In 1996, SDNY Judge Harold Baer caused a shitstorm when he held that not only was it not suspicious when a black or Hispanic guy ran from, rather than complied with, cop, but the only reasonable thing to do.
Running away from cops is what any reasonable black guy would do if he doesn’t want to kiss concrete that day. Flight isn’t just what “guilty” people do, but what sane people do as well.
There were two distinct points baked into this brutally obvious, yet seemingly shocking, reality. The first was that if you were black, you stood an extremely strong likelihood of being treated badly by the police. It may not have meant you would be beaten or killed, but you would not be treated with courtesy and respect, no matter what was painted on the cop cars.
The second thing was that if you were black, you did what you could to avoid a confrontation with cops. Better to work up a needless sweat than find out whether today was your unlucky day. In the case before Judge Baer, the cops started staring at a guy, who decided discretion was the better part of valor and ran. Until he reversed himself under extreme pressure, Judge Baer found this the objectively reasonable thing to do. He was absolutely right, although he went weenie when they put his face on the front page of the NY Post.
The Washington State Supreme Court, in State v. Sum, came to the same realization.
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. However, we have not explicitly held that in interactions with law enforcement, race and ethnicity matter. We do so today.
Seizure by police has always been a very problematic concept, made even more confusing by Terry stops allowing a seizure but pretending it was just a friendly investigatory detention that was indistinguishable from a seizure but for the absence of probable cause to seize. Cool trick. Whether someone is seized is based on the objective test of whether a reasonable person, under the circumstances presented, would believe himself free to go. It’s not that a cop can’t make a baseless inquiry of a guy on the street just to figure out what he’s up to, but that the guy can blow the cop off and there’s nothing the cop can do about it.
But if you’re the guy being told by the cop to “halt,” and ordered to explain what you’re doing there, commanded to show identification, grabbed by the arms by one cop while another patted you down, would you take the risk of just walking away? Would you believe you could do so without ramifications? Would a reasonable person believe that if he didn’t do as ordered, the cuffs would slapped on you hard and fast?
And cops know this, and use this to their advantage. They want you to be afraid so that you’ll comply, even though they have no reasonable suspicion or probable cause, knowing full well that your fear of them enables them to get you to comply even though the law doesn’t require you to do so. The law empowers you to walk away. Would you take that risk?
That’s if you’re any person on the street confronted by the cops. What if you’re black?
To aid courts in the application of this test, we now clarify that a person is seized for purposes of article I, section 7 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 the encounter due to law enforcement’s display of authority or use of physical force. 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 Black, Indigenous, and other People of Color (BIPOC) in Washington. Finally, in accordance with our precedent, if the person shows there was a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.
That the Supreme Court extends the “concern” to BIPOC, that fashionable if silly word created to encompass wildly divergent demographic groups in order to capture them all under the umbrella of marginalized, is of little moment. The point is that the race and ethnicity of those confronted by police is explicitly part of the totality of the circumstances to be taken into consideration when objectively determining whether the person has been seized.
The problem is how to factor in this obviously relevant circumstance to the question of whether a reasonable person would believe he was free to walk away. Does it mean that anytime a police officer addresses a black person on the street, it’s a seizure? After all, the race is a constant, as is the perception that if a black guy refuses to comply, he may not make it home for dinner.
Indeed, Eugene Volokh takes the question somewhat orthogonal.
My follow-up question: There are also likely highly “disproportionate police contacts, investigative seizures, and uses of force against” men—which doubtless stem in part from men actually committing more crimes than women, but are likely also influenced by “implicit, institutional, and unconscious biases” on the part of law enforcement (and everyone else). Wouldn’t the court’s logic likewise apply to let male defendants claim that their sex should be considered in their favor in the seizure analysis, and what wouldn’t be a seizure to a woman would be one to them?
Sure, the logic would apply to any characteristic that would give a person a reasonable belief that any attempt to walk away, to refuse to comply, would be treated harshly. And why should that be the case? We have a right to be left alone when police lack a legally sufficient basis to detain or seize us. And no reasonable black guy would believe that if he told the cops to get lost, they would wish him a nice day and allow him to walk away.
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