Race must be considered when deciding whether someone is ‘seized’ by police, high court rules

An opinion from the state’s high court in the case of a man arrested in Pierce County says race and ethnicity have to be considered when analyzing whether someone has been seized by police.

The case involved a man who gave a Pierce County sheriff’s deputy a fake name and date of birth. He argued that he was unlawfully seized before he gave the deputy that information, and the justices agreed.

They reversed the state Court of Appeals’ earlier decision in the case 9-0, ruled that the man’s statement needs to be suppressed and sent the case back to Pierce County Superior Court for further proceedings.

The high court’s opinion, released Thursday, outlines that someone has been seized by law enforcement if “based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate a police encounter due to law enforcement’s display of authority or use of physical force.”

The opinion further clarifies that: “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 BIPOC [Black, Indigenous, people of color] in Washington.”

Justice Mary Yu wrote the court’s opinion.

“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,” Yu wrote. “However, we have not explicitly held that in interactions with law enforcement, race and ethnicity matter. We do so today.”

The defendant in the case is 31-year-old Palla Sum. Court records identify his race as Asian/Pacific Islander.

Jurors convicted Sum of first-degree unlawful gun possession, attempting to elude police and making a false or misleading statement to a public servant.

Attorney Jennifer Winkler, who represented Sum in his appeal, said Thursday that Sum has already served his sentence.

“Today’s unanimous decision brings seizure law in our state up to date. It sets out fairer and more objective guidelines for judicial decision-making,” Winkler said via email. “Improved clarity will promote trust in institutions and ultimately lead to safer communities.”

Asked what the opinion means for the case, Winkler wrote: “Mr. Sum’s making a false or misleading statement conviction will likely be dismissed because the only evidence supporting the conviction is being suppressed.”

‘Uncertain times’

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.”

Court records give this account of what happened:

Pierce County Sheriff’s Deputy Mark Rickerson saw Sum, who looked to be unconscious, in the driver’s seat of a Honda Civic parked near a church the morning of April 9, 2019.

The deputy knocked on the window, and Sum woke up and partially rolled it down.

He told the deputy he and a passenger in the Honda were waiting for a friend. Someone else owned the Honda, Sum told the deputy.

When the deputy asked for IDs, Sum asked why he wanted identification. The deputy said the area was known for stolen vehicles and that Sum didn’t seem to know who the Honda belonged to.

The passenger gave the deputy his name and date of birth. Sum gave a fake name and birth date and drove off when the deputy went to check the information.

The deputy chased him and Sum crashed.

“A search of Sum’s person incident to arrest turned up the Honda’s title and registration, which showed that the car did, in fact, belong to Palla Sum,” Yu wrote in the high court’s opinion. “He had purchased it two weeks earlier. The search of Sum’s person also uncovered a small holster in his pants, and when the Honda was later searched pursuant to a warrant, police discovered a pistol.”

‘Long past time’

Sum argued to the trial court judge and later to the Court of Appeals that he was unlawfully seized.

A pretrial motion Sum filed that was denied by then-Pierce County Superior Court Judge Frank Cuthbertson argued that Sum “was unlawfully seized without reasonable suspicion when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft,” Yu wrote.

The high court said Sum’s race has to be part of the analysis, along with many other factors, to determine when he was seized by the deputy.

“It is long past time for this court to explicitly determine whether the race and ethnicity of an allegedly seized person are relevant to the determination of whether a seizure occurred,” Yu wrote in the opinion, signed by Justices Steven González, Charles Johnson, Barbara Madsen, Susan Owens, Debra Stephens, Sheryl Gordon McCloud, G. Helen Whitener, and Justice Pro Tem Linda Coburn.

The court rejected arguments the state made about why Sum’s race wasn’t relevant to the case.

“Although the State concedes that race and ethnicity can be relevant in some cases, it contends that Sum’s race is irrelevant in this case because (1) Sum did not produce evidence showing that police in Pierce County in 2019 were likely to commit acts of discrimination and violence against members of the Asian/Pacific Islander community and (2) the record does not explicitly show that Deputy Rickerson’s words or actions were influenced by Sum’s race,” Yu wrote. “We disagree. The State’s proposed analysis places an unjustifiably high burden on the allegedly seized person and suggests an improper, subjective inquiry based on the privately held motivations of law enforcement officers.”

Quoting from a prior opinion, Yu went on to write: “... 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. We decline the invitation to impose such burdens here.”

‘An objective observer’

In Sum’s case, the high court found he was unlawfully seized before he gave the deputy the fake name and date of birth.

An objective observer could have decided the deputy wouldn’t have just left Sum alone if he’d refused to identify himself, the justices said.

“In other words, an objective observer could conclude that Sum was not free to refuse Deputy Rickerson’s request due to the deputy’s display of authority,” Yu wrote. “At that point, Sum was seized.”

The King County Department of Public Defense, the American Civil Liberties Union of Washington, the Fred T. Korematsu Center for Law and Equality, and the Washington Defender Association filed a joint amici brief in the case.

“We are pleased that the Court has recognized the lived experiences of our clients and the significant harms they face due to racialized policing,” Anita Khandelwal, the director of the King County Department of Public Defense, said in a statement Thursday. “Disproportionate policing, investigative seizures, and the use of force against BIPOC individuals have deeply harmed BIPOC communities. What’s noteworthy is the Court’s recognition of this reality. It’s not often that our clients have their truths lifted up in this way.”

Khandelwal’s statement about the impact of the opinion went on to say: “Like the Court, we too hope for a time when Black, Indigenous and other people of color need not fear police encounters – for themselves or their loved ones. It is only when we reckon with the realities of racialized policing, as the Court has done here, that we start moving meaningfully in that direction.”