresses the Sherrods’ claim in Count X that Ms. Schulz is liable for

intentional infliction of emotional distress. SAC ¶¶ 119–23. As discussed above, to establish a

prima facie case of intentional infliction of emotional distress, a plaintiff must show “(1) extreme

and outrageous conduct on the part of the defendants, which (2) intentionally or recklessly (3)

cause[d] the plaintiff severe emotional distress.” Competitive Enter. Inst., 150 A.3d at 1260.

Ms. Schulz unpersuasively argues that the Sherrods have failed to meet each of these

elements. First, Ms. Schulz claims that “an inaccurate police report cannot be deemed extreme

and outrageous conduct.” Schulz Mem. at 12. The Court does not agree. Drawing all inferences

in favor of the Sherrods, Ms. Schulz knowingly filed a false police report, and then failed to

retract that report when given an opportunity. As discussed above, this type of false statement is

sufficiently outrageous to support an intentional infliction of emotional distress claim. See

Smith, 121 F. Supp. 3d 125; Tulin, 994 A.2d at 802; Carter, 821 A.2d at 895; see also Amobi,

755 F.3d at 996 (holding that where the plaintiff alleged false and misleading statements

underlying an arrest, it “[i]s for the jury to determine whether the conduct has been sufficiently

extreme and outrageous to result in liability”). Next, Ms. Schulz claims that she did not cause

64 the Sherrods’ emotional distress. Schulz Mem. at 12. As discussed in the following section, this

argument fails as a matter of law. Finally, Ms. Schulz claims that she did not act with the

requisite intent. However, a jury may “infer the existence of the second element of the tort-intent

or recklessness-from the very outrageousness of a defendant's conduct.” Sere v. Group

Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) (citations omitted); see Harris, 776 F.3d at

917. The Court therefore denies Ms. Schulz’s motion for summary judgment on this claim.

3. Negligence

Third, the Court addresses the Sherrods’ claim in Count XVII that Ms. Schulz is liable

for negligence. SAC ¶¶ 172–75. Again, Ms. Schulz argues that she did not proximately cause

the Sherrods harm because Detective McHugh’s actions were an intervening cause of that harm.

Schulz Mem. at 14. Again, that argument fails.

As noted above, “[t]he plaintiff in a negligence action bears the burden of proof on three

issues: ‘the applicable standard of care, a deviation from that standard by the defendant, and a

causal relationship between that deviation and the plaintiff's injury.’” Butera v. District of

Columbia, 235 F.3d 637, 659 (D.C. Cir. 2001) (quoting Toy, 549 A.2d at 6). With respect to a

normal citizen, such as Ms. Schulz, “[a] uniform standard of care applies in actions for

negligence [in the District of Columbia]: reasonable care under the circumstances.” Sherrod,

2017 WL 627377 at *6 (quoting O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982)).

“Causation for purposes of [a] negligence claim entails a two-pronged inquiry: (1)

whether the defendant's alleged negligence was the ‘cause-in-fact’ of the plaintiff's injury, and

(2) whether the defendant proximately caused the injury or instead, despite cause-in-fact, should

be relieved of liability because the ‘chain of events leading to the plaintiff's injury is

unforeseeable or highly extraordinary in retrospect.’” Hall v. District of Columbia, 867 F.3d

65 138, 150 (D.C. Cir. 2017) (quoting Majeska v. District of Columbia, 812 A.2d 948, 950 (D.C.

2002)). Liability attaches to an individual who sets in motion harmful conduct performed by

another individual—such as Detective McHugh here—when “the danger of an intervening

negligent or criminal act should have been reasonably anticipated and protected against.” District

of Columbia v. Carlson, 793 A.2d 1285, 1290 (D.C. 2002) (quoting Lacy v. District of Columbia,

424 A.2d 317, 323 (D.C. 1980)).

The D.C. Circuit recently addressed a similar negligence action in Hall. The plaintiff

sued a restaurant after an employee called the police and falsely alleged that the plaintiff had

failed to pay a $1000 bill, which led the police to arrest the plaintiff with excessive force. 867

F.3d at 144–45. The district court granted summary judgment to the restaurant because, in its

view, the restaurant did not proximately cause the plaintiff’s injuries. Id. at 150. In reversing

that decision, the Circuit held that “a jury could find both that [the restaurant employee’s] call to

the police was the cause-in-fact of [the plaintiff’s] arrest, and that they should have foreseen that

their allegation of facts amounting to felony theft would cause an arrest and some associated

harm, satisfying the proximate cause requirement.” Id. The Circuit further concluded that:

A reasonable jury could find it foreseeable that an unjustified arrest, even without excessive force, would cause some modicum of the physical and emotional harm the record suggests [the plaintiff] experienced due to [the restaurant’s] 911 call. Arrest without justification can be deeply disturbing, and arrest itself often involves some physical discomfort, unnatural restraint, and forceful handling.

