                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

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

                                  MEMORANDUM OPINION

                DENYING DISTRICT DEFENDANTS’ PARTIAL MOTION TO DISMISS

                                      I. INTRODUCTION

       This case involves allegations that, if true, drastically undermine the integrity of a District

of Columbia police officer and illustrate the damage that the unscrupulous use of power can

inflict upon citizens of the state. Vashti and Eugene Sherrod were involved in a routine traffic

accident in the District of Columbia. According to the allegations in the complaint, the other

driver falsely reported to police that Ms. Vashti Sherrod brandished a handgun after they

discussed the accident. Detective Phillip McHugh allegedly discovered that the other driver’s

report was false, yet relentlessly used the criminal justice system to harass the Sherrods. When

their defensive legal battles finally drew to a close, the Sherrods brought suit against the other

driver, Det. McHugh, and the District of Columbia on multiple grounds, including for common

law claims of assault, negligence, and negligent infliction of emotional distress. Det. McHugh

and the District of Columbia move to dismiss these claims, contending that Det. McHugh did not

assault the Sherrods through filing a false police report or fraudulent affidavit in support of an

arrest warrant, that Plaintiffs did not properly plead their negligence claim and, in any event, that
their negligence claim is duplicative of their assault claim, and that the Sherrods were never in a

“zone of danger,” which is required to maintain a negligent infliction of emotional distress claim.

       In large part because Defendants’ arguments are factual in nature, the Court denies the

motion to dismiss. Whether Det. McHugh “intentionally” caused the Sherrods to believe they

would be harmed is a question best left for summary judgment or the factfinder. Additionally,

Plaintiffs are entitled to allege, in the alternative, that Det. McHugh acted negligently. Finally,

whether the Sherrods were actually in danger of physical harm through Det. McHugh’s possible

negligence is a question best left for a later stage of the proceedings, after the parties have

engaged in factual discovery. The Court therefore denies Defendants’ motion to dismiss.


                                II. FACTUAL BACKGROUND1

                                     A. The Traffic Accident

       In May 2015, Plaintiffs Vashti and Eugene Sherrod were involved in a minor traffic

accident with Defendant Diane Schulz.2 See Am. Compl. (“Compl.”) ¶¶ 15–17, ECF No. 13.

Both plaintiffs are elderly, and Mr. Sherrod is legally blind. See Compl. ¶ 4. According to

Plaintiffs, when Ms. Schulz attempted to parallel park her truck, she collided with the side mirror

of Plaintiffs’ car. Compl. ¶¶ 16–17. After Ms. Sherrod and Ms. Schulz exited their vehicles to




       1
          On February 8, 2017, Plaintiffs moved for leave to file a second amended complaint.
See Mot. Leave File Second Am. Compl., ECF No. 32. If the Court were to grant this motion, it
would not substantively change the claims Plaintiffs make against Det. McHugh or the District
of Columbia. See generally id. For example, Plaintiffs added allegations that Det. McHugh
emailed Ms. Schulz a copy of the police report and that Ms. Schulz failed to withdraw her claim.
See Proposed Second Am. Compl. ¶ 26, ECF No. 32-3. And, although Plaintiffs refined certain
factual allegations pertaining to the moving defendants, those changes do not affect the Court’s
analysis here. See, e.g., Compl. ¶¶ 27, 30.
       2
          The Court views the facts alleged in the complaint in the light most favorable to
Plaintiffs. See, e.g., Anderson v. Holder, 647 F.3d 1165, 1174 (D.C. Cir. 2011).


                                                  2
deal with the accident, Ms. Schulz started yelling obscenities at Ms. Sherrod and “gesturing with

her finger . . . in a threatening and menacing manner,” at times retreating to her truck. Compl.

¶¶ 18, 20. Plaintiffs further allege that Ms. Schulz used racial epithets and that, when she opened

the passenger door of her truck, the door struck Plaintiffs’ car, causing further damage. Compl.

¶¶ 21–22. Eventually, after Ms. Schulz allegedly further cursed and “physically confronted” Ms.

Sherrod, the parties exchanged insurance information and Ms. Schulz drove away. Compl. ¶ 22.

