Case Explained: GENGSHU SCOTT HE v. MARCO RUBIO, UNITED STATES SECRETARY OF STATE

Court: United States Court of Appeals for the District of Columbia Circuit Filed: 2026-06-23 The D.C. Circuit reversed the district court’s dismissal of the He family’s claim for common law assault under the Federal Tort Claims Act (FTCA), holding that the complaint plausibly alleged facts sufficient to state a claim. The court applied de novo review and determined that, under Virginia law as incorporated by the FTCA, the plaintiffs had sufficiently pleaded the three elements of assault: an overt act, intent to cause harmful or offensive contact or apprehension thereof (including via the doctrine of transferred intent), and reasonable apprehension of imminent bodily harm. The court reasoned that the officers’ aggressive conduct—including unannounced arrival, loud banging on a closed door, verbal threats of an “ambush,” shouting, cursing, and physically grabbing the father by the wrist—constituted overt acts intended to cause apprehension of harm. The court further found it plausible that these actions, combined with the officer’s subsequent gesture of making a gun shape with his fingers and pointing it at a young child while using a racial slur, created a reasonable apprehension of imminent physical harm for the entire family present at the scene. The court rejected the argument that the family members were not in “striking distance” or that the gun gesture was not an assault because no actual weapon was present, noting that the law does not require immediate contact and that the context of prior threats rendered the gesture sufficiently threatening. The practical consequence is that the case is remanded to the district court for further proceedings on the He family’s FTCA assault claim, allowing them to proceed past the motion-to-dismiss stage to litigate the merits of their allegations. Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.