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to Section One | to Arts & Entertainment
posted Friday, April 8, 2016 - Volume 44 Issue 15
9th Circuit sends public nudity case back to lower court

Case comes from 2011 San Diego Pride bust
Section One
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9th Circuit sends public nudity case back to lower court

Case comes from 2011 San Diego Pride bust

by Mike Andrew - SGN Staff Writer

The 9th Circuit Court of Appeals ruled on April 5 that a man arrested for public nudity is entitled to a new trial.

Will X. Walters attended the 2011 San Diego Pride Festival dressed in a gladiator costume, with his buttocks covered only by a loincloth flap.

Police officers ordered him to cover his buttocks, and when Walters refused, police issued him a citation for public nudity. Rather than pay the ticket, Walters asked for a trial.

According to evidence presented to the trial court, Lt. David Nieslet of the San Diego Police had told Pride organizers in advance that police would be enforcing stricter rules that year, requiring buttocks to be fully covered.

In previous years, trial documents said, the rule was that the center of the buttocks had to be covered by a one-inch strip.

Walters' lawyer, Christopher Morris, argued that the new full-coverage rule was only being enforced for Pride and not at other special events around the city, such as the Over The Line batting tournament, or at any city beach where women can be seen wearing G-string swimsuits.

The police were therefore discriminating against Walters because of his sexual orientation, Morris argued. In addition, Walters also sued the San Diego Police Department (SDPD) for false arrest and battery.

Deputy City Attorney Bonny Hsu argued that police do enforce the rule at all city events 'when able to,' but they rarely write tickets because - unlike Walters - most people comply with police orders to cover up.

A San Diego federal judge sided with the police in 2014, ruling that '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.

A three-judge panel of the 9th Circuit ordered the case back to a lower court, saying that there are still issues of fact that a jury must decide.

Among the issues the 9th Circuit wanted a new trial to decide were whether police actually did enforce the ordinance elsewhere, and whether targeting Pride attendees 'is tantamount to targeting gay individuals and individuals who support gay rights.'

'That an officer referred to Walters as a 'drama queen' during his arrest is additional evidence of discriminatory purpose,' the 9th Circuit noted.

'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.'

The appeals court did dismiss Walters' claims of false arrest and battery, however.

'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 the San Diego City Attorney's office.

'Mr. Walters, however, was never prosecuted for anything because our office declined to issue a criminal complaint at the time.'

Morris, however, said he looked forward to arguing Walters' case in front of 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 told reporters after the 9th Circuit ruling.

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