Kansas Highway Patrol Superintendent Col. Herman Jones testified Wednesday that two troopers have not yet faced discipline after juries found this year they violated the constitutional rights of motorists during traffic stops.
But Jones also said the Highway Patrol last fall began requiring troopers to write reports about why they detained motorists in stops that don’t lead to arrests or the seizure of property.
Jones testified in U.S. District Court in Kansas City, Kansas, as part of an ongoing civil trial against the law enforcement official over the “Kansas two step” — when troopers at the end of a traffic stop take a couple steps toward their patrol car before coming back to have what KHP says is a voluntary interaction with the driver.
The tactic is used to keep motorists talking, often buying time for drug-sniffing dogs to arrive. Civil liberties groups and others have criticized the practice as an infringement on 4th Amendment rights against unreasonable search and seizure. They argue motorists often don’t actually feel free to leave and that troopers frequently aren’t clear that the questioning is voluntary.
The ACLU of Kansas has sued Jones on behalf of motorists over the “two step” and are seeking a court order blocking the agency from using it. U.S. District Court Judge Kathryn Vratil is presiding over the bench trial, which means there is no jury and she will issue a verdict.
Jones’ testimony came just weeks before his July 1 retirement date and after the Highway Patrol has already suffered two courtroom defeats this year related to the practice.
In April, a jury in a separate federal civil trial found that Trooper Brandon McMillan had violated the rights of motorist Joshua Bosire during a 2019 stop and awarded about $40,000 in damages. Another jury earlier this year also ruled that Trooper Douglas Schulte had violated the rights of motorist Blaine Shaw during a 2017 stop but awarded only $1 in nominal damages.
“Not as of this date,” Jones said repeatedly when asked several times by Patrick McInerney, an attorney for the plaintiffs, whether McMillan or Schulte had been disciplined following the verdicts.
Jones also said he didn’t recall whether he had disciplined the troopers’ supervisors.
Arthur Chalmers, an assistant state attorney general who is representing Jones, during cross-examination implied civil service protections for the troopers may play a role in the lack of discipline so far. He also asked whether troopers have any incentive to illegally search vehicles or seize property; Jones responded “no.”
Bosire and Shaw were both traveling to or from Colorado, where marijuana is legal, along I-70 with out-of-state plates when they were stopped for minor traffic infractions. Their stops led to lengthy roadside detentions as troopers unsuccessfully searched for drugs. Both incidents occurred before Jones assumed command of KHP but the agency has continued to use the “two step.”
KHP training slides were shown in court on Wednesday outlining the “two step.” The slides said troopers are not required to say any particular “magic words” to make clear that the traffic stop has ended and motorists are free to go. Other Highway Patrol material was shown that says consensual interactions with motorists must be voluntary.
Jones was also questioned about a policy the KHP implemented in September that requires troopers to produce reports detailing their reasonable suspicion for roadside detentions that don’t end in arrests or the seizure of contraband. Jones acknowledged legal challenges over the “two step” played a role in development of the policy.
He also confirmed that the power to change policy rests with him.
“The buck stops with you?” McInerney asked.
“Yes,” Jones replied.
Kansas Gov. Laura Kelly, who appointed Jones in early 2019, hasn’t announced his successor. Under questioning from McInerney, Jones acknowledged that the next superintendent could rescind the policy requiring reports on roadside detentions, but he suggested it’s unlikely.
“The direction we’re going, it would probably stay,” Jones said.
Jones has also been sued by current or former employees who allege a hostile work environment, a culture of sexual harassment and gender discrimination at the agency under his leadership. Kelly announced Jones’ retirement in February after Republican lawmakers pushed for his ouster. Jones has said he wasn’t asked to resign.
The outcome of the “two step” trial, which began last week, could affect enforcement of Kansas’ drug laws in the Kansas City area. Recreational marijuana became legal in Missouri in December but remains illegal in Kansas.
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.