Tuesday, November 28, 2017

Racial profiling is illegal in Kansas: now what?

Kansas law prohibits law-enforcement officers from using race or other prohibited factors when deciding whether to conduct a stop, arrest, or search. K.S.A. 22-4606, et seq.

Last month, the Kansas Supreme Court held in State v. Gray, 403 P.3d 1220 (Kan. 2017), that suppression is an appopriate remedy in state court for an officer's violation of this law. This is a must-read case for all Kansas state practitioners.

But how can this state law help our federal clients? The Supreme Court has held that violations of state law do not by themselves render a search or seizure unreasonable for Fourth Amendment purposes. See Virginia v. Moore, 553 U.S. 164 (2008). But a violation of Kansas's anti-profiling law might be decent fodder for cross-examining an officer who claims to be well trained and respectful of a client's legal rights.

Even better, violations of Kansas's anti-profiling law might render an officer's conduct flagrant for purposes of an attenuation analysis under Utah v. Strieff, 136 S.Ct. 2056 (2016). As we recently blogged, the discovery of an arrest warrant after an illegal stop will not remove the taint of a stop that resulted from racial profiling.

How else can we call upon this law to help our clients? Let us know your thoughts. The Kansas legislature did a righteous thing by adopting an anti-profiling law. Let's do our part to see that the law is enforced.

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