Finding That Defendant Had Yanked on Israeli Flag Plaintiff Had Tied Around Neck, Choking Her, Leads to 3-Yard Stay-Away Order Against Defendant

From Monday’s decision by Judge Trevor McFadden (D.D.C.) in Sumrall v. Ali:

Plaintiff Kimmara Sumrall and Defendant Janine Ali frequently attend protests about the war in Gaza. The problem is that they are on opposite sides. Last fall, Sumrall proudly displayed her Jewish heritage at a protest by tying an Israeli flag around her neck. She alleges that Ali approached her from behind and yanked it, choking her. “If speech provokes wrongful acts on the part of hecklers, the government must deal with those wrongful acts directly.” Sumrall asks for a modest stay-away order against Ali so that she feels comfortable continuing to attend pro-Israel protests and counter-protests. The Court grants her preliminary injunction request….

Sumrall has shown that she is likely to succeed on the merits of her 42 U.S.C. § 1981 claim. The statute declares:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ….” …

The parties contest (1) whether Ali purposefully discriminated against Sumrall and (2) whether that action deprived her of the “equal benefit of all laws” “for the security of persons.” Neither side questions whether Sumrall is part of a racial minority within the meaning of the statute. See Shaare Tefila Congregation v. Cobb (1987) (holding that Jews are a racial minority protected by § 1981). The Court takes each dispute in turn.

First, Sumrall has sufficiently shown that Ali purposefully discriminated against her on the basis of race. A preponderance of the evidence reveals that Ali likely committed the battery. Officer Bonney’s testimony described the event in detail, how Ali committed it, and that Sumrall reacted strongly, clearly, and immediately. He testified that Ali confessed her behavior as he arrested her. Having considered Officer Bonney’s demeanor and responses at the recent hearing, the Court finds him to be a highly credible witness. He was the only truly neutral witness who appeared in the criminal trial or at the preliminary injunction hearing.

Meredith Wallace, who testified for the defense at the criminal trial, attended the November protest to support Code Pink. To credit Ali’s version of events, the Court would have to assume that both Officer Bonney and Sumrall were committing perjury, even though they have no prior association and Officer Bonney was unconnected to either side.

Granted, as Ali argues, the Superior Court acquitted Ali of simple assault because the evidence did not rise beyond a reasonable doubt. But this Court evaluates a civil preliminary injunction using a lower preponderance standard. After weighing all the evidence before it, the Court discredits Ali’s evidence that contradicts Officer Bonney’s testimony. So the Court finds that Ali likely committed battery against Sumrall, an “intentional harmful or offensive touching or use of force upon the physical person of another.” The evidence shows at minimum an offensive touching—that is, when Ali briefly choked Sumrall by yanking on the flag tied around her neck….

Next, that battery was direct evidence of discrimination that likely would not have occurred but for racial animus…. Purposefully yanking on an Israeli flag tied around a Jewish person’s neck to choke them is direct evidence of racial discrimination. The Star of David—emblazoned upon the Israeli flag—symbolizes the Jewish race. Battery, particularly involving a racial symbol, is strong evidence of racial discrimination. It is more severe than “[r]acial slurs or statements” that constitute direct evidence. And targeting the Star of David is as racially motivated as “the highly offensive racial slur, ‘n*****,’” which “constitutes direct evidence.”

Ali has proffered no “benign” interpretation whatsoever for choking Sumrall and it is hard to imagine one. Her closest argument contends that the Israeli flag represents the state of Israel rather than the Jewish race, so her action is merely anti-Israel, not antisemitic. But it is quite a stretch to say that yanking on a flag tied around someone’s neck is an objection to state policies; battery is not a legitimate form of protest.

Ali did not have reason to think Sumrall was herself affiliated with the Israeli government. Rather, it is much more likely that she was intentionally attacking a Jewish person wearing a Jewish flag as a symbol of her racial heritage. As Sumrall’s counsel contended at the preliminary injunction hearing, if yanking on a flag emblazoned with the Star of David tied around a Jewish person’s neck at a pro-Israel protest is not discrimination, “I don’t know what is.”

