9th Circuit Revives Equal Protection Claims against San Diego Police in Pride Festival Public Nudity Arrest

A panel of the U.S. Court of Appeals for the 9th Circuit has revived a constitutional case against the San Diego Police Department by Will X. Walters, who was arrested for “public nudity” at the 2011 San Diego Pride Event while wearing what the trial court described as “a gladiator-type black leather loincloth.”  U.S. District Judge Cathy Ann Bencivengo had dismissed his Equal Protection claim on March 11, 2014.  His appeal took exactly two years to oral argument before the 9th Circuit on March 11, 2016, but less than a month for the court to rule on April 5 that Judge Bencivengo erred in granting summary judgment to the defendants.  Walters v. Nieslit, 2016 U.S. App. LEXIS 6239, 2016 WL 1320762.

According to the district court’s opinion, based on Walters’ complaint and the allegations accompanying the city’s motion for summary judgment, police officers met with the San Diego Pride organization about two months in advance of the event, at which time a Pride staffer told the officer in charge that “they were having issues with the public nudity and they were asking the police department to help get compliance.” Pride organizers were concerned that excessive nudity would endanger the “family” nature of the event.  The police evidently resolved to be stricter than they had been in the past in enforcing the city’s public nudity ordinance at the Pride Event.

The ordinance states that nobody over the age of ten “shall be nude and exposed to public view in or on any public right of way, public park, public beach or waters adjacent thereto, or other public land.” The term “nude” is defined in the ordinance: “It shall mean devoid of an opaque covering which covers the genitals, public 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.”  Male areolas can be exposed without alarming the horses, evidently.

Will Walters bought a ticket and was admitted to the 2011 Pride Event’s festival. Nobody at the admission point questioned his outfit.  “He was inside the beer garden in the festival having his photograph taken by a photographer when Lieutenant Nisleit told him that his outfit was borderline breaking the nudity law,” wrote Judge Bencivengo.  Nisleit told him to “cover up,” and Walters evidently responded belligerently, stating, according to the officer, “So either cite me, arrest me, or leave me alone because I’m not interested in your opinion.”  Nisleit told Walters that he was the person in charge and his opinion mattered, to which Walters replied, “You’re not a judge, you’re a police officer.”

Nisleit walked away and conferred with other officers on duty. Officer Debbie Becker went over to check out Walters, and testified that she “saw his butt.  The wind blew, and I saw his one buttock . . . the behind portion of his butt where his buttocks intersected with his leg … I could not see the crack.”  She tapped him on the shoulder and he was placed under arrest.  However, according to news reports about the case he was not prosecuted, although he was briefly held in the city jail and not provided with anything to wear other than his gladiator-style outfit.

Walters sued the City of San Diego, the police officers involved in his arrest, and San Diego Pride, Inc. and one of its members, claiming discriminatory enforcement against him of the nudity ordinance, invasion of privacy and false arrest, and battery (against a Pride member who alleged hit him during the arrest process). Walters argued that the police routinely ignored people wearing a lot less than he had been wearing in various other public venues, and he contended that the crackdown was taking place at the Pride Festival because of anti-gay animus.

In granting summary judgment to the defendants, Judge Bencivengo dismissed the significance of Walters’ allegations. “There is anecdotal evidence before the Court that individuals wearing less than what Walters wore at the 2011 Pride Event may not have been cited for public nudity at different times and in different settings,” she wrote.  “The Court concludes that this anecdotal evidence is irrelevant, confusing, lacking in foundation, and therefore, inadmissible.”  She contended that “unequal treatment that results from laxity of enforcement does not deny equal protection and is not constitutionally prohibited discriminatory enforcement.”

Further, she wrote, “Plaintiff proffers no competent evidence from which a reasonable fact finder could conclude that Walters’ arrest was based on his sexual orientation, or that it resulted from an unequal enforcement policy or practice concerning public nudity.” She also rejected any assertion that there was some “conspiracy” between the police and the San Diego Pride organizers to “implement an unlawful policy of discriminatory and selective enforcement of San Diego’s public nudity laws.”

But the 9th Circuit’s panel consisting of Judges Harry Pregerson, Richard Paez and Jacqueline Nguyen, reversed in an unsigned opinion designated as not for official publication.  They begged to differ with the trial judge, finding that Bencivengo “erred in granting summary judgment” to the city and Lt. Nieslit.  “Viewing all the evidence in the light most favorable to Walters, there are material triable issues of fact as to whether the San Diego Police Department (“SDPD”) adopted a discriminatory policy of selectively enforcing the City’s nudity ordinance at San Diego Gay Pride (the “Pride Event”) in 2011,” wrote the court, recounting the testimony about the planning meeting at which Lt. Nieslit “announced a new, more restrictive nudity policy for the Pride Event, which required that attendees fully cover their buttocks.  Previously, by contrast, SDPD had enforced a ‘one-inch rule’ at the Pride Event, which only required a one-inch strip of fabric covering the center of an attendee’s buttocks.  Walters also presented evidence that beachgoers and attendees of other special events in San Diego were in violation of the new nudity enforcement policy, but that SDPD did not increase enforcement anywhere except the Pride Event.  Given this and other evidence, Walter raised material triable issues of fact as to the existence of a policy of selective enforcement.”  And, of course, if there are material triable issue of fact, it is wrong for the trial court to grant summary judgment to the defendants.

The 9th Circuit opinion mentions some of the evidence that Judge Bencivengo omitted from her opinion, such as that “at least 12 to 15 other attendees were warned to ‘cover up’,” and that a police officer referred to Walters as a “drama queen” during his arrest.  The 9th Circuit panel saw this statement as “additional evidence of discriminatory purpose.”  The court also disputed Bencivengo’s assertion that because the Pride Event was open to everybody, not just gay people, a stricter enforcement policy at that event could not be construed as anti-gay.  “As for discriminatory purpose,” wrote the 9th Circuit panel, “Walters is entitled at the summary judgment stage to an inference that targeting Pride Event attendees is tantamount to targeting gay individuals and individuals who support gay rights.”  Furthermore, although it was possible that in a trial the City could establish that “another purpose motivated their nudity policy at the Pride Event, that question is seriously disputed.”

So Walters, who is represented by San Diego attorney Christopher Morris, will get a chance at a trial, unless the City offers a settlement offer that he can’t resist. This would undoubtedly have to include a commitment by the City to refrain from discriminatory enforcement of the nudity ordinance at future Pride Events.

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