Last June, the Washington State Supreme Court held that when assessing whether a person has been seized by the police (i.e., whether a reasonable person would believe they are free to leave), courts must consider the race and ethnicity of the allegedly seized person. To many, this groundbreaking ruling was obviously correct: given the history of racist policing in this country, how could we not consider race in determining whether a person would feel free to safely walk away from law enforcement? Yet, in New York, and most other states, courts generally do not consider race or ethnicity relevant to this inquiry.
New York common law is rife with assumptions about human behavior that are rarely, if ever, based on empirical research. Rather, many assumptions underlying our legal rules rest on decades-old unsupported beliefs of judges and law professors.
