On January 30, 2020, the ACLU of Kansas filed a lawsuit challenging the Kansas Highway Patrol’s practice of unconstitutionally targeting motorists with out-of-state plates traveling to and from Colorado and routinely employing a training technique known as the “Kansas Two-Step.” We represent several individuals who were stopped and detained by KHP troopers for traffic infractions, and were then detained for a canine sniff of their vehicle, without adequate reasonable suspicion, in violation of the Fourth Amendment.
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The lawsuit, Shaw et. al v. Jones et. al, filed in the U.S. District of Kansas, seeks injunctive and declaratory relief for three named plaintiffs stopped and illegally detained by the KHP for driving a car with out-of-state plates and visiting Colorado, a state that has legalized marijuana use. The case also seeks damages on behalf of Blaine and Samuel Shaw and Joshua Bosire for the illegal detentions they experienced.
“Drivers with out-of-state plates made up 93 percent of KHP stops in 2017,” the lawsuit said. “Further, out-of-state motorists driving through Kansas on I-70 constituted 96 percent of all of KHP’s civil forfeitures in 2019. Most of those motorists were drivers of color.”
Kansas Highway Patrol has maintained a practice of unlawfully detaining drivers after the initial purpose of the stop had been resolved to question drivers about their travel plans without consent or reasonable suspicion of criminal activity. KHP officers often use a maneuver nicknamed in law enforcement circles as the “Kansas Two-Step” to accomplish these illegal detentions, in which, after issuing a ticket or warning and telling the driver to have a safe trip, the officer turns his or her body, takes two steps toward the patrol car but returns to the driver’s window to ask if the driver would answer a few more questions. This technique is used to break off an initial traffic detention and attempt to reengage the driver in what would then be considered a consensual encounter. It is taught to all KHP officers and is included in KHP’s training materials.
KHP troopers will detain drivers based on innocent-travel indicia for this type of non-consensual questioning after the original purpose of the traffic stop has dissipated. Absent court intervention, the lawsuit’s plaintiffs, Blaine Shaw, Samuel Shaw and Joshua Bosire, fear they will endure continued unlawful detentions simply for traveling to what law enforcement officials consider a “drug-source state." The detained drivers endured canine unit searches and one endured a personal pat-down on the side of the highway.
The standard for this kind of invasion of privacy has to be higher than out-of-state plates, a Colorado destination, and minority status. This practice is unconstitutional on many levels. In 2016, the Tenth Circuit found in Lewis v. Vasquez that KHP troopers illegally relied on the fact that a driver was traveling from Colorado and other innocuous conduct to support their “reasonable suspicion” that the driver was trafficking drugs.
In July 2021, the State of Kansas filed an interlocutory appeal to the 10th Circuit Court of Appeals after the District Court ruled in the plaintiffs' favor on the issue of qualified immunity. Briefing was completed in November 2021 and the Court held oral argument March 21, 2022.
On June 6, 2022, the United States Court of Appeals for the 10th Circuit denied the Kansas Highway Patrol’s appeal, ruling in favor of the ACLU of Kansas’ clients. The decision upholds the lower court’s denial of the troopers’ motions for summary judgment, supporting the argument that qualified immunity could not be applied to the facts of the case and that a jury could conclude the troopers lacked reasonable suspicion to detain the plaintiffs. The case will now proceed in the District Court of Kansas.
On January 3, 2023, the District court bifurcated the cases for trial. Blaine Shaw's case against Trooper Douglas Schulte for damages arising from Schulte's unlawful detention of Shaw will be tried before a jury beginning February 6, 2023 in the federal courthouse in Kansas City, Kansas. Joshua Bosire's claim for damages against Trooper Brandon McMillan will be tried beginning April 2023, at the same location. The claim for injunctive and declaratory relief against Col. Herman Jones, KHP Superintendent, will be scheduled for a bench trial at a later date.