The Volokh Conspiracy

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Race Discrimination

Washington S. Ct.: Whether Someone Has Been "Seized" Turns in Part on His Race


My follow-up question: There are also likely highly "disproportionate police contacts, investigative seizures, and uses of force against" men—which doubtless stem in part from men actually committing more crimes than women, but are likely also influenced by "implicit, institutional, and unconscious biases" on the part of law enforcement (and everyone else). Wouldn't the court's logic likewise apply to let male defendants claim that their sex should be considered in their favor in the seizure analysis, and what wouldn't be a seizure to a woman would be one to them?

From today's decision in State v. Sum:

This case concerns the analysis that courts must apply to determine whether a person has been seized by law enforcement for purposes of article I, section 7 of the Washington Constitution. It is well established that an encounter with law enforcement rises to the level of a seizure if "considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe [they are] free to leave or decline a request due to an officer's use of force or display of authority." Today, we are asked whether "all the circumstances" of the encounter includes the race and ethnicity of the allegedly seized person.

As the parties correctly agree, the answer is yes. Our precedent has always required that the seizure inquiry be made in light of the totality of the circumstances, and we have never stated that race and ethnicity cannot be relevant circumstances. However, we have not explicitly held that in interactions with law enforcement, race and ethnicity matter. We do so today. Furthermore, to ensure that all the circumstances of a law enforcement encounter are properly considered, including race and ethnicity, we take this opportunity to clarify the seizure inquiry as a matter of independent state law, taking guidance from GR 37.

As set forth in this court's precedent, the seizure inquiry is an objective test in which the allegedly seized person has the burden to show that a seizure occurred. To aid courts in the application of this test, we now clarify that a person is seized for purposes of article I, section 7 if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement's display of authority or use of physical force. For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington. Finally, in accordance with our precedent, if the person shows there was a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.

Based on the totality of the circumstances presented in this case, we hold that petitioner Palla Sum was seized when a sheriff's deputy requested Sum's identification while implying that Sum was under investigation for car theft. As the State properly concedes, at that time, the deputy did not have a warrant, reasonable suspicion, or any other lawful authority to seize Sum. As a result, Sum was unlawfully seized, and the false name and birth date he gave to the deputy must be suppressed. We therefore reverse the Court of Appeals and remand to the trial court for further proceedings.

Note that the court speaks of the experience of "BIPOC" people generally (indeed, of "the BIPOC community, as a whole"), and expressly doesn't require a showing by Sum, who's Asian, that Asians (or people who share his particular Asian subethnicity) have been disproportionately targeted by police.