By Jonathan Shorman
The Kansas City Star
TOPEKA, Kan. — A federal judge on Monday ordered the Kansas Highway Patrol to stop using its “two-step” tactic during traffic stops as part of a sweeping court-mandated overhaul of the agency’s practices.
U.S. District Court Judge Kathryn Vratil issued a four-year injunction against the Highway Patrol after ruling in July that the agency violated the constitutional rights of motorists in how it conducted traffic stops. The length of the order effectively places troopers and their leaders under long-term judicial supervision, allowing Vratil to keep an eye on their procedures and practices.
When stopping vehicles on Kansas highways, troopers are now prohibited from giving any weight to the fact that a motorist is traveling to or from a “drug source” state – an incredibly broad category since dozens of states have legalized some form of marijuana. Troopers who want to keep questioning motorists after a traffic stop has ended must now tell them the stop has ended and they don’t need to answer additional questions.
The injunction’s protections extend to drivers and passengers traveling across I-70, I-35, U.S. Route 54 and U.S. Route 36, who appear to be driving to or from Colorado with out-of-state plates.
The injunction comes in a long-running lawsuit against the agency filed by the ACLU of Kansas on behalf of motorists. The lawsuit took aim at the “Kansas two-step,” in which troopers at the end of a traffic stop take a couple steps away from the stopped vehicle before coming back to ask more questions. The purpose of the maneuver is to establish a voluntary encounter with the motorist, but Vratil found the questioning wasn’t truly consensual.
Vratil, an appointee of President George H.W. Bush, wrote in the injunction that the Highway Patrol had “engaged in a pattern of unconstitutional detentions based on impermissible criteria and insufficient reasonable suspicion, and without knowing, intelligent and voluntary consent, and that a permanent injunction is necessary to remedy that pattern and ensure constitutional policing going forward.”
An injunction was expected, but its release makes clear the full scope of the changes the Highway Patrol must make. The Highway Patrol on Tuesday said it couldn’t comment while the order remains under internal review and review by the Kansas Attorney General’s Office.
The agency in court had previously argued against an extensive injunction, arguing many of the requirements would be overly burdensome.
ACLU of Kansas legal director Sharon Brett said in a statement that the Highway Patrol “is not above the law.”
The ACLU had argued the “two-step” was used to target drivers coming from or heading to states where marijuana is legal, despite previous court rulings limiting how police can use information about a vehicle’s origin and destination.
“While KHP made various attempts to side-step accountability for its practices and put off this injunction, the Constitution has prevailed,” Brett said.
Under the injunction, the Highway Patrol is required within 60 days to revise its policies and procedures to ensure troopers document all investigatory stops of vehicles, any searches resulting from those stops and any time an individual consents to a search or agrees to speak with troopers after the stop has ended.
Vratil wrote that troopers in documenting the stops are required to use descriptive language, not “boilerplate or ‘pat’” statements. The judge is also requiring troopers to obtain permission from their supervisors before conducting consensual searches.
The Highway Patrol must also create a revised training curriculum surrounding traffic stops, the difference between reasonable suspicion and mere speculation and the difference between knowing, voluntary and intelligent consent and “mere acquiescence” to police authority. The agency must confer with the ACLU on the proposed curriculum and then submit it for court approval.
After Vratil approves the curriculum, the Highway Patrol must provide all troopers with at least eight hours of training on the curriculum and at least 16 hours of additional training by Sept. 1, 2024. Every trooper must receive at least 10 hours of training on the curriculum every year after that.
The Highway Patrol will also be required to submit performance compliance reports every six months to demonstrate the agency is adhering to the terms of the injunctions. Vrtail wrote that the court may dissolve the injunction earlier than four years – or extend it – depending on how well it achieves the requirements of the injunction.
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