Id.

Drawing all inferences in favor of the Sherrods, Ms. Schulz falsely accused Mrs. Sherrod

of threatening her with a gun, and she made that unequivocal accusation to three different MPD

employees. Even if such actions were not knowing, a jury could easily conclude that they were

negligent. As reflected in the conversation Ms. Schulz had with her son, she was uncertain of

what had occurred from the start. Carafano Dep. 31:17–34:3 (stating that Ms. Schulz told her

66 son “I’m not sure if I really saw a gun . . . I’m not sure now”). But she conveyed none of these

uncertainties in the 911 call, to Officer Patel, or to Detective McHugh. See Hall, 867 F.3d at 150

(noting that there was “no evidence that [the defendant restaurant’s employees] told the police

that arrest was unnecessary”). On these facts, “a jury could find both that [Ms. Schulz’s] call to

the police was the cause-in-fact of [Mrs. Sherrods’] arrest [and the searches of the Sherrods’ car

and home], and that [she] should have foreseen that [her] allegation of facts amounting to

[assault with a deadly weapon] would cause an arrest and some associated harm, satisfying the

proximate cause requirement.” Id. The Court therefore denies Ms. Schulz’s motion for

summary judgment on this claim.

E. Punitive Damages

Fourth, and finally, the Court addresses the Sherrods’ Count XI claim for punitive

damages against Detective McHugh and Ms. Schulz. SAC ¶ 125–26. To be awarded punitive

damages under District of Columbia law, a plaintiff must show that the defendant's act was

committed “with an evil motive, actual malice, deliberate violence or oppression or otherwise

establish outrageous conduct in willful disregard for another's rights.” Dormu, 795 F. Supp. 2d

at 34 (quoting Calvetti v. Antcliff, 346 F.Supp.2d 92, 108 (D.D.C. 2004)). This requirement

reflects the fact that “punitive damages are not favored by courts.” Id. (citing King v. Kirlin

Enters., Inc., 626 A.2d 882, 884 (D.C. 1993)). Direct evidence is not necessary to prove the

requisite state of mind; rather, a defendant's state of mind “may be inferred from all the facts and

circumstances of the case.” Robinson v. Sarisky, 535 A.2d 901, 906 (D.C. 1988). As discussed

above in the Court’s discussion of the Sherrods’ malicious prosecution claim against Ms. Schulz,

a reasonable jury may conclude that Ms. Schulz’s allegedly false accusation was made with

malice, warranting punitive damages. Furthermore, District Defendants made no argument in

67 their briefs regarding this claim, and therefore cannot seek its dismissal. New York, 413 F.3d at

20. Accordingly, the Court denies both motions for summary judgment on this claim.

* * *

In summary, with respect to the parties’ motions for summary judgment, the Court holds

as follows. First, the Court grants District Defendants’ motion for summary judgment on (1) the

Sherrods’ constitutional, negligence, and NIED claims arising from the initial stop of the

Sherrods’ car by the Capitol Police; (2) the Sherrods’ excessive force claims arising from the

actions of the Prince George’s County police officers in entering the Sherrods’ home; and (3) the

Sherrods’ constitutional malicious prosecution and NIED claims arising from Mrs. Sherrod’s

arrest. Second, the Court denies District Defendants’ motion in all other respects. Third, the

Court denies Ms. Schulz’s motion for summary judgment in full.

V. THE SHERRODS’ MOTIONS IN LIMINE

In late 2017, the Sherrods filed motions to preclude the trial testimony of two witnesses:

(1) Shana Mell; and (2) Lewis R. Hicks. See generally Pls. Mot. Preclude Trial Testimony

Shana Mell (“Mell Mem.”), ECF No. 56; Pls. Mot. Limine Exclude Trial Testimony Lewis R.

Hicks (“Hicks Mem.”), ECF No. 65. The Court will now consider these motions, along with

District Defendants’ motion to exclude Dr. Hayden’s testimony.

