Do San Diego police officers interpret public nudity laws differently for a gay man at a Gay Pride event than, say, a woman in a g-string at the beach?
A federal appellate court will consider that question on March 11 and decide whether to overturn a lower court's ruling that found Will Walters did not have enough evidence to challenge his arrest for wearing a leather kilt to the 2011 Gay Pride festival.
Officers approached Walters inside a beer garden at the 2011 parade to inform him that his 12-inch-long and 8-inch-wide homemade leather kilt, which covered a thong, violated the city's public nudity policy. Officers threatened to arrest him if he didn't put pants on or tie a T-shirt around his waist. Walters disagreed. The officers arrested him and took him to jail where he spent the night in his kilt.
In March 2012, Walters sued the City of San Diego and the lieutenant in charge. In 2014 a U.S. district court judge dismissed the case. Since the dismissal gay rights groups have come forward with claims that the case raises serious questions about whether police enforce nudity laws, or any laws for that matter, differently for LGBTQ members. Late last year the appellate court granted their wish. On March 11, judges will hear testimony from Walters as well as Lt. David Nieslit, the officer in charge for special events for San Diego's police force.
During testimony, Nieslit, who was named head of special events for the police department in 2011, will respond to statements he made to event organizers regarding increased enforcement at Gay Pride. In the months leading up to the parade, Nieslit had met with Gay Pride event organizers to discuss his intent of cracking down on bare buttocks at the annual LGBTQ parade, a more strict interpretation than his predecessor had taken.
During a 2012 deposition following the lawsuit, Lt. Nieslit confirmed that position.
"The fact that I could see the side of his buttocks and more of his buttocks is what caused me to contact him," testified Nieslit.
The officer said he offered Walters an alternative to jail.
"...He could have — I mean I'll just give you examples of what other people did, because I probably talked to 12 or 15 people that same day that were in various forms of disclothing [sic] or whatever. I saw people put on — wrap T-shirts around their waists, put on a pair of shorts, put on pants, wrap a sweatshirt around their waist. Bottom line is I didn't care how, if you could cover yourself, that was my goal. That was our goal that day, not just with Mr. Walters, but anybody we contacted."
The problem, says Walters’s attorney Chris Morris and gay-rights groups, is that the same standard was absent at public beaches and during other events known to draw scantily clad attendees such as Over The Line, Mardi Gras parades, and Comic-Con.
"The city was asked to turn over copies of all public nudity citations and arrest reports issued by the San Diego Police Department over the last five years," Walters’s attorney Morris wrote in the appeal. "The city produced 104 redacted citations and reports. In not one of those reports was a person arrested or cited for wearing a thong or a g-string type bathing suit bottom."
In a 2014 letter to the appellate court, the Human Rights Campaign, gay-rights activist group Lambda Legal, and Gay and Lesbian Advocates and Defenders provided reasons why the case should be heard.
"If left to stand, the ruling by the district court in this matter has the potential to lay a new foundation upon which an opposing bulwark may be built that would not only protect existing discriminatory practices, but...may very well provide a new basis to summarily adjudicate legitimate Fourteenth Amendment claims by members of historically marginalized groups....
"There can be little argument that the implementation of one standard for ‘public nudity’ at gay events and yet another standard for ‘public nudity’ at straight events, standards that in this case were adopted by the same commanding officer, violates the Equal Protection Clause. If allowed to stand, this discriminatory enforcement policy sends the clear signal to the gay community that their legs, hips, and thighs are somehow offensive and should be covered, but the legs, hips and thighs of straight people are not."
Walters’s attorney says he is glad to have the opportunity to present his client's case in court.
“We are grateful that the Ninth Circuit has granted our request to hear oral argument in this case. We look forward to presenting the overwhelming evidence of discriminatory conduct by the San Diego Police Department to a panel of judges and are hopeful that the outcome of the hearing will be positive; not just for this case but for the entire LGBT community.”
The case will be heard inside Courtroom 2, at the U.S. Court of Appeals in Pasadena (125 South Grand Avenue, Pasadena, 91105.