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

Posted on: April 11th, 2016 by Art Leonard No Comments

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.

Jury Scrutiny of Chest Hair Patterns?

Posted on: November 5th, 2015 by Art Leonard No Comments

Will a Manhattan jury have to figure out whether a gay man can be identified by the pattern of his chest hair? Maybe, if the lawsuit brought by Doug Hill and James Moritz against plastic surgeon Douglas Steinbrech actually goes to trial in New York County Supreme Court.  Supreme Court Justice Cynthia Kern granted summary judgment to Dr. Steinbrech on some of the gay couple’s claims on September 28 in Hill v. Steinbrech, 2015 N.Y. Misc. LEXIS 3562, 2015 NY Slip Op 31827(U), but she refused to do so on others, finding, for example, that it was a jury question as to whether a photograph of Mr. Moritz’s torso running from his chin to his knees would be recognizable enough based on the distinguishing features of his chest and facial hair to constitute an unauthorized appropriation of his image for commercial purposes under New York’s Civil Rights Law.

Hill and Moritz describe themselves as a “well-known gay couple in Chelsea.”  This lawsuit may increase their fame!

Between January 2012 and October 2012, they retained the services of Dr. Steinbrech and his professional corporation, Gotham Plastic Surgery, to have some work done.  Apparently their goals included pec enhancement for Hill and tightening up the butt for Moritz.  As plastic surgeons generally do, Dr. Steinbrech made “before and after” photographs to document his work.  He also made a video recording of Hill after completing the procedures.

Hill and Moritz claim that more than a year later, in May 2014, they were surprised to find that their “before and after” photos appeared on “numerous commercial websites” without their consent.  They provided Justice Kern with photos and screen shots which they claim “depict their pre and post-operative states,” although as to some of these images one would have to take it on faith because their faces are not shown.

Justice Kern itemized the images presented to her: (1) a screen shot of the website, which contains what appears to be a video advertising defendants’ work that includes a picture of Hill’s chest in a pre and post-operative state; (2) a screen shot of the website, which contains an advertisement for defendants with a similar photo of Hill’s chest; (3) a screen shot of search results from google under the heading ‘Pec implant testimonial of NYC patient’, depicting a youtube video showing Hill in a post-operative state; (4) a screen shot of a commercial website advertising defendants’ services known as Men’s Plastic Surgery Manhattan, which includes photographs of Hill’s torso in a pre and post-operative state from a front and side angle; (5) a screen shot of a video posted to youtube entitled ‘Pec implant testimonial of NYC patient’ in which Hill is shown in a post-operative state; (6) a screen shot of a youtube video which purportedly includes a picture of Moritz’s buttocks in a post-operative state; (7) a frontal torso shot of Moritz in a post-operative state; and (8) a flier advertising defendants’ services which purportedly includes a side angle shot of Moritz’s buttocks in a pre and post-operative state.

Justice Kern wrote that in the youtube videos Hill’s face and torso tattoo are visible.  In the still pictures of Hill, on the other hand, Hill’s face is not visible but his tattoos on his torso and shoulder are.  The pictures of Moritz’s buttocks include nothing further than this portion of his body, but the frontal picture of Moritz shows from his chin to his knees.

The men advanced five different legal claims, but Kern explained that all of the other claims were preempted by an old New York statute, Civil Rights Law Sections 50 and 51, commonly known as the Privacy Act.  The Privacy Act provides that a person’s image cannot be used without their written consent for “advertising or trade” purposes, and authorizes those whose images are used without their consent to sue for damages, including punitive damages for intentional violations of the statute.

Justice Kern rejected the argument that the defendants could not be liable for any picture where a face is not shown.  “Rather,” she wrote, “the question is whether the objectionable material presents a recognizable likeness of the plaintiff,” which is “generally a jury question unless plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image.”  If the person in the photograph “is capable of being identified from the advertisement alone and that plaintiff has been so identified,” the court will not grant summary judgment to the defendants.

As Hill had submitted some pictures in advertisements from which he could readily be identified by his face and swore that he had not provided written consent for their use in advertising, Justice Kern granted summary judgment in his favor with respect to those images, as the consent forms produced by the defendants did not specifically authorize that they be used in advertising.  Hill had signed a consent form allowing pictures to be taken and disseminated “with the exception of his bodily tattoos,” but his tattoos were in the pictures and the video.  The defendants also offered a video in which Hill “says ‘I don’t care’ in regards to showing his tattoo in the video,” but this would not suffice under the law, which requires a signed, written consent for commercial use.

Moving to Hill’s photos that did not show his face, Justice Kern ruled that she couldn’t grant summary judgment in his favor as to those because a jury would have to decide whether he was recognizable from those pictures.  Since they did show his tattoos, “which are a distinguishing feature,” wrote Kern, the jury would have to decide whether they were recognizable as him.  Because there were distinguishing features, the judge could not rule against Hill as a matter of law.

Moving on to the Moritz photos, Justice Kern found that he was not entitled to summary judgment on the claim that the picture of his front torso was used for advertising purposes because the only evidence he presented was the photo itself, which was not clearly part of an advertisement.  He claimed that it was used in an advertisement, and defendants denied it, so there was a question of fact for a jury to sort out.  Furthermore, wrote Kern, “even if the picture was used for advertising purposes, summary judgment is inappropriate as there remains an issue of fact as to whether Moritz is identifiable from the picture alone.  The court cannot say that Moritz is identifiable from the picture as a matter of law.  Indeed, the only portion of Moritz’s face depicted in the picture is the lower portion of Moritz’s chin.  However, the picture contains distinguishing features such as Moritz’s facial and chest hair.  Thus, based on these distinguishing features, the court finds that a jury could find that Moritz is capable of being identified by the picture alone and, as such, determination of that issue must be left to the jury.”  The judge found that because the picture included Moritz’s chin — which by dictionary definition is part of his face — it exceeded the scope of the written release he had signed, which excluded disseminating pictures of his face.  This is the picture where the jury would have to find that the facial and chest hair and other features are distinctive enough to identify Moritz from the picture.

Bringing up the rear, as it were, is the advertisement that Moritz claims depicts his buttocks pre and post operative.  “As an initial matter,” wrote Justice Kern, “on their face, the pictures are devoid of any distinguishing or identifying features.  Further, Moritz has failed to present any evidence that he has actually been recognized from these pictures.  Thus, these pictures are not actionable and defendants are entitled to summary judgment dismissing Moritz’s claim for violation of the Civil Rights Law based on defendants’ alleged use of these pictures for advertising purposes.”  Alas, poor Moritz, thy butt is undistinguished and anonymous, as a matter of law.  All butt men who read this doth protest!

We wonder how coincidental it is that this case was assigned to Justice Kern, a lesbian, to decide?  Actually, we know that the cases in Supreme Court are assigned at random, but we couldn’t resist the irony.

Any volunteers for the jury?