Panel rejects trial judge’s sanction against KHP for using ‘Kansas Two-Step’
By: Tim Carpenter
Kansas Reflector
TOPEKA — The 10th U.S. Circuit Court of Appeals upheld a federal district court decision that the Kansas Highway Patrol engaged in unconstitutional targeting of out-of-state motorists, but it decided an injunction issued by the trial judge against the state law enforcement agency went too far.
On Thursday, the 10th Circuit affirmed the Kansas district court’s decision requiring KHP to alter trooper training related to targeting of motorists so those procedures adhered to the Fourth Amendment standard in the U.S. Constitution regarding searches and seizures. However, the appellate panel reviewing the outcome of Shaw v. Jones directed U.S. District Court Judge Kathryn Vratil to revise her injunction imposing further restraints on KHP.
Monica Bennett, legal director of the ACLU of Kansas, said the result was KHP must retrain its troopers to “observe and respect the rights of all people traveling Kansas highways.”
“Motorists in Kansas and across the country are entitled to expect law enforcement to comply with the Constitution,” said Patrick McInerney, a partner at the Spencer Fane law firm. “The court’s decision today demands it, and we are proud to have been part of the effort to hold the KHP accountable.”
The lawsuit was filed in 2020 by ACLU of Kansas and Spencer Fane to challenge KHP’s policy of homing in on motorists with out-of-state license plates. Under this KHP practice, troopers on Interstate 70 focused on vehicles traveling to or from Colorado, which allows recreational sales of marijuana.
Under the 2016 decision in Vasquez v. Lewis, the 10th Circuit previously held “a driver’s state of residency is a completely innocuous factor in determining whether a driver is suspicious.”
KHP declined to incorporate the Vasquez ruling into its training programs and continued to rely on a person’s residency for the basis of traffic stops along I-70. The reality of the 2016 Court of Appeals decision didn’t become part of KHP training materials until after plaintiffs in the case filed the lawsuit.
Statistical evidence presented during trial found out-of-state drivers comprised 35% of drivers on the I-70, but made up 77% of KHP traffic stops and 90% of KHP canine searches.
“Despite repeated warnings from the 10th Circuit, the Kansas Highway Patrol has continued to unconstitutionally target out-of-state drivers for suspicionless roadside detentions,” said Brian Hauss, deputy director of the ACLU’s Speech, Privacy and Technology Project.
The lawsuit’s plaintiffs also sought to stop KHP officers from using a roadside tactic, referred to as the “Kansas Two-Step.” It involves KHP troopers taking a couple of steps toward a patrol vehicle to leave the impression of terminating traffic stops before reengaging drivers in a conversation designed to develop reasonable suspicion of drug trafficking and prompt a vehicle search for contraband.
Vratil’s injunction, put in place for up to four years, required KHP to reform its training to address the nonresident motorist problem.
She also forbid use by KHP of the two-step strategy for motorists on I-70, I-35, U.S. Route 54 or U.S. Route 36. She ordered KHP to alter its training curriculum so troopers informed drivers of their right to refuse whenever asked for consent to search their vehicle. She mandated a driver’s consent had to be documented in writing by KHP.
In addition, Vratil ordered KHP to collect data on traffic stops and seizures. She directed KHP to create video and audio recordings of all traffic stops and mandated KHP supervisors review the recordings within 72 hours for policy infractions.
After the district court ruled against KHP and ordered the agency to reform enforcement practices, KHP Superintendent Eric Smith appealed to the Court of Appeals.
The appellate judges considering the Kansas case agreed KHP should have long ago abandoned the “pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists.”
The Court of Appeals also held the “district court abused its discretion by granting injunctive relief beyond ordering further training regarding the irrelevance of a driver’s state of origin.”
Specifically, the Court of Appeals faulted Vratil’s comprehensive injunction for inhibiting KHP’s use of the controversial two-step approach when engaged in traffic stops.
“This circuit has never held that this practice has violated a driver’s constitutional rights and has repeatedly upheld that practice in specific cases,” the appeals court said.
The KHP didn’t immediately respond to a request for comment about the decision of the federal Court of Appeals.