A Gay Rights Suit Returns

Attorney Robert Rosenberg couldn't help but note what he viewed as an ultimate irony. On the re-election campaign trail, Mayor Lee Brown proclaimed his support for gay rights -- simultaneously, Brown's legal staff was busy trying to squelch those rights in a case before the U.S. Fifth Circuit Court of Appeals.

The city attorney's office contended to appellate judges that Marc Kajs, a gay waiter gunned down by an ex-boyfriend outside Urbana restaurant in 1998, had not been entitled to the same protection as a woman seeking sanctuary from a violent man.

Kajs, 28, repeatedly asked police to protect him from Ilhan Yilmaz, who stalked him and constantly threatened his life. He appeared at the restaurant with a bullet-riddled target and told Kajs he was next. Kajs filed numerous complaints that showed up on the standard background check for purchasing weapons, but the police department still let Yilmaz buy two guns. Then Yilmaz fired eight bullets into Kajs before turning the gun on himself (see "Bullets After Brunch," by Wendy Grossman, May 4, 2000).

"They just didn't care about him," says Kajs's mother, Gloria Swidriski. "That's the last thing he said to me, when he walked out the door: 'The police department doesn't care about me.' That's what I think about."

Rosenberg, Swidriski's lawyer, sued the city, contending that police never should have approved the gun purchases. By turning away Kajs when he asked for help, police created the dangerous situation that led to his murder, the suit said. It also alleged discrimination, saying police did not give him the same assistance they would have afforded a heterosexual.

In March, U.S. District Judge Melinda Harmon dismissed the case (see "Going Both Ways?" by Tim Fleck, July 12). "They ignored his requests, and they're just doing the same thing to me," Swidriski says. "They're just saying it was not their fault."

Part of Harmon's ruling stated that the gay man was not entitled to equal protection.

"Legally, she was just absolutely wrong," Rosenberg says. "In about 1892, the Supreme Court said you can't treat one group of people differently than another. All men are created equal. It's just a fundamental principle of constitutional law."

In mid-December, the Fifth Circuit upheld Harmon's finding that city personnel aren't liable because they didn't create the dangerous situation. Kajs, they wrote, was already in deep trouble before he called the cops. "This kind of inaction cannot create danger," the opinion stated.

However, the judges said Harmon erred in dismissing the equal protection claim. Gay people, they said, also are protected under that 14th Amendment safeguard.

"It would be nice if the city accepted responsibility," Rosenberg says.

Assistant City Attorney Andrea Chan put off repeated Houston Press requests for an interview, even slamming down the phone at one point.

As Rosenberg prepares for trial, police say many changes have been made since the killing. The HPD Family Violence Unit has expanded offices and hours to improve accessibility. Officers have gone through "sensitivity training" too, but police say that would have happened regardless.

Swidriski, three and a half years after her son's murder, remains angry. She takes Zoloft every day to keep from spiraling into a deep depression. She listens to Kajs's voice on her answering machine, keeps his Cirque du Soleil baseball cap next to her rosary and cries when she talks about him.

The reinstatement of the suit by the appellate court gives her an ounce of hope.

"At least now we have a chance to prove that they were wrong," Swidriski says. "But we'll see."