Background
Gengshu He, a former State Department employee, and his family sued the Secretary of State and the United States under the Federal Tort Claims Act. They alleged that two law enforcement officers visited their home in Virginia, banged on the door, cursed at He, grabbed his wrist, and one officer made a gun gesture with his fingers at He’s young son while using a racial slur. The district court dismissed the family’s assault claim, finding it implausible that the conduct created reasonable apprehension of imminent harm.
The court’s reasoning
The court analyzed the elements of common law assault under Virginia law, which require an overt act, intent to cause harmful or offensive contact or apprehension, and reasonable apprehension of imminent harm. The court found the allegations sufficient because the officer’s aggressive behavior, including grabbing He and mimicking a shooting gesture, could reasonably cause the family to fear imminent bodily harm. The court applied the doctrine of transferred intent, noting that the family members could assert assault claims even if the officer intended to harm He. The court rejected the argument that the family must be within striking distance, stating that proximity and the context of the officer’s actions were sufficient to infer imminent harm.
We conclude that it is plausible.
What it means going forward
The case is remanded to the district court for further proceedings on the Federal Tort Claims Act assault claim, allowing the He family to pursue their allegations that the officer’s conduct constituted assault under Virginia law.