In a ruling based on privacy rights and racial disparities in law enforcement, the Washington Supreme Court curtailed police authority to question public transit passengers about fare evasion. In a 5–4 decision last month, the court held that armed sheriff’s deputies violated state law when they demanded proof of payment from a bus passenger and then detained and investigated him when he failed to produce it.
Notably, the court’s lead opinion, joined by three justices, did what the U.S. Supreme Court has declined to: Recognize that constitutional limits on police searches and seizures must account for structural racism, along with the availability of less incendiary enforcement methods. If certain policing tactics are both unnecessary and discriminatory, the court explained, then they are also constitutionally suspect.
In theory, the Fourth Amendment provides a bulwark against police overreach. In practice, the U.S. Supreme Court has watered it down in ways that both defer to and expand police power. To that end, the Court has ignored national and state–by–state data showing racial disparities at every stage of the criminal justice system, including that Black people are disproportionately stopped, searched, arrested, and physically harmed by police. A series of rulings have exacerbated unequal treatment.
In Whren v. United States, the Court ruled that the police can target and stop any motorists they choose so long as there is some traffic violation to justify the stop. That the violation may be a mere pretext for the officer’s actual motivation is, the Court said, beside the point. Last month, a Maryland state appellate judge called for a different rule under the state constitution to ban such “pretextual stops.” He wrote that Whren is a “dangerous” decision that raises the specter of police violence and “leads, almost inexorably, to discriminatory policing.”
And in Utah v. Strieff, the Court held that when police officers stop and investigate someone without any legal justification, the unlawful search is allowed if the officer discovers an outstanding warrant against that person. Justice Sonia Sotomayor wrote in dissent that because arrest warrants for minor offenses are so common, this creates a powerful incentive for police to stop and question anyone they deem suspicious. “It is no secret,” she added, “that people of color are disproportionate victims of this type of scrutiny.”
Washington’s high court applied its state analog to the Fourth Amendment in a starkly different way in State v. Meredith.
In 2018, Zachery Meredith boarded a public bus in Snohomish County, just north of Seattle. Like many city buses and some other transit systems, the bus used a “barrier-free” payment system, meaning that people can board without passing through gates or turnstiles. On that day, two uniformed sheriff’s deputies replaced the usual civilian “ambassadors” to check fare payments. Neither deputy saw Meredith board without paying, but as the bus moved along its route, one deputy approached him and demanded proof of payment. When Meredith failed to provide it, the deputies removed him from the bus and conducted a further investigation, ultimately arresting him for making a false statement, as Meredith had initially provided an alias.
At issue on appeal was whether the deputies had “seized” Meredith when they asked for his payment, and if so, whether the seizure was justified. Would ordinary people, confined to a moving bus, feel free to ignore the deputies’ demands? Or would they feel unduly threatened by the sight of badges and guns? And is it relevant that while Meredith is white, many people who face such enforcement are not?
Four justices found that deploying armed police to check fares, particularly while cornering people on a moving bus, is a needlessly coercive enforcement method that violates the state constitution (a fifth justice joined on statutory grounds). The lead opinion stressed that the burden of such enforcement falls disproportionately on people of color, making clear that the issue was not just one of privacy but of racial equity.
“Our holding is necessary both to preserve the constitutional privacy rights of transit passengers and to mitigate the known, racially disproportionate impact of such fare enforcement practices,” the court concluded. It noted the “coercive effect that a weapon can have in a police encounter, which is known to disproportionately affect Black, Indigenous, Latinx, and Pacific Islanders based on reasonable fear[s] of how an officer with a gun will react to them.” And they recognized that for this very reason, a growing number of cities are shifting to unarmed civilian enforcement of transit fares, traffic laws, and other minor rules.
This ruling is not the first time that the Washington Supreme Court has explicitly grappled with racial bias in the justice system. Last year, the court unanimously held that race and ethnicity are necessarily relevant to the question of whether someone has been “seized” by police. When the question is how a “reasonable” or “objective” observer would assess a police encounter, the court explained, then the “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.” Such discrimination can increase the coercive nature of police interaction.
The court used that same “objective observer” definition in its groundbreaking rule for deciding when racial bias infects jury selection and to decide when prosecutors have improperly incited a jury panel’s potential biases or prejudices, including through racial stereotypes. In setting the latter rule, the court reversed the assault conviction of a Latino man because the prosecutor had raised the “wholly irrelevant” topics of “undocumented immigration, crime at the border, border security, and undocumented immigrants committing crime” while questioning prospective jurors.
While federal courts often decline to grapple with racial disparities and the impact of systemic racism in the justice system, the Washington Supreme Court and other judges are showing how state constitutional law provides an alternative path.
Kyle Barry is director of the State Law Research Initiative and a freelance writer. The views expressed are the author’s own and not necessarily those of the Brennan Center.