[00:00:00] Speaker 03:
We'll start with 23-3264.

[00:00:01] Speaker 03:
We'll show all these Smith and related cases.

[00:00:07] Speaker 03:
Mr. Carswell.

[00:00:12] Speaker 01:
May it please the court, I'm Dwight Carswell, appearing on behalf of Appellant Colonel Eric Smith.

[00:00:16] Speaker 01:
The district court should be reversed for three reasons.

[00:00:19] Speaker 01:
First, plaintiffs lack standing to obtain prospective relief.

[00:00:23] Speaker 01:
Second, plaintiffs fail to show the sort of extraordinary circumstances.

[00:00:27] Speaker 01:
It would justify an injunction with such profound federalism and separation of powers implications, particularly when adequate relief remains at law in the unlikely event of any future constitutional violation.

[00:00:39] Speaker 01:
Finally, the district court's two-step and consent search provisions of its injunction conflict with 10th Circuit and Supreme Court precedent.

[00:00:47] Speaker 01:
On standing, this case is indistinguishable from Lyons.

[00:00:51] Speaker 01:
Plaintiff's fears of a future constitutional violation are wholly speculative and rely on a chain of contingencies.

[00:00:58] Speaker 01:
First, plaintiffs would have to be stopped in the future by hands as highway patrol trooper for a traffic violation, which is speculative.

[00:01:05] Speaker 04:
Can you slow down just a little?

[00:01:06] Speaker 01:
Oh, sure.

[00:01:07] Speaker 01:
And then on top of that,

[00:01:09] Speaker 01:
The trooper would have to determine to further detain one of the plaintiffs based on the trooper's determination that reasonable suspicion exists under the totality of the circumstances, which is a very fact-bound inquiry.

[00:01:21] Speaker 01:
and relies on lots of speculative facts that we don't know.

[00:01:25] Speaker 01:
And then in addition to that, the trooper would have to be wrong about the existence of reasonable suspicion, which is also speculative.

[00:01:32] Speaker 00:
One thing that distinguishes this case on standing is that the district court made significant findings of fact about the prevalence of out-of-state drivers being stopped within the borders of Kansas, about the number of times those out-of-state drivers are subject to canine searches,

[00:01:50] Speaker 00:
to Kansas Highway Patrol's policy to stop as many drivers as it could.

[00:01:54] Speaker 00:
That was part of its policy and training.

[00:01:57] Speaker 00:
And then, of course, all this is wrapped up in Professor Mumolo's expert findings and his data.

[00:02:03] Speaker 00:
And as I read the briefs, none of that is contested on appeal.

[00:02:06] Speaker 00:
Do I have that wrong?

[00:02:08] Speaker 01:
We do have the part about Momolova's testimony.

[00:02:09] Speaker 01:
We do, in fact, contest that.

[00:02:11] Speaker 01:
But regardless, even if assuming that that's correct, that out-of-state drivers are disproportionately likely to be stopped, that's still speculative whether they will be stopped or not.

[00:02:20] Speaker 01:
And plus, that's only the first step in this chain of causation.

[00:02:24] Speaker 01:
In addition to the initial stop, then there has to be the decision to detain them based on the existence of reasonable suspicion, which is based on a bunch of different facts in any particular case.

[00:02:34] Speaker 01:
Again, there's just no way to know what an individual trooper in any case will decide to do.

[00:02:40] Speaker 01:
And then in addition to that, the trooper has to be wrong about the existence of reasonable suspicion.

[00:02:45] Speaker 01:
And the only facts we have here are three to five individual cases of actual constitutional violations.

[00:02:55] Speaker 01:
It's over three years.

[00:02:57] Speaker 01:
Five over five years.

[00:02:59] Speaker 01:
And we think it's really about three.

[00:03:01] Speaker 01:
Is one a year?

[00:03:04] Speaker 01:
About one a year, and out of what the district court said in footnote 11, it's about one to 200,000 KHP traffic stops per year.

[00:03:12] Speaker 01:
So one out of one to 200,000 stops, that's all the district court identified.

[00:03:16] Speaker 01:
And that goes to the second point in particular about whether injunctive relief is justified.

[00:03:21] Speaker 01:
We don't believe it is.

[00:03:23] Speaker 00:
Can we stay on standing for a second?

[00:03:25] Speaker 00:
Sure.

[00:03:25] Speaker 00:
Help me also with this.

[00:03:26] Speaker 00:
During the pretrial litigation, the plaintiffs moved for class certification.