                              B. Detective McHugh’s Investigation

       Later that day, Ms. Schulz called the D.C. Metropolitan Police Department about the

incident. Compl. ¶ 23. MPD Detective Phillip McHugh—another defendant in this matter,

employed by the Defendant District of Columbia (collectively, “District Defendants”)—

responded by visiting Ms. Schulz’s house and interviewing her about the incident. Compl. ¶ 23.

Ms. Schulz told Det. McHugh that following the accident, Ms. Sherrod threatened Ms. Schulz

with “the barrel of [her] gun,” and that Mr. Sherrod encouraged his wife as she threatened her.

Compl. ¶ 23. Then, Ms. Schulz allegedly said that Ms. Sherrod “went to her car and reached

under the driver’s seat, pulling out . . . a black semi-automatic pistol similar to what a police

officer would carry,” and then pointed the pistol at Ms. Schulz and walked toward her “in a

threatening manner.” Compl. ¶ 23. After taking a statement from Ms. Schulz, Det. McHugh

obtained and viewed video surveillance footage of the entire event between Ms. Schulz and the

Sherrods. Compl. ¶ 24. The video that Det. McHugh carefully reviewed allegedly proves that

Ms. Schulz’s version of events was untrue. See Compl. ¶ 25. For the purpose of this motion,

both parties seem to accept the allegation that the potential for probable cause evaporated upon

Det. McHugh’s viewing of the video. See District Defs.’ Mem. P. & A. Supp. District Defs.’

Mot. Partial Dismissal Am. Compl. (“Defs.’ Mot. Dismiss”), ECF No. 16.




                                                  3
       Just over a week later, Ms. Sherrod and Det. McHugh spoke over the telephone about the

incident, and Ms. Sherrod told Det. McHugh that she did not own a gun and did not point a gun

at Ms. Schulz. Compl. ¶¶ 28–29. Det. McHugh “persisted and told [Ms.] Sherrod that he could

have searched her car, seized her vehicle, and had her arrested” days before. Compl. ¶ 29.

       According to Plaintiffs, Det. McHugh then filed a false official police report stating that

the Sherrods’ car was stolen, which caused a broadcast to be issued to all law enforcement

personnel in the Washington metropolitan area. Compl. ¶ 30.3 The broadcast stated that the

Sherrods’ car was stolen, and instructed police to “immediately stop and arrest the driver” if they

saw the car. Compl. ¶ 30. In late June, Det. McHugh contacted the police department in Prince

George’s County, Maryland, about applying for a search warrant of the Sherrods’ home. Compl.

¶ 31. In doing so, Plaintiffs allege, Det. McHugh falsely stated that the video he viewed

corroborated Ms. Schulz’s account, which the Maryland police officer used in his affidavit in

support of the warrant. Compl. ¶ 32. Relying on the affidavit, a Maryland judge issued a

warrant for the police to search the Sherrods’ home. Compl. ¶ 32.

                                   C. The Capitol Police Stop

       The same day that the warrant was issued, the Sherrods drove their car through the

District of Columbia, where they were pulled over by two United States Capitol Police patrol

cars. Compl. ¶ 34. After Ms. Sherrod pulled her car over to the curb, three police officers

approached, and two of them pointed shotguns at Mr. and Ms. Sherrod. Compl. ¶ 34. The lead

Capitol Police officer told Ms. Sherrod that there was a report that their car was stolen, which

Ms. Sherrod immediately denied. Compl. ¶ 35. The officer then said that he was “not going to


       3
         In their proposed second amended complaint, Plaintiffs allege that Det. McHugh’s
report actually stated that the Sherrods’ car was a “felony vehicle.” Proposed Second Am.
Compl. ¶ 27. This proposed amendment does not affect the Court’s analysis.


                                                 4
arrest any ‘senior citizens’ and instructed them to wait inside the car.” Compl. ¶ 35 A few

minutes later, Det. McHugh arrived on the scene, ordered the Sherrods out of their car, and said

“Remember me? I am going for your gun and [to] seize your vehicle.” Compl. ¶ 36. After

searching the car, Det. McHugh did not find a gun or any other contraband. Compl. ¶ 36

Plaintiffs were so visibly upset by the ordeal that the lead Capitol Police officer consoled Mr.

