Washington high court says race should be considered in police encounters

A person’s race and ethnicity must be considered in deciding when they go from a casual encounter with police to being under an officer’s control, the state Supreme Court said in a decision that expands rulings that acknowledge the justice system’s historic discrimination against minorities.

Ignoring the influence of race and ethnicity in police encounters “can no longer be justified,” Justice Mary Yu said in the unanimous decision released Thursday.

“It would be nonsensical to hold that a person’s race and ethnicity, though clearly relevant to the important trial rights … are irrelevant to the question of how the person was brought into the criminal justice system in the first place,” Yu wrote.

Jac Archer, an organizer for Spokane Community Against Racism, said the ruling is an acknowledgement that race and ethnicity have always been a part of a person’s existence, and can’t be separated any more than gender, height or weight.

“What the court is saying is totality (of existence) is totality,” Archer said.

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.

But Knezovich said he didn’t believe that race or ethnicity was a factor in the case that led to the ruling, or in police activities in general.

“I’ve never seen anyone arrested because of their skin color,” he said.

The ruling revolves around the definition of when a person is legally “seized” by police without a warrant. It involves a 2019 incident in Pierce County in which Deputy Mark Rickerson approached a car parked in an area where there had been a previous arrest for a stolen car and some reports of suspicious vehicles. As Rickerson approached the car, he saw Palla Sum, a person of Asian descent, apparently unconscious in the driver’s seat; the deputy made a records check that revealed the car had recently been sold, although there was no report of it being stolen.

Rickerson knocked on the window and, after Sum slowly woke up, asked what he was doing there. Sum said he was “waiting for a friend.” Asked who owns the car, Sum mentioned someone’s first name. He asked for Sum’s identification, and when Sum asked why, the deputy said he was parked in an area known for stolen vehicles and didn’t seem to know who the car’s owner was. Sum gave him a false name and birthdate, and when Rickerson went to his car to check the information, Sum started the vehicle, backed up, drove over the sidewalk and some grass, “and took off.”

In the ensuing high-speed chase, Sum ran through a stop sign and several red lights before crashing into a yard. Rickerson handcuffed Sum and read him his Miranda rights. A later search of the car turned up a title showing the car belong to Sum, as well as a pistol. He was charged with attempting to elude a police vehicle, making a false statement to law enforcement, and unlawful possession of a firearm. A jury convicted him on all three counts.

Sum argued he was unlawfully “seized” when Rickerson asked for his identification while implying he was under investigation for car theft without reasonable suspicion. The trial court denied that motion, saying the deputy didn’t take his physical ID to do a records check. The appeals court upheld the conviction, but the Supreme Court chose to hear the case to clarify what trial courts should consider in evaluating when police contacts with racial and ethnic minorities become warrantless seizures.

The question, Yu wrote, was when Sum was considered seized by Rickerson, and therefore not free to leave or decline to answer questions due to an officer’s use of force or display of authority. That requires an objective analysis, but not evidence from a defendant of history of discrimination by local law enforcement against his race, media reports of such bias or specific words or actions about his race by the arresting officer.

“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,” Yu wrote. A statement by an officer regarding a defendant’s race or ethnicity could be given weight in a seizure analysis, but “the absence of such an overt statement does not mean that race or ethnicity are irrelevant.”

The weight that should be given to a person’s race and ethnicity will vary based on the evidence presented, but should be part of all the circumstances considered, the court said.

Minority communities “are subject to excessive police contacts, investigative seizures, and uses of force by law enforcement,” she wrote. Those communities are generally aware of such patterns of excessive police scrutiny and generations of their children have grown with “the Talk” about how to interact with law enforcement, leaving them afraid to leave or terminate an encounter with police.

In deciding when a defendant would reasonably consider he was free to leave or refuse a request by an officer, the court should determine what an “objective observer” aware of various biases would consider . Prosecutors must also prove that the seizure without a warrant was justified by an exception to warrant requirements currently in place.

Under those standards, an objective observer could consider that tipping point at which Rickerson’s encounter with Sum went from a simple encounter to a seizure was when the deputy said Sum was in an area known for stolen cars and didn’t seem to know to whom the vehicle belonged, Yu said.

An objective observer could conclude that if Sum had refused to identify himself and asked to be left alone, Rickerson would not have honored the request because he was investigating Sum for car theft. “At that point, Sum was seized,” Yu wrote. That seizure, the state had already conceded, was not supported by a warrant, reasonable suspicion or any other legal authority.

Knezovich said deputies will need to be careful of the words they use and be aware that their mere presence might make members of the minority community feel they aren’t free to leave. He insisted that the case didn’t revolve around racism, but in Sum giving Rickerson a false name and driving off.

“We use racism as a crutch for everything,” he said. “Guilty people flee, innocent people don’t have a reason to flee.”

But everyone is going to experience a police stop differently, Archer said, and police should be taking race and ethnicity into account as much as they take whether a person is a man or a woman, or driving a Corvette or a junker.