UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KIMMARA SUMRALL,

Plaintiff,

v. Case No. 1:25-cv-2277 (TNM)

JANINE ALI,

Defendant.

MEMORANDUM ORDER

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.”

Meinecke v. City of Seattle,

, 517–18 (9th Cir. 2024). 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.

I.

On November 13, 2024, Sumrall and Ali were on opposing sides of a protest about the

war in Gaza.1 An advocacy group called Code Pink planned to lobby in favor of Palestinian

causes in the Dirksen Senate Building that day. Compl., ECF No. 1, ¶¶ 12, 19. Code Pink

1 The Superior Court of the District of Columbia found Ali not guilty of simple assault after a criminal trial. D.C. Superior Ct. Trial Tr. (“Trial Tr. Day 2”), ECF No. 8-2, at 21. The parties agree that this Court may take judicial notice of the transcript, filed as an attachment to the defense motion opposing preliminary injunctive relief. Temp. Restraining Order Hr’g Tr., ECF No. 14, at 34:24–35:21; see Fed. R. Evid. 201(b)(2). invited Ali to join. D.C. Super. Ct. Trial Tr. (“Trial Tr. Day 1”), ECF No. 8-1, at 82:23–83:2.

The group’s members gathered in their characteristic pink attire in a Senate cafeteria. Def.

Opp’n Mot. Preliminary Injunction, ECF No. 8, at 7; Trial Tr. Day 1 at 22:20–23:4. As they

assembled, Sumrall arrived to attend a pro-Israel protest that had been “organized in response” to

the Code Pink demonstration. Pl. Mot. Preliminary Injunction, ECF No. 5-1, at 3. She wore an

Israeli flag as a cape tied at her neck with nylon twine. Id.; Trial Tr. Day 1 at 49:10–12. Several

U.S. Capitol Police officers were also present. Trial Tr. Day 1 at 32:10–35:20.

The parties agree, at least, about the actors’ basic movements before the incident.

Sumrall was the first in the cafeteria, standing at the top of a crowded ramp lined with officers.

Trial Tr. Day 1 at 61:11–19. She was talking on her phone. Trial Tr. Day 1 at 17:24–18:3. Ali

was running late to meet her protest group so she walked alone toward the ramp to meet them.

Def. Opp’n PI Mot. at 7. Capitol Police Officer Reed Bonney was standing nearby, about five to

eight feet away, facing Sumrall. Trial Tr. Day 1 at 16:22–17:10; Prelim. Injunction Hr’g Tr.

20:12, ECF No. 25 (“PI Hr’g Tr.”). Ali passed close behind Sumrall on the ramp. Trial Tr. Day

1 at 49:20–25, 122:25–123:1.

That is where the agreement ends. Officer Bonney testified in the criminal trial that he

saw Ali “walk behind [Sumrall] and grab an Israeli flag that the victim had wrapped around her

neck.” Trial Tr. Day 1 at 18:1–3. He added before this Court that he could see most of Ali’s

body from his vantage point in front of Sumrall. PI Hr’g Tr. at 21:16. Specifically, he could see

her right hand, which was empty, as it grabbed the flag and yanked downward. PI Hr’g Tr. at

21:20. He described the interaction as a “simple assault” that was not “accidental.” Trial Tr.

Day 1 at 16:6–7, 18:15–18. Kimrall reported feeling someone yank her flag from behind and

“jerk[ her] head back, choking [her],” though she could not see who did it. Trial Tr. Day 1 at

2 62:4–17. She said that she looked around to see only police officers and Ali, walking away.

Trial Tr. Day 1 at 69:17–18. Officer Bonney said that Kimrall had an immediate, clear reaction,

yelling for the police to arrest Ali. PI Hr’g Tr. at 10:17; Compl. ¶ 13.

