Gay Pride kilt case isn't over yet

The City of San Diego is calling on federal judges from nine states and two U.S. territories — the areas that make up the Ninth Circuit Court of Appeals — to overturn an appellate-court decision to reinstate a discrimination case filed by San Diego resident Will Walters. In July 2011, police officers arrested Walters for wearing a leather kilt to San Diego's 2011 Gay Pride Parade.

The request, officially referred to as an “en banc review,” is the city's attempt to prevent the case from returning to a district judge for trial.

The request comes just weeks after appellate court judges overturned judge Cathy Ann Bencivengo's decision to dismiss the case on April 5.

In her earlier ruling, Bencivengo found that Walters failed to prove that the San Diego Police Department had a discriminatory policy in place. Appellate judges rejected Bencivengo's logic.

In their ruling, the judges found there were "triable issues of fact as to the existence of a policy of selective enforcement."

Triable issues included, according to the panel of judges, evidence that shows "beachgoers and attendees of other special events in San Diego were in violation of the new nudity enforcement policy, but that [the police department] did not increase enforcement anywhere except the Pride event."

According to a deposition, Lt. David Nieslit had recently taken over as head of the special events division months before the 2011 event. During a meeting with parade organizers, Nieslit said he planned to bolster previous enforcement regulations that allowed for attendees to wear clothing as long as it covered more than an inch of the center of an attendee's buttocks. Instead, Nieslit outlawed any portion of the buttocks to be exposed, sides included.

On July 16, 2011, Nieslit and his officers approached Walters inside a beer garden after the parade. The 12-inch by 8-inch leather kilt, with a thong sewed into it, was over the line. They ordered Walters to cover up. When Walters asked why he needed to cover up, officers removed him and wrote him a citation. Walters asked to read the citation before signing it. Officers, says Walters, refused. After refusing to sign an unseen citation, officers arrested him. The following year, Walters sued San Diego Gay Pride and the San Diego Police Department for discrimination.

But just weeks after appellate-court judges ordered the case sent back for trial, the city is once again trying to have the case thrown out.

Attorneys for the city argue that by siding with Walters the court would effectively do exactly what Walters is accusing the city of doing: allowing nudity at San Diego's Pride parade while outlawing nudity at other citywide events such as Comic-Con and Over The Line.

"An injunction barring City from enforcing its nudity ordinance during Pride events is itself a violation of Equal Protection," reads the city's April 19 appeal. "There is no challenge to the ordinance’s constitutionality and no evidence of a pattern or practice of discriminatorily applying the ordinance to gay participants at Pride events. Parties agree there is a legitimate government interest in enforcing nudity laws in public places. An injunction preventing enforcement of a constitutional ordinance against only a certain category of people is in conflict with decisions of the United States Supreme Court which hold injunctive relief is not available when a pattern and practice is not sufficiently established nor the conduct complained of affirmatively linked to municipal policy makers."

The city's attorneys also argue that Walters fails to provide proof that officers who arrested him knew he was gay or were treating him any differently because of his sexual orientation.

Judges on the Ninth District Appellate Court will decide whether to accept the city's request to have judges from throughout the western United States decide whether the case should be sent to trial or not.

Until that decision is rendered, Walters is forced to wait to have his day in court.