[00:03:33] Speaker 00:
In response, KHP offered stipulations, essentially saying class certification is unnecessary here.

[00:03:39] Speaker 00:
If the plaintiffs were to prevail, the relief that they are afforded would then be also afforded to all putative members of the class.

[00:03:47] Speaker 00:
So because KHP took that position before the district court and then the district court relied upon it and saying, I'm not going to certify the class, the plaintiffs were clear that if they did not want to accept those stipulations because they didn't want to be in a standing battle later, but yet here we are.

[00:04:01] Speaker 00:
So why should

[00:04:03] Speaker 00:
the Kansas Highway Patrol not be judicially a stop from making an argument contrary to what they made below that the district court relied upon.

[00:04:10] Speaker 00:
Well, three points.

[00:04:11] Speaker 01:
First of all, in part of that stipulation, KHP made clear that we still reserve the right to contest their standing.

[00:04:17] Speaker 01:
Secondly, even with class certification, you still have to show that the named plaintiffs in the class have standing.

[00:04:23] Speaker 01:
So it's not just other class members.

[00:04:24] Speaker 01:
You still have to show the named plaintiffs, which would be the plaintiffs here.

[00:04:28] Speaker 01:
So that actually doesn't change anything.

[00:04:30] Speaker 01:
And then finally, standing can't be waived.

[00:04:32] Speaker 01:
So even if HB had decided to say, we waive standing, they can't be stopped from raising standing, because standing is jurisdictional.

[00:04:40] Speaker 01:
So for all those reasons.

[00:04:41] Speaker 03:
Let me ask you a couple questions about the distinction, if any, between this case and Lyons.

[00:04:47] Speaker 03:
Sure.

[00:04:48] Speaker 03:
It seems to me there are two things.

[00:04:50] Speaker 03:
One, in Lyons, the plaintiffs had to violate an unchallenged law, a serious criminal law.

[00:05:00] Speaker 03:
criminal offense.

[00:05:02] Speaker 03:
Here we're talking about traffic offenses and lots of people violate traffic laws.

[00:05:10] Speaker 03:
That makes it much more likely.

[00:05:13] Speaker 03:
Second, here we have a policy of, as I understand the record, of the state police, the KHP, telling officers you can consider

[00:05:29] Speaker 03:
that the driver has come from out of state by looking at the license tag, and that can affect your regional suspicion calculation.

[00:05:42] Speaker 03:
Now, we're not talking about regional suspicion to stop.

[00:05:46] Speaker 03:
I think the only issue here is regional suspicion to prolong the stop.

[00:05:51] Speaker 03:
So, in that circumstance, isn't there a significant enough likelihood

[00:05:59] Speaker 03:
that someone who commits a traffic violation, and we all do, unfortunately, will then be improperly detained after the purpose of the stop has been satisfied and have their detention prolonged.

[00:06:17] Speaker 03:
Isn't there enough there to make that a sufficiently likely event to grant standing?

[00:06:25] Speaker 01:
So addressing your questions in order, first of all, Lyons itself dealt with the traffic stop.

[00:06:29] Speaker 01:
And the Supreme Court said the fact of that, the speculation of that happening again, is part of what rendered the lack of standing there.

[00:06:38] Speaker 01:
So I don't think this case is distinguishable from Lyons on those grounds.

[00:06:42] Speaker 01:
To your second point, there is no KHP policy of detaining motorists without reasonable suspicion.

[00:06:48] Speaker 01:
So it wouldn't be violating.

[00:06:50] Speaker 03:
But if they counted it wrong, if they

[00:06:54] Speaker 03:
encourage officers to use as a factor something that this court has repeatedly stated should not be considered as a factor.

[00:07:02] Speaker 03:
That's going to lead to unnecessary prolonged detentions, is it not?

[00:07:08] Speaker 01:
No, not necessarily.

[00:07:09] Speaker 01:
There were lots of times where officers, you know, say I stopped, you know, I detained someone for

[00:07:15] Speaker 01:
10 different factors for reasonable suspicions, and courts say, well, I find this innocuous, and I find this innocuous, but there's still reasonable suspicion.

[00:07:22] Speaker 01:
That's not just out of state.

[00:07:23] Speaker 01:
There are all kinds of factors.

[00:07:24] Speaker 01:
The officers say, well, this contributed to reasonable suspicion when it actually didn't.

[00:07:29] Speaker 03:
So here it's the consideration that these plaintiffs, as I recall, at least four of the five or five of the six, had been unreasonably detained.