Ali claims that she did nothing wrong. It would have been impossible, she says, because

she was holding her phone in her right hand, the one closer to Sumrall, after calling her group to

meet them. Trial Tr. Day 1 at 91:10–92:13. Plus, a disability prevents her from using all of her

fingers, so she could not have grabbed the flag while holding her phone. Trial Tr. Day 1 at 85:8–

92:13, 96:24–97:4. And her left hand was similarly occupied with her purse. Trial Tr. Day 1 at

110:1–6. A relative of a Code Pink demonstrator testified that she saw no contact between the

two women as Ali passed by on the ramp. Trial Tr. Day 1 at 123:9–124:1. Defense argues that

either Sumrall stepped backward on her own flag or Ali’s shawl, called a keffiyeh, entangled

with the flag accidentally. Def. Opp’n PI Mot. at 7; Trial Tr. Day 1 at 71:19–24.

What happened next is also disputed. Officer Bonney followed Ali into the Code Pink

group “and pulled her out” to arrest her. Trial Tr. Day 1 at 20:7–11. He testified that “as [he]

was bringing her out of the group, away from the group, she said, ‘All I did was grab it.’” Trial

Tr. Day 1 at 23:4–12. Ali claims that she was not wearing her hearing aids that day so, in

response to the officer’s question about whether she pulled the flag, she responded, “I pulled it?”

Trial Tr. Day 1 at 98:5–7. Officer Bonney clarified that he did not ask her a question to elicit the

response; he says that she spontaneously spoke as they were walking away from her group. PI

Hr’g Tr. at 11:22–12:5.

Sumrall says that since the incident, she has feared for her physical safety. Ten days after

the first hearing in her civil case, she alleges that she received a threatening phone call. Compl.

¶ 39. Sumrall also lives with the “threat of future encounters” because Ali still participates in

3 pro-Palestinian protests that Sumrall would like to attend as a pro-Israeli counter-protestor.

Compl. ¶ 37; Temp. Restraining Order Hr’g Tr. (“TRO Hr’g Tr.”), ECF No. 14, at 27:13–30:24.

Sumrall says that the Code Pink rhetoric at these rallies heightens her fear of discrimination. For

example, in March, she alleges, unrebutted, that Ali attended a public event where individuals

dressed in Israeli flags picked up bloody dollar bills thrown by a costumed Uncle Sam. Compl.

¶ 37. The parties effectively agree that the two women want to attend the same protests in the

future, so there is a strong likelihood, if not certainty, of crossing paths again. PI Hr’g Tr. at

59:22–62:8.

Sumrall filed a pro se civil case in the Superior Court of the District of Columbia and

received a temporary stay away order. D.C. Super. Ct. Stay Away Order, ECF No. 5-2.

Meanwhile, the United States filed misdemeanor assault charges against Ali based on the same

incident. United States v. Ali, 2024-CMD-12091 (D.C. Super. Ct. May 19, 2025). While the

stay away order was in place, Sumrall attended at least one event as a pro-Israel protestor. PI

Hr’g Tr. at 32:11–16. She says that she felt comfortable doing so because of the stay away

order. PI Hr’g Tr. at 58:2–15. Ali was not present at the event. PI Hr’g Tr. at 58:6–8. Sumrall

was indisputably obstreperous towards the host, who testified before this Court. PI Hr’g Tr. at

35:12–13.

A few months later, Ali was acquitted of simple assault after a criminal bench trial. Trial

Tr. Day 2 at 21. Shortly afterward, the state civil case was scheduled for an evidentiary hearing

about whether to extend the civil stay away order. D.C. Super. Ct. Order, ECF No. 5-3. Sumrall

struggled to summon her main witness, Officer Bonney, to testify. Mem. Op. at 9, ECF No. 4,

Sumrall v. Ali, 25-mc-00110 (D.D.C. July 9, 2025). As a federal officer, he had sovereign

immunity to that court’s subpoena that he did not waive.

