The plaintiffs who successfully challenged a technique used by the Kansas Highway Patrol to detect drugs on motorists are seeking about $3.5 million in legal fees after a judge found that the tactic was unconstitutional.
The five plaintiffs who challenged the so-called “Kansas two-step” tactic filed a motion in federal court asking for about $3.1 million in attorney’s fees and about $439,000 in legal costs incurred through Nov. 27.
Lawyers for the plaintiffs at the American Civil Liberties Union said the numbers are estimates and can change depending on whether the state appeals the decision.
The court filing also indicates that the plaintiffs’ lawyers are continuing to review billing records, determine taxability of individual costs, reduce duplication and “exercise
reasonable billing judgment.”
The plaintiffs lawyers said they would amend their motion if the final numbers are “substantially different” than the initial numbers provided to the court.
They said they would lay out a more thorough case in justifying the requested fees and expenses in a forthcoming filing.
The Highway Patrol declined to comment and referred comment to the attorney general’s office. It was unclear immediately Friday if the state would appeal the case.
Last July, U.S. District Judge Kathryn Vratil ruled that the practice violated drivers’ rights to be free from unconstitutional searches under the Fourth Amendment of the Constitution.
Civil rights advocates said troopers would use the two-step tactic to break off an initial traffic stop and attempt to reengage the driver in what would then be considered a consensual encounter and give them more time to search for drugs.
After issuing a ticket or warning and telling the driver to have a safe trip, the trooper would turn their body, take two steps toward the patrol car but return to the driver’s window to ask the driver to answer a few more questions.
The judge criticized the Highway Patrol for waging a “war” on motorists traveling on Interstate 70 through Kansas between Colorado and Missouri, two states where marijuana is now legal.
Last month, Vratil issued an injunction bringing the Kansas Highway Patrol under court oversight for at least two years and sets out requirements for documenting investigative traffic stops and detaining drivers and requires yearly training for troopers.
The injunction bars the Highway Patrol from using the two-step technique to extend traffic stops of motorists without reasonable suspicion or “without the motorists’ knowing, intelligent, and voluntary consent.”
The agency is barred under the injunction from giving any weight to the fact that a motorist is traveling to or from a “drug source” or “drug destination” state when developing reasonable suspicion when making a traffic stop.
The injunction requires troopers to document all investigative stops and detentions.
They also must document a driver’s consent to a search or to engage with a trooper after the conclusion of a traffic stop.
The injunction also requires that when troopers seek consent for a search, they must inform the motorists of their right to refuse and revoke consent at any time.
Two years ago, the state paid the American Civil Liberties Union and a team of lawyers $1.9 million in legal fees stemming from its failed defense of a state law requiring Kansans to show proof of citizenship when registering to vote.
And in 2018, the state paid out $41,602 to cover legal fees of Esther Koontz, who was represented by the ACLU in a legal challenge to a Kansas law barring state contractors from boycotting Israel.
The ACLU sued the state when the Wichita teacher wasn’t allowed to participate in a state teacher training program because she refused to certify she wasn’t boycotting Israel.
A federal judge issued a preliminary injunction blocking the law, finding that it violated the teacher’s First Amendment rights.
The Legislature later went back and rewrote the law to address its constitutional deficiencies and the ACLU dropped the lawsuit.
