State Court Docket Watch: Washington v. Palla Sum

 In Washington v. Palla Sum, the Washington Supreme Court considered whether courts in Washington should take an individual’s race and ethnicity into account to determine whether an encounter with law enforcement should be considered a seizure under article I, section 7 of the Washington Constitution. The Court unanimously concluded that an individual’s race and ethnicity should be considered since “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.”[1]

The case arose when a Pierce County Sheriff noticed a Honda Civic parked near the entry gate to a church parking lot.[2] There was no indication that the car was blocking the gate or parked illegally. Nevertheless, the officer approached the vehicle likely because he had previously arrested a suspect in a stolen vehicle at the same location.[3] He saw that the driver (Sum) and a passenger both appeared to be unconscious and found that while the vehicle had not been reported stolen the car’s record did not state the current owner. He then knocked on the driver’s side window, woke up Sum, and asked Sum and his passenger what they were doing there and who owned the Honda.[4] He also asked for identification and informed the occupants they were in an area known for stolen vehicles.[5] Sum provided a false identification.[6] When the officer went back to check on the names that Sum and passenger provided, Sum drove off, ran a stop sign and multiple red rights, and ultimately crashed into someone’s front yard.[7] Sum was then arrested and charged with multiple counts including providing a false identification to the police officer.[8]

Sum filed a pretrial motion to suppress, arguing that he was unlawfully seized without reasonable suspicion when the officer requested identification while implying that he was under investigation for car theft.[9] The trial court denied the motion because the officer had not retained Sum’s physical identification card.[10] Sum was ultimately convicted. The Court of Appeals affirmed holding that “merely asking for identification is properly characterized as a social contact” rather than a seizure.[11] On appeal to the Washington Supreme Court, Sum argued that the courts below failed to take his race (Asian/Pacific Islander) into account when determining whether a reasonable person would have determined that he was seized by the police at the time when he gave a false identification.

Even though the state conceded that race and ethnicity were relevant factors, the Washington Supreme Court nevertheless took up the question since its “precedent has conspicuously failed to acknowledge the impact of race and ethnicity on police encounters.”[12] In concluding that race and ethnicity should be taken into account, the court considered three factors: “(1) ‘the constitutional text,’ (2) ‘the historical treatment of the interest at stake as reflected in relevant case law and statutes,’ and (3) ‘the current implications of recognizing or not recognizing an interest.’”[13]

First, the court noted that article I, section 7 of the Washington Constitution “guarantees privacy rights with no express limitations” and therefore does not rule out consideration of race.[14] Second, the court considered the fact that “many of the court’s opinions concerning the civil rights and lived experiences of BIPOC have been deplorable,” but that its “recent history has made notable strides toward recognizing and rejecting racial injustices” such as making it easier to challenge discriminatory uses of peremptory challenges.[15] Finally, the court concluded that the implications of recognizing race and ethnicity as relevant to the seizure analysis “clearly favors recognition” since “[i]t would be nonsensical to hold that a person’s race and ethnicity . . . are irrelevant to the question of how the person was brought into the criminal justice system in the first place.”[16]

The court recognized that there was a split of authority from other courts on whether race and ethnicity should be considered. The Seventh, Ninth, and D.C. Circuits had found that these factors were “not irrelevant,” as had the New Hampshire Supreme Court on independent state law grounds.[17] On the other hand, the Tenth Circuit had expressed concerns about the implications of considering race, because “[t]here is no uniform life experience for persons of color, and there are surely divergent attitudes toward law enforcement officers among members of the population.”[18]

The court dismissed these latter concerns, explaining that in Washington the analysis is a “purely objective one” and that “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.”[19]

The court also rejected the argument that Sum should have been required to produce evidence that the Pierce County police was likely to discriminate against members of the Asian/Pacific Islander community or that the officer’s words or actions were influenced by Sum’s race. [SG1] The court refused to “presume that race and ethnicity are irrelevant unless proved otherwise” since “it is no secret that people of color are disproportionate victims of this type of scrutiny.”[20] As a result of the long history of discrimination, the court found that 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.”[21] Any requirement for an allegedly seized person to prove that race was relevant would “artificially raise their burden, while unjustly ignoring the pain, suffering, and distrust that statistics fail to capture”[22] and “reinforce . . . systemic inequalities.”[23] The court similarly refused to require any evidence concerning the officer’s race or any history of discrimination by the officer since bias is often implicit and “there is no reason to assume that law enforcement officers are immune from holding and being affected by unexpressed racial and ethnic biases.”[24]          

The court then considered how race might be weighed in warrantless seizure cases in the future. The court emphasized that since “it is well known that BIPOC are wrongfully subject to excessive police scrutiny,” it would not be necessary to “show purposeful discrimination.”[25] And since persons of color would be well aware of the danger of law enforcement overreaction based on race, their feeling “free” to leave would be “rooted in an assessment of the consequences of doing so.”[26] 

The court also suggested that a host of seemingly race-neutral explanations for a police stop—such as that an individual was “staring or failing to make eye contact” or “exhibited a problematic attitude, body language, or demeanor”—could often mask discrimination and should be viewed with some skepticism.[27]

Ultimately, the court explained that the determination of whether an individual was seized needs to be made from the perspective of an objective observer, and that such an 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 BIPOC in Washington.”[28]

The court applied this standard to the facts of the case and concluded that Sum was seized when the officer informed him that he was in a place where cars had previously been stolen and asked him for identification (if not earlier). “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.”[29] This was particularly true in light of the number and type of the officer’s questions and the fact that “suspicionless stop[s] are disproportionately associated with people of color.”[30]

In this case, the race of Palla Sum appears to have played a secondary role. The officer’s questions may have been a “seizure” regardless of the race of the suspect.  

Nevertheless, this decision may have significant implications for police encounters in the State of Washington. While other courts have held that race is “not irrelevant” in determining whether there is a seizure, the Washington Supreme Court went quite a bit further in its embrace of race as a factor. The absence of the requirement of concrete evidence of discrimination and the court’s embrace of an implicit bias theory means that any stops involving persons of color, regardless of the race of the officer, are going to be viewed with skepticism. And when officers attempt to offer neutral explanations such as that a suspect “exhibited a problematic attitude, body language, or demeanor,” those explanations will likely be scrutinized through a prism of racial bias. The decision may therefore raise some significant challenges for law enforcement personnel who may not be aware of the race of a particular individual and therefore will have no way to know what behavior is appropriate and what crosses the line into an unlawful seizure.

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