Washington Supreme Court elevates race as a factor in judging police seizures

The Washington Supreme Court Thursday clarified that race is and has been a factor in determining the legality of seizures of persons in Washington, citing long-standing and pervasive bias against racial minorities resulting in unfair policing practices within the state.

“Today, we formally recognize what has always been true: In interactions with law enforcement, race and ethnicity matter,” the court stated in a unanimous decision. “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.”

In Washington, persons are considered seized by police when, considering all circumstances, their freedom of movement has been restrained and they would not believe themselves free to leave based on an officer’s display of authority or use of force, according to the court decision.

The case at hand centered on a 2019 encounter between Palla Sum, later identified in court documents as of Asian/Pacific Islander origin, and Deputy Mark Rickerson of the Pierce County Sheriff’s Department. The encounter led to Sum’s conviction on three criminal charges.

While on patrol, Rickerson saw a man, Sum, sleeping in a parked car in a high-crime area. Before approaching the vehicle, Rickerson ran the plate number and found no indication that it had been stolen.

Upon waking Sum and a second man also sleeping in the car, Rickerson asked what they were doing there and who owned the car. Sum stated they were visiting a friend and gave only the first name of the car’s owner, which later proved false. Sum himself was the owner of the vehicle.

Rickerson then asked both men for identification. When Sum asked why he wanted it, Rickerson responded saying that the men were sitting in an area known for stolen vehicles and didn’t seem to know who owned the car. Sum provided a false name.

When Rickerson returned to his patrol car to verify the mens’ identities, Sum sped off, driving over a lawn and sidewalk, then proceeding at high speed through a stop sign and several red lights before crashing into another vehicle.

Sum was arrested, charged and convicted of making a false statement, attempting to flee police and unlawful possession of a firearm.

Sum argued that his conviction for making a false statement should be overturned because he was illegally seized when asked for his name. At that point, Sum argued, he thought he was under investigation for auto theft. The court agreed.

“At that point, it would have been clear to any reasonable person that Deputy Rickerson wanted Sum’s identification because he suspected Sum of car theft,” Justice Mary Yu wrote. Also, “Based on the totality of the circumstances, an objective observer could easily conclude that if Sum had refused to identify himself and requested to be left alone, Deputy Rickerson would have failed to honor Sum’s request because the deputy was investigating Sum for car theft.“

Further, the court ruled that race was indeed a factor in determining whether an illegal seizure had taken place. In doing so, the justices relied heavily on a Washington rule regarding peremptory challenges in jury selection. Peremptory challenges allow a lawyer to disallow to a potential juror without giving a reason. However, that reason may not include the juror’s race.

Further, the rejection based on race need not be overt or intentional. If an “objective observer” would see race as a factor in the challenge, it would not be allowed.

The court applied the same standard in determining Sum’s case, stating that there was no need for him to demonstrate that race was a factor in the officer’s thinking. The long history of implicit and explicit bias against people of color in police interactions would lead an “objective observer” to conclude that race was a contributing factor, the court said.

Based on the court’s ruling, the evidence of Sum’s false statement was deemed inadmissible. The other two convictions remain in effect.

The Pierce County Sheriff’s Department did not reply to requests for comment. Sum’s lawyer, Jennifer Winkler, also ignored a request for comment.

She praised the ruling to the Seattle Times, saying it “brings seizure law in our state into the 21st century,” and “sets out better, fairer, and more objective guidelines for judicial decision-making.”