Erik Smith, appointed superintendent of the Kansas Highway Patrol by Gov. Laura Kelly, said the law enforcement agency would adhere to a federal judge’s decisions to avoid constitutional problems with search-and-seizure techniques relied on by troopers in traffic stops. (Tim Carpenter/Kansas Reflector)
TOPEKA — The new commander of the Kansas Highway Patrol vowed to amend traffic-stop techniques a U.S. District Court judge concluded unfairly took advantage of motorists’ lack of knowledge about constitutional rights, but the superintendent wasn’t eager to surrender law enforcement tools important to saving lives and interdicting criminals.
“I’m committed to insuring the troopers do things the right way the first time, every time,” said Erik Smith, a native Kansan who worked for more than 20 years for the U.S. Drug Enforcement Administration. “If that means that we’ve made some mistakes that we have to correct, I will see to it that we correct those mistakes. It’s never overly burdensome for us to follow the law. I want to make that crystal clear.”
Smith, endorsed by a bipartisan Kansas Senate committee for confirmation by the full chamber as KHP superintendent at the rank of colonel, said in an interview with Kansas Reflector the statewide law enforcement agency’s attorneys were evaluating Judge Kathryn Vratil’s 79-page decision affirming the American Civil Liberties Union’s assertion KHP targeted drivers for unconstitutional searches.
The ACLU, which filed a lawsuit in 2019 against KHP, said the decision highlighted infractions of the 4th Amendment to the U.S. Constitution. ACLU of Kansas legal director Sharon Brett said the court wouldn’t “tolerate the cowboy mentality of policing that subjects our citizens to conditions of humiliation, degradation and, in some tragic cases, violence.”
Smith, hired by Democratic Gov. Laura Kelly, said KHP’s legal counsel would file a formal response to the judge’s list of proposed remedies in August.
‘Order is concerning’
Vratil’s court order indicated she might appoint a special master to monitor KHP for possible abuse of search-and-seizure provisions. She would contemplate establishing a requirement troopers clearly inform motorists they could refuse a search of their vehicle.
KHP’s practices also led the judge to indicate she could require troopers to gain approval of a supervisor for searches and to require documentation of those requests.
“I will say that the order is concerning,” Smith said. “It’s concerning on a variety of levels. Not just because of the issues that she raises, but because of my commitment to doing things the right way and to be respectful of constitutional principles and to be respectful of the motoring public.”
He pushed back against the judge’s contention KHP “waged war on motorists” by allowing troopers to execute a literal two-step maneuver designed to prolong encounters with motorists and potentially open the door to vehicles in anticipation of finding illegal drugs.
Under the Kansas two-step, troopers were trained to walk away from a person’s vehicle at conclusion of a routine traffic stop before pivoting back to the motorist to strike up a conversation that might provide justification for calling in dog units to search the interior.
“I don’t believe that it demonstrates that we’re at war with motorists. We’re not at war with motorists,” Smith said. “At the same time, we need to use every tool in our tool belt to engage in criminal interdiction in a way that the public expects and that the courts can validate.”
In the court order, Vratil said the two-step procedure deployed by KHP was “simple and cheap, and for motorists, it’s not a fair fight.” She said KHP troopers hunted cars and trucks coming from states where marijuana was legal. She said some troopers were willing to trample constitutional rights to score more busts.
‘Hard on problems’
In the Senate confirmation hearing for Smith, Republicans and Democrats praised Smith’s track record and preparation to lead KHP.
“We were all very much impressed with your career credentials and the awesome responsibility it is to head up the Kansas Highway Patrol. I think you’re well-suited for that,” said Sen. Rick Wilborn, R-McPherson.
Sen. Larry Alley, a Winfield Republican and the Senate’s majority leader, asked how Smith intended to address personnel issues within KHP. Smith’s predecessor, retired Col. Herman Jones, was sued by a group of agency employees alleging sexual harassment and gender discrimination. In mid-July, a federal judge ruled in favor of the state and KHP management.
Jones was appointed by Kelly in 2019 after the ouster of Col. Mark Bruce, who became tangled in allegations he helped one of his top lieutenants deflect an accusation he engaged in domestic violence.
“Morale is always brought to my attention in conversations surrounding the highway patrol,” said Smith, who told senators he was an advocate of clear communication of employee expectations. “I think the tone needs to be set early and it needs to be repeated often.”
He said he wanted KHP employees at all levels to believe issues arising in the organization were of concern to him. He said consistent application of discipline would improve morale.
“Too often in public service agencies, and the Kansas Highway Patrol is no different, there’s often an us-and-them mentality, good-versus-bad, a clique or even tribalism if you will,” Smith said. “This is my philosophy: Be hard on problems and to be soft on people. Everybody in the agency needs to know the problems are going to dealt with and problems are going to be addressed seriously, but it doesn’t have to be the end of someone’s livelihood.”
KHP has experienced years of recruitment and retention challenges along with other law enforcement agencies in Kansas. State legislators responded by approving special compensation packages for highway patrol troopers, but recruiting classes have remained modest.
“Recruitment and retention are both existential threats to the agency,” Smith said. “Recruitment and retention is not keeping pace with retirements and resignations.”
He said employees throughout KHP needed to be ambassadors of the organization and appeal to individuals drawn to public service and the values of advancing public safety.
“Nobody’s going to want to come to work for an agency where morale suffers. So, I think all of these things considered in concert and deployed in concert will raise recruiting and it certainly will raise retention,” Smith said.
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