Kansas Highway Patrol fighting federal judge’s ban on ‘two step’ traffic stop tactic

The Kansas Highway Patrol is appealing a federal injunction that will block its troopers from using the “two step” traffic stop tactic that a judge ruled had resulted in the agency violating the constitutional rights of motorists.

The appeal signals the statewide law enforcement agency will resist in court a mandatory overhaul of its practices. U.S. District Court Judge Kathryn Vratil ruled this summer that troopers had violated motorists’ Fourth Amendment rights and in November effectively placed officers and their leaders under long-term judicial supervision.

The “two step” refers to the practice of troopers at the end of a traffic stop taking a couple steps away from the stopped vehicle before coming back to ask more questions. The maneuver is designed to initiate a voluntary encounter with motorists, potentially leading to them offering incriminating information.

But Vratil found the questioning wasn’t truly consensual. Under her injunction, troopers who want to keep questioning motorists after a traffic stop has ended must now, in many instances, tell them the stop has ended and they don’t need to answer additional questions.

Kansas Highway Patrol Superintendent Erik Smith will argue the Fourth Amendment, which protects against unreasonable search and seizures, does not require officers to inform motorists they are free to leave at the end of a stop for the additional questions to be consensual, according to a court document filed with the 10th U.S. Circuit Court of Appeals.

Smith will argue Vratil “erred in enjoining the ‘Kansas Two-Step,’ which is not per se unconstitutional,” Dwight Carswell, an attorney in the Kansas Attorney General’s Office, wrote in the Dec. 22 document.

The Kansas Attorney General’s Office first filed a notice that Smith will appeal on Dec. 15.

Democratic Gov. Laura Kelly appointed Smith in June to run the Highway Patrol. In a December interview with The Star, Kelly said motorists can have confidence their civil rights will be respected when they’re pulled over. She added that “we’ve taken responsibility for the bad actors.”

But Kelly also said the two-step controversy centered on five incidents over five years and that the way the episodes have been reported has given the impression the incidents were more widespread.

“So it’s not an everyday occurrence. And, you know, we’ve instituted a number of education training, consequences in the Patrol that hopefully there won’t even be the five in the next five years again,” Kelly said.

Vratil, an appointee of President George H.W. Bush, wrote in her 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” — making the court-ordered changes necessary.

The injunction was the result of a long-running legal challenge brought by the ACLU of Kansas on behalf of motorists. A spokesperson for the organization declined to comment, but ACLU of Kansas legal director Sharon Brett has previously said the Highway Patrol “is not above the law.”