Sherrod. Compl. ¶ 36. The time from when the Sherrods were pulled over until they were

released lasted approximately 90 minutes. Compl. ¶ 37.

                              D. The Search of the Sherrod Home

       Just over a week later, at approximately 9:00 p.m. on a weeknight, MPD Det. McHugh,

along with a group of Maryland police officers, conducted a search of Plaintiffs’ home. Compl.

¶ 38. Plaintiffs, in bed when police arrived, were awakened by pounding on their front door and

flashing lights visible through their windows. Compl. ¶ 38. According to Plaintiffs, the police

“either purposefully or negligently” failed to announce their presence and did not give them a

chance to open the door before entering their home. Compl. ¶ 38. Thus, the Sherrods thought

that they might have been experiencing a home invasion and feared for their safety. Compl.

¶ 39. After the police kicked in the door, they handcuffed Mr. Sherrod and told Ms. Sherrod to

put her hands over her head. Compl. ¶ 39. Because of his blindness, Mr. Sherrod could not see

who was in his home. Compl. ¶ 39. Before the search began in earnest, Det. McHugh ordered

Plaintiffs to produce their guns and ammunition. Compl. ¶ 40. When they responded that they

did not have any guns or ammunition, Det. McHugh responded by saying that the “search is on.”

Compl. ¶ 40. Det. McHugh told Plaintiffs that they could not leave until he permitted them to,

then personally searched their home. Compl. ¶ 41. According to Plaintiffs, Det. McHugh




                                                 5
unnecessarily and negligently caused damage to their property. Compl. ¶ 41. Det. McHugh did

not find any evidence relating to firearms or ammunition. Compl. ¶ 41.

                          E. The Criminal Case Against Ms. Sherrod

       Later in the week, despite not finding any evidence in the course of his search, Det.

McHugh swore a complaint against Ms. Sherrod and an affidavit in support of an arrest warrant,

which plaintiffs allege Det. McHugh knew was false. Compl. ¶¶ 42–43. After a judge issued the

warrant, Ms. Sherrod surrendered herself to police. Compl. ¶ 46. Later that day, a District of

Columbia Superior Court magistrate judge released her on her personal recognizance. Compl.

¶ 47. At a later preliminary hearing, Det. McHugh allegedly offered the false testimony that his

report stated that the Sherrods’ car was merely involved in a crime, which Plaintiffs contend was

both factually untrue and misleading. Compl. ¶¶ 49–50.

       The government’s case against Ms. Sherrod unraveled at the grand jury stage. Det.

McHugh told Ms. Schulz that “the tape corroborated [her] statement,” causing her to go through

with grand jury testimony against the Sherrods that she later stated she “would never have

[made]” had she known that the tape did not actually support her testimony. Compl. ¶ 54. The

grand jury ultimately did not indict Ms. Sherrod. Compl. ¶ 55. The D.C. U.S. Attorney’s Office

terminated its prosecution in early 2016. Compl. ¶ 55.


                                   III. LEGAL STANDARD

       To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), a complaint must contain sufficient factual allegations that, if accepted as

true, would state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. at 678. Instead, plaintiffs must “nudge[] their claims across the


                                                 6
line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Although trial courts must accept all well-pled facts in a complaint as true, plaintiffs have an

“obligation to provide . . . more than labels and conclusions.” Id. at 555.


                                         IV. ANALYSIS

       The Sherrods brought this case on multiple federal-law and common-law grounds. See

Compl. ¶ 1. Only some of the common law claims are relevant to this motion.4 The Sherrods

claim that the District Defendants tortiously assaulted them when Det. McHugh “and/or police

officers acting on his behalf and/or direction” “engaged in harmful and offensive conduct” when

they pointed shotguns at them during the Capitol Police stop. See Compl. ¶ 91. They further

claim they were assaulted when Det. McHugh and other officers “acting on his behalf and/or

direction” kicked in their door without announcing themselves, on the basis of a warrant that

Det. McHugh knew was invalid. Compl. ¶ 92. Plaintiffs separately claim that Det. McHugh was

negligent in violating MPD policies governing applications for search and arrest warrants, and in

violating Plaintiffs’ constitutional rights. Compl. ¶ 100. They further claim that Det. McHugh

was negligent in his search of their home, causing them a variety of damages. See Compl.

