Judge: Prosecution of restroom law violated Wichita cop’s equal-protection right

A judge has ruled that a misdemeanor charge against a female Wichita police officer for entering a men’s restroom at a bar – where she and other off-duty police were partying – violated her constitutional right to equal application of the law.

In his ruling this month on the equal-protection issue, District Court Judge David Kaufman found that while the lowest-ranking officer was prosecuted, higher-ranking police supervisors involved in the same incident or a similar one were not charged despite facts showing they also violated the city ordinance prohibiting anyone above the age of 10 from entering public restrooms of the opposite sex.

Kaufman said a male police sergeant not only entered or tried to enter the women’s restroom at Side Pockets bar in west Wichita, but also “aided and abetted” by helping the female officer into the men’s restroom, according to a transcript of the hearing.

The judge rejected an explanation given in testimony by Gary Rebenstorf on how he dealt with the case as city attorney, saying the explanation wasn’t credible, according to the 19-page transcript.

Officer Valerie Shirkey’s defense attorney, Mark Schoenhofer, had argued that she had been singled out for prosecution when others, including a male police supervisor, also could have been charged with a misdemeanor violation but were not.

The judge’s ruling – which dismisses the case against Shirkey – came after she filed an appeal to District Court following her conviction in Municipal Court.

The city has not decided whether to file an appeal of Kaufman’s ruling, Interim City Attorney Sharon Dickgrafe said Friday.

Schoenhofer would not comment on the ruling.

Shirkey is suspended with pay, said Police Department spokesman Lt. James Espinoza. Because she is under an “open and active administrative investigation,” Espinoza said, he can’t comment further.

Shirkey, 44, has been with the department nearly 18 years. Schoenhofer has previously said that Shirkey had been reassigned from a patrol officer position to “quite a demeaning job” at the animal shelter.

In September, Schoenhofer said that although the restroom violation is only a misdemeanor, the stakes were high because if Shirkey were to be convicted in her appeal, it could be used as grounds to fire her.

In Shirkey’s appeal, her attorney filed a court document saying that Sgt. Brian Hightower wasn’t charged even though he entered the women’s restroom and pulled Shirkey out before the two went into the men’s restroom. Both Hightower and Shirkey were intoxicated, and witnesses saw them kissing and embracing in the men’s restroom, the document says.

The incident occurred in January 2014 at the bar, 600 S. Tyler Road, where several off-duty officers gathered. According to the court document, the celebration included most members of the Patrol North Special Community Action Team, known as SCAT, which is assigned to rapidly respond to gang- and drug-related crimes.

In arguing that his client was treated unequally, Schoenhofer also had said that in a separate gathering around the same time as the Side Pockets incident, another female police officer, Lt. Heather Bachman, was not charged with violating the ordinance when she went into a public men’s restroom to usher male police officers out at a gathering where police were helping to prepare for the funeral of retired Lt. Ken Landwehr.

In Shirkey’s case, Kaufman found that evidence showed that Hightower, the sergeant, “aided and assisted or promoted the violation of the offense of which the defendant is charged by knowingly aiding or assisting Shirkey into the men’s restroom,” according to the transcript. Kaufman said Hightower “stated he was trying to follow the defendant into the women’s restroom.” The judge also noted that Hightower had “supervisory status.”

Hightower is currently assigned to Patrol East and has a little more than 19 years with the department, Espinoza said. Bachman is assigned to Patrol West and has been on the force for nearly 19 years.

The judge also noted that in the separate incident involving Bachman, the facts showed that she was in the men’s public restroom at a bar. A photograph taken by police Lt. Todd Ojile, head of the homicide unit, “memorialized her unlawful status in the men’s restroom,” Kaufman said.

Ojile testified that he went into the men’s room and took a photograph of Bachman, homicide detectives Tim Relph and Tom Fatkin, and Kelly Otis, chief investigator with the District Attorney’s Office, according to the court transcript.

In that incident, several current and former Wichita police investigators had gathered to remember Landwehr, the longtime head of the homicide unit who died after a battle with cancer.

“Several men were tearfully remembering Landwehr in the men’s restroom, “ according to Schoenhofer’s narrative. Bachman “entered the men’s restroom and asked the men to join the party.”

In his ruling, Kaufman said that testimony by Rebenstorf on the basis for charging Shirkey but not Hightower and Bachman “is not credible” as an explanation. All three violated the ordinance, but only the “lowest ranking person” was charged, Kaufman said, according to the transcript.

“The lieutenant is not prosecuted. The sergeant is not prosecuted,” the judge said. “Therefore, the arbitrary criterion used in filing charges against the defendant I find was her beat officer status.”

In four years, from 2010 through 2013, Kaufman said, violations of the ordinance had been prosecuted twice. In 2014, the year Shirkey was prosecuted, seven incidents were charged, but she was the only police officer cited.

Although Kaufman found in Shirkey’s favor on the equal-protection issue, he rejected a motion by her attorney alleging outrageous government misconduct.

This story was originally published March 28, 2015 at 2:37 PM with the headline "Judge: Prosecution of restroom law violated Wichita cop’s equal-protection right."