[00:07:40] Speaker 03:
Isn't that correct?

[00:07:44] Speaker 03:
In this case?

[00:07:47] Speaker 01:
We believe it's three to five somewhere in there.

[00:07:52] Speaker 01:
Three to five out of one to 200,000 stops per year, yes.

[00:07:56] Speaker 01:
And we don't believe that shows any sort of pattern of constitutional.

[00:07:59] Speaker 03:
Can you really say, I mean, these are the people who decide to come forward and sue.

[00:08:04] Speaker 03:
Can you really extrapolate that it's just three out of five of three or five out of several hundred thousand?

[00:08:11] Speaker 01:
That's all the plaintiffs have proven, they'll say that.

[00:08:13] Speaker 01:
And so in order to obtain an injunctive relief or to even have standing, they need to prove more than that.

[00:08:20] Speaker 01:
is our view.

[00:08:21] Speaker 01:
And even if an officer considers some factor like traveling from out of state that ultimately is completely innocuous, that itself does not violate the Constitution or the Fourth Amendment.

[00:08:31] Speaker 01:
Ultimately, you've got to look at the... In fact, the district court here said there's been no stop where that's been the sole basis for stopping someone.

[00:08:37] Speaker 01:
It's always been in conjunction with other factors.

[00:08:39] Speaker 00:
But how do you square the highway patrol putting in a training manual as part of its policy that troopers should factor in out of state travel origin and

[00:08:50] Speaker 00:
destination things that this court in Vasquez in 2016 so predating all these stops this court was pretty clear that those should not be

[00:08:59] Speaker 00:
part of the soup of reasonable suspicion.

[00:09:01] Speaker 00:
So how do we deal with that issue?

[00:09:04] Speaker 01:
Well, I don't know that it should.

[00:09:06] Speaker 01:
And the district court here actually said KHP's official policies appear to be consistent with Vasquez.

[00:09:11] Speaker 01:
The district court only found a problem based on practice.

[00:09:14] Speaker 01:
And that finding was based on two factors.

[00:09:17] Speaker 01:
First of all, Mumlow's expert testimony and the traffic stops in this case.

[00:09:21] Speaker 01:
And we do, in fact, contest Mumlow's expert testimony.

[00:09:24] Speaker 01:
First of all, the baseline that he used was based in calculating the percentage of out-of-state drivers on Kansas highways was based entirely on the safe breath data from 2,000 some points of interest within a quarter mile of the highway, the interstate, and not based on who was actually on the interstate, the cell phones or otherwise.

[00:09:43] Speaker 01:
And so that's not going to give an accurate representation of the percentage of out-of-state drivers to in-state drivers on the interstate.

[00:09:50] Speaker 01:
But even assuming, putting that aside,

[00:09:52] Speaker 01:
His disparity, the main disparity he identified had to do with the initial traffic stop, which if, even if a KHP trooper is disproportionately stopping out of state drivers for speeding, for instance, that doesn't violate the fourth amendment if they're actually speeding.

[00:10:07] Speaker 01:
And that's also not the issue in this case.

[00:10:09] Speaker 01:
This case is about the tensions after the initial traffic stop.

[00:10:13] Speaker 01:
And there, his disparity was actually quite small.

[00:10:15] Speaker 01:
He said of all KHP traffic stops that he studied in his data set, about 77% were out-of-state drivers, and the detentions that he looked at, about 90% were.

[00:10:26] Speaker 01:
So there's only about a 13% disparity there, which could easily be explained based on fact-based considerations, given that reasonable suspicion is so tied up in the facts of any individual case.

[00:10:37] Speaker 03:
In terms of the lack of evidence of how often this happens,

[00:10:43] Speaker 03:
What did the complaint allege?

[00:10:45] Speaker 03:
And don't we have to accept the allegations of the complaint absent factual data from the party challenging standing?

[00:10:56] Speaker 01:
No, no.

[00:10:56] Speaker 01:
We've had a trial now.

[00:10:57] Speaker 01:
So you no longer accept the complaint.

[00:10:59] Speaker 01:
We're way past that.

[00:11:01] Speaker 01:
For standing purposes, they have to approve a trial that they have standing.

[00:11:05] Speaker 01:
So you no longer accept what's alleged in the complaint at this point.

[00:11:12] Speaker 03:
led to damage awards in several of these cases.

[00:11:15] Speaker 01:
Is that correct?

[00:11:16] Speaker 01:
There were two trials for damage awards, which we aren't appealing those.

