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.”
Therefore, Justice Yu insisted, that her decision was necessary because of “recent developments in this court’s historical treatment of the rights of BIPOC, and the current implications of our decision.” Justice Yu did not distinguish Asian Americans from members of other races or list the racial demographic groups who now get to argue that their race must be taken into account by judges. Indeed, from the opinion, it seems like anyone from a racial demographic other than Caucasian is entitled to make this argument.
But our Constitution contains another guarantee: equal protection of the laws. And Justice Yu’s decision directly contravenes the principles of equality that were enshrined in the Constitution. It also stands in stark contrast to how federal courts have ruled. In an opinion by the Tenth Circuit Court of Appeals — based in Denver — that court emphatically held that it would be improper to inject the criminal process with racial considerations.
The Tenth Circuit pointed out that there could never be a “uniform way to apply a reasonable test that adequately accounts for racial differences,” because there is “no uniform life experience for persons of color.”
Justice Yu did not even mention the word “equal,” or refer to the Equal Protection Clause in her decision. Instead, the Washington court simply pretended it does not exist.
Of course, Sum is unlikely to appeal his unequal treatment based on race, since he benefitted from the unequal treatment. But presumably, there are Caucasian criminal suspects who will be stopped by police, and they will argue that they were unreasonably seized. When Washington courts rule against those criminal suspects because they are Caucasian, they will certainly maintain that racial discrimination has no business in our criminal justice system.
Separately, the court’s decision is simply not administrable. Imagine a court trying to decide whether to apply the new rule. What if the criminal suspect is of mixed race? Or what if the police officer is of mixed race? What if there are multiple criminal suspects of different races? Will some of them be able to avoid criminal punishment, while others can be prosecuted under normal procedures? The potential irregularities are numerous.
Americans have long celebrated the idea that all people, regardless of their skin color or background, are born equal and are entitled to equality under the law. But in Washington, courts are now commanded to do the opposite.
• William Trachman is the general counsel of Mountain States Legal Foundation, and a former deputy assistant secretary for civil rights in the Department of Education. Timothy Kilcullen is a fellow at Mountain States Legal Foundation and a law student at George Mason University.
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