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Leonard I. Frieling Aug. 10, 2022

Can Profiling LEOs (law Enforcement Officers) in Kansas Be Criminally Prosecuted for Kidnapping or Anything Else as A Result of Their Traffic Stops in Search of Drugs

Is a civil lawsuit or federal civil rights lawsuit under 18 USC 1983 for injunctive relief and money damages currently a workable strategy to address the actions of LEOs like the Kansas State Police?  We are confident that they are profiling people to stop, and then using any excuse they can find, including as little as three mph over the highway speed limit.  That was one of SIX times that the particular young driver, with two young friends in the car, were stopped during ONE trip on I-70 into and out of Kansas from Colorado.  All were over 21, and there were NO drugs in the car.  Remember that less than an ounce, legal for a Colorado Tourist in Colorado, if over 21, carries a likely 4-5 years in prison in Kansas.  The Kansas cutoff is i believe 25 grams, well under the 28 grams which was legal in Colorado before crossing the boarder in Kansas.

I suspect that because of the "reasons" for the stops (any reasonable suspicion that a traffic violation was committed), and the consent to the searches, (there were at least 3 searches including the dog search)  (DO NOT CONSENT TO SEARCHES), criminal accusations against the cops, while satisfying to think about, might prove to be ineffective.  When I was in law school (Rutgers, 1972-1975), the Constitutional Litigation Clinic, working with William Kunstler and Lenny Weinglass (Center for Constitutional Rights) with a little assist from student-me, worked on a lawsuit against the New Jersey State Police for their profiling behavior.  After 15 or more years of litigation, our team won.

I don't know if that is a viable option under  the current 18 USC 1983 federal lawsuit (civil rights violations), given the current bad state of the law on profiling.  

Generally, today, if there a traffic reason to justify a stop (again, reasonable suspicion of traffic violation, including 1 mph over the speed limit), the truth that it was a profile stop with the LEO's admission that it was profiling, does not matter.  The LEO's underlying intention does not matter.  I suspect that if the profiling is racially-based, for example "stop all Blacks for DWB," that might be a good federal lawsuit.  In NJ on the Rutgers suit, I recall it being "young people with long hair" who were subjected to profiling, highway stops, and what ensued.  It was during the anti-Vietnam efforts. Drugs were still the target of the cops.  Hassling "hippies" was a bonus for them, which they truly enjoyed at the time.  

Ironically, Law Enforcement Against Prohibition was started some years later by the former chief of the NJ State Police Undercover Narcotics Unit.  He saw first-hand that prohibition could never work and that the only accomplishment was that lives were ruined by the prohibition.  As a former judge, I am a LEAP speaker, and we find ourselves working together with the best of attitudes and goals.  

 I am preliminarily chatting about this issue with our friend, NORML Legal Committee lawyer  Cal Williams, out of Colby, Kansas.

The above post was originally published by Lenny on TalkLeft.

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