[00:11:20] Speaker 01:
Then there was a bench trial as to Colonel Smith and the injunctive relief, which also incorporated the evidence from the two jury trials.

[00:11:27] Speaker 01:
So there were three trials in all.

[00:11:29] Speaker 03:
So at the trial leading to injunctive relief, there was a stipulation that the judge could consider all the evidence in the other cases?

[00:11:38] Speaker 03:
That's correct.

[00:11:40] Speaker 01:
I see I have about three minutes remaining, if I could reserve the remainder of my time for a battle.

[00:11:45] Speaker 01:
Unless there are further questions.

[00:11:47] Speaker 01:
Thank you.

[00:11:57] Speaker 02:
Good morning, Your Honors, and may it please the Court, Quamiching for the plaintiffs of Palis.

[00:12:04] Speaker 02:
This Court's precedent in Vasquez v. Lewis was clear.

[00:12:07] Speaker 02:
Residency in a state with legalized marijuana and travel to or from such states is essentially meaningless in the reasonable suspicion calculus.

[00:12:15] Speaker 02:
Despite this court's directive that reliance on such factors is wholly improper, the undisputed testimony from KHP employees from top to bottom shows that the KHP deliberately ignored vasquez for years.

[00:12:27] Speaker 02:
There was no change in policy or practice until appellees filed this lawsuit.

[00:12:31] Speaker 02:
Instead, the KHP continued with business as usual.

[00:12:34] Speaker 02:
training and permitting troopers to detain out-of-state motorists for canine sniffs based on state residency and travel plans.

[00:12:41] Speaker 02:
And the CAGE people continue with that business as usual.

[00:12:44] Speaker 03:
Let me ask specifically, it's one thing to use the fact that someone came from a drug source or was headed toward a drug destination in the calculation of regional suspicion.

[00:13:00] Speaker 03:
But we have lots of cases where

[00:13:03] Speaker 03:
officers ask about travel plans.

[00:13:06] Speaker 03:
I think we specifically allow that during the detention.

[00:13:10] Speaker 03:
You can ask for driver's license and stuff, but they regularly ask about travel plans.

[00:13:17] Speaker 03:
And sometimes that is very probative for regional suspicion.

[00:13:23] Speaker 03:
When people start saying, well,

[00:13:26] Speaker 03:
You look at the rental car agreement and it's three days and why are you going to travel to Chicago for three hours, et cetera.

[00:13:33] Speaker 03:
That's very probative.

[00:13:35] Speaker 03:
Is it clear that the training was just relating to whether it's a drug destination or drug source?

[00:13:45] Speaker 03:
Because there are certainly other reasons to ask questions when there's someone traveling interstate.

[00:13:54] Speaker 02:
Yes, Your Honor.

[00:13:55] Speaker 02:
Two parts to that, I think.

[00:13:59] Speaker 02:
One, I want to clarify when we talk about travel plans.

[00:14:03] Speaker 02:
Primarily here, I am speaking of origin and destination.

[00:14:08] Speaker 02:
And of course, if travel plans as to like how you're getting to a place or if stories between a driver or a passenger about where they've been or where they're going are inconsistent, that is not what I'm speaking of.

[00:14:21] Speaker 03:
I'm still... Well, that's not what you're speaking of, perhaps, but what is the training speaking of?

[00:14:26] Speaker 03:
Do they specifically say if the person is coming from a

[00:14:31] Speaker 03:
origin spot or destination spot that should be considered, or they just talk about travel plans in general?

[00:14:38] Speaker 02:
Yes, Your Honor.

[00:14:39] Speaker 02:
Post-BASCAS training materials continue to list source location and destination location as reasonable suspicion factors.

[00:14:46] Speaker 02:
There's no distinction for inconsistent travel plans, like I just mentioned.

[00:14:50] Speaker 02:
And the KHP continue to train troopers that the two most important questions they should be asking drivers are origin and destination.

[00:14:57] Speaker 02:
None of the troopers who testified said that they do not rely on state of origin or destination as factors informing reasonable suspicion.

[00:15:05] Speaker 02:
And the district court found below that, sure, they mentioned other factors, but all of those factors were essentially so meaningless that it was clear that they were putting disproportionate weight on travel plans' destination and origin.

[00:15:21] Speaker 00:
Council, can you help me sort of an issue that I'm a little bit stuck with, which is,

[00:15:26] Speaker 00:
The injunction here dealt with these impermissible Vasquez factors for reasonable suspicion analysis, but also, as I read it, has a prohibition on the Kansas two-step.

