(CN) - A 10th Circuit panel on Thursday found that motorists who sued Kansas over a traffic stop tactic had standing, but a federal judge went too far in an injunction that imposed documentation and other requirements.
At issue was a tactic used by the Kansas Highway Patrol, where a state trooper turns away from the driver's door and then turns around and starts talking to the motorist again. This maneuver, sometimes known as "the Kansas two-step," initiates what law enforcement describes as a voluntary interaction with the trooper - as opposed to the rest of the traffic stop, which is involuntary.
"We are emphatically reminding [Kansas Highway Patrol] that it has been violating the Constitution. 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," wrote U.S. Circuit Judge Harris L. Hartz, a George W. Bush appointee.
The three-judge panel affirmed Kansas' appeal in part, reversed it in part and remanded it for further proceedings. U.S. Circuit Judge Paul Joseph Kelly Jr., a George H.W. Bush appointee, joined Hartz's decision while U.S. Circuit Judge Richard Federico, a Joe Biden appointee, partially dissented.
Civil liberties groups have criticized the two-step, saying motorists don't feel like they have the freedom to leave with a trooper standing next to their vehicle. The practice allows troopers to elicit information and buy time for a law enforcement officer to arrive with a police dog.
In the case at hand, Kansas squared off against the American Civil Liberties Union, which challenged the two-step in federal court. Senior U.S. District Judge Kathryn H. Vratil ruled in 2023 that Herman Jones, then-superintendent of the Kansas Highway Patrol, used the practice "in the name of drug interdiction" to unlawfully detain motorists - particularly those from out of state, traveling between Colorado and Missouri on federal highway I-70 - without reasonable suspicion or consent, in violation of the 14th Amendment.
Vratil, a George H.W. Bush appointee, ruled that troopers must not consider if a motorist is traveling to or from a "drug source" or "drug destination" state or along a drug corridor.
In November 2024, Kansas argued on appeal that the plaintiffs did not have standing. But the panel found they did.
"By the extensive record established throughout this litigation, plaintiffs have proven that they have a genuine and particularized interest and fear in how they will be treated by KHP in the future on Kansas highways," Federico wrote in the decision.
Kansas also argued the lower court's injunction violated the concept of federalism, an argument the judges didn't buy.
However, the appeals panel did determine the lower court abused its discretion with its injunction by requiring more than mandating training. The injunction called for documentation, consent notification, video recording, supervisory review and quarterly reports to the lower court.
"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," Hartz wrote.
Broader injunctive relief can be imposed, he wrote, but there needs to be evidence that relief is needed.
In his partial dissent, Federico said the lower court should be asked to take a close look at its required remedial actions and only order ones the Highway Patrol could administer with available resources. "The district court is in a better position than we are to revise its own language considering the facts of this case and the legal requirements of our opinion," he wrote.
The 10th Circuit ruling derives from two traffic stops that took place on Interstate 70 in Kansas, one in 2017 and one in 2018, though Vratil addressed other two-step cases in her ruling since the latter case became a class action.
In the 2017 case, a trooper pulled over brothers Blaine and Samuel Shaw of Oklahoma City in Hayes, Kansas, on their way to Denver to visit family and friends and detained them as their vehicle was searched. In the other case, a trooper pulled over Colorado residents Mark Erich and Shawna Maloney near Salina, Kansas, as they traveled to Alabama in an RV.
The motorists sued Jones, who at the time was the Kansas Highway Patrol director. He has since retired and was terminated as a defendant, but current superintendent Erik Smith was added as a defendant last year. The plaintiffs also sued the troopers who stopped them.
Although Dwight Carswell of the Kansas Attorney General's Office argued that lower court instructions to the Kansas Highway Patrol conflicted with Supreme Court precedent, most of his arguments centered on the claim that the plaintiffs lacked standing. The likelihood of the plaintiffs being stopped again in Kansas and a trooper having reasonable suspicion to detain them is very low, he said.
ACLU of Kansas attorney Kunyu L. Ching cited the court's 2016 Vasques v. Lewis decision that said traveling to or from a state with legalized marijuana is meaningless when calculating reasonable suspicion.
"The KHP deliberately ignored Vasques for years," she told the judges.
Source: Courthouse News Service
