by Angélica Cházaro and Anita Khandelwal
Once again, a report has revealed alarming racial disparities in the Seattle Police Department’s (SPD) treatment of Black people, Indigenous people, and People of Color (BIPOC). The Center for Policing Equity, in a study completed earlier this year, found that Black pedestrians are five times — and Native pedestrians nine times — more likely to be stopped by SPD than white pedestrians. Moreover, BIPOC pedestrians are significantly more likely to be searched than their white counterparts, despite being statistically less likely to carry weapons. While SPD’s data did not allow for analysis of traffic stops, given the pervasiveness of such racial disparities it seems likely that similar ratios would hold for those as well.
Fortunately, the Seattle City Council and King County Council have the power to immediately reduce these harms by adopting two simple pieces of legislation — one that would deprioritize any traffic stops where the driver does not pose an imminent danger of physical harm to others and another that would ban consent searches.
There are plenty of examples across the country of traffic stops turning deadly: Philando Castile, Daunte Wright, Walter Scott, Sam DuBose, Malcolm Williams, and Iosia Faletogo were all killed by police during traffic stops for minor infractions. Sandra Bland died in jail after a minor traffic stop. And even when such stops don’t lead to loss of life, they may lead to incarceration, fines, loss of a driver’s license, and other negative outcomes. Reducing the number of such stops would reduce racial disparities and save lives.
Consent searches are another cause of racial disparities.
Both the Washington and federal constitutions require that police have a warrant based on probable cause before conducting a search, though both constitutions allow a search based on probable cause without the formality of a warrant in some circumstances. When police lack the relatively minimal amount of evidence required to establish probable cause (i.e., they do not have reason to believe a crime may have been committed) but they have a feeling or hunch that something might be amiss (a hunch that is all too often tainted by racial bias), they “ask” for consent to search. Scholars have estimated that consent searches comprise more than 90% of all warrantless searches by police.
The legality of the consent search rests on the false assumption that the individuals being asked for consent understand their rights and feel free to say no. Studies show that most adults, regardless of race, do not understand their rights regarding searches, which is why roughly 90% consent when asked. The situation is even more dire for BIPOC individuals. Not only are they more likely to be asked for consent to search but they are also more likely to have experienced or known others who have experienced police violence. As a result, they may feel the safest path is to agree to a search.
The profound racial disparities in stops and searches are the result of our over-reliance on and over-investment in policing, at the expense of our BIPOC communities and more productive social support systems. We desperately need to reduce the number of situations we are addressing with police. Seattle and King County should begin by deprioritizing traffic stops and banning consent searches. To do anything less is to be complicit in ongoing racially disparate enforcement and the subsequent losses of freedom and life.
Angélica Cházaro is an assistant professor at the University of Washington School of Law with expertise in the intersection of immigration and criminal law.
Anita Khandelwal is the director of the King County Department of Public Defense.
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