A. Motion Regarding Shana Mell

The Court first considers the Sherrods’ motion to exclude the trial testimony of Shana

Mell. Ms. Mell is the MPD’s “policy writer,” and she intends to testify about her “[k]nowledge

of IACP and the extent to which MPD relies on IACP’s knowledge.” Defs.’ Suppl. Initial

Disclosures at 1, Mell Mem. Ex. 1, ECF No. 56. The Sherrods argue that she should be

foreclosed from testifying because District Defendants did not supplement their Federal Rule

68 26(a) disclosures to identify her as a trial witness until October 17, 2017, over one month after

the originally scheduled close of discovery. Mell Mem. at 3. District Defendants, however,

argue that the timing of their identification of Ms. Mell was reasonable because Ms. Mell’s

testimony is intended to address Dr. Hayden’s expert report, which was not produced until

September 30, 2017. District Defs.’ Mem. P. & A. Opp’n Mell Mem. (“Mell Opp’n”) at 5, ECF

No. 63. The Court agrees that the severe sanction of excluding Ms. Mell’s testimony is not

warranted here.

Under Federal Rule of Civil Procedure 26(a)(1)(A)(i) “a party must, without awaiting a

discovery request, provide to the other parties . . . the name and, if known, the address and

telephone number of each individual likely to have discoverable information—along with the

subjects of that information—that the disclosing party may use to support its claims or defenses,

unless the use would be solely for impeachment.” Federal Rule of Civil Procedure 37(c)(1)

allows a court to impose “appropriate sanctions,” including the exclusion at trial of any

information not disclosed pursuant to Rule 26(a), unless the failure to disclose is harmless or if

there was substantial justification for such failure. A Rule 37(c)(1) exclusion, however, is an

“extreme sanction” that should be used sparingly. Richardson v. Korson, 905 F. Supp. 2d 193,

200 (D.D.C. 2012). The circumstances here do not justify such a sanction.

First, as District Defendants note, Mell Opp’n at 6, by the time they identified Ms. Mell

as a trial witness the close of expert discovery had been extended to November 17, 2017. See

Min. Order Granting ECF No. 53, Pls. Consent Mot. Am. Scheduling Order, Sept. 13, 2017.

The Sherrods had one month to depose Ms. Mell before discovery would fully close, so her late

identification was arguably harmless.

69 Second, the Sherrods’ contention that District Defendants knew that they would rely on

Ms. Mell’s testimony as early as May 8, 2017, when the Sherrods disclosed Dr. Klotz’s report,

relies on a faulty assumption about the contents of Dr. Hayden’s report. Mell Mem. at 3. While

Dr. Klotz’s report relied heavily on IACP policies, the Sherrods have not shown that District

Defendants knew that Dr. Hayden’s report would similarly rely on IACP policies, rather than on

a completely different set of sources. District Defendants only learned of Dr. Hayden’s reliance

on IACP policies when the Sherrods produced his report on September 30, 2017, at which point

District Defendants identified Ms. Mell as the witness best suited to address the report.

Third, there are “less drastic” options available to cure any prejudice to the Sherrods from

the late identification of Ms. Mell. See Robinson v. District of Columbia, 75 F. Supp. 3d 190,

197 (D.D.C. 2014) (holding that, where a trial date had not been set and the harm of untimely

expert disclosure was relatively minor, “any possible prejudice to Plaintiff can be rectified by

allowing her more time to examine [the expert] in a deposition”); Richardson, 905 F. Supp. 2d at

200–01 (permitting additional discovery rather than excluding an untimely expert report).

Because the Court has not yet set a trial date, it will reopen discovery to allow the Sherrods to

depose Ms. Mell, and it will exercise its authority under Rule 37(c)(1) to require District

Defendants to bear the cost of that deposition. See Perkinson v. Gilbert/Robinson, Inc., 821 F.2d

686, 690 (D.C. Cir. 1987) (acknowledging that it was appropriate under Rule 37 for the district

court to order the defendant to bear the cost of a deposition).

B. Motions Regarding Lewis R. Hicks and Philip P. Hayden

The Court next considers each party’s motion to exclude the other party’s expert

testimony. The Sherrods challenge the qualifications, methodology, and certain opinions of

District Defendants’ expert witness, Lewis R. Hicks. See generally Hicks Mem. District

70 Defendants likewise challenge the methodology of the Sherrods’ expert witness, Dr. Hayden.

Defs. Mem. at 43–60. Each party argues that the other side’s expert should be excluded under

Federal Rule of Evidence 702. Having reviewed the expert reports, the Court concludes that

certain portions of both are inadmissible, but that neither expert should be entirely excluded.