She sought a federal subpoena

4 from a different judge in this district, but the judge declined to issue a subpoena in a Superior

Court case. Mem. Op., ECF No. 5-5, at 1–2. About one week later, Sumrall filed a complaint

before this Court to seek a civil stay away order. Compl. This Court granted a temporary

restraining order. TRO Hr’g Tr. at 31:12–32:23.

Sumrall represented that she planned to voluntarily dismiss her civil case in Superior

Court that day. TRO Hr’g Tr. at 4:13–25. It has since been dismissed. Pl. Suppl. Br., ECF No.

17, at 1. The Court held a preliminary injunction hearing with witnesses and evidence. PI Hr’g

Tr. passim. The briefing is ripe for decision. This Court has federal question jurisdiction under

.

II.

A preliminary injunction is an extraordinary remedy granted sparingly. Chaplaincy of

Full Gospel Churches v. England,

(D.C. Cir. 2006). The movant must “by a

clear showing, carr[y] the burden of persuasion.” Mazurek v. Armstrong,

(1997). Plaintiffs carry that burden with four showings: “(1) a substantial likelihood of success

on the merits, (2) that [they] would suffer irreparable injury if the injunction were not granted,

(3) that an injunction would not substantially injure other interested parties, and (4) that the

public interest would be furthered by the injunction.” Chaplaincy,

.

A district court should hold an evidentiary hearing and make factual findings if faced

with disputed issues of material fact on a motion for a preliminary injunction. See Cobell v.

Norton,

(D.C. Cir. 2004). These findings of fact receive “special deference”

on appeal and will not be disturbed absent clear error. City of Las Vegas v. Lujan,

(D.C. Cir. 1989). Given the contested factual issues here, the Court held such a hearing, and

its factual determinations are reflected in this Memorandum Order.

5 III.

Sumrall has carried her burden to receive narrowly tailored preliminary injunctive relief.

First, she has shown a likelihood of success on the merits in two ways: (1) that neither

abstention nor claim splitting should dissuade this Court from exercising its jurisdiction over this

federal-question case; and (2) that her § 1981 claim and at least one state-tort predicate are likely

to succeed. Next, she has shown that the “cognizable danger” of future discrimination,

especially given the past battery, meets the irreparable harm standard. Finally, the balance of the

equities favors a narrowly tailored injunction to respect both Ali and Sumrall’s rights to protest.2

A.

Before turning to the dispute itself, the Court first addresses Ali’s doubts about the

Court’s ability to hear this case. Ali says the Court should dismiss the case because Sumrall’s

hook for federal jurisdiction—her § 1981 claim—is pretextual. Def. Opp’n PI Mot. at 4. To be

sure, courts “must guard against” attempts to sneak state-law claims into federal court through

ginned up federal grievances. See id. (quoting Lovern v. Edwards,

(4th Cir.

1999)). But such jurisdictional dismissals are typically reserved for “wholly frivolous federal

claim[s].” Lovern,

. Beyond protesting that Sumrall’s § 1981 claim is

“exaggerated and specious,” Def. Opp’n PI Mot. at 4, Ali has given the Court no reason to

question its legitimacy. Sumrall alleges a racially discriminatory battery that was the subject of

both a civil and criminal proceeding in Superior Court. See supra Section I. The Court has no

reason to doubt Sumrall’s sincerity in invoking federal law.

2 At the preliminary injunction evidentiary hearing, Ali’s counsel suggested that this Court should simultaneously grant her a stay-away order against Sumrall. Of course, there is no cross-complaint or motion to justify such an order against Plaintiff. PI Hr’g Tr. at 73:1–74:19 (“[A]re you aware of any cases where a judge had done that, where the motion is only from one party? No, I haven’t . . . .”).

6 Ali next asks the Court to voluntarily abstain from hearing the case. Def. Opp’n PI Mot.

at 5. But the law is “heavily weighted in favor of the exercise of jurisdiction” and federal courts

only willingly cede it in “exceptional circumstances.” Edge Inv., LLC v. Dist. of Columbia,

(D.C. Cir. 2019) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

(1983)). Ali does not point to any such circumstances here, nor does the Court

see any. See Def. Opp’n PI Mot. at 4–5. More, Defense conceded at the preliminary injunction

hearing that abstention does not apply here. PI Hr’g Tr. at 78:5–19. So abstention is

unwarranted.

