A federal appeals court in California heard oral arguments on March 11 for a case in which a gay man is suing the San Diego Police Department for allegedly targeting him for stricter enforcement of the city’s ban on public nudity at San Diego’s 2011 LGBT Pride festival.
Will Walters, 34, charges in court papers that San Diego police violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution by arresting him on a charge of public nudity for wearing a leather gladiator kilt over a thong that exposed only the sides of his upper thighs and buttocks.
Police escorted Walters out of the Pride festival in handcuffs and took him to jail, where he spent the night, after he refused to put on more clothing to completely cover his buttocks and after he refused to sign a citation that police refused to allow him to read, according to court records.
Court records show that the city attorney’s office decided not to prosecute the case the following day and dropped the charge against Walters.
His lawsuit says his arrest followed a decision by a police official to reinterpret the city’s anti-nudity law to require people to “fully cover their buttocks.” At the same time and over the next year, the lawsuit says, the stated change in policy was not enforced at beaches, parks and other public places in which women and men routinely wore skimpy bikinis and thongs that exposed far more of their buttocks’ than the kilt that Walters wore at the Pride festival.
“There was absolutely no tangible evidence that this new policy was enforced anywhere other than at the Pride event,” according to a legal brief filed by Walters’ attorney before the 9th Circuit U.S. Court of Appeals in Pasadena. “There were no tickets, no citations, and no arrests for anybody wearing a thong,” it says.
“The Equal Protection Clause of the Fourteenth Amendment prohibits invidious discrimination in all its forms, including against homosexuals,” the brief declares.
The brief reiterates a request in Walters’ original lawsuit filed in 2012 for a court injunction to prevent the police from unequally enforcing the anti-nudity law by appearing to require participants of the LGBT Pride festival to fully cover their buttocks while not enforcing that requirement for others, including sunbathers at San Diego’s popular beaches.
Attorney Christopher Morris filed the brief last September, nearly two years after a U.S. District Court judge sided with the police and the City Attorney by granting their motion to dismiss the case on summary judgment on grounds that it lacked sufficient merit to advance to a full trial.
In a 15-page ruling handed down on March 11, 2014, Judge Cathy Ann Bencivengo held that Walters failed to present evidence that “reasonably suggests sexual orientation had anything to do with the decision to insist upon compliance with the literal text” of the anti-nudity law at the 2011 Pride festival.
Bencivengo pointed out that San Diego Police Lt. David Nisleit, who’s named as a defendant in the lawsuit, informed LGBT Pride organizers 60 days before the July 2011 Pride event that he was interpreting the anti-nudity statute in a way that “the entire buttocks had to be covered.” The judge noted that this was in contrast to an earlier interpretation of the law by another police lieutenant, who told Pride organizers in 2010 that a thin strip of fabric covering the “anus” would be sufficient to comply with the law.
The San Diego statute banning public nudity defines nude as “devoid of an opaque covering which covers the genitals, pubic hair, buttocks, perineum, anus or anal region of any person, or any portion of the breast at or below the areola thereof of any female person.”
Bencivengo states in her 2014 ruling that Walters presented “anecdotal evidence” claiming people wearing less than what Walters wore at the Pride event may not have been charged with a public nudity offense at different times and settings.
“The court concludes that this anecdotal evidence is irrelevant, confusing, lacking in foundation, and therefore, inadmissible,” she declared in her ruling, suggesting that a failure to enforce the law in every instance doesn’t mean police are acting in a discriminatory way.
“[U]nequal treatment which results from laxity of enforcement…does not deny equal protection and is not constitutionally prohibited discriminatory enforcement,” she quoted an earlier court ruling on another case as saying.
Morris, Walter’s attorney, told the Washington Blade that he believes Bencivengo’s ruling misinterprets the law and the Constitution. He said he’s hopeful that the Ninth Circuit Court of Appeals will overturn that ruling and grant Walters the injunction he seeks to prohibit San Diego police from unfairly enforcing the anti-nudity statute as well as granting monetary compensation for his arrest and unfair treatment by police.
Courthouse News Service reported that two of the three appeals court judges that listened to oral arguments on Walters’ appeals case on March 11 appeared to be sympathetic to arguments made by Morris and skeptical of arguments by Deputy City Attorney Bonny Hsu, who represented the police and the city.
“The evidence is that there are other events, non-Pride events at which people were wearing a lot less, that shows a lot more, and yet there’s no indication that there was enforcement there,” Courthouse News Service quoted appeals court Judge Jacqueline Nguyen as saying.
Hsu argued at the hearing that at least three police officers signed declarations saying they had enforced the anti-nudity law at other events in San Diego.
“I would never presume to guess how a panel of higher-court judges might rule, but I was impressed by their insightful questioning of both attorneys,” Walters said in a statement released after the oral arguments.
Walters’ original lawsuit filed in 2012 named the San Diego LGBT Pride organization and one of its employees as defendants on grounds that the employee sided with police and grabbed him by the arm to eject him from the Pride festival shortly before his arrest. In her ruling dismissing the case, Bencivengo cited testimony from Lt. Nisleit saying an official with the Pride organization told him the group had nudity-related problems in the past and urged Nisleit to crack down on nudity at the festival in 2011.
Morris said Walters and the Pride group reached a settlement earlier this year and that the Pride organization is no longer a defendant in the appeals case. He said the terms of the settlement are not being publicly disclosed.
Stephen Whitburn, executive director of San Diego LGBT Pride, told the Blade on Tuesday that he and the Pride group would have no comment on the case at this time other than to say they are on good terms with both Walters and the police. He said the employee who allegedly mistreated Walters has not been employed by the group since 2012.