¶¶ 102–05. Finally, Plaintiffs claim that Det. McHugh negligently inflicted emotional distress

(“NIED”) upon them in many ways throughout the ordeal.5 See Compl. ¶¶ 107–17.


       4
          Because Plaintiffs argue and Defendants concede that District of Columbia law applies,
see Pls.’ Opp’n District Defs.’ Mot. Partial Dismissal Am. Compl. (“Pls.’ Opp’n”) at 17–19,
ECF No. 17; Defs.’ Reply Pls.’ Opp’n to Partial Mot. Dismiss & Partial Summ. J. (“Defs.’
Reply”), ECF No. 20, the Court applies District of Columbia law. Nguyen v. Voorthuis
Opticians, Inc., 478 F. Supp. 2d 56, 60 n.2 (D.D.C. 2007).
       5
         Defendants’ memorandum in support of its motion to dismiss identifies Count 10 as one
for “Negligent Infliction of Emotional Distress (“IIED” [sic]),” but Count 10 was Plaintiffs’
claim for intentional infliction of emotional distress (“IIED”). See District Defs.’ Mem. P. & A.
Supp. District Defs.’ Mot. Partial Dismissal Am. Compl. (“Defs.’ Mot. Dismiss”) at 2, ECF No.



                                                 7
       District Defendants seek dismissal of the above counts on multiple grounds.6 See Defs.’

Mot. Dismiss.7 The assault claims, they argue, are deficient because Det. McHugh did not

engage in any action that he knew would give rise to an apprehension of imminent contact. See

Defs.’ Mot. Dismiss at 5–7. District Defendants further argue that Plaintiffs’ negligence claims

did not include allegations of breach and did not set forth standards of care separate from those

of intentional torts. See Defs.’ Mot. Dismiss at 7–9. In addition, District Defendants contend

that Plaintiffs’ NIED claims fail because the Sherrods were never in the “zone of danger.” See

Defs.’ Mot. Dismiss at 9–12.

       The Court finds that facts learned during discovery could lead a reasonable jury to find

that Det. McHugh knew with substantial certainty that his allegedly false police report would




16; Compl. at 29, ECF No. 13. However, the motion does not otherwise advocate for the
dismissal of Count 10. See Defs.’ Mot. Dismiss. The Court thus assumes that Defendants
simply mislabeled Count 10.
       6
         Although District Defendants originally sought dismissal of the malicious prosecution
claims, see Defs.’ Mot. Dismiss at 3–5, they have since withdrawn their argument. See Defs.’
Reply at 9. Notably, Defendants label their reply as a reply in support of a motion for partial
dismissal and partial summary judgment, but the original motion was only for partial dismissal.
See Defs.’ Mot. Partial Dismissal of Am. Compl. at 1, ECF No. 13. The Court disregards the
reference to summary judgment in the title of Defendants’ reply.
       7
           Puzzlingly, Defendants assert that “Plaintiffs did not address and thus concede that
Section 12-309 bars Mr. Sherrod’s common law claims against the District and their intentional
infliction of emotional distress claims.” Defs.’ Reply at 1–2. Defendants never raised any
claims associated with “Section 12-309” in their motion to dismiss. See Defs.’ Mot. Dismiss. In
fact, in their reply Defendants cite to page numbers that do not even exist in the memorandum in
support of the motion under consideration. Compare id. with Defs.’ Reply at 1. Defendants did,
however, raise these issues in a previously-filed motion to dismiss. See Mot. Dismiss Counts III,
IV, V, VII, and IX at 14–16, ECF No. 10. However, the Court dismissed this motion as moot
following Plaintiffs’ filing of a new complaint. See Order Den. Without Prejudice Mot. Dismiss
Counts III, IV, V, VII, and IX, ECF No. 18. Because any such argument was not raised in
Defendants’ active motion to dismiss, the Court will not address it. See Walker v. Pharm.
Research & Mfrs. of Am., 461 F. Supp. 2d 52, 58 n.9 (D.D.C. 2006) (“Because the plaintiff only
addresses this particular claim in her reply to the motion . . ., the plaintiff has waived the
argument.”).