Ali also suggests that claim splitting bars Sumrall’s case because her claims mirror those

in her prior Superior Court case. See Def. Suppl. Opp’n, ECF No. 18. Generally, “the pendency

of an action in [a] state court is no bar to proceedings concerning the same matter in [a] Federal

court having jurisdiction.” Colo. River Water Conservation Dist. v. United States,

(1976).3 But Ali says claim splitting is an exception to this principle. See Def. Suppl.

Opp’n. In support, she points to the D.C. Circuit’s recent explanation of claim splitting in Steele

v. United States, — F.4th —,

(D.C. Cir. July 18, 2025).

Claim splitting “borrows from” the more-familiar doctrine of “claim preclusion.” Id. at

*6. Both require prior litigation (1) “involving the same claims or cause of action,” (2) “between

the same parties or their privies,” and (3) before “a court of competent jurisdiction.” Id. at *6–7.

But while claim preclusion arises after final judgment, claim splitting “bar[s] duplicative

litigation filed before final judgment.” Id. at *6 (emphasis added). This bar prevents the use of a

second case to reassert voluntarily dismissed claims that would have become preclusive had they

3 D.C. Superior Court has “jurisdiction equivalent to that exercised by state courts.” Palmore v. United States,

, 392 n.2 (1973). So the D.C. Circuit applies Colorado River to Superior Court as though it were a state court. See Handy v. Shaw, Bransford, Veilleux & Roth,

(D.C. Cir. 2003).

7 reached final judgment. See id. at *7. Put another way, the doctrine “obliges a plaintiff to assert

all causes of action arising from a common set of facts in one lawsuit.” Id. at *7 (quoting Katz v.

Gerardi,

(10th Cir. 2011)). And it “extends not only to claims that were

actually litigated, but also to those that should or could have been.”

In Steele, for instance, the plaintiffs initiated their case “to relitigate causes of action that

were voluntarily withdrawn and later denied reinstatement in” an earlier case in the same district

court. Id. at *6. But the court shot down the plaintiffs’ second case because “[p]arties may not

maintain two separate actions involving the same subject matter at the same time in the same

court and against the same defendant.” Id. (cleaned up). The case involved only duplicative

litigation “in the same [federal] court” though. Id. So on the facts of Steele, the Circuit had no

occasion to evaluate whether claim splitting applies to prior state suits in light of Colorado River.

Granted, Steele’s plain text does not clearly limit claim splitting to federal court because

the test references only “a court of competent jurisdiction.” Steele,

, at *7

(emphasis added). But there is good reason to hesitate before taking the rules for federal fora

and blindly extending them to state courts. Colorado River makes clear that there is a

“difference in general approach between state-federal concurrent jurisdiction and wholly federal

concurrent jurisdiction.” Colorado River,

. Besides, any reading of Steele that

includes state courts in the sweep of “a court” would be invoking dicta. The case does not

reference—much less turn on—state court litigation. More, an overly broad reading of the claim

splitting test would largely swallow claim preclusion.4 There would be no need for claim

preclusion because every state claim would be federally barred from the moment of filing.

4 Though Steele’s three-prong test does not explicitly say so, the opinion elsewhere suggests that the first case must still be ongoing when the second case begins. See Steele,

, at *6 (explaining that parties cannot “maintain two separate actions involving the same subject matter at the same time” (emphasis added)). Otherwise, claim splitting would completely swallow claim preclusion—and the D.C. Circuit surely would have announced

8 Other circuits have considered this question and reached the same conclusion. For

instance, the Second Circuit found that Colorado River limits claim splitting to federal court.

