Race Must Be Considered in Determining Legality of Police Stops and Seizures, WA State Supreme Court Rules

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.

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Sum’s false statement was inadmissible, the court found. His other two convictions, which were not challenged, remain. He is in prison in Oregon.

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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.

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