                                                 8
lead to the apprehension of imminent harmful contact by the Sherrods, and that he knew with

substantial certainty that the Sherrods would fear imminent contact during his allegedly

unjustified search of their home. However, because discovery could also reveal that it was

merely foreseeable that the alleged injuries would occur, the Sherrods have also plausibly stated

a claim for negligence. Plaintiffs’ negligence claims, moreover, despite not containing a

ritualistic recitation of the “default” standard of care, put District Defendants on sufficient notice

of their claims, and thus were well pled. Finally, Plaintiffs adequately pled an NIED claim,

because they adequately allege facts that, if true, could support a claim that Det. McHugh’s

actions placed the Sherrods in danger of physical harm. Accordingly, District Defendants’

motion to dismiss will be denied.

                            A. Assault Claim Against Det. McHugh

       The parties first dispute whether any of Det. McHugh’s actions constituted assault.

Defs.’ Mot. Dismiss at 5–6. Specifically at issue is whether Det. McHugh can be held liable for

Capitol Police when they pointed shotguns at the Sherrods and for the actions of the police in

kicking down the Sherrods’ door. Id. at 6. District Defendants contend that the complaint never

alleges that Det. McHugh actually ordered the Capitol Police to point their shotguns at the

Sherrods or that he kicked in their door, and that because Plaintiffs were in bed, they could not

have reasonably concluded that the door being kicked in posed a physical threat to them. Id. at

7. Plaintiffs respond that Det. McHugh created an unreasonable risk of harm through the Capitol

Police, because he knew that “there was a high probability that any officers engaged in stopping

and seizing an alleged felony vehicle would respond with their weapons drawn, exactly as

officers did in this case.” See Pls.’ Opp’n District Defs.’ Mot. Partial Dismissal Am. Compl.




                                                  9
(“Pls.’ Opp’n”) at 25–27, ECF No. 17. They also argue that Det. McHugh led the search of

Plaintiffs’ home, which reasonably caused them to fear for their safety. See id. at 28–29.

        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. 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) (favorably citing Jackson for the definition of assault); Restatement (Second) of

Torts § 21; see also Person v. Children's Hosp. Nat. Med. Ctr., 562 A.2d 648, 650 (D.C. 1989)

(“An assault results from apprehension of an imminent harmful or offensive contact, in contrast

with the contact itself.”). A defendant acts intentionally if he knows 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). Thus, if a defendant acts knowing with substantial certainty that his

actions will cause a third party to create the apprehension of imminent harmful or offensive

contact in another, he is liable for assault.

        Plaintiffs’ assault claim against Det. McHugh related to the Capitol Police stop survives

the motion to dismiss. District Defendants erroneously assume that Det. McHugh must have

actually commanded the officers to point their shotguns at the Sherrods. Not so. It suffices for

Plaintiffs to plead facts plausibly showing that Det. McHugh knew with substantial certainty that




                                                 10
his filing of a false official police report would lead to the creation of an injurious apprehension.8

See Jackson, 412 A.2d at 956; Judah, 744 A.2d at 1042 n.8. Whether he did so here presents

several questions to be explored during discovery. But for now, Plaintiffs have adequately

pleaded that Det. McHugh knew with substantial certainty that his broadcasting of an official,

internal MPD report would lead to police stopping the Sherrods’ vehicle. Additionally, they

have adequately pleaded that Det. McHugh knew with substantial certainty that the broadcast

would include the order for police to arrest the Sherrods, and that in effectuating the arrest

harmful or offensive contact would result.9 Thus, Plaintiffs have stated a cognizable claim for

assault for the alleged Capitol Police stop.

       Plaintiffs also state a claim for the search of the Sherrods’ home. Regardless of whether

Det. McHugh actually kicked down their door, Plaintiffs have sufficiently pleaded that Det.