Federal Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid.702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court

famously held that Rule 702 requires district courts to ensure that an expert's scientific testimony

“both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. 579, 597

(1993). Rule 702 therefore imposes a “gatekeeping” duty on this Court to exclude from trial

expert testimony that is unreliable and irrelevant. Kumho Tire Co. v. Carmichael, 526 U.S. 137,

147 (1999); Daubert, 509 U.S. at 589; see also, Ambrosini v. Labarraque, 101 F.3d 129, 133

(D.C. Cir. 1996). The Supreme Court ultimately extended the Daubert analysis to include any

expert testimony based on “technical” and “other specialized knowledge.” Kumho Tire, 526

U.S. at 152.

Pursuant to Rule 702, Daubert, and its progeny, when determining the admissibility of

expert testimony, the Court must consider: (1) whether the testimony is based upon sufficient

facts and data; (2) whether the testimony is the product of reliable principles and methods, i.e.

whether the reasoning and methodology underlying the expert's opinion is scientifically valid;

and (3) whether the witness has applied the principles and methods reliably to the facts of the

case. See generally Ambrosini, 101 F.3d at 133. Once the court is satisfied that the witness is an

71 expert within the meaning of Rule 702, “[u]nder Daubert the district court is required to address

two questions, first whether the expert's testimony is based on ‘scientific knowledge,’ and

second, whether the testimony ‘will assist the trier of fact to understand or determine a fact in

issue.’” Meister v. Med. Eng'g Corp., 267 F.3d 1123, 1126 (D.C. Cir. 2001) (quoting Daubert,

509 U.S. at 592). The party proffering the expert testimony bears the burden of showing its

admissibility under Rule 702. Daubert, 509 U.S. at 592 n.10.

1. The Experts’ Qualifications

The Court first considers whether the experts are sufficiently qualified to offer their

testimony. Rule 702 requires that an expert be qualified to testify on the basis of “knowledge,

skill, experience, training, or education[,]” and thus the Rule encompasses “not only experts in

the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group

sometimes called ‘skilled’ witnesses, such as bankers or landowners testifying to land

values.” Fed. R. Evid. 702 advisory committee's note (1972) (internal quotation marks and

citation omitted). While “a person who holds a graduate degree typically qualifies as an expert

in his or her field[,]” Khairkhwa v. Obama, 793 F. Supp. 2d 1, 11 (D.D.C. 2011), such formal

education is not required and “an expert may still be qualified on the basis of his or her practical

experience or training.” Rothe Dev., Inc. v. Dep’t of Def., 107 F. Supp. 3d 183, 196 (D.D.C.

2015) (quoting Robinson v. District of Columbia, No. 09-2294, 2014 WL 6778330, at *4 (D.D.C.

Dec. 2, 2014)).

As noted above, District Defendants do not appear to challenge Dr. Hayden’s

qualifications. The Sherrods, on the other hand, argue that Mr. Hicks “lacks the academic

credentials necessary to qualify” as an expert, Hicks Mem. at 10, and that he lacks the relevant

72 experience necessary to make up for his lack of credentials, Hicks Mem. at 8. The Court

disagrees.

Mr. Hicks has twenty years of experience in police training, and decades of military

experience before that. See Hicks Mem. Ex. A at 12–15. While it is true that much of his

experience appears to relate more to the use of force than investigation procedure, he has stated

that he has taught courses and taken courses in police procedure. Decl. of Lewis R. Hicks ¶¶ 2–

4, ECF No. 73-2. The Court cannot conclusively determine, based on the papers submitted, that

Mr. Hicks is not sufficiently qualified to discuss police investigation procedure under Rule 702.

The Court is somewhat hindered in its analysis due to the Sherrods’ strategic decision not to

depose Mr. Hicks, during which they could have developed a more complete record of his

qualifications. For now, the Court concludes that Mr. Hicks is qualified based on his practical

experience and training. Rothe Dev., 107 F. Supp. 3d at 196. Of course, at trial, the District will

have to lay the appropriate foundation for the admission of his expert testimony.