See Kanciper v. Suffolk Cnty. Soc. for the Prevention of Cruelty to Animals, Inc.,

(2d

Cir. 2013). In Kanciper, the district court used claim splitting to dismiss a plaintiff’s case

because she already had an overlapping state-court suit. For support, the district court relied on

the Tenth Circuit’s opinion in Katz,

. Like Steele, Katz found that claim

splitting dooms a case when there is already an overlapping suit “in the same district court,

involving the same subject matter . . . against the same defendants.”

. The district

court then extended this rule to state-court claims. But the Second Circuit vacated, citing

Colorado River. See Kanciper,

.

The Tenth Circuit also reached the same outcome in a non-precedential opinion post-

Katz, finding that Colorado River limits claim splitting to federal court. See Wyles v. Sussman,

(10th Cir. 2016) (“[A]lthough the district court and the parties appeared

to assume that the claim-splitting rule applies equally to attempts to maintain identical actions in

state and federal court, case law indicates otherwise.”). In short, abstention doctrine—not claim

splitting—is the right lodestar for exercising jurisdiction over cases concurrently pending in state

court; applying claim splitting to all pending cases would undermine the Supreme Court’s

abstention command in favor of exercising federal jurisdiction. Colorado River,

.

And abstention provides no help to Ali here, as she now recognizes.

Now back to Sumrall’s case. Sumrall voluntarily dismissed her pro se Superior Court

case, so there is no longer an overlapping litigation. See supra Section I. But Ali maintains that

such a drastic change in the law. So even if claim splitting did apply to state court, it would not prevent future litigation of cases that were voluntary dismissed. In those situations, there is no final judgment (so claim preclusion does not apply) and the case is not ongoing (so claim splitting does not apply).

9 under Steele, claim splitting bars Sumrall’s claims because she already—or at least should have

already—brought them in her earlier Superior Court case. Def. Suppl. Opp’n at 1–2. But Steele

does not go so far. It prevents overlapping cases in district court, but Colorado River permits the

overlap for state court cases. See id. Thus, Sumrall’s prior Superior Court case “is no bar to

proceedings concerning the same matter” in district court. Colorado River,

.

More, regardless of claim splitting’s defensive viability here, Ali likely forfeited the

argument by failing to mention it in her initial brief. See Entergy Ark., LLC v. FERC,

, 580 (D.C. Cir. 2025) (“Forfeiture ordinarily applies whenever a party relies on an argument

not raised in its [initial] brief.”). It was the Court, not the parties, that first identified it as a

possible issue and asked for briefing on it. Min. Order July 23, 2025. And while Ali says claim

splitting warrants dismissal, Def. Suppl. Opp’n at 16, there is no motion to dismiss now before

the Court. So even if claim splitting did apply here, the Court would hesitate to dismiss a case

based on a forfeited argument that implicates the strategic decisions of a litigant who was pro se

at the time.

B.

Sumrall has shown that she is likely to succeed on the merits of her § 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 . . . .”

(a).

10 Congress enacted this statute originally as part of the Civil Rights Act of 1866, a post-

Civil War statute ensuring that “newly freed slaves received the same rights as other citizens.”

Historical Background, Congress.gov (2025).5 The provision protects racial minorities from

private acts that infringe their rights to contract, sue, and otherwise enjoy “full and equal benefit

of all laws” “for the security of persons and property.” General Bldg. Contractors Ass’n v.

Pennsylvania,

, 387–88 (1982). The statute only reaches “purposeful

discrimination,”

, that was the “but-for” cause of the targeted action, Comcast Corp. v.

Nat’l Ass’n of Af. Am.,

, 335 (2020).

“To make out a claim under section 1981 a plaintiff must demonstrate that he was (1)

treated differently than others who were similarly situated (2) because of his race.” Berger v.

Iron Workers Reinforced Rodmen Loc. 201,

, 1412 n.7 (D.C. Cir. 1988). That

discrimination must have affected the individual’s “full and equal benefit of all laws” “for the

security of persons and property,” language which “provide[s] remedies for a broad range of

actions that could be characterized as various state torts.” Banks v. Chesapeake & Potomac Tel.