McHugh knew with substantial certainty that the Sherrods would experience the requisite mental

disquiet as a result of the search. Det. McHugh allegedly provided false information to

Maryland police for the purpose of obtaining a search warrant. Compl. ¶¶ 31–32. After

obtaining the search warrant, the police, during nighttime hours and “led by Det. McHugh,”

kicked in the door without knocking or announcing who they were. Compl. ¶¶ 38–39. When the


       8
          District Defendants argue that merely showing “foreseeability” is insufficient to show
tortious intent. See Defs.’ Reply at 4. This is true but inapposite. Plaintiffs do not claim that it
was merely “foreseeable” that the apprehension of imminent contact would occur, but that Det.
McHugh “knew” that the stop would occur and that there was a “high probability” that weapons
would be drawn because officers “routinely” behave this way. See Pls.’ Opp’n at 27. Although
discovery could uncover facts suggesting that the injury was merely foreseeable, it would also be
possible for it to show that Det. McHugh knew with substantial certainty that it would result.
       9
         In their opposition to the motion to dismiss, Plaintiffs assert that it is “common
knowledge” that officers “routinely” point their firearms at potential arrestees. See Pls.’ Opp’n
at 27. Predictably, District Defendants take issue with this assertion. See Defs.’ Reply at 3.
This reasonable dispute is a prototypical example of an issue appropriately left for a later stage of
these proceedings, after discovery is conducted and experts have been retained.



                                                 11
door was kicked open, Plaintiffs allegedly feared for their safety. Compl. ¶ 39. Police ordered

them to put their hands up. Id. Thus, Plaintiffs have sufficiently pleaded that Det. McHugh,

through fraudulently seeking a search warrant and leading a search of Plaintiffs’ home that

involved the unannounced kicking in of their door, knew with substantial certainty that the

Sherrods would fear that they were imminently going to be harmfully touched. As for the

contention that the Sherrods could not have perceived imminent contact because they were in

bed, this stage of litigation is ill-suited for the question.10 The Sherrods have alleged that they

cowered in fear, thinking that their home was being forcibly invaded. Although it is certainly

possible that the Sherrods did not actually apprehend imminent contact, that possibility is yet

another issue to be explored in discovery. Thus, District Defendants’ motion to dismiss

Plaintiffs’ assault claims must be denied.

                                       B. Negligence Claims

        The Court next addresses whether Plaintiffs have adequately pled negligence against Det.

McHugh. The Court first analyzes whether Plaintiffs allege a violation of a viable standard of

care, then turns to the issue of whether the negligence claim is sufficiently distinct from

Plaintiffs’ intentional tort claims.

                                        1. Duty and Breach

        District Defendants move to dismiss on the grounds that Plaintiffs do not adequately

allege that Det. McHugh breached any viable duty, because the complaint cites only MPD


        10
           Moreover, viewing the facts alleged in the light most favorable to the Sherrods,
Plaintiffs have also sufficiently pleaded facts from which a factfinder could infer that Det.
McHugh knew with substantial certainty that he or other officers would engage in the offensive
touching of the Sherrods through handcuffing them. Because Det. McHugh allegedly acted in
bad faith and without probable cause, he would not have been justified in engaging in or ordering
such force. See Jackson v. District of Columbia, 412 A.2d 948, 954 (D.C. 1980). However,
because Plaintiffs did not raise this issue in opposition, the Court need not address it.


                                                 12
policies and procedures, which do not constitute duties per se. Defs.’ Mot. Dismiss at 7. In their

amended complaint, Plaintiffs allege that Det. McHugh owed a duty to the Sherrods to follow

MPD policies and the constitution, and breached his duty by subjecting them to unlawful

seizures, searches, and property damage during his search of their home. Compl. ¶¶ 97–103,

146–151. Because both parties agree that MPD policies and procedures do not create a per se

duty, see Defs.’ Mot. Dismiss at 7–8; Pls.’ Opp’n at 35, the issue here boils down to whether

Plaintiffs were required to specify that Def. McHugh owed the Sherrods the “default” duty of

reasonable care in their complaint.

