KHP ordered to pay plaintiffs $2.3 million for unconstitutional ‘Kansas two-step’ traffic policy

TOPEKA — A U.S. District Court judge ordered the Kansas Highway Patrol to pay $2.34 million in attorney fees and other costs following a successful challenge to constitutionality of the state law enforcement agency’s practice of detaining motorists and searching vehicles without establishing reasonable suspicion.

The American Civil Liberties Union of Kansas, the national ACLU and the Spencer Fane law firm went to court in 2020 to assert KHP’s policy guiding traffic stops violated the 4th Amendment to the U.S. Constitution because troopers engaged in unreasonable searches and seizures of cars and trucks in the quest to deter drug trafficking on major highways.

On Friday, U.S. District Court Judge Kathryn Vratil issued the financial award in response to a request submitted by plaintiffs in March for more than $3 million in compensation from KHP.

“This was an incredibly resource-intensive case, and we are extremely gratified that the district court recognized the value of the tremendous amount of hard work that our entire team of dedicated attorneys and legal staff poured into this case over the past four years,” said Esmie Tseng, spokesperson for ACLU of Kansas. “We believe that such an award serves not only to vindicate our clients’ pursuit for justice, but also to send a message to recalcitrant government agencies that willfully disregard the constitution’s fundamental protections of our civil rights.”

Under the KHP’s two-step method, troopers pulled over a motorist for an alleged traffic infraction, completed that interaction and took a few steps away from the vehicle before turning around to ask if the driver would voluntarily answer unrelated questions that might reveal information a trooper could use to order a roadside search of the vehicle. KHP attorneys argued detaining motorists with the “two-step” maneuver was a legal and appropriate action in the war on illegal drugs.

Vratil, following jury trials in which verdicts were returned against KHP, issued a permanent injunction in November forbidding the agency from continuing to rely on policies that unconstitutionally transformed basic traffic stops into lengthy vehicle searches by drug-sniffing dogs.

“As wars go, this one is relatively easy,” Vratil said. “It’s simple and cheap, and for motorists, it’s not a fair fight. 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?”

The federal judge said KHP’s two-step theory on detention of motorists was based on an insufficient grasp of reasonable suspicion and invoked without the “knowing, intelligent and voluntary consent” of people targeted by troopers.

Vratil directed KHP to inform motorists when a traffic stop had ended and to tell motorists they were free to leave without consenting to inquiries unrelated to a traffic infraction. She directed troopers to notify drivers they had the right to revoke consent for a vehicle search at any time.

Her injunction placed KHP under court supervision for two to four years, mandated instruction of troopers on the difference between reasonable suspicion and mere speculation as it related to traffic stops and imposed requirements for documenting traffic stops, detention of motorists and permission to search a vehicle.

An appeal of Vratil’s order filed with the 10th Circuit of the U.S. Circuit Court of Appeals on behalf of KHP Col. Erik Smith would seek to preserve the “two-step” approach to gaining access to vehicles that troopers suspected contained illegal drugs. In response, the Court of Appeals stayed enforcement of Vratil’s injunction applicable to KHP’s method of conducting traffic stops.

After Vratil declared KHP policy to be unconstitutional in July, the agency’s superintendent said KHP would “endeavor to ensure that our enforcement operations respect constitutional rights and comply with the law as we carry out our mission of service, courtesy and protection.”

A spokeswoman for KHP, Candice Breshears, didn’t immediately respond to a request for comment about the financial judgment.

One of the ACLU’s plaintiff’s, Joshua Bosire, was awarded $40,000 in 2023 for misconduct by KHP troopers during a traffic stop in 2019.

“These practices turn something minor like a traffic violation into a degrading and lengthy roadside detention,” said Sharon Brett, who stepped down as legal director of ACLU of Kansas in March. “When we give police the power to conduct these pretextual stops, assume people to be drug traffickers, and use flimsy justifications to get inside their vehicles to prolong traffic stops, we turn what should be a simple ticket-release scenario into something longer, fraught and complicated.”