Abstract

Excerpted From: Joelle Paull, A Race Conscious Objective Reasonable Person Standard under the Washington State Constitution, 76 Rutgers University Law Review 1097 (Summer, 2024) (120 Footnotes) (Full Document Requested)

In the 2022 case State v. Sum, the Washington Supreme Court held that when determining whether an interaction with the police is a warrantless seizure in violation of article I, section 7 of the Washington State Constitution, courts must consider the experience of the person asserting their rights. Under article I, section 7 of the Washington State Constitution, a person is seized “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.” In State v. Sum, the Washington Supreme Court further clarified that for “purposes of [Washington State's constitutional seizure] 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.”

The Washington State Supreme Court unanimously declared that the “objective observer” test must include an understanding of the history of policing in Washington and in the United States. In doing so, the Washington Supreme Court has weighed into a decades-long debate over whether an objective reasonable person test in Fourth Amendment analysis, which fails to consider race, can produce a just outcome or whether it is a legal fiction that furthers systemic injustice. This Comment seeks to situate the State v. Sum decision within this debate and analyze how the Washington Supreme Court relied on the state constitution to transform the criminal legal system in Washington.

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In Washington, it was already established in the rules for peremptory challenges that “an objective observer in Washington 'is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in’ many injustices against BIPOC, particularly in the criminal justice system.” This case is not an aberration in Washington's constitutional jurisprudence but rather part of a recognition that expanding state constitutional rights is one way of dealing with a system that was never meant to be and has never been just. The text of the Washington State Constitution does not preclude this interpretation--and the methods of constitutional interpretation developed over the course of the twentieth and twenty-first century allow for this exact type of inquiry and expansion of rights.

J.D. Candidate, May 2024, Rutgers Law School--Camden