State v. Sum, 511 P.3d 92 (Wash. 2022)
The Washington Supreme Court ruled the trial court was required to consider an accused person’s race and ethnicity in the totality of the circumstances when determining whether a person was “seized” in Washington state constitution’s prohibition against unlawful seizure.
The court offered the following language in support: As noted above, the article I, section 7 seizure inquiry requires consideration of “all the circumstances” of the interaction between law enforcement and the allegedly seized person. Rankin, 151 Wn.2d at 695; see also O’Neill, 148 Wn.2d at 574; Young, 135 Wn.2d at 510; State v. Thorn, 129 Wn.2d 347, 352, 917 P.2d 108 (1996), overruled on other grounds by O’Neill, 148 Wn.2d at 571. We have never held that the race and ethnicity of the allegedly seized person are not relevant circumstances. Nevertheless, our precedent has conspicuously failed to acknowledge the impact of race and ethnicity on police encounters.
….
When it comes to police encounters without reasonable suspicion, “it is no secret that people of color are disproportionate victims of this type of scrutiny.” Utah v. Strieff, 579 U.S. 232, 254, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016) (Sotomayor, J., dissenting). Indeed, our own GR 37 recognizes the disproportionate police contacts experienced by BIPOC and provides that factors such as “ having prior contact with law enforcement officers”; “expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling”; “having a close relationship with people who have been stopped, arrested, or convicted of a crime”; and “living in a high-crime neighborhood” are all “presumptively invalid reasons for a peremptory challenge.” GR 37(h)(i)-(iv). All such factors have historically “been associated with improper discrimination in jury selection.” Id. at (h).
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. Jefferson, 192 Wn.2d at 240 (Gordon McCloud, J., lead opinion) (quoting Batson, 476 U.S. at 92). We decline the invitation to impose such burdens here.”
