The Washington state Supreme Court on Thursday ruled that a person’s race, and law enforcement’s long history of discrimination against people of color, should be taken into account when determining the legality of police seizures.
The court also clarified state law to say police have seized a person if an objective observer would conclude that the person was not free to leave or refuse a request. But, the court wrote, that “objective observer” must be aware that discrimination and biases “have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other people of color.”
“Today, we formally recognize what has always been true: In interactions with law enforcement, race and ethnicity matter,” Justice Mary Yu wrote for the unanimous court. “Therefore, courts must consider the race and ethnicity of the allegedly seized person as part of the totality of the circumstances when deciding whether there was a seizure.”
The case concerns Palla Sum, a person of color, who was sleeping in his car in Tacoma one morning in April 2019 when police came upon him. An officer ran his plates and determined the car was not stolen.
The officer knocked on the window, asked Sum questions and asked him for identification.
Sum gave a false name and the officer went back to his cruiser to check records. Sum then drove off, crashed into a front lawn and was caught as he attempted to run away.
He was subsequently charged with making a false statement, attempting to flee police and unlawful possession of a firearm, after a gun was found in his car.
But Sum argued his statements to police should be inadmissible, because he was “unlawfully seized” by police after the officer asked for his identification and said there had been car thefts in the area.
From the moment the officer knew the car wasn’t stolen, Sum argued, he didn’t have “reasonable suspicion” to seize Sum, and that’s exactly what their subsequent interaction amounted to.
“A reasonable person in Sum’s position would not have felt free to ignore the
officer,” Sum’s lawyers wrote. They urged the court to adopt a new standard, for what constitutes an illegal seizure. The hypothetical “reasonable person” should be “familiar with patterns of policing in America and the risks a person of color takes in walking away from or disregarding police interaction.”
The court agreed, writing that an objective observer would have concluded that Sum was not free to refuse the officer’s requests “due to the deputy’s display of authority.”
The officer did not ask about Sum’s health or safety or ask whether he needed assistance, the court wrote; instead, he implied he was investigating him for car theft.
“At that point, Sum was seized,” Yu wrote, “this seizure was not supported by a warrant, reasonable suspicion, or any other authority of law.”
Sum’s false statement was inadmissible, the court found. His other two convictions, which were not challenged, remain. He is in prison in Oregon.
Pierce County Prosecuting Attorney Mary Robnett, whose office prosecuted Sum and fought the appeal, said she’d hoped the court would provide clarity.
“Unfortunately, this decision will likely further confuse law enforcement officers about their interactions with the public,” Robnett said. “Police officers and trial court judges, especially, are facing some confusing and uncertain times ahead as they try to correctly apply the court’s ruling.”
State Sen. Jeff Wilson, R-Longview, called the ruling outrageous and unworkable and said he would introduce legislation to address it next year.
“The U.S. Constitution declares that every individual is subject to the same laws as everyone else. It doesn’t extend rights to groups,” Wilson said. “Unfortunately, there are a rising number of voices on the left who do not believe in equality for every person under the law.”
The court twice referenced “the talk” that some parents of color have with their kids about how to interact with police to avoid any possibility of being perceived as a threat.
Mary Fan, a professor specializing in criminal law at the University of Washington School of Law, said the ruling recognizes that people are not just blank slates when they interact with law enforcement.
“The realities that people’s experience in police encounters and whether they feel free to leave or not can differ depending on demographic characteristics,” Fan said.
In an amicus brief, public defender and civil rights groups argued that law enforcement’s history of discriminating against people of color needs to be reflected in how the law is interpreted.
“Centuries of violence and dehumanizing treatment of people of color have required BIPOC communities to develop survival strategies that demand over-compliance with law enforcement,” the groups, including the King County Department of Public Defense and the ACLU of Washington, wrote. “For courts to continue to blind themselves to that reality when evaluating the freedom an individual would feel to unilaterally terminate a law enforcement contact is to further enshrine existing racial disparities into the legal system.”
Robert Chang, professor at Seattle University School of Law and director of the university’s Korematsu Center, which participated in the amicus brief, said he was interested in seeing how courts apply the new standard, and also how it affects policing.
“The bigger question is whether or not it will affect police behavior because so many of the issues with respect to disproportionality come from disproportionate policing,” Chang said.
The Washington Association of Sheriffs and Police Chiefs declined to comment on the ruling. Several other law enforcement organizations and unions did not respond to requests for comment.
The “objective observer” standard that the court adopted evolved from a first-in-the-nation 2018 rule change that the court implemented to try to improve diversity on juries.
For years, prosecutors and defense attorneys have been able to exclude a certain number of potential jurors for virtually any reason. They couldn’t exclude jurors explicitly because of race, but if a prosecutor moved to exclude a Black juror it was virtually impossible to prove that it was because of race.
But the state Supreme Court changed the rules to ban any juror challenges based on “implicit, institutional, and unconscious” racial bias. If an “objective observer” could see race as a factor, the juror challenge should not be allowed.
At least 13 other states have since made similar changes or are considering them.
In both the jury selection rule change and the ruling on what constitutes a seizure, the court found that “purposeful, explicit discrimination” is not necessary for there to be a problem. Rather, the rule change and the ruling seek to address implicit racial bias that “exists at the unconscious level, where it can influence our decisions without our awareness.”
Jennifer Winkler, Sum’s attorney, said the ruling “brings seizure law in our state into the 21st century.
“It sets out better, fairer, and more objective guidelines for judicial decision-making,” Winkler said.