Co.,

(D.C. Cir. 1986). Specifically, “[a] § 1981 violation may occur when a

private individual injures the security of persons and property in violation of a state law

[prohibiting assault and battery] and does so with a racially discriminatory purpose.” Wong v.

Mangone, 450 Fed. App’x 27, 30 (2d Cir. 2011) (cleaned up).

The D.C. Circuit uses McDonnell-Douglas burden shifting to evaluate § 1981

discrimination claims, even those arising outside the employment context. See Nanko Shipping,

USA v. Alcoa, Inc.,

(D.C. Cir. 2017). But courts do not conduct the burden-

5 https://www.congress.gov/crs_external_products/IF/HTML/IF12535.web.html.

11 shifting analysis when there is direct evidence of discrimination. Trans World Airlines, Inc. v.

Thurston,

(1985). Direct evidence is “hard to come by” so “its presence

generally entitles a plaintiff to a jury trial,” Moini v. Wrighton,

(D.D.C.

2022) (cleaned up)—or, here, a preliminary injunction, where the burden “track[s] the burdens at

trial,” Titan Tire Corp. v. Case New Holland, Inc.,

(Fed. Cir. 2009).

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); Def. Opp’n Mot. PI at 13–15. 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. See supra Section I. He testified that Ali confessed

her behavior as he arrested her. Id. 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.6 Meredith Wallace, who testified for the defense at the criminal trial, attended the

November protest to support Code Pink. Trial Tr. Day 1 at 112:21–114:5. To credit Ali’s

version of events, the Court would have to assume that both Officer Bonney and Sumrall were

6 Andy Shallal testified at the preliminary injunction hearing about Sumrall’s attendance at a protest after the stay- away order. He also is not a neutral witness because his wife is on the board of Code Pink. PI Hr’g Tr. at 48:5-18.

12 committing perjury, even though they have no prior association and Officer Bonney was

unconnected to either side. PI Hr’g Tr. at 7:8–24.

Granted, as Ali argues, the Superior Court acquitted Ali of simple assault because the

evidence did not rise beyond a reasonable doubt. Trial Tr. Day 2 at 21:15–19.7 But this Court

evaluates a civil preliminary injunction using a lower preponderance standard. Callicotte v.

Carlucci,

(D.D.C. 1988). 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.” Cardozo v. United States,

,

670 (D.C. 2024). The evidence shows at minimum an offensive touching—that is, when Ali

briefly choked Sumrall by yanking on the flag tied around her neck. See supra Section I. To be

sure, a different outcome may be required after discovery. But based on the evidence currently

before this Court, Sumrall is likely to succeed on her battery allegations.

Next, that battery was direct evidence of discrimination that likely would not have

occurred but for racial animus. Direct evidence is “a smoking gun,” Amadeo v. Zant,

(1988), “that itself shows racial or gender bias,” Ayissi-Etoh v. Fannie Mae,

(D.C. Cir. 2013). One “statement alone [that] is direct evidence” is enough to send a

case to trial. Ayissi-Etoh, 712 F.3d at 576–77. “A[n action] that can plausibly be interpreted in

two different ways—one discriminatory and the other benign—does not constitute direct

7 The acquittal has no preclusive effect on the civil suit in this Court. United States v. One Assortment of 89 Firearms,

(1984).

13 evidence.” Braxton v. Walmart, Inc.,

, at *3 (10th Cir. Feb. 16, 2023)

(cleaned up).

