Is San Diego’s public nudity law enforced the same at the beach as at Comic-Con? What about the Mardi Gras block party or annual gay pride festival?
That is the question eight jurors will be considering over the next week, as they listen to testimony in the federal lawsuit that accuses San Diego police officers of selectively enforcing the nudity law against Will X. Walters at the annual 2011 gay pride event in Balboa Park.
“In this case, the evidence will show Mr. Walters was treated differently,” Walters’ attorney, Chris Morris, said in his opening statements Tuesday.
Not because Walters had done something wrong, Morris said, rather “because of who he was, where he was and what he represented.”
Deputy City Attorney Stacy Plotkin-Wolff told the jury that police weren’t acting with bias that afternoon, they were merely enforcing the law as they do at every other special event in the city.
She said officers had contacted a handful of other gay pride attendees that day — including a man wearing chaps and exposing his buttocks and a woman without a shirt wearing pasties — and they all agreed to cover up so they could continue to enjoy the festival. Walters was the only one who would not comply, she said.
“The same rules apply to everyone equally,” she said in her opening statements. “Mr. Walters doesn’t believe those rules apply to him though.”
Walters, 35, had worn the same skimpy gladiator outfit in question at the previous San Diego Pride Parade and Festival without incident. The outfit, which he had custom-made for $1,000, consists of two loose leather flaps — 12-by-12-inch front and back panels — connected by a waist strap. Depending on movement and angle, the flaps can expose parts of his buttocks, police said.
According to the city’s nudity ordinance, a person’s body parts, including genitals and buttocks, must be concealed by an opaque covering.
In prior years, a 1-inch strip rule allowed g-strings at the pride event. But in 2011, police Lt. Dave Nisleit was the new special events supervisor and changed the rule to a more restrictive definition of nudity for the event, Morris said.
Walters was in the beer garden when Nisleit walked by and stopped to ask him to cover up. Walters became irate and argued with him, Plotkin-Wolff told the jury, and Nisleit decided to drop it and move on to a meeting he was due to attend.
As Nisleit and other officers later patrolled the event space, Walters walked by and they asked for him to cover up again, Plotkin-Wolff said.
“Mr. Walters didn’t want to follow the rules,” she said.
The officers led him outside the venue and tried for several minutes to calm him down and get him to comply, but he wouldn’t, she said. A sergeant finally decided to write him a ticket.
Walters refused to sign the citation. His lawyer said it was because he wanted to read the citation first, and the officers wouldn’t let him, afraid of what he would do if he was given the officer’s citation book.
He was arrested and booked into jail.
In 2012, Walters filed his lawsuit.
It accuses the city and five officers — Nisleit, Gary Mondesir, Emilio Ramirez, Samuel Gardner and Debbie Becker — of violating Walters’ 14th Amendment right against discrimination.
At the heart of the case is whether police singled out Walters — or any gay pride attendees for that matter — with the nudity ordinance.
Morris noted that of the 104 citations for public nudity issued by the city from 2007 to 2012, Walters is the only one cited for wearing a thong.
Plotkin-Wolff said that is misleading, and that officers will testify that they have approached numerous people, including many women, with requests to cover up. Most comply, resulting in no citations. One example of that is a woman at Comic-Con who was told to change from her risqué outfit by some of the same officers, and she did.
In 2014, U.S. District Judge Cathy Ann Bencivengo ruled in the city’s favor in a motion for summary judgement, 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.
Walters appealed to the 9th U.S. Circuit Court of Appeals, and in April that court reversed Bencivengo’s ruling, sending the case back for a possible trial.
The three-judge appeals court panel said a jury should decide how police enforced the nudity ordinance elsewhere, and if targeting someone at a gay pride event is the same thing as targeting the gay community as a whole.
The appellate panel also took issue with an officer allegedly referring to Walters as a “drama queen” during the arrest, noting that could be 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,” the ruling stated.
The plaintiff’s first witness to be called, Nicole Murray-Ramirez, testified that the relationship between the Police Department and the LGBT community has improved greatly since he and two others tried to get a permit for the city’s first pride parade in 1974 and were turned down.
Murray-Ramirez said the cooperation has still been “on and off” over the years, and that as the city’s LGBT liaison with the Police Department he receives four to five reports each month from a community member who feels harassed by an officer.
Walters is asking for unspecified damages for emotional distress caused by public humiliation, wrongful arrest and PTSD. He has racked up about $1 million in legal fees thus far, according to his legal team.