[00:15:37] Speaker 00:
And in the latter, that most commonly has arisen before our court in the criminal context.

[00:15:43] Speaker 00:
And at no point has this court said that that technique in and of itself violates the Fourth Amendment.

[00:15:49] Speaker 00:
So how can the district court now in the civil context enjoin the use of a technique that this court has on many occasions reviewed and never found to be unlawful?

[00:15:59] Speaker 02:
Yes, Your Honor.

[00:16:00] Speaker 02:
I think to say that the district court categorically enjoined use of the two-step is a mischaracterization of the injunction's terms.

[00:16:09] Speaker 02:
It does not read the KHP is enjoined from using the Kansas two-step period.

[00:16:13] Speaker 02:
It says the KHP isn't joined from using the two-step to extend traffic stops of motorists without reasonable suspicion or without the motorist knowing intelligent and voluntary consent.

[00:16:22] Speaker 02:
And all of those cases that appellant cites in his brief are individual criminal cases on motions to suppress.

[00:16:28] Speaker 02:
They never provided any court an opportunity to examine a broader, more pervasive practice.

[00:16:35] Speaker 03:
But if you have, oh sorry, go ahead.

[00:16:38] Speaker 03:
Is there anything distinctive about these cases, use of the two-step?

[00:16:43] Speaker 03:
Anything that distinguishes them from the cases in which we've upheld what you call the two-step?

[00:16:50] Speaker 02:
Yes, Your Honor.

[00:16:50] Speaker 03:
It seemed like a routine two-step to me, but I might have missed something.

[00:16:56] Speaker 02:
So I think those suppression cases came at the two-step or challenged the use of the two-step in a variety of ways, but one factor that the district court found very compelling here and why the two-step was performed against out-of-state motorists

[00:17:12] Speaker 02:
coercive manner was proximity to the vehicle.

[00:17:15] Speaker 02:
And those cases don't address proximity to the vehicle.

[00:17:19] Speaker 03:
Could that be because it was irrelevant?

[00:17:22] Speaker 02:
No.

[00:17:22] Speaker 02:
As I was about to say, with one exception, Your Honor, that would be United States versus West.

[00:17:28] Speaker 02:
But I think the discussion of the proximity to the vehicle in that case, if you look at page 1175 of the opinion, it actually says that the trooper was standing back from the vehicle and therefore

[00:17:41] Speaker 02:
The defendant's argument that proximate the vehicle was a reason why he felt coerced was not well supported.

[00:17:47] Speaker 00:
But counsel, going back to the scope of the injunction on the two-step, if the officer has reasonable suspicion, there would not be a need to execute the two-step.

[00:17:56] Speaker 00:
So I guess I'm just trying to figure out if you're giving guidance to the troopers and you say, well, you can't do the two-step unless you have reasonable suspicion.

[00:18:02] Speaker 00:
Again, that's the whole point of the two-step is to, at least in their view, to gather consent from the driver in the absence of reasonable suspicion.

[00:18:10] Speaker 00:
circumstances would there be for the trooper to ever have to execute the true step now that this injunction is in place, or if it were to go in place?

[00:18:22] Speaker 02:
Your Honor, the trooper never needs to execute the two-step.

[00:18:25] Speaker 02:
In many of those cases in which he cites, I think there's a very plausible argument to say that reasonable suspicion factors that would support a detention without performing the two-step were present.

[00:18:38] Speaker 02:
But the injunction is not unlimited as to the two-step either.

[00:18:41] Speaker 02:
There are very specific limits to the injunction.

[00:18:43] Speaker 02:
First of all, it's time limited.

[00:18:45] Speaker 02:
It's four years.

[00:18:46] Speaker 02:
And if the KHB is diligent, it could be as little as two years.

[00:18:49] Speaker 02:
And furthermore, the district court adopted Appellant's proposed limitation of the injunction scope, Appellant's scope, to individuals traveling in Kansas on I-70, I-35, US-54, or US-36 who were actually or appeared to be driving to or from Colorado in a vehicle with license plates from a state other than Kansas.

[00:19:08] Speaker 04:
to your mouth a little bit because you're looking down and I'm not hearing you.

[00:19:14] Speaker 02:
Apologies, Your Honor.

[00:19:17] Speaker 02:
Yes, the district court adopted the appellant's proposed limitation.

[00:19:19] Speaker 02:
It does not apply to every car on the road.

[00:19:22] Speaker 02:
It doesn't apply to Kansas cars either.