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. Star of David, Encyclopedia Britannica (2025) (“The yellow

badge that Jews were forced to war in Nazi-occupied Europe invested the Star of David with a

symbolism indicating martyrdom and heroism.”).8 Battery, particularly involving a racial

symbol, is strong evidence of racial discrimination. Cf. Wong, 450 Fed. App’x at 28–29 (racially

motivated battery violated § 1981). It is more severe than “[r]acial slurs or statements” that

constitute direct evidence. E.g., Ayissi-Etoh,

. And targeting the Star of David is

as racially motivated as “the highly offensive racial slur, ‘n*****,’” which “constitutes direct

evidence.” Kinnon v. Arcoub, Gopman & Assocs., Inc.,

(11th Cir. 2007)

(alteration added) (collecting cases); see also Herster v. Bd. of Supervisors of La. St. Univ.,

(5th Cir. 2018) (finding direct evidence when employers said an employee was

“too black to do various tasks” or explicitly refused to “hire a black person”).

Ali has proffered no “benign” interpretation whatsoever for choking Sumrall and it is

hard to imagine one. Braxton,

, at *3. 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. PI Hr’g Tr. at 74:23–76:1. 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. See Wisconsin v. Mitchell,

(1993) (“[A] physical assault is

8 https://www.britannica.com/topic/Star-of-David.

14 not by any stretch of the imagination expressive conduct protected by the First Amendment.”).

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.” PI Hr’g Tr. at 83:3–5 (arguments of counsel).

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.” Def. Opp’n PI Mot.

at 14–15. 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.” Banks,

;

Phillip v. Univ. of Rochester,

, 297–98 (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.9

For these reasons, the Court holds that Sumrall has shouldered her burden to demonstrate

a likelihood of success on the merits.

9 The Court need not address Sumrall’s other alleged torts for now. Capitol Hill Baptist v. Bowser,

, 292 (D.D.C. 2020).

15 IV.

Sumrall also has shown that absent narrowly tailored preliminary relief, she will be

irreparably harmed. To obtain the extraordinary remedy of a preliminary injunction, a plaintiff

must show prospective injury that is “both certain and great; it must be actual and not

theoretical.” Wisc. Gas Co. v. FERC,

, 674 (D.C. Cir. 1985). She must establish

that the injury is “of such imminence that there is a clear and present need for equitable relief to

prevent irreparable harm.” Id. (cleaned up) (emphasis original). The harm must not be reparable

using damages or other forms of relief. Chaplaincy,

.

Sumrall alleges two forms of irreparable harm: discrimination and fear of physical

assault. Sometimes, courts have determined that “being subjected to discrimination is by itself

an irreparable harm.” Singh v. Carter,

(D.D.C. 2016) (citing Smith v.

City of Jackson,

(2005) (O’Connor, J., concurring))10; Vietnamese

Fishermen’s Ass’n v. Knights of Ku Klux Klan,

(S.D. Tex. 1981) (“It is

well established that victims of discrimination suffer an irreparable injury regardless of actual

pecuniary damage.”). This is particularly so when there is “future discriminatory conduct to be

prevented.” E.M. v. Shady Grove Reprod. Sci. Ctr. P.C.,

, at *6 n.2 (D.D.C.

May 7, 2019).

The Court has already found that Ali likely engaged in assaultive, discriminatory

conduct. See supra Section III.B. 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. PI Hr’g

Tr. at 70:6–14, 60:1–61:23. So the discriminatory harm has a high risk of recurrence. Wisc. Gas

10 The Court cites this case for the general discriminatory harm proposition. Religious discrimination, the subject of Singh, is not covered by § 1981. Lemmons v. Georgetown Univ. Hosp.,

, 93 n.19 (D.D.C. 2006).

16 Co., 758 F.2d at 674. 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, see supra

Section I; 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. See Tolson v. Stanton,

(D.D.C. 2012). Sumrall essentially

seeks a civil protection order, so the Court finds persuasive the D.C. Court of Appeals’ standards

governing them. Ramirez v. Salvaterra,

, 183–89 (D.C. 2020). That standard rests

on an even higher irreparable-harm principle. Id. at 184 (requiring “imminent threat of illegal

action” that is “real,” “not conjectural,” citing the Corpus Juris Secundum Injunctions

“irreparable harm” standard (emphasis added)). 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.” Id. at 188.

