Suit Over Defendant Allegedly Yanking on Israeli Flag Plaintiff Had Tied Around Neck, Choking Her, Can Go Forward

Excerpts from Tuesday’s long opinion by Judge Trevor McFadden (D.D.C.) in Sumrall v. Ali:

[1.] Kimmara Sumrall and Janine Ali stand on dueling sides of a longtime conflict. Sumrall supports Israel as an expression of her Jewish identity. Ali opposes many of Israel’s policies, especially in Gaza. Sumrall alleges that Ali crossed from political dissent into discriminatory violence when she attacked Sumrall at a protest. After an evidentiary hearing, this Court granted Sumrall a preliminary injunction in the form of a narrow stay-away order against Ali. Ali now moves to dismiss Sumrall’s Amended Complaint and to reconsider the preliminary injunction.

The Court denies Ali’s motion to dismiss on all counts except Sumrall’s claim for intentional infliction of emotional distress. Sumrall states a plausible claim under 42 U.S.C. § 1981, which covers discriminatory private violence like the battery that Sumrall alleges. All but one of Sumrall’s claims under District of Columbia law also survive. Only her action for intentional infliction of emotional distress fails to clear that tort’s high bar….

[2.] [According to the Complaint,] Sumrall is “a Jewish-American who feels and publicly expresses a deep affinity for Israel, her ancestral homeland.” In November 2024, she took part in a “pro-Israel demonstration” at the Dirksen Senate Office Building. At that demonstration, Sumrall “wore an Israeli flag, tied at her neck, as a cape.”

Ali was also there that day, attending “an anti-Israel demonstration.” “When [Sumrall] was isolated from her group, [Ali] approached [Sumrall] from behind … and yanked on [Sumrall’s] Israel flag, having the harmful effect of briefly choking [Sumrall] and causing her pain and disorientation.” Sumrall then saw Ali “walking away from her” and “yelled for the police to address the situation.” U.S. Capitol Police Officer Reed Bonney arrested Ali over her objection that “all [she] did was grab it.” …

[3.] Section 1981’s text declares its broad reach. Recall that the statute grants all persons “the same right … to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” … [It does not] contain a state action requirement, whether for the Equal Benefit Clause or any of its other protections. The statute instead spells out that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination.” Among those is the “right … to the full and equal benefit of all laws and proceedings for the security of persons and property.” § 1981(a). Like the other § 1981 rights, then, the “equal benefit” right is protected against private action that would infringe someone’s “security” or “property” on account of race.

The historical backdrop further suggests that the Equal Benefit Clause guards against private discriminatory attacks on “the security of persons and property.” Remember that § 1981 was part of the Civil Rights Act of 1866—”an immediately post-Civil War legislative effort to ensure that newly freed slaves received the same rights as other citizens.” In the Reconstruction Era, freed slaves were systematically targeted by the Ku Klux Klan and other Southern Democrats to prevent them from exercising their newfound rights….

As the final element of her § 1981 claim, Sumrall must plausibly allege that Ali “intended to discriminate against [her] on the basis of race.” She meets that burden…. She plausibly alleges that Ali battered her because she is Jewish—”approach[ing] [her] from behind … and yank[ing] on [her] Israel flag, having the harmful effect of briefly choking [her] and causing her pain and disorientation.” As the Court reasoned before, “[t]he Star of David—emblazoned upon the Israeli flag—symbolizes the Jewish race.” And “[b]attery, particularly involving a racial symbol, is strong evidence of racial discrimination.” In granting the preliminary injunction, the Court thus found that Ali’s attack amounted to “direct evidence of racial discrimination,” and the Court reaffirms that finding here.

At the very least, Ali’s battery constitutes powerful circumstantial evidence of racial discrimination—especially in light of Sumrall’s other allegations about the parties’ history. Recall, for example, that Ali “was present approximately ten times at anti-Israel gatherings that [Sumrall] attended in support of Israel.” At one of those encounters, Ali “verbally attacked the Jews present with slurs such as ‘baby killer,’ ‘committing genocide,’ and ‘most of you are disgusting ex-IDF soldiers.'” On another occasion, Ali “glared furiously at [Sumrall] and other Jews supporting [a] rabbi” during a court hearing. Taken together and considered along with the battery itself, these allegations surmount the dismissal stage’s prima facie bar.

As she did at the preliminary injunction stage, Ali asserts that her actions were motivated by politics, not race. She insists that “criticism of Israel does not constitute racial animus towards Jewish people.” But that argument is misplaced at the dismissal stage, where the Court credits Sumrall’s allegations and grants her “all inferences that can be derived from the facts alleged.” Whether Ali can rebut Sumrall’s prima facie case of racial discrimination is a matter for discovery and summary judgment….

[4.] “In order to prove the tort of intentional infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff to suffer severe emotional distress.” “The requirement of outrageousness is not an easy one to meet.” “Liability will be imposed only for conduct 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.” …

Although Sumrall’s allegations overcome dismissal on all other fronts, they do not amount to “conduct 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.” [Discussion of precedents omitted. -EV]

[5.] “A trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” … Sumrall states a plausible claim for trespass to chattels. She pleads that Ali “intentionally used or intermeddled with” Sumrall’s Israeli flag by yanking on it. That “intermeddling caused bodily harm to [Sumrall], briefly strangling her and causing her pain and disorientation.” Those allegations contain all the necessary elements.

Ali contends that Sumrall’s claim must fail because she “has not and cannot claim that her Israeli flag was damaged.” That argument ignores the separate and independent ground for liability that exists if the defendant’s trespass causes physical injury to the plaintiff….

[6.] D.C. Code § 22-3704 … provides:

Irrespective of any criminal prosecution …, any person who incurs injury to his or her person or property as a result of an intentional act that demonstrates an accused’s prejudice based on the actual or perceived race [or various other identity attributes] of a victim of the … act shall have a civil cause of action ….

“Based on the clear statutory language, [Sumrall] ha[s] a civil cause of action under § 22-3704 because [she] [was] the victim[ ] of a designated act, … battery.” Sumrall plausibly alleges that she “incur[red] injury to … her person … as a result of an intentional act that demonstrate[d] [Ali’s] prejudice” against her as a Jewish person.

To contest this claim, Ali largely rehashes her assertion that protesting Israel, including by damaging the Israeli flag, does not constitute prejudice against Jewish people. But once again, “draw[ing] all reasonable inferences” in Sumrall’s favor, the Court rejects Ali’s contention….

The court also reaffirms its earlier preliminary injunction; more on that injunction in this post. Note that defendant’s motion to dismiss didn’t challenge the battery claim (though of course she’ll be free to challenge that claim at later stages of the case).

Abra Siegel (National Jewish Advocacy Center) and Adrien Caulder Pickard (Barclay Damon LLP) represent plaintiff.