       “A uniform standard of care applies in actions for negligence: reasonable care under the

circumstances.” O’Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982). However, as part of the

“circumstances” under which reasonableness is determined, the court must consider “that those

with special training and experience adhere to a standard of conduct commensurate with such

attributes.” Id. (quoting Morgan v. District of Columbia, 449 A.2d 1102, 1108 (D.C. 1982),

vacated on other grounds, 452 A.2d 1197 (D.C. 1982)). Thus, police officers’ standard of care is

that of a reasonable police officer under the circumstances. See Kenley v. District of Columbia,

83 F. Supp. 3d 20, 44 (D.D.C. 2015). Although police department policies and orders are

generally insufficient to establish a freestanding duty that can give rise to claims of negligence

per se, such regulations may be probative on whether an officer conformed to the general

standard of care applicable to police officers. See id.; McNeil Pharm. v. Hawkins, 686 A.2d 567,

578 (D.C. 1996) (enumerating the elements of negligence per se).

       Federal Rule of Civil Procedure 8(a) provides that “a claim for relief must contain . . . a

short and plain statement of the claim showing that the pleader is entitled to relief.” Because a

uniform standard of care applies in actions for negligence in the District of Columbia, a plain




                                                 13
reading of the requirements of Rule 8 produces the conclusion that Plaintiffs need not engage in

a formal recitation of the elements for negligence in order to properly plead a plausible claim for

relief. See Smith v. Carnival Corp., 584 F. Supp. 2d 1343, 1352 (S.D. Fla. 2008) (“This Court

concludes that under . . . Federal Rule of Civil Procedure 8, Plaintiffs are not required to allege

the applicable standard of care in their complaint. [Because] Defendant . . . is on notice of the

general nature of Plaintiffs’ negligence claim, [the defendant’s] request to dismiss that claim is

denied.”).

        Although Plaintiffs did not formally identify the duty element in their complaint, they

have plausibly claimed that Det. McHugh owed the Sherrods the “default” duty of reasonable

care under the circumstances, and that he breached that duty. Det. McHugh had a duty to behave

as a reasonable and prudent police officer under the circumstances. See Kenley, 83 F. Supp. 3d

at 44. That duty is informed by the specific standards that a reasonable and prudent police

officer would observe. See id. MPD policies are relevant standards for determining how a

reasonable officer would have behaved under the circumstances. See id. Like in Kenley, though

“Defendants focus on whether violations of an MPD General Order can constitute negligence per

se . . ., that is beside the point. Plaintiff[s] [are] not asserting that the [MPD policies are]

statute[s] or regulation[s] that establish[] negligence per se. . . . Plaintiff[s] allege[] that [Det.

McHugh] failed to exercise the standard of care of a reasonably prudent police officer.” 83 F.

Supp. 3d at 44. Plaintiffs have alleged that Det. McHugh breached his duty of reasonable care

when he swore a false affidavit in support of a search warrant that foreseeably led to an illegal

search and caused unnecessary damage during that search. See Compl. ¶¶ 100–03. The same is

true for when he allegedly caused Ms. Sherrod to be unlawfully arrested through his allegedly

fraudulent affidavit in support of arrest. See Compl. ¶ 151. At this stage of the proceedings,




                                                   14
before expert witnesses have been identified and expressed their opinions about the applicable

standard of care, no more is required. Accordingly, Plaintiffs have plausibly alleged a duty and

breach in support of their negligence claims.

                      2. Negligence Claims vis a vis Intentional Tort Claims

       District Defendants also contend that Plaintiffs have not pled a breach that is distinct

from the alleged intentional torts. See Mot. Dismiss at 7–8. As noted above, Plaintiffs allege

that Det. McHugh negligently subjected them to unlawful searches and seizures, damaged their

property by negligently searching their house, and negligently subjected Ms. Sherrod to an

unlawful arrest. See Compl. ¶¶ 95–105; 145–53.

       Under District of Columbia law, a plaintiff who asserts claims for both assault and

negligence must plead such that the negligence claim is (1) “distinctly pled” and (2) based upon

at least one factual scenario that presents an aspect of negligence” distinct from the assault itself.