[00:19:29] Speaker 02:
Since Your Honor spent most of the time inquiring about standing, I'd like to turn to that issue.

[00:19:37] Speaker 02:
First of all, this case is different from Lyons, as you noted, Your Honor, in a couple of very significant respects.

[00:19:44] Speaker 02:
First of all, Lyons did not involve an authorized practice.

[00:19:47] Speaker 02:
It did not involve targeting of a particular group for enforcement.

[00:19:50] Speaker 02:
And it certainly did not involve a law enforcement agency targeting that group in contravention of a prior court decision.

[00:19:59] Speaker 02:
As to the question of only having a few stops below, as the district court noted,

[00:20:06] Speaker 02:
Fact-finding in this case was stymied to a large degree because of the KHP's significant documentation issue.

[00:20:14] Speaker 04:
Because of what?

[00:20:15] Speaker 04:
I'm sorry.

[00:20:16] Speaker 02:
The KHP had significant documentation issues.

[00:20:20] Speaker 02:
It doesn't collect data on stops and reasonable suspicion factors.

[00:20:23] Speaker 02:
It could not provide that data to us during discovery, and it certainly could not identify any disparities or practices that required correction.

[00:20:30] Speaker 02:
And most of the injunction is directed at rectifying that data collection problem.

[00:20:35] Speaker 04:
Were you holding them at fault for not documenting anything?

[00:20:41] Speaker 04:
Not at fault.

[00:20:42] Speaker 04:
Well, I mean, if they don't know they've got to do it, and now they're being told, well, you should have done it, and that's why I'm going to grant the injunction, how does that work?

[00:20:55] Speaker 02:
Well, Your Honor, it's not, you didn't collect the data and that's why I'm going to grant the injunction.

[00:20:59] Speaker 04:
Whose burden is it to show standing?

[00:21:04] Speaker 02:
Well, it's the appellees, the plaintiffs, Your Honor.

[00:21:06] Speaker 02:
And this is a case where the lion's exception applies here.

[00:21:13] Speaker 02:
And I think Judge Hart's hit the nail on the head by saying, you know, perfect deterrence to the law is no guarantee.

[00:21:19] Speaker 02:
Traffic stops are ubiquitous.

[00:21:20] Speaker 02:
It's a fact of life.

[00:21:21] Speaker 02:
You could be a passenger in a car that gets pulled over and have no control over that.

[00:21:26] Speaker 02:
So appellants argument that there must be a bright line rule that if your future injury depends on you committing a traffic violation in the future, you could never bring a case.

[00:21:38] Speaker 02:
You would never have standing for any prospective relief based on a post-stop or post-arrest detention.

[00:21:43] Speaker 02:
And Lions doesn't support such a categorical rule.

[00:21:45] Speaker 02:
It says, if you have an authorized practice, then that creates standing.

[00:21:50] Speaker 02:
And courts across the country have found standing underlines under these circumstances.

[00:21:54] Speaker 02:
And I would point the court to Maryland State Conference of NSSP versus Maryland State Police, Floyd versus City of New York, and Ortega-Melendez versus Arpaio in particular.

[00:22:03] Speaker 03:
What court were any of those circuit opinions?

[00:22:05] Speaker 02:
Ortega-Melendez versus Arpaio was affirmed by the Ninth Circuit.

[00:22:09] Speaker 03:
Was affirmed by?

[00:22:10] Speaker 02:
Correct.

[00:22:10] Speaker 03:
Did the firmments specifically address that issue?

[00:22:15] Speaker 02:
I believe so, Your Honor.

[00:22:15] Speaker 02:
I have to go back and look.

[00:22:16] Speaker 02:
And I can provide you a citation in a Rule 28J letter if you prefer.

[00:22:22] Speaker 02:
Turning to Dr. Momolo's data, in the absence of any other particular data from the KHB, because they did not collect it, the district court found that Dr. Momolo's statistical analysis was the best evidence of a disproportionate practice.

[00:22:41] Speaker 02:
And that statistical evidence showed that KHB troopers stopped 70% more out-of-state drivers than would be expected if they were stopping out-of-state and in-state drivers at the same rate.

[00:22:52] Speaker 00:
Council, do you agree with Mr. Carswell that the state adequately preserved a challenge to those findings of fact?

[00:23:04] Speaker 02:
I do not, Your Honor, and I think that's because the district court noted that they provided no contrary evidence or rebuttal evidence to Dr. Momolo's analysis at all.