2. Interpretation of the Security Video

The Court next addresses whether the experts may testify as to the proper interpretation

of the security video. Both the Sherrods and District Defendants argue that the other side’s

expert either should not be allowed to interpret the video, Hicks Mem. at 15, or has improperly

interpreted the video, Defs. Mem. at 54–56. Predictably, the experts reach opposite conclusions

about what the security video shows, demonstrating the unhelpfulness of expert testimony on this

issue.

Although the Court is not aware of D.C. Circuit cases directly on point, other courts have

held that “when cases involve review of videotaped events, an expert’s opinion should not be

permitted when the expert is no better suited than the jury to interpret the video’s contents.”

73 Estate of Collins v. Wilburn, 253 F. Supp. 3d 989, 992 (E.D. Ken. 2017) (“[T]here is little need

for Plaintiff's expert to tell the jury whether the officers' actions were objectively reasonable

under the circumstances because a video captures the incident.”) (citations omitted); Dunlap v.

Hood, 2009 WL 362292 at * 1 (N.D. Tex. 2009) (“Because [the expert] is no better suited than

the jury to interpret the contents of the video [showing an alleged use of excessive force], his

supplemental opinion is not the proper subject of expert testimony.”); accord United States v.

Mitchell, 49 F.3d 769, 780–81 (D.C. Cir. 1995) (holding that the district court properly declined

to allow expert linguistic testimony about the content of tape-recorded conversations before the

jury); Highland Capital Mgmt L.P. v. Schneider, 379 F. Supp. 2d 461, 469 (S.D.N.Y. 2005)

(“While an expert must of course rely on facts or data in formulating an expert opinion . . . an

expert cannot be presented to the jury solely for the purpose of constructing a factual narrative

based upon record evidence.”).

Here, having reviewed the security video, the Court concludes that the jury is equally as

capable as the experts of determining whether the video corroborates or contradicts Ms. Schulz’s

allegations. Therefore, allowing the experts to opine on what the video shows will not assist the

jury in understanding the evidence or determining a material fact at issue. 22 Meister, 267 F.3d at

1126. The experts may testify about the investigatory steps Detective McHugh reasonably

should have taken before and after watching the video, but they may not testify about whether

the video tends to show that Mrs. Sherrod threatened Ms. Schulz with a gun.

22 District Defendants claim that Mr. Hicks is especially qualified to interpret the security video because of his experience with “Weaver” analysis and certain Navy Seal training he conducted in the 1980s. District Defs.’ Mem. P. & A. Supp. Opp’n Hicks Mem. at 8–9, ECF No. 73-1. These vague references are not sufficient to show the “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. District Defendants have therefore failed to show that Mr. Hicks is any more capable than the jury of evaluating the video.

74 3. Probable Cause Conclusions

The Court next addresses whether the experts may testify as to whether Detective

McHugh had probable cause to take the challenged investigatory steps. Again, whether expert

opinion testimony is “otherwise admissible” depends, in part, on whether it will “assist the trier

of fact” in either “understand[ing] the evidence or . . . determin[ing] a fact in issue.” See Fed. R.

Evid. 702. “Expert testimony that consists of legal conclusions cannot properly assist the trier of

fact in either respect, and thus it is not ‘otherwise admissible.’” Burkhart v. WMATA, 112 F. 3d

1207, 1212-13 (D.C. Cir. 1997) (citing Torres v. Cty. of Oakland, 758 F.2d 147, 150 (6th Cir.

1985) (holding that expert testimony couched in terms of a “legal conclusion” is “not helpful to

the jury”)); see also Halcomb v. WMATA, 526 F. Supp. 2d 24, 27 (D.D.C. 2007).

However, “the line between an inadmissible legal conclusion and admissible assistance to

the trier of fact in understanding the evidence or in determining a fact in issue is not always

bright.” Burkhart, 112 F.3d at 1212. For instance, “an expert may use terms such as ‘probable

cause’ or ‘deliberate indifference,’ as long as he or she uses them in a manner that is readily

understood by the jury and not likely to cause confusion or lead the jury to an incorrect view of

the law.” Huthnance v. District of Columbia, 793 F. Supp. 2d 183, 208 (D.D.C. 2011)

(citing Burkhart, 112 F.3d at 1212–13). “In other words, an expert may offer his opinion as to

facts that, if found, would support a conclusion that the legal standard at issue was satisfied, but

he may not testify as to whether the legal standard has been satisfied.” Burhkart, 112 F.3d at

1212–13.

