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Last week the Washington State Supreme Court made a ruling that lowers the bar for parties to a civil case to get a hearing for a new trial based on racial bias, and put the burden on the opposing party to prove that racial bias did not affect the verdict.
Here's the Seattle Times article on the decision: https://www.seattletimes.com/seattle-news/law-justice/justices-unanimously-expand-protections-against-racism-in-wa-civil-cases/
And the decision itself: https://www.courts.wa.gov/opinions/pdf/976724.pdf
The decision introduces a framework with a couple of points:
In civil cases a hearing for a new trial must be granted in case an objective observer (defined as one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.
At the hearing it will be presumed that race was a factor and a new trial must be granted unless the opposing party can prove that race was not a factor. From the decision: "At the hearing, the trial court is to presume that racial bias affected the verdict, and the party benefiting from the alleged racial bias has the burden to prove it did not."
The ruling doesn't give any guidance on how to prove that racial bias did not affect a verdict. Given that unconscious biases are included in the definition of an objective observer evaluating whether race could be a factor, even subpoenaing the whole jury and asking each juror if bias influenced them wouldn't be sufficient. Jurors could still harbor biases they are unaware of and so cannot testify to. The decision gives the party alleged to benefit from racial bias an impossibly high bar to prove that it did not.
In the case that brought about the decision these factors were cited as things that could have tainted the verdict with racial bias:
Defense said that the plaintiff was "confrontational" and "combative" on cross examination.
Defense said that plaintiff's witnesses all using the same phrase to describe the plaintiff as "life of the party" was suggestive that they colluded on their testimony.
Defense suggested that the plaintiff's chiropractor may be biased because plaintiff is employed by that chiropractor.
Defense said that the damages sought by the plaintiff, $3.5 million, and the timeline in reporting injuries to doctors, were an indicator that the trial was about financial gain.
Plaintiff says the jury asked that the plaintiff not be present in the courtroom for the verdict. This is disputed by the judge, who said it is her regular practice to ask both parties to wait in the hallway for the verdict so that jurors can speak with the attorneys without their clients present.
The motion for a hearing for a new trial was raised at trial. The trial court said it could not "require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones." The Supreme Court said "that reasoning gets it exactly backward."
In practice it seems like this is going to benefit the richest parties in civil cases. The losing side should always seek a new trial on this basis, even if it's a longshot based on language that few would recognize as an instance of bias.
If you can meet this low bar, which is met by such things as suggesting a witness could be biased because they employ the plaintiff, then a new trial is inevitable. That is, unless you can somehow achieve the impossible and prove that racial bias was not a factor. If you don't have enough money to afford attorneys for another trial, or even to represent you at the hearing, you're at a huge disadvantage.
The jury actually found in favor of the plaintiff in this case, just not in the amount she was seeking. She sued for $3.5 million and was awarded $9,200.
The three Supreme Court justices up for re-election this year are running unopposed.
The WA supreme court has been pedal to the floor on radicalism for several years now, and almost nobody seems to have noticed it.
I was thinking about posting their recent "it's legal to flee from the scene of your crime in a high speed car chase with an illegal gun, but only if you're not white" ruling, but... Why bother? Anyone who doesn't already oppose it isn't going to have their minds changed by example #56,663, they'd just cheer and gloat that another blow for "equity" has been struck, or try desperately to ignore it and downvote+report anyone who mentions it.
People keep posting these pathetic "peak woke!" cope articles, as if they can't bring themselves to admit that this will never end. It's only just getting started, and it will keep getting more insane and oppressive for generations, because the hatred, sadism, and power of the perpetrators is inexhaustible.
I don't see how that is an accurate summary of the decision. The Court said: Here, the State concedes that there was no lawful justification to seize Sum “until he drove off at a high rate of speed, over grass and the sidewalk.” [Citation] As a result, this case concerns only the first step of the seizure analysis: when, precisely, Sum was seized by Deputy Rickerson[.]"
Moreover, the evidence that the Court ordered suppressed was a false name and birth date that the defendant gave to the deputy before he fled.
In other words, the flight was irrelevant, because the issue was not whether his flight gave the cops cause to stop him, but rather whether he was seized before the the flight took place. So, no, the court did not say a thing about when and if someone can flee from the police.
