Wichita police officer contends she is unequally prosecuted over public restroom incident

It purportedly began as a celebration by several off-duty Wichita police officers. One night in January, they partied at a west-side bar, and some allegedly drank too much and entered the opposite sex’s restrooms. Surveillance video caught part of it.

Now it has become a contested court case.

A defense attorney is arguing that his client, a female police officer, has been singled out for prosecution when others, including her male supervisor, also could have been charged with a misdemeanor violation of the city’s public-restroom ordinance but were not.

Prosecutors charged only one of the officers at the party – Valerie Shirkey – with violating the city ordinance that prohibits anyone above the age of 10 from entering or remaining in a public restroom marked for the opposite sex. Shirkey’s attorney, Mark Schoenhofer, laid out a detailed narrative of the party in a motion filed last week in Sedgwick County District Court.

Schoenhofer’s motion, to dismiss the charge and request an evidentiary hearing, contends that the case deals with the Equal Protection Clause of the 14th Amendment to the U.S. Constitution – about equal application of the law.

Lt. James Espinoza, the Police Department spokesman, said Thursday he can’t comment on the case because it involves personnel matters.

A man identified as one of Shirkey’s supervisors, police 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, according to a narrative by Schoenhofer in the court document.

In arguing that his client has been treated unequally, Schoenhofer says that in a separate gathering, another female police officer, Lt. Heather Bachman, was not charged with violating the ordinance when she went into the men’s restroom to usher men out.

Shirkey, 43, is appealing her Municipal Court conviction to District Court. The city has appointed a special prosecutor to handle the case in District Court.

Although such a violation is only a misdemeanor, Schoenhofer said the case is about more than a blemish on Shirkey’s record. If she is convicted in her appeal to District Court, it could be used as grounds to fire her, he said. Shirkey has been reassigned from a third-shift patrol officer position to “quite a demeaning job” in the animal shelter, he said.

Schoenhofer said he couldn’t comment on the legal arguments or allegations he has laid out in the court document.

The case has been set for trial next week.

In a motion filed Sept. 8 to dismiss the charge against Shirkey, Schoenhofer said the allegations involve several off-duty officers, including “most of the Patrol North SCAT unit.” The Patrol North offices are on East 21st near Hillside. SCAT stands for Special Community Action Team; SCAT officers are tasked with rapidly responding to gang- and drug-related crimes.

According to Schoenhofer’s narrative, the officers met at Side Pockets bar, 600 S. Tyler Road, to celebrate one officer’s change of assignment to patrol. Shirkey sat with Hightower, a sergeant who was one of her immediate supervisors, the document says.

“Hightower admitted in an interview with Lt. Reynolds and Officer Perkins that he drank ‘way too much,’” the narrative says. Both Hightower and Shirkey were intoxicated, it says.

The narrative continues: After Shirkey and Hightower left a table and walked to the restrooms, she went into the women’s room. “Hightower then entered the women’s restroom, grabbed the defendant and pulled her out into the hallway.” The two “then walked into the men’s restroom together. Witnesses reported seeing the defendant and Hightower embracing and kissing in the men’s restroom.” The two remained there for about eight minutes, the document says.

In the motion, Schoenhofer argues that “There is no rational basis for charges being filed against” Shirkey but not Hightower.

Lt. Randy Reynolds investigated the case. It wasn’t the first time that Reynolds had tried to prosecute Shirkey, Schoenhofer said in the document, without elaborating. He contended that the charge against Shirkey reflects “the obvious personal motive and bias of Reynolds. On the other hand, Reynolds and Hightower are both supervisors and friends.”

In a separate incident apparently that same week, several current and former Wichita police officers gathered to remember retired Lt. Ken Landwehr, the longtime head of the homicide unit who died in January after a battle with cancer. The court document doesn’t say when or where the officers met.

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

Police Lt. Joe Schroeder investigated the incident and sent his report to the City Attorney’s Office; City Attorney Gary Rebenstorf referred the file to District Attorney Marc Bennett to review, the document says.

Bennett said he couldn’t comment because Shirkey’s case is pending.

“Curiously,” Schoenhofer wrote, the case involving Bachman “was never presented to a special prosecutor for prosecution in municipal court, as was done with the defendant” (Shirkey).

He added: “The defendant, however, is the only one of the three officers who was charged and prosecuted for entering the restroom of the opposite sex, despite the fact that all three officers had entered the restroom of the opposite sex. …

“In fact,” Schoenhofer concluded, “there is no known case where a Wichita police officer has ever been charged or prosecuted for violation of this ordinance, other than the defendant’s case.”

This story was originally published September 18, 2014 at 7:04 PM with the headline "Wichita police officer contends she is unequally prosecuted over public restroom incident."