Kansas AG questions governor’s authority after charges dropped against barber

Charges have been dropped against a Kansas barber after he agreed to close his shop and comply with the governor’s order.

Barbershops are prohibited to open under Gov. Laura Kelly’s coronavirus pandemic until May 18. But it’s unclear whether Kelly’s orders can actually be enforced, according to the state’s attorney general.

Luke Aichele, a barber at Luke’s Barber Shop in McPherson, opened his business last week, defying the governor’s order.

He later posted on social media saying that he had been served an arrest warrant, a claim that sparked outrage among Kelly’s opponents and was amplified by U.S. Rep. Roger Marshall and Kansas Senate President Susan Wagle, both Republican lawmakers campaigning for a seat in the U.S. Senate.

Gregory Benefiel, McPherson County Attorney, would not discuss a warrant because, he said, “nothing was ever done with anything” regarding a warrant.

But criminal charges were filed against the barber, Benefiel said.

“We received an affidavit from a law enforcement agency that resulted in the charges being filed,” he said.

“There were charges related to not complying with the governor’s orders,” he said.

“There were a lot of different people complaining about the situation, from the health department, from the director of the health department to individuals calling and reporting it.”

Instead of arresting Aichele or filing charges, the county attorney agreed to drop charges after the barber agreed to keep his shop closed until May 18, when barbershops across the state are expected to be allowed to reopen.

“Mr. Aichele and his attorney and I had the privilege of speaking, talking and working this out,” Benefiel said. “So all charges are dismissed, and Mr. Aichele is going to be closed this week until the 18th.”

“He volunteered that,” Benefiel said. “This all came from Luke. He has stepped up above and beyond, and I couldn’t ask for a better community member.”

Aichele has declined to speak to The Eagle and could not be reached Monday.

Questions over enforcement

Kansas Attorney General Derek Schmidt said Monday that he is reviewing whether residents who violate Kelly’s emergency orders can be criminally prosecuted under the state constitution.

The state’s emergency management law authorizes the governor to issue orders to respond to disasters. Law enforcement has the power to enforce them.

But the pandemic, a long-term crisis of a scale the state hasn’t seen in at least a century, has led Kelly to issue 27 orders so far. Republican lawmakers and some businesses across the state have begun to chafe under the restrictions.

Schmidt said a local prosecuting attorney, who he didn’t identify, had asked for a legal opinion on whether violations of the orders can be punished as crimes.

“The Kansas constitution grants the legislature, not the governor, power to define what behavior may subject Kansans to potential arrest, criminal prosecution, fines or imprisonment,” Schmidt said in a statement. “No appellate court has determined whether the legislature, through provisions of the Kansas Emergency Management Act, has lawfully delegated that power to the governor.”

Kelly said her office has spent time working with the attorney general’s office on every executive order issued so far.

“Obviously, I think executive orders without teeth are useless,” Kelly told reporters on Monday. “I think there has to be some mechanism for enforcement.”

Benefiel, along with other law enforcement officials across the state and in the Wichita area, said he thinks its important to focus on education more than enforcement.

“Our goal has always been education and that is exactly the same approach we have taken,” Benefiel said. “We are very grateful for Mr. Aichele and his desire to work with us, and we certainly have wanted to work with him as well.”

This story was originally published May 11, 2020 at 12:52 PM.