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“Stopped While Black” Becomes a Legal Defense

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“Stopped While Black” Becomes a Legal Defense

The Washington State Supreme Court makes it harder for cops to detain nonwhites. June 15, 2022
Public safety
Politics and law
The Social Order

When police detain someone, can that person assume that he is being stopped not because of his behavior but solely because of the color of his skin? Remarkably, the answer is yes—at least according to a ruling issued last week by the Washington State Supreme Court. The decision has left police and prosecutors unsure of how to proceed but certain that it will make securing criminal convictions even harder. As one officer put it to me, “It’s almost like an institutional sanctioning of ‘you only stopped me because I’m black.’”

The ruling was the result of appeals in the case of Palla Sum, who, in April 2019, was discovered, with a friend, in a parked car in an area “known for stolen vehicles” by Pierce County sheriff’s deputy Mark Rickerson. Rickerson asked Sum and his friend for their names; when he returned to his car to check them, Sum started the vehicle, “backed up quickly, and then took off.” A high-speed chase ensued, ending when Sum crashed in someone’s front yard.

Law enforcement subsequently found Sum to have a holster and, following a search of the car, a pistol. Prohibited from possessing a gun, Sum was convicted of first-degree unlawful possession of a firearm. On appeal, he made a number of claims, most significantly that, when the deputy asked him for his identification, he had been detained without reasonable suspicion, a warrant, or any other legal authority—an unlawful stop, in other words, meaning that the evidence obtained therein should be thrown out.

In Washington State, a police stop occurs whenever, “considering all the circumstances, an individual’s freedom of movement is restrained and the individual would not believe [he is] free to leave or decline a request due to an officer’s use of force or display of authority.” Sum asked the court to rule that “all the circumstances” includes a person’s race and the contingencies thereof. The court agreed. In particular, it maintained that an objective person could consider himself not free to leave based in part on his race merely because he shares the court’s belief that “implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against BIPOC [black, indigenous, people of color] in Washington.”

I say “belief” because the court offered no evidence for this proposition, nor did it demand any from Sum. In fact, Sum is Asian, an ethnic group that accounts for 9.6 percent of Washington State residents but only 0.34 percent of arrests in 2020. If anything, his race placed him at lower risk of adverse police contact.

But the court dismissed this point, arguing that Native Hawaiians and Pacific Islanders, a subset of Asians, are at heightened risk of police use of force; and that, while statistics “may add weight to the impact of race or ethnicity in particular cases . . . a lack of statistics cannot totally negate the relevance of a person’s race or ethnicity because statistical data are inherently limited by the manner and means in which they are collected.” In other words, statistics can always prove racism but can never disprove it.

The criminal justice system’s disproportionate treatment of minorities (BIPOC, in the court’s nouveau dialect) is, for the court, an article of faith. In the court’s judgment, an objective observer can conclude—based entirely on the fact that Sum is not white—that Rickerson was unlawfully detaining him. Indeed, the court asserted just that, throwing out the evidence obtained thereby.

Washington police officers with whom I’ve spoken expressed uncertainty about how the ruling will affect their day-to-day work. “The court is bluntly ruling that if I want to just have a conversation with somebody, that I now have to factor in what my perception is of their race, religion, ethnicity, and then treat them differently,” an officer in the Puget Sound region said. “And I don’t even know what that looks like. Does that mean that every five minutes in their conversation I have to pause and go, ‘hey, just reminding you, you can leave at any time, you don’t have to talk to me?’”

The ruling’s likely consequence is that it will be harder for police and prosecutors to get convictions. The presumption of bias will give Washington defense attorneys the ability to challenge almost any stop purely based on the offender’s race. A Washington prosecutor predicted more cases like Sum’s. The impact, she told me, would include, “stops not being legally justified, or the court suppressing a stop which then suppresses evidence, and charges going away.”

The Sum ruling is just the latest in a long train of race-conscious, anti-police policies handed down by Washington State authorities. The court based much of its reasoning on its own recently amended rules for jury selection, which now stipulate that a potential juror cannot be excluded because he expresses distrust in law enforcement, has a criminal record, or has a close relationship with criminals, because these criteria are historically discriminatory. And the state legislature handed down a series of police “reforms,” including laws that had to be clarified to ensure that police were allowed to help transport the mentally ill or to possess less-than-lethal weapons.

The whole environment, officers told me, has crippled police morale. “It feels like they’re just giving the middle finger to the police,” the Puget Sound officer said.

Photo: GummyBone/iStock

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