‘I felt violated’: Trial opens against KS Highway Patrol leader over traffic stop tactic

Shawna Maloney remembers vividly the fear she felt as she watched Kansas Highway Patrol troopers search the RV that she and her family were taking on a cross-country vacation in March 2018.

The predawn search along Interstate 70 turned up no drugs or anything else illegal. It came after one of the troopers used what is commonly called the “Kansas two step” — a maneuver in which troopers at the end of a traffic stop take a couple steps toward their patrol car before coming back to have what the patrol says is a voluntary interaction with the driver.

The “two step” can buy time for troopers to get a drug-sniffing dog to the location. It allows troopers to continue probing for incriminating information even if they don’t have reasonable suspicion to continue stopping the vehicle.

“I don’t feel safe driving through Kansas anymore,” Maloney testified in federal court Monday, at points tearing up as she described her newfound mistrust of law enforcement.

Maloney was the first witness to take the stand at a civil trial against Kansas Highway Patrol Superintendent Col. Herman Jones, which began this week at the U.S. District Court in Kansas City, Kansas.

Maloney is one of several plaintiffs who have sued, asking a judge to order a stop to the “two step.”

The ACLU of Kansas has been fighting the “two step” in court for more than three years. The trial against Jones, who will step down July 1, is the third in recent weeks centered on how troopers conduct themselves during roadside stops. Federal juries this year have twice found that individual Kansas troopers violated constitutional rights during stops.

The fate of the tactic, which troopers are alleged to have used on Colorado drivers, could hold consequences for the enforcement of Kansas’ drug laws in the Kansas City area. Recreational marijuana became legal in Missouri in December but remains illegal in Kansas.

ACLU of Kansas legal director Sharon Brett in her opening statement Monday painted a portrait of Jones as an agency leader who either passes the buck or ensures “the buck never gets to him” to avoid grappling with constitutional violations by troopers.

The ACLU of Kansas contends the Patrol targets motorists from states coming from or traveling to states where marijuana is legal, even after courts have previously restricted how troopers can use information about a vehicle’s origin or destination.

“Police should not be permitted to abuse their power under the guise of public safety,” Brett said.

The latest trial, before U.S. District Court Judge Kathryn Vratil, an appointee of President George H.W. Bush, holds the potential to dig deep into the Patrol’s practices and procedures. It comes during Jones’ final two months leading the Patrol, after Republican lawmakers pressured Democratic Gov. Laura Kelly to force him out.

Kelly appointed Jones, a former Shawnee County sheriff, in the first months of her administration in 2019. Jones has said he wasn’t asked to step down.

In a separate federal lawsuit, Jones has been sued by five women, all current or former Highway Patrol employees, who allege a hostile work environment, a culture of sexual harassment and gender discrimination at the agency under his leadership.

Jones, wearing a suit jacket, sat at a defense table as the trial began. Arthur Chalmers, an assistant state attorney general who is representing Jones, deferred his opening statement until after the plaintiffs finish their case. The bench trial, which means Vratil will issue a verdict without a jury, is scheduled to last eight days.

Lt. Candice Breshears, a Highway Patrol spokesperson, declined to comment on the trial, citing pending litigation.

In court documents, Chalmers has argued that there is no evidence that Jones is deliberately indifferent, noting that Patrol training “strives to engage in best law enforcement practices,” including formal instruction on Fourth Amendment issues arising from traffic stops. Chalmers has written that troopers are trained not to block vehicles from safely re-entering traffic while seeking a voluntary stop.

“The constitutional right to travel is not infringed even if, as the Plaintiffs allege, out-of-state motorists are disproportionately stopped and detained after a traffic stop relative to Kansas motorists,” Chalmers wrote in a motion for summary judgment last August.

“Specifically, the alleged policy does not constitute a significant impediment to a right to freely transverse a state, and it is not an encroachment upon activity basic to the livelihood of the Nation.”

But the ACLU of Kansas has said in court filings that KHP troopers and supervisors testified during depositions that coming to or from a “drug source state” such as Colorado could contribute to reasonable suspicion. With Kansas one of the few states with no legal cannabis program, a focus on states where marijuana is legal would potentially give troopers an expansive berth to make stops.

Kansas is one of only three remaining states that has no form of legal marijuana — either a medical or recreational program, or some form of legal THC products, the substance that causes the high in marijuana. Under Kansas law, possession of marijuana is a Class B misdemeanor punishable by a maximum of six months in jail, and a fine of up to $1,000, for a first time offense.

At the time Maloney and her family were traveling across Kansas, they lived in Loveland, Colorado. Dashcam video shown in court Monday depicted how a trooper followed the family’s RV for several seconds at night before turning on the Patrol vehicle’s lights and making the stop after the RV crossed the right white line.

Maloney testified that the family would drive overnight during trips to allow their children to sleep on the way. The video shows that after the trooper gave the family a warning about the white line, he took a few steps back toward his vehicle before returning to ask more questions.

Maloney said she didn’t understand why the trooper wanted to ask more questions. Eventually, the trooper said the family was being detained and the video shows a dog sniffing the exterior of the RV.

Three troopers then searched the vehicle’s interior after saying the dog appeared to smell something, though Maloney said the dog didn’t appear overly interested in the vehicle. The troopers didn’t find anything illegal during the search and, after about 40 minutes, Maloney and her family was free to go.

Maloney testified that during the search the troopers damaged the RV, including taking apart a CB radio and the dash, removing dome lights, dumping out clothes, breaking the towel rack and leaving the bathroom door hanging off its frame. The toilet was also left non-functional. Several pictures taken of the damage by Maloney were shown in court.

“I felt violated because this was our home while we were on the road,” Maloney said.

Chalmers objected several times, asking about the relevance of the testimony. He said the probable cause the troopers relied on to conduct the search hasn’t been challenged in the lawsuit.

Vratil, who will likely issue a written ruling after the conclusion of the trial, allowed the testimony to continue.

“Understanding how troopers did their job is very important,” she said.