“What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing

By Aliza Hochman Bloom. Full Text.

In June, the Washington Supreme Court held that courts must consider an individual’s race as part of the totality of circumstances when determining whether that individual has been seized by a police officer. Like the Fourth Amendment of the U.S. Constitution, Washington’s parallel constitutional provision requires that the determination be objective—upon consideration of all the circumstances, was the individual free to leave, refuse a request, or otherwise terminate the police encounter. Upon concluding that trial courts must consider the race and ethnicity in the totality of circumstances when deciding whether there was a seizure, the unanimous Washington Supreme Court “formally recognize[d] what has always been true: in interactions with law enforcement, race and ethnicity matter.” Given the dearth of guidance from the U.S. Supreme Court over conflicting interpretations of the “free to leave” test, this decision is an important step towards recognizing the reality of racial bias in policing and its effects.

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