A federal appeals court revived a lawsuit over a man’s public nudity citation Tuesday, ruling there is evidence that San Diego police possibly discriminated against him at the annual gay pride event in Balboa Park.
The ruling by the 9th U.S. Circuit Court of Appeals means the lawsuit is headed back to the lower district court in San Diego for a jury to decide.
Will X. Walters was wearing a skimpy gladiator costume, his buttocks partially covered by a loose loincloth flap, at the San Diego Pride Parade and Festival in 2011 when he was approached by police officers, who told him to cover up.
According to evidence in the case, police Lt. David Nieslet had told pride organizers in advance that police would be enforcing stricter rules that year that would require buttocks to be fully covered, as opposed to previous years where the center of the buttocks had to be covered by a one-inch strip.
Walters’ lawyer, Christopher Morris, argued that the rule was only being enforced for the pride event, and not at other special events around the city, such as the often risque Over The Line tournament or at any city beach where women can be seen wearing G-string swimsuits.
When Walters was asked to cover up, he refused, and police wrote him a ticket.
Deputy City Attorney Bonny Hsu argued that police do enforce the ordinance across the city when able to, but citations are rare because many people comply when asked to cover up.
A San Diego federal judge in 2014 sided with the city, saying, “There is nothing on the record that reasonably suggests sexual orientation had anything to do with the decision to insist upon compliance” with the law. The judge granted summary judgment in favor of the city and Nieslet, and Walters then appealed.
The three-judge panel at the 9th Circuit stated there are still issues of fact that a jury, not a judge, should decide. Among them: whether police actually did enforce the ordinance elsewhere, and whether targeting gay pride attendees “is tantamount to targeting gay individuals and individuals who support gay rights,” the ruling states.
The court’s appeal noted, “That an officer referred to Walters as a ‘drama queen’ during his arrest is additional evidence of discriminatory purpose. … Although Defendants (police and the city) may ultimately establish that another purpose motivated their nudity policy at the Pride Event, that question is seriously disputed.”
Some of the judges indicated their leaning during oral argument on the appeal last month, especially when Judge Harry Pregerson ended the hearing with this comment: “Why don’t we just say that was a bad call by a police officer?”
Additional claims of false arrest and battery were dismissed.
“Since the appellate court threw out the false arrest and battery claims, the only remaining issue for trial is whether SDPD engaged in selective enforcement,” said city attorney spokesman Gerry Braun. “Mr. Walters, however, was never prosecuted for anything because our office declined to issue a criminal complaint at the time.”
Morris said he looks forward to presenting the case to a jury.
“We are confident they’ll see this case the way we have, which is that Will Walters was discriminated against by the San Diego Police Department,” he said Tuesday.