[00:23:17] Speaker 02:
with respect to Mr. Carswell's argument about sampling bias?

[00:23:24] Speaker 03:
When you say no rebuttal, if they point out the flaws in it, do they have to have their own study?

[00:23:31] Speaker 03:
Can't they just point out that this study is not scientifically based?

[00:23:37] Speaker 03:
It's misused data or something like that?

[00:23:40] Speaker 03:
I'm not saying they prevail on that, but that's certainly enough to be a challenge, isn't it?

[00:23:46] Speaker 02:
It could be enough, Your Honor, but it is, right now, that amounts to nothing more than post-hoc conjectural attorney argument.

[00:23:55] Speaker 02:
Dr. Mamolo examined the possibility of sampling bias from that safe graph data, which has been used in other statistical studies, and he concluded that even if there were an implausibly extreme amount of measurement error, the disparities between the stopping of out-of-state drivers compared to in-state drivers, that disparity would still remain in a statistically significant manner.

[00:24:18] Speaker 02:
KHB troopers stopping 70% more out-of-state drivers amounts to over 50,000 excess stops in less than three years.

[00:24:27] Speaker 02:
And over 90% of canine sniffs were conducted on out-of-state drivers, despite those out-of-state drivers representing only about 35% of the total traffic on the road at those times and places.

[00:24:40] Speaker 00:
Council, can we talk about the scope of the injunction?

[00:24:43] Speaker 00:
And as you know, it has to be narrowly tailored to address the constitutional violations

[00:24:48] Speaker 00:
And as I read through the injunction, there are several that kind of stick out to me, including requiring supervisor approval before a trooper conducts a consent search.

[00:24:57] Speaker 00:
These are happening by the side of the road.

[00:24:59] Speaker 00:
And so isn't there a concern that that presents a safety risk to the officers who are there?

[00:25:03] Speaker 00:
In addition to requiring officers to get, I believe, written consent from drivers and passengers, which the Supreme Court has said has never been required.

[00:25:14] Speaker 00:
looking at the scope of the injunction, how do we assess some of these that may seem a little bit far afield and not be narrowly tailored?

[00:25:23] Speaker 02:
Well, I would first say that the appellant had an opportunity below to provide more narrowly tailored provisions, and the district court repeatedly noted in its order that he failed to do so.

[00:25:32] Speaker 02:
And it is strong medicine, I agree, Your Honor, but it is necessary for very serious malady.

[00:25:38] Speaker 02:
With respect to the written consent forms and the Robinette argument, the injunction is not inconsistent with Robinette.

[00:25:44] Speaker 02:
Robinette only speaks to consent searches.

[00:25:49] Speaker 02:
It doesn't address roadside detentions.

[00:25:52] Speaker 02:
And the district court found that the supervisor approval and the consent form were necessary to help alleviate some of those data collection problems.

[00:26:03] Speaker 02:
And since I am just about out of time, in conclusion, I would say that taking appellants to their argumentological conclusion, no one ever has standing to challenge a traffic stopper subsequent detention under the Fourth Amendment

[00:26:14] Speaker 02:
And federal courts can never enjoin a state law enforcement agency to correct unconstitutional failings, and that simply cannot be.

[00:26:21] Speaker 02:
And what we have not heard from Appellant today, and what is tellingly absent from his briefs, is a direct and honest reckoning of how the KHP flouted Vasquez.

[00:26:29] Speaker 02:
Appellees urge the court to finish the work it began with Vasquez by affirming the district court's injunction, which is not only necessary, but the only truly effective remedy for bringing such an intransigent agency back in line with the Constitution.

[00:26:41] Speaker 02:
Thank you.

[00:26:43] Speaker 03:
Why wouldn't an easy remedy be to order the KHP to change their training practices?

[00:26:49] Speaker 03:
That is one part of the injunction, Your Honor.

[00:26:52] Speaker 03:
Why do you assume more than that would be necessary?

[00:26:55] Speaker 02:
Because that would effectively be just telling them, well, go follow the law.

[00:26:59] Speaker 02:
We have to make sure that that's actually happening.

[00:27:01] Speaker 02:
The trainings can say one thing, but what happens in practice is an entirely different one.

[00:27:06] Speaker 03:
Thank you.

[00:27:07] Speaker 02:
Thank you.

[00:27:14] Speaker 01:
Three quick points.

[00:27:15] Speaker 01:
First of all, on the two-step, we do believe these cases are indistinguishable from the two steps in this court's prior cases.

[00:27:21] Speaker 01:
The only attempted distinction I heard was the proximity to the vehicle.