Here, the Court concludes that it will not be helpful for the jury to hear the experts’

conclusions that the security video either did or did not give Detective McHugh probable cause

to search the Sherrods’ car and home and arrest Mrs. Sherrod. It is true that other courts have

75 allowed experts to issue probable cause opinions. In Huthnance, for instance, another court in

this District held that a police practices expert could testify that there was not sufficient evidence

for a defendant officer to reasonably believe that there was probable cause for an arrest. 793 F.

Supp. 2d at 208. The Fifth Circuit reached the same conclusion in Hayter v. City of Mount

Vernon, 154 F.3d 269, 274 (5th Cir. 1998). In those cases, however, the experts drew their

conclusions based on factual records that were relatively settled, while here the proper

interpretation of the security video is hotly disputed and the experts’ opinions regarding probable

cause may unduly influence the jury’s analysis of the video. Because it is improper for the

experts to opine on what the security video shows, it is also improper for the experts to opine on

what legal conclusions should be drawn from the video. 23

4. District Defendants’ Remaining Arguments

Finally, the Court addresses District Defendants’ remaining arguments, all of which

relate to Dr. Hayden’s opinions regarding the investigatory steps Detective McHugh should have

taken according to the standard of care. Defs. Mem. at 51–54, 56–57, 59–61. District

Defendants clearly disagree with Dr. Hayden’s opinions, but because the Sherrods have made

“the requisite threshold showing [of admissibility]; further disputes go to weight, not

admissibility.” Rothe Dev., 107 F. Supp. 3d at 197 (quoting United States v. Machado–

Erazo, 950 F. Supp. 2d 49, 52 (D.D.C. 2013)). District Defendants may exercise their

disagreement by presenting their own expert testimony contradicting Dr. Hayden’s opinions, and

by vigorously cross-examining Dr. Hayden at trial.

23 However, the experts may testify as to the factors, including objects, actions, and body language, a detective such as Detective McHugh would be looking for in the security video to reach a probable cause determination.

76 In summary, with respect to the parties’ motions to exclude testimony, the Court holds as

follows. First, Ms. Mell may testify at trial, but the Court will reopen discovery to allow the

Sherrods to depose her, and District Defendants must bear the cost of that deposition. Second,

both experts may testify, but not about (1) their interpretations of what the security video shows;

and (2) their conclusions regarding whether the video gave Detective McHugh probable cause to

search the Sherrods’ car and home and to arrest Mrs. Sherrod. The experts should focus their

testimony on whether the standard of care dictated that Detective McHugh should have taken

certain investigatory steps, for instance interviewing Mr. Wright, showing Ms. Schulz the

security video, re-interviewing Ms. Schulz after reviewing the security video, or running social

media searches on Ms. Schulz.

VI. CONCLUSION

For the foregoing reasons, the Court hereby ORDERS:

1. District Defendants’ Motion for Summary Judgment (ECF No. 68) is GRANTED IN

PART as follows:

a. It is GRANTED as to the following claims: (1) the Sherrods’

constitutional, negligence, and NIED claims arising from the initial stop of

the Sherrods’ car by the Capitol Police; (2) the Sherrods’ excessive force

claims arising from the actions of the Prince George’s County police

officers in entering the Sherrods’ home; and (3) the Sherrods’

constitutional malicious prosecution and NIED claims arising from Mrs.

Sherrod’s arrest.

b. It is DENIED as to the remaining claims.

2. Ms. Schulz’s Motion for Summary Judgment (ECF No. 66) is DENIED.

77 3. The Sherrods’ Motion in Limine to Exclude the Trial Testimony of Shana Mell (ECF

No. 56) is DENIED. It is FURTHER ORDERED that, as of the date of this Order,

discovery is re-opened for a period of sixty days to allow the Sherrods to depose Ms.

Mell. District Defendants shall bear the cost of that deposition.

4. The Sherrods’ Motion in Limine to Exclude the Trial Testimony of Lewis R. Hicks

(ECF No. 65) is GRANTED IN PART. As explained above, Mr. Hicks may not

testify about certain topics discussed in his report. It is FURTHER ORDERED that

Mr. Hayden also may not testify about those topics.

An order consistent with this Memorandum Opinion is separately and contemporaneously

issued.

Dated: September 25, 2018 RUDOLPH CONTRERAS United States District Judge