I'd say this is a mischaracterization, but so is how you've summarized the case.
The outrageous part of the ruling was that whether or not someone could consider themselves seized was dependent upon their race. Sum, as a Pacific Islander, could consider him seized by the police even without any language about being detained or arrested coming from the police.
As a result, the cop knocking on the window, saying they'd had some crime in the area, and asking for identification, counts as a seizure. Since it wasn't proper to effect a seizure at that point, all the fruits of this "seizure" are inadmissible.
If Sum were a white guy, this would not be the case, and he could be prosecuted for giving a fake identity to police.
To clarify, I was not defending the decision. It is so prolix that I lost interest in a analyzing its reasoning.
That being said, whether it is outrageous is actually a more difficult decision than it appears. "'[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Davis v. Dawson, 33 F. 4th 993, 997 (8th Cir. 2022) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)).
The "reasonable person" who is confronted with "all the circumstances" shows up a lot in US law, and there is all sorts of case law about what that "reasonable person" is: It is just the average person, or do courts consider specific attributes of the person in determining what a reasonable person with those attributes would do. For example, in a self-defense case, the fact that person is a battered spouse/etc can be used to assess the reasonableness of his or her belief that the victim poses an imminent threat. OTOH, courts have said that, re heat of passion, "the standard always remains that of the ordinary reasonable person. The defendant's conduct is not measured against that of, for example, the ordinary reasonable gang member or the ordinary reasonable person who 'was intoxicated' or 'suffered various mental deficiencies' or 'psychological dysfunction due to traumatic experiences.'" People v. Dominguez, 66 Cal. App. 5th 163, 176 (2021).
Now, regarding seizures, I am pretty confident that there are some interactions with police which a middle aged, upper middle class white guy in Beverly Hills would see as a relatively benign interaction, but which a black teenager in the South Bronx would interpret as indicating that he is not free to leave. Ditto re plenty of poor white young men. Now, whether those attributes should matter is not an easy question: There is a lot to be said for giving police clear rules, and looking to a generic reasonable person does add some clarity. OTOH, a lot of harm, injustice, and poor policy has resulted from assuming that everyone is a generic person who acts like a generic person, esp since those in positions of power tend to assume that the generic person is like them, and that those who respond differently than does a middle class Joe is acting "unreasonably."
Again, as that should make clear, I am neither defending nor criticizing the decision the court reached on that question.
Perhaps, but I would deny that a perception not based on reality is "reasonable", regardless of how common it is. If a white person in this situation would believe he can leave, but a black person would believe "I'll be shot if I leave", we really ought to require that the court determine whether the police would actually shoot a black person in such a situation. That step seems to be missing here; instead, the court decided that race should be presumed relevant and was perfectly fine with lack of evidence.
No, a perspective not based on reality is not reasonable. But not all perspectives re police held by upper middle class folks are based on reality, either.
As for what the court actually did in this case, the defendant's race does not seem to have been much of a factor in the end. Rather, the key was that the cop woke someone sleeping in the car because he suspected the car was stolen: "Based on the totality of the circumstances, an objective observer could easily conclude that if Sum had refused to identify himself and requested to be left alone, Deputy Rickerson would have failed to honor Sum’s request because the deputy was investigating Sum for car theft."
If Sum had asked if he was free to go he would have had a solid case if the deputy had said no. Instead all we have is speculation on what an objective observer could "easily conclude" the deputy would have done had Sum asked, and we treat that as if it is what had happened.
Also this is the Sum decision's definition of objective observer:
You say that because you are not familiar with Fourth Amendment jurisprudence. What we actually have here is a court doing what courts do in Fourth Amendment cases, and have done for at least 55 years, since Terry v. Ohio: Determine whether a reasonable person would have believed he is free to leave, or more precisely in this case, free to terminate the encounter. Florida v. Bostick, 501 U.S. 429, 435-436 (1991) ["when a person "has no desire to leave" for reasons unrelated to the police presence, the "coercive effect of the encounter" can be measured better by asking whether "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter"]
In other words, courts do exactly what the court said: Try to determine what a reasonable person think the cop would say if he said, "Go away. I don't want to talk to you"? That is precisely what it mean to say "I believe that I am free to leave."
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