[00:27:24] Speaker 01:
But that was true in all those cases.

[00:27:26] Speaker 01:
That's kind of the nature of the two-step is the trooper only briefly walks away and then turns around and re-approaches the vehicle.

[00:27:33] Speaker 01:
So I don't think there's any distinction there.

[00:27:35] Speaker 01:
Second is to training.

[00:27:36] Speaker 01:
Again, the district court here found that KHP's official training appeared to be consistent with Vasquez.

[00:27:42] Speaker 01:
In fact, Vasquez is now included as part of KHP's training.

[00:27:47] Speaker 01:
So it was only the practice that the district court found lacking, not the official training.

[00:27:52] Speaker 03:
I thought all the officers testified that they, or the ones who testified, testified that they were trained to consider destination and source.

[00:28:05] Speaker 01:
Several troopers did testify that they thought that was something they could consider.

[00:28:08] Speaker 03:
And the district court said,

[00:28:10] Speaker 03:
not that they could consider, but that they were trained to consider it.

[00:28:13] Speaker 03:
Did they not testify to that?

[00:28:15] Speaker 01:
Some mentioned training.

[00:28:16] Speaker 01:
Of course, training occurs in lots of different ways.

[00:28:19] Speaker 01:
But what the district court said is travel to and from a drug-sourced state can be considered as long as it's given very minimal weight.

[00:28:26] Speaker 01:
And so it all goes to the amount of weight that it's given.

[00:28:28] Speaker 01:
And at least that's how the district court read Vasquez.

[00:28:30] Speaker 01:
And the district court again said that she believed that the KHP's official training was consistent with Vasquez.

[00:28:36] Speaker 01:
Again, it was just the practice

[00:28:38] Speaker 01:
She had concerns with, again, based on Mamalou's testimony and the traffic stops in this case.

[00:28:44] Speaker 00:
Counsel, can we take from your answer then that KHB has a lot of rogue troopers who are not being trained to consider certain things, but say, well, in practice, I'm going to disregard that, what I've been told in Vasquez, I'm going to do it anyway?

[00:28:55] Speaker 00:
No, that's not what I'm arguing.

[00:28:56] Speaker 00:
Although please help me understand then you're saying, well, Vasquez is trained and we tell our troopers that you can't consider these factors, but yet all of them get up on a witness stand and testify and say, I consider these factors.

[00:29:06] Speaker 01:
What Vazquez said, according to the district court, and I think this is consistent, is that traveling from a drug source state can, at least in some circumstances, be considered as long as it's given very minimal weight.

[00:29:18] Speaker 01:
And this court has said that in other occasions, even since Vazquez as well.

[00:29:22] Speaker 01:
So it goes to the weight that that's given.

[00:29:23] Speaker 01:
It's residency that can't be considered, but there's a distinction between residency and traveling from a drug source state.

[00:29:29] Speaker 01:
And again, because reasonable suspicion is such a fact-based,

[00:29:33] Speaker 01:
Inquiry, it depends case by case on what even drug source state means.

[00:29:37] Speaker 01:
I mean, I don't think it would be sufficient just to say, well, the state has legalized marijuana, for instance.

[00:29:42] Speaker 01:
That doesn't make a state a drug source state.

[00:29:44] Speaker 01:
But if there's actually been some showing that drugs are flowing in a large quantity from a particular state, hypothetically that 90% of the drugs coming through Kansas are coming from a particular state, I think that could factor into reasonable suspicion.

[00:29:59] Speaker 01:
Again, it's a very fact-based inquiry.

[00:30:00] Speaker 01:
You can't really adapt categorical

[00:30:02] Speaker 01:
rules about that.

[00:30:04] Speaker 01:
And so what the district court said is, I don't find any official policy at odds with Vasquez.

[00:30:09] Speaker 01:
It's, again, just their practice based on Mumlo's testimony and the stops in this case.

[00:30:15] Speaker 01:
And then finally, just briefly, the Ninth Circuit, the case that went up to the Ninth Circuit, Melendrez, which they mentioned, what happened there was the court found that there was a policy of stopping without reasonable suspicion.

[00:30:25] Speaker 01:
That's not the case here.

[00:30:27] Speaker 01:
Here, KHP does not have a policy of stopping without reasonable suspicion.

[00:30:30] Speaker 01:
Thank you.

[00:30:31] Speaker 01:
I'd urge you to reverse the district court.

[00:30:33] Speaker 01:
Thank you, Council.