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Man who wore loincloth at gay pride parade wins appeal

A federal appeals court on Tuesday revived a lawsuit over a man’s public nudity citation, ruling there was evidence that San Diego police may have discriminated against him at the annual gay pride event in Balboa Park.

The ruling by the U.S. 9th 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, San Diego Police Lt. David Nieslet had told pride organizers in advance that authorities would be enforcing stricter rules 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.

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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 Atty. Bonny Hsu argued that police enforce the ordinance across the city when they’re 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. Walters appealed.

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The three-judge panel at the 9th Circuit stated there were issues of fact that a jury, not a judge, should decide. Among them: whether police 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 stated.

The court 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 arguments 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?”

Walters’ attorney agreed to dismiss the false arrest and battery claims against the officers.

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“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,” city attorney spokesman Gerry Braun said. “Mr. Walters, however, was never prosecuted for anything because our office declined to issue a criminal complaint at the time.”

Morris said he looked 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.

kristina.davis@sduniontribune.com

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Davis writes for the San Diego Union-Tribune.

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