Equal protection should be evergreen

By William Trachman and Timothy Kilcullen – – Wednesday, June 22, 2022

OPINION:

Recently, the Washington State Supreme Court announced a startling decision, embracing a rule that a criminal suspect’s race must be taken into account by judges. The ruling threatens to further slice and dice Americans by skin color and adopts a chilling jurisprudence explicitly guided by race.

In April 2019, a police officer found Palla Sum passed out at the wheel of a car that was parked in an area of Pierce County, Washington, known for auto thefts. When asked, Sum gave the officer a fake name. While verifying his identity, Sum suddenly started driving, jumped the curb, and sped off. After a high-speed chase that ended in a crash, Sum was arrested. Police obtained a warrant and discovered an unregistered handgun.

After being convicted for a variety of offenses, Sum appealed. He argued that he was unreasonably “seized” by police under Washington law. Among Sum’s arguments was that the trial court should have considered his race when determining whether he reasonably believed he was being detained. For the record, Sum is Asian American.

The Washington Supreme Court latched onto this argument. “Sum’s race,” the court contended, “is one of many relevant circumstances that must be considered in determining when he was seized.” 

The opinion, written by Justice Mary Yu, argued that the court needed to recognize 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, and other People of Color] in Washington.” Notably, although Justice Yu used the term “BIPOC,” she failed to acknowledge that Caucasians are also people of color because even “white” is a color.

In any event, the rest of Justice Yu’s opinion leaves no doubt that she is creating differential standards to evaluate law enforcement based on the skin color of a criminal suspect. Justice Yu announced, without relying on any specific studies, that “it is well known that BIPOC is wrongfully subject to excessive police scrutiny” and this “is certainly common enough to establish that race and ethnicity have at least some relevance to the question of whether a person was seized.”