Federal court: Kansas Highway Patrol ‘has been violating the Constitution’

On Kansas Day, federal appellate judges ruled the Kansas Highway Patrol violated the constitutional rights of drivers, but determined a lower court’s injunction against troopers went too far.

“Driving between Kansas and Colorado is not a crime,” the 10th U.S. Circuit Court of Appeals judges said at the opening of the 59-page decision released on Jan. 29. “But for years, interstate drivers traveling in Kansas have apparently endured a pattern of unconstitutional searches and seizures, primarily because one state has legalized marijuana and the other has not.”

The three-judge panel of Richard Federico, Harris Hartz and Paul Kelly unanimously ruled the plaintiffs had standing and indicated they met the traditional requirements for a permanent injunction.

However, in a divided opinion, the majority ruled “the district court abused its discretion” by ordering an extensive injunction. Federico, who spent some of his legal career in Kansas and is a graduate of the University of Kansas School of Law, partially dissented.

“Injunctions against state officials should be no more intrusive than necessary, and Plaintiffs have not made a showing that anything more than mandatory training is necessary,” the appellate majority ruled.

The ruling comes more than a year after the 10th Circuit held oral arguments in November 2024.

ACLU sued over Kansas two-step and targeting out-of-state drivers

The case led by the ACLU against KHP is best known for challenging the Kansas two-step, a controversial technique used by troopers to extend traffic stops and eventually search vehicles.

At what would normally be the conclusion of a traffic stop, troopers start to step away, then return to the driver’s window to ask more questions. Law enforcement argued that makes it a consensual encounter, legally separate from the traffic stop.

The ACLU, which sued on behalf of numerous drivers who had been detained by troopers, also argued the agency’s policies disproportionately targeted out-of-state drivers and illegally used information about where they were traveling to or from in formulating probable cause for a vehicle search.

U.S. District Judge Kathryn Vratil’s ruling said the KHP had “waged war” on motorists passing through Kansas and found their practices to be unconstitutional.

“As wars go, this one is relatively easy; it’s simple and cheap, and for motorists, it’s not a fair fight,” she said in her opinion. “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?”

In November 2023, Vratil issued a sweeping permanent injunction, but it was stayed by the appellate court pending the outcome of the appeal.

10th Circuit says KHP violated Constitution

The 10th Circuit panel was critical of the KHP practices but thought Vratil went too far.

“This court has repeatedly stated that the fact that the State from which a vehicle has traveled is a drug-source State or that the destination of the vehicle is a drug-destination State should not be considered in determining whether to stop or detain a vehicle,” the majority said. “Yet multiple witnesses from KHP testified that officers regularly do consider those facts and are trained to do so.

“Plaintiffs have made no showing that officers will persist in this practice even after being trained not to do so. The record indicates that such corrective training began after this suit was filed, but there was no evidence presented to the district court regarding the impact of training.”

As for the sweeping injunction, the majority said “the demands of federalism prohibit federal courts from ordering such broad relief against a state agency without a strong showing of necessity.”

Federico, in his partial dissent, suggested the majority’s view of federalism would “turn a blind eye to evidence that proves a state policy and practice of violating individuals’ constitutional rights.”

Hartz and Kelly disagreed.

“On the contrary, we are emphatically reminding KHP that it has been violating the Constitution,” the majority ruled. “That misconduct must end. The issue is solely one of the appropriate initial remedy. A more vigorous remedy would be required if the misconduct continues.”

While Federico suggested the remedial measures in Vratil’s injunction were too extensive and burdensome, he did not believe KHP’s actions were “a simple error.” He said “KHP intentionally ignored” legal precedent on the Fourth Amendment.

“When state agencies purposely flout the Constitution, it necessitates meaningful injunctive relief,” Federico said.

Federico said he would have reversed the remedial measures of the injunction, but allowed Vratil to impose ones that are more narrowly tailored.

“In my view, given the violations of our precedent by KHP, we should afford the district court greater discretion and the opportunity to revise its injunction,” Federico said.

KHP can use two-step, but must revise training

Ultimately, Hartz and Kelly “set aside as an abuse of discretion the portion of the district court’s injunction that concerns the Kansas Two-Step.” They said the 10th Circuit “has never held that this practice has violated a driver’s constitutional rights and has repeatedly upheld that practice in specific cases.”

In his dissent, Federico said “the entire purpose of KHP’s training on the Two-Step was to coerce drivers into feigned consent.”

Federico did agree with Hartz and Kelly to unanimously “preserve the portions of the district court’s injunction mandating revised training.”