Issuing stay-away orders may be appropriate where one party “has engaged in assaultive or

threatening conduct.” Tyree v. Evans,

(D.C. 1999).

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.” Compl. ¶ 43. Most of these incidents have not been

attributed to Ali and, to be clear, the Court is not finding that they are. Def. Opp’n PI Mot. at 8.

17 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. PI Hr’g Tr. at 70:6–14; 60:1–61:5.

In sum, the compelling combination of racial discrimination and fear of physical assault

surmounts the irreparable harm barrier here. With the “entire mosaic” considered, Sumrall has

shown irreparable harm.

V.

Finally, the balance of equities and the public interest favor a modest, three-yard stay

away order. Winter v. Nat. Res. Def. Council, Inc.,

(2008). Evidence of past

physical harm can tip the balance of hardships sharply in the harmed party’s favor. See

generally Int’l Ass’n Fire Fighters, Loc. 365 v. City of E. Chicago,

, 452 (7th Cir.

2022) (finding physical injury important for a preliminary injunction). Here, the 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. PI Hr’g Tr. at 72:8–12. 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. PI Hr’g Tr. at

61:15–19.

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

18 support of Israel.” PI Hr’g Tr. at 57:22–58:1.11 There is a “public interest” in the “promotion of

free expression and robust debate.” Belushi v. Woodward,

(D.D.C. 1984).

Another court in this district declined to enjoin publication of a book because it would harm the

public interest in free debate, even though the plaintiff had shown a likelihood of success on

copyright infringement grounds.

at 37–38 (also holding that available legal remedies

undermined irreparable harm). Even more so here, where all other factors favor injunction, the

public interest favors Sumrall’s unfettered participation in protests and counter-protests.

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. PI Hr’g Tr. at 32:11–16. But a plaintiff need only be “deterred [from] at least some

political activity” to show expressive harm. Fire Fighters, 56 F.4th at 450–51 (so stating in the

First Amendment context). “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 . . . .”

(emphasis original); accord Agudath Israel of Am. v. Cuomo,

(2d Cir. 2020) (finding “error” when a court found no irreparable harm because

“congregants could continue to observe their religion with modifications”). 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. PI Hr’g Tr. at 58:2–15.

11 Though the parties have framed their arguments on this point in terms of the First Amendment, query whether § 1981 protects plaintiffs against First Amendment chill from other private actors. Section 1981 rests on Congress’s power to enforce the Thirteenth Amendment. Runyon v. McCrary,

, 168–70 (1976). It has almost exclusively been applied to “prohibit[] racial discrimination in the making and enforcement of private contracts,” particularly in employment and schooling. Id.; see, e.g., General Bldg. Contractors Ass’n, 458 U.S. at 389–91 (stating that § 1981 is coextensive with the Equal Protection Clause, as glossed in Grutter v. Bollinger,

(2003)). The statutory text prohibits racial discrimination in contracting, the ability to “sue, be parties, give evidence,” “the full and equal benefit of all laws and proceedings for the security of persons and property,” and “like punishment, pains, penalties, taxes, license, and exactions” as are “enjoyed by white citizens.”

(a). Neither precedent nor the statute directly suggests that § 1981 contemplates a cause of action against private actors infringing a plaintiff’s freedom of speech.

19 A narrowly tailored, three-yard stay away order will preserve the public interest in both parties’

expression.

VI.

Weighing these factors together, the Court will grant Sumrall’s motion for a preliminary

injunction.12 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

employment13;

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;

4. This Order is effective immediately and will remain in place pending further order of

this Court.

SO ORDERED.

/s/ Dated: August 4, 2025 TREVOR N. McFADDEN, U.S.D.J.

12 Sumrall decreased her injunctive request from five yards to three at the hearing. PI Hr’g Tr. at 83:19–25. 13 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. TRO Hr’g Tr. at 37:4–19.

20