Finally, Ali contests that Sumrall’s pleading of a state tort is not enough to show a deprivation of the “equal benefit of all laws” “for the security of persons.” But Ali’s cited cases both explicitly state that § 1981 “provide[s] remedies for a broad range of actions that could be characterized as various state torts.” Phillip v. Univ. of Rochester (2d Cir. 2003) (“[T]here is no persuasive reason why racially motivated torts that deprive a plaintiff of the equal benefit of laws or proceedings for the security of persons and property should be outside the ambit of federal authority ….”). Sumrall has shown that Ali committed at least one state tort, battery, against her that would not have occurred but for racial discrimination….

Sumrall also has shown that absent narrowly tailored preliminary relief, she will be irreparably harmed…. The Court has already found that Ali likely engaged in assaultive, discriminatory conduct. She has shown no remorse or taken accountability for her battery. More, the parties agree that Sumrall and Ali will be at the same protests again. So the discriminatory harm has a high risk of recurrence. The two women will likely again be in close proximity at emotionally charged events. Sumrall’s evidence suggests she will likely endure racially discriminatory comments during a future anti-Israeli protest given Code Pink’s extreme rhetoric; and but for a stay away, Ali will be in a position to again assault her.

Allegations of “physical threats” and “stalking behavior” also have supported irreparable harm findings. Sumrall essentially seeks a civil protection order, so the Court finds persuasive the D.C. Court of Appeals’ standards governing them…. The D.C. Court of Appeals requires plaintiffs seeking civil protection orders to (1) allege “good cause,” or facts showing a “cognizable danger of a recurrent violation” after considering the “entire mosaic of the case”; and (2) “balance the potential harms to the parties,” including “[s]afety, and resulting peace of mind.” Issuing stay-away orders may be appropriate where one party “has engaged in assaultive or threatening conduct.”

The “entire mosaic” of the case includes a battery and, after the civil hearing in Superior Court, a threatening phone call, allegations of unidentified men threatening Sumrall on the street, and idling cars outside her house late at night that fled when she approached. Compl. ¶¶ 39–41 (alleging that a man wrapped in a keffiyeh approached her in the street to say, “I would stab you and leave you dead in the street if I could”). Since these events, Sumrall has “installed upgraded security cameras on her property.” Most of these incidents have not been attributed to Ali and, to be clear, the Court is not finding that they are. But Sumrall’s allegations betray a reasonable sense of fear for her safety and “peace of mind” that would be assuaged with a modest, three-yard stay away order, at least as to one source of concern. And, again, the parties have agreed that there is a “cognizable danger” that Ali will attend the same protests as Sumrall again….

[T]he history of battery favors an order against Ali; its narrowness ensures both women can still be present at the same event. The parties are “in violent agreement” that they both have First Amendment rights to speak their minds about the war in Gaza. This three-yard order will accomplish that. There is no history of Sumrall seeking out Ali to repel her from events, though a Superior Court five-yard stay-away order has been in place for several months.

The public interest also favors an injunction. Sumrall has alleged that her fear of repeated battery has “chill[ed her] freedom to express herself under the First Amendment in support of Israel.” There is a “public interest” in the “promotion of free expression and robust debate.” …

Ali contends that Sumrall’s expression has not been chilled whatsoever. She proffered a witness and video evidence showing that Sumrall has protested an event at least once since the battery. But a plaintiff need only be “deterred [from] at least some political activity” to show expressive harm. “That the [plaintiff] continued to engage in some political activity does not foreclose their contention that they were deterred from engaging in other activities. A loss is a loss ….” Here, too, it is of no moment that Sumrall participated in some protest activity after the battery—and the Superior Court civil stay-away order then in place made her feel safe to protest. A narrowly tailored, three-yard stay away order will preserve the public interest in both parties’ expression….

The terms of the stay-away order against Janine Ali are as follows:

1. Stay at least three yards away from Kimmara Sumrall;
2. Stay at least 100 yards away from Kimmara Sumrall’s home and place of employment {Counsel confirmed Ali is familiar with the relevant addresses for Sumrall’s home and place of employment, though they are not on the public docket};
3. Have no contact with Kimmara Sumrall by any means whatsoever;
4. Do not communicate or attempt to communicate with Kimmara Sumrall, either directly or through any other person by telephone, written message, electronic message, or any form of social media or otherwise ….

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