The Washington State Supreme Court has issued a sweeping Opinion (pdf.) announcing that whether a person is deemed “seized” by the police must take into account race if the person is “Black, Indigenous, and other People of Color (BIPOC).”BIPOC status, the court ruled on June 9, 2022, is relevant to whether the person “was not free to leave, to refuse a request, or to otherwise terminate the encounter ….” So two identical factual circumstances of a police encounter maybe result in different judicial results depending on whether the person is BIPOC or not-BIPOC (i.e. white).BIPOC is the term used a dozen times in the Opinion, but BIPOC is a poorly-defined and broad term that puts otherwise disparate groups into a racial category. It also is a term that can have absurd results, such as Elizabeth Warren arguably qualifying as BIPOC since she claimed to be Native American and was treated at Harvard Law School as a Woman of Color.BIPOC as a term also conflates important distinctions among its various groups as to experience with police stops and perception of policing and policing reform. It is for that reason many “anti-racist” activists and academics object to the term BIPOC, viewing it as erasing the unique experience of black Americans.BIPOC is a recent term that became common with the protests and riots of 2020. While the NY Times found a 2013 reference to the term, this Google Search Trends charts shows the surge of the term in 2020:
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.” State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004). 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 andethnicity, 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 toleave, 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.
Thus, under this ruling, consideration of BIPOC status is mandatory because an “objective observer” in determining whether a person is free to leave, would be aware of “implicit, institutional, and unconscious biases” that could lead a BIPOC person not to feel free to leave. It would not matter if the person was part of a BIPOC group that did not experience police discrimination.
The court made this point at various other times in the Opinion (emphasis added):
Regardless of whether race and ethnicity are considered, the seizure analysis is not based on the subjective viewpoint of the allegedly seized individual, with their unique “life experience” or “attitudes.” Contra Easley, 911 F.3d at 1082. Instead, the seizure analysis in Washington is “‘a purely objective one, looking to the actions of the law enforcement officer.’” O’Neill, 148 Wn.2d at 574 (quoting Young, 135 Wn.2d at 501). And an objective observer in Washington “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in” many injustices against BIPOC, particularly in the criminal justice system….Based on the constitutional text, recent developments in this court’s historical treatment of the rights of BIPOC, and the current implications of our decision, we hold as a matter of independent state law that race and ethnicity are relevant to the question of whether a person was seized by law enforcement. We express no opinion as to whether race and ethnicity might be relevant in determining whether a particular warrantless seizure was justified by reasonable suspicion or some other exception to the warrant requirement, as that issue is not before us.* * *As a result, the relevance of race and ethnicity in the seizure inquiry cannot turn on whether there has been recent, well-publicized discrimination and violence by law enforcement directed at individuals of the same race or ethnicity as the allegedly seized person. Instead, we must be cognizant that
[f]or generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.
Strieff, 579 U.S. at 254 (Sotomayor, J., dissenting). Simply put, a person’s race or ethnicity does not become relevant with media reports of targeted police discrimination or violence, nor does it become irrelevant in the temporary absence of such reports.
* * *
Thus, holding that a person’s race and ethnicity are irrelevant unless the person produces statistics showing a pattern of targeted police discrimination or violence would reinforce the same systemic inequalities that prevent such statistics from being reliably compiled in the first instance. History has shown that when courts create “‘crippling’” legal burdens to recognizing the constitutional rights of BIPOC, their lived experiences are unjustly disregarded and their rights go unprotected.
* * *
In sum, while it is true that there is no uniform life experience or perspective shared by all people of color, heightened police scrutiny of the BIPOC community is certainly common enough to establish that race and ethnicity have at least some relevance to the question of whether a person was seized.
There certainly could be specific facts of an encounter that would lead a court to consider the race of the person and police as to whether there was a coercion that an objective observer would view as rendering a person not free to leave. But the court’s Opinion goes far beyond that, it presumes that BIPOC status is enough to make race a factor. That doesn’t mean every encounter between a BIPOC person and police is a seizure, but under this Opinion it creates that presumption.
This presents a problem for policing, because police will need to determine BIPOC status at the time of the encounter:
Pierce County Prosecutor Mary Robnett, whose office handled the case, said in a statement Thursday: “In any appellate court ruling, whether it’s a narrow decision or an expansive one, I hope that it will bring clarity. Unfortunately, this decision will likely further confuse law enforcement officers about their interactions with the public. 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.”Prosecutor’s Office spokesperson Adam Faber said via email: “Our office asked the Supreme Court in this case to recognize that race and ethnicity may be a factor in deciding whether someone has been detained by law enforcement. Today’s decision went further and appears to elevate this factor above all other factors, including immigration status, religious affiliation, disability, gender, sexual orientation, use of force by the officer, or any other relevant circumstances.”
Police are already trying to figure out how to treat persons based on the racial factors the court imposed:
Spokane County Sheriff Ozzie Knezovich said he was briefed on the decision Thursday, and deputies will be advised in an upcoming training bulletin. New procedures for dealing with concerns that minority members of the community might have will be tested during quarterly training sessions in mock scenarios, he said….
We have the unusual circumstance that “objectivity” of adjuding a police encounter is anything but objective. In Washington State, objectivity is very subjective based on assumptions and presumptions that anyone who is non-white necessarily will be intimidated by an enounter with the police such that even asking for identification would be deemed a seizure. A white person in the same circumstance and the same facts would not be deemed seized, which has important implications for treatment in the criminal justice system. Same facts, different results based on race.
To highlight the absurdity, what about white people who self-identify as BIPOC, like Elizabeth Warren?
This is a good example of how social justice and Critical Race Theory verbiage and language accelerated by the BLM protests of 2020 have penetrated the judiciary. “BIPOC” is an ill-defined, overly-broad, and relatively new categorization of different groups that only have in common some amount of skin color that would render them not white. This is what it has come to.
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