See Dormu v. District of Columbia, 795 F. Supp. 2d 7, 30 (D.D.C. 2011). This rule exists

because of the different states of mind that each claim requires. “As the saying goes, there is no

such thing as a negligent battery.” District of Columbia v. Chinn, 839 A.2d 701, 706 (D.C.

2003) (quoting Dobbs, Law of Torts § 26 at 51 (2001)). In Dormu v. District of Columbia—the

case that District Defendants cite in their motion—the plaintiff claimed that a police officer

“either intentionally or recklessly” put handcuffs on a suspect too tightly. 795 F. Supp. 2d at 30.

Finding it plausible that the officer either recklessly believed that the handcuffs were not too

tight or intentionally made them too tight, the Court concluded that the plaintiff’s evidence

“viewed in a light most favorable to him, [could] support these two scenarios” and allowed both

a battery and negligence claim to proceed. Id.




                                                  15
           The facts here, like those in Dormu, could support either of Plaintiffs’ two theories. As

District Defendants argue in support of their motion to dismiss the assault claims, it is possible

that “[e]ven if [Det.] McHugh [did] file[] a police report concerning a stolen vehicle, it does not

establish his intent to threaten or attempt to have Capitol Police Officers draw weapons upon

Plaintiffs.” See Defs.’ Reply at 3. Discovery could reveal that District Defendants are correct

that Det. McHugh was not intentionally harming Plaintiffs, but it could also reveal that he was

acting recklessly or negligently. The same is true for the alleged illegal search; Plaintiffs

contend that Det. McHugh “either purposefully or negligently” failed to announce that the police

were present before knocking down Plaintiffs’ door. See Compl. ¶ 38. Plaintiffs have therefore

stated plausible claims for negligence.

                        C. Negligent Infliction of Emotional Distress Claims

           The Court next addresses whether Plaintiffs have stated a NIED claim. District

Defendants claim that Plaintiffs do not plausibly allege that they were in actual physical danger

with respect to the searches of the Sherrods and Ms. Sherrod’s original arrest. See Mot. Dismiss

at 11.11

           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, which was (2) created by the defendant’s

negligence, (3) the plaintiff feared for her own safety, and (4) the emotional distress so caused

was serious and verifiable. See Rice v. Dist. of Columbia, 774 F. Supp. 2d 25, 33 (D.D.C. 2011).

For plaintiffs to be in the actual zone of 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.



           11
         Defendants concede that the alleged Capitol Police stop would satisfy the “zone of
danger” standard. See Defs.’ Mot. Dismiss at 11.


                                                   16
Baker, 572 A.2d 1062, 1064 (D.C. 1990)). In line with 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)). 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.” Arias, 752 F.3d at 1017. In the context of false arrests, “[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).

        For many of the previously-cited reasons, Plaintiffs have stated plausible claims for

negligent infliction of emotional distress. Plaintiffs allege that Det. McHugh conducted a search

in a manner “that caused Plaintiffs extreme fear for their physical safety . . . [because] they

believed they were experiencing a home invasion.” See Comp. ¶¶ 109–11. Given that the police

allegedly did not announce their presence and conducted the search during the night, Plaintiffs

have sufficiently alleged that Det. McHugh’s fraudulent obtaining of a search warrant and

subsequent search caused Plaintiffs to reasonably fear for their safety and expect unwanted

physical touching during the course of a brazen home invasion. The devil may be in the details

and discovery will provide the parties and the Court with those details. The same is true for the

other searches and arrest. District Defendants do not argue that Det. McHugh had probable

cause or was otherwise justified in searching the Sherrods or in seeking Ms. Sherrod’s arrest;




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“physical impact” can be harmful whether it is inflicted by a person in a police uniform or not.

See David, 436 F. Supp. 2d at 90. Thus, Plaintiffs have sufficiently pleaded that Det. McHugh

negligently created a zone of physical danger that Plaintiffs occupied, causing them to fear for

their safety. As such, District Defendants’ motion to dismiss this claim is denied.


                                       V. CONCLUSION

       For the foregoing reasons, District Defendants’ Motion for Partial Dismissal of the

Amended Complaint is DENIED. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.


Dated: February 15, 2017                                          RUDOLPH CONTRERAS
                                                                  United States District Judge




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