Protester holding a sign that says Color Is Not A Crime

Several weeks ago, I blogged about how the justice system still has a long way to go in grappling with systemic racial bias. Today I’m here with better news. The Washington Supreme Court has again explicitly recognized the way bias plays a role in policing.

Yesterday, the court unanimously decided that Washington courts should take into account a person’s race and/or ethnicity when analyzing whether a person was illegally detained by the police. That sounds a little weird, so let me explain.

Under both the state and federal constitutions, police must normally have a warrant or meet one of the exceptions to the warrant requirement before detaining, or “seizing” a person. If a person was illegally seized, the result is to suppress—or keep any information discovered out of evidence. One of the key decisions a court has to make, then, is to figure out when, exactly, a person was “seized.”

The test to make that determination is this: “when considering all the circumstances, an individual’s freedom of movement is restrained and the individual would not believe they are free to leave or decline a request due to an officer’s use of force or display of authority.” Under this analysis, the actions of the law enforcement officer are key.

Notably, the court emphasized that part of that inquiry could—and probably should for BIPOC—include the race or ethnicity of the person who was allegedly seized. This is so because “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.”

So, for example, a court could take into account “the number and types of questions posed” or requests made of the allegedly seized person, and the extent to which similar law enforcement encounters are disproportionately associated with race or ethnicity.

In the case before the Supreme Court, a man of color was sleeping in his car and doing nothing illegal, when a uniformed officer knocked on his window and asked him who he was, what he was doing, who owned the car. The officer told them they were in an area known for stolen vehicles and asked to see ID. The defendant gave a false name. He was later convicted of (among other things) giving false information to police.

The court looked at all the factors, including that suspicionless stops are disproportionately associated with people of color, that the officer never asked about the defendant’s health or safety and instead asked questions that demonstrated the officer believed he didn’t belong in the area, and the officer’s explanation that the defendant was in an area known for stolen vehicles. The court concluded at that point, any reasonable person would think that the officer wanted the defendant’s identity because he suspected him of car theft, meaning the defendant was not free to leave or refuse the request. This was the point of seizure. As a result, the false name the defendant gave the officer was the product of an unlawful seizure and must be suppressed.

This opinion is an example of making good on the court’s acknowledgment that the system has perpetuated many injustices against people of color and promising to do better. The court said “there was a time when the historical treatment of BIPOC in this court indicated that we should ignore the influence of race and ethnicity in police encounters. However, in light of more recent history, such a result can no longer be justified.”

This opinion is (hopefully) another step forward in ensuring injustices do not occur quite so often.