Legal Insurrection by William A. Jacobson Sunday, June 12, 2022
Washington State Supreme Court Imposes Different Standards On Police “Seizures” For “BIPOC” and Whites
Two identical factual circumstances of a police encounter maybe result in different judicial results depending on whether the person is BIPOC or not-BIPOC (i.e. white). This is a good example of how social justice and Critical Race Theory verbiage and language accelerated by the BLM protests of 2020 have penetrated the judiciary.The Washington State Supreme Court has issued a sweeping Opinion (pdf.) announcing that whether a person is deemed “seized” by the police must take into account race if the person is “Black, Indigenous, and other People of Color (BIPOC).”
BIPOC status, the court ruled on June 9, 2022, is relevant to whether the person “was not free to leave, to refuse a request, or to otherwise terminate the encounter ….” So two identical factual circumstances of a police encounter maybe result in different judicial results depending on whether the person is BIPOC or not-BIPOC (i.e. white).
BIPOC is the term used a dozen times in the Opinion, but BIPOC is a poorly-defined and broad term that puts otherwise disparate groups into a racial category. It also is a term that can have absurd results, such as Elizabeth Warren arguably qualifying as BIPOC since she claimed to be Native American and was treated at Harvard Law School as a Woman of Color.
BIPOC as a term also conflates important distinctions among its various groups as to experience with police stops and perception of policing and policing reform. It is for that reason many “anti-racist” activists and academics object to the term BIPOC, viewing it as erasing the unique experience of black Americans.
BIPOC is a recent term that became common with the protests and riots of 2020. While the NY Times found a 2013 reference to the term, this Google Search Trends charts shows the surge of the term in 2020:
That’s also my “lived experience,” with Cornell University where I work now commonly using the term (which created an internet rage when applied to a rock climbing class). Cornell is not alone, BIPOC is the hot word on campuses and among activists.
The case before the Washington Supreme Court involved a person named Palla Sum who identified as a Asian/Pacific Islander approached by police in a high crime area while sleeping with a friend in a car. The police asked Sum for identification. He provided a false name and birth date, and then took off in the car when the policeman returned to the police vehicle to check the information. His conviction for fleeing the scene is not disputed, only his conviction for providing false information to the police. If the false information was provided pusuant to an unlawful “seizure,” the information was not admissible as evidence.
The issue before the court was whether asking for identification in this circumstance was a “seizure” such that police needed either a warrant or to prove an exception to the warrant requirement. The court made clear at multiple points in the Opinion that it was deciding the case under the Washington State Constitution, which it said contained broader protections than the 4th Amendment to the U.S. Constitution.
The court held that this was a seizure and reiterated that Sum being BIPOC was a necessary consideration. The court did not need to issue the sweeping declaration as to BIPOC status, but chose this case to set down a marker. Here is the introductory summary of the Opinion (emphasis added):
This case concerns the analysis that courts must apply to determine whether a person has been seized by law enforcement for purposes of article I, section 7 of the Washington Constitution. It is well established that an encounter with law enforcement rises to the level of a seizure if “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.” State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004). Today, we are asked whether “all the circumstances” of the encounter includes the race and ethnicity of the allegedly seized person.
More:
https://legalinsurrection.com/2022/06/washington-state-supreme-court-imposes-different-standards-on-police-seizures-for-bipoc-and-whites/
