Federal Judge Shuts Down the Kansas Two-Step
Sorry Kansas, it looks like Highway Patrol is gonna have to stop doing the Kansas Two-Step. No, not because it’s wrong. (Though there is that.) Or because it’s illegal. (Though there is that too.) But because a federal judge has ruled the tactic to be unconstitutional. That’s right, Senior U.S. District Judge Kathryn Vratil said the Kansas Two-Step violates motorists’ constitutional right against unreasonable searches. She also told the patrol that she is ready to impose changes in its policing practices and to appoint a special master to audit its work for at least four years.
No, the judge wasn’t having any of it. In fact, she claimed the KHP had “waged war” on out of state motorists.
“The war is basically a question of numbers: stop enough cars, and you’re bound to discover drugs. And what’s the harm if a few constitutional rights are trampled along the way?” wrote the judge, in what the AP’s John Hanna calls a “scathing” 79-page order.
Judge Vratil backed up her order with nearly four pages of KHP policing restrictions she plans to impose. The patrol has until Aug. 7 to tell her in writing why they shouldn’t have to comply.
Among the directives, troopers would be required to get a supervisor’s approval to conduct a vehicle search, and the patrol would have to keep a log of all such requests and who approved them.
This trial is the third in recent weeks over how Kansas troopers conduct stops. Federal juries have twice found that individual troopers violated constitutional rights.
The Kansas Two-Step merely appears to be the most widespread.
The Kansas Two-Step
How does the Kansas Two-Step work?
First, writes Hanna, “KHP the patrol targets motorists traveling along Interstate 70 to or from states that have legalized either the medical or recreational use of marijuana. (Kansas has authorized neither.)”
Troopers “finish the initial traffic stop, issuing a ticket or a warning, and start to walk away, then turn back to talk more to the motorist. That allows them to keep looking for grounds for a vehicle search or to buy time to get drug-sniffing dogs to the scene.”
According to Colorado resident Shawna Maloney, whose family’s RV was pulled over before dawn while on a cross country vacation in March 2018 (and who joined the ACLU lawsuit), she felt “violated.”
“I don’t feel safe driving through Kansas anymore,” Maloney said in a sometimes emotional testimony.
She added that a three troopers had entered the RV, “damaged the toilet, dumped out clothes and left the bathroom door hanging off its frame, among other damage.”
Nothing was found and after about 40 minutes, the family was allowed to leave.
Nevertheless, Maloney said she “felt violated because this was our home while we were on the road.”
Oh, Maloney’s big crime? Her RV was pulled over for “crossing the white line.”
Kansas Highway Patrol
The KHP has certainly come a long way since the Kansas Legislature, Governor Alfred Landon and Highway Department Attorney Wint Smith aligned to field a 10-man unit back in 1933. The primary issue then was bank robbery, and the KHP was tasked with tracking down and catching this relatively new breed of bad guy (and gal), even if they had to chase ‘em well into a neighboring state.
By the time the Kansas Highway Patrol became officially official in 1937, bank robbery had ebbed a bit but traffic accidents were spiking out of control. It was then when the KHP was given its mandate to police the streets – all the state’s streets.
Though the statewide agency was given statewide police powers, it was also expected to remain on neighborly terms with the surrounding states. For the most part that lasted. When neighboring states legalized cannabis though, the Kansas Two-Step was born and all bets were off.
Actually, Wiki says the KHP experienced another significant hiccup back in 2014.
There were “many allegations of abuse of power and inconsistent work practices resulting in overall low morale” at the Kansas Highway Patrol, writes Wiki. So “the University of Kansas School of Business proctored a thorough survey of all KHP Employees that were willing to participate. The results revealed that the majority held great loyalty to the agency, but believed upper-level command staff needlessly doled out disciplinary actions to those they personally disliked, showed favoritism during promotional processes, and were generally incompetent when it came to making important decisions regarding the overall direction of the patrol.”
“Colonel Ernest Garcia and Lieutenant Colonel Alan Stoecklein were both mentioned by name multiple times,” continues Wiki. “Kansas State Troopers Association President Mitch Mellick said that the survey revealed concerns that had long been held by troopers across the state regarding labor practices and benefits.”
Both Stoecklein and Garcia would be out within the year.
Things at the KHP were supposed to have gotten better since then. Apparently they didn’t. Not entirely anyway.
Suing Over the Kansas Two-Step
The ACLU of Kansas lawsuit names Superintendent Col. Herman Jones, a former county sheriff who was appointed by Democratic Gov. Laura Kelley in 2019. In a separate lawsuit, Jones was sued by five female current or former patrol employees who allege a hostile work environment, a culture of sexual harassment and gender discrimination under his leadership.
Whether or not that separate lawsuit has influenced the judge is anybody’s guess, but she’s certainly come down hard on the Kansas Two-Step. In fact, her new protocols would require troopers to “affirmatively inform” motorists of their right to refuse to allow searches of their vehicles. Especially since troopers “are more than happy to exploit (motorists’) lack of knowledge of their legal rights” and “pressure drivers to submit to extended detentions,” so that they “do not feel free to leave.”
The AP says the Kansas ACLU and other civil rights advocates have argued for years that the patrol has subjected out-of-state motorists to searches that violate the Fourth Amendment to the U.S. Constitution that protects people against unreasonable searches and seizures. The judges ruling puts some serious credence into their claims.
“This is a huge win — for our clients and for anyone else who travels on Kansas highways,” said ACLU of Kansas’ legal director Sharon Brett. “It also demonstrates that courts will not tolerate the cowboy mentality of policing that subjects our citizens to conditions of humiliation, degradation, and, in some tragic cases, violence.”
Healing Properties wholeheartedly agrees. It’s a huge win – and a heartening ruling. It’s also a blast of fair air during a time when such things seem more and more rare. We subsequently believe Senior U.S. District Judge Kathryn Vratil should be applauded accordingly.
If you find irony in the fact that Judge Vritel was an appointee of Republican President George H.W. Bush while Superintendent Col. Herman Jones was appointed by Democratic Gov. Laura Kelley, well, perhaps that’s because we live in an ironic age. Then again, maybe it just means that nothing is clearcut anymore.
We do know that being good neighbors still means something, even if it’s forced. Heck, perhaps if the KHP starts walking the walk, they’ll fall right back into the rhythm. After all, it hasn’t always been a bad neighbor. Not every Kansas trooper dances the Two-Step either.
That’s not to say we’re for or against the use of cannabis. We do know it can have significant medicinal effects. We also know it can easily be overdone. So we advise any- and everyone to please, be careful, whatever you decide to do or don’t do. And if you’re looking to undo the pot or the pills or the powders or the drink, then give us a ring. We’ll help get you sorted right quick.
Image ACLU Kansas