PASADENA, Calif. (CN) - Wearing a leather gladiator kilt, black thong, harness and not much else, Will Walters attracted the attention of photographer at a gay pride after-party in 2011.
If the festival organizers had taken issue with Walters' skimpy outfit, they had not said anything when they welcomed him into the beer garden. These events, after all, are not known for displays of modesty.
So, when San Diego Police Lt. David Nieslit approached Walters as he was having his photograph taken and told him his outfit was "borderline," it came as a surprise.
Walters told the officer that he had worn the costume at a gay pride event the year before without any problems.
He would have been forgiven for thinking that was the end of it.
Instead, after Walters lined up for a drink, officers marched him out of the beer garden. He was arrested and thrown in jail for the night after refusing to sign a citation for violating the city's nudity ordinance.
Criminal charges were never filed. But in March 2012, Walters made a federal civil rights claim against the city of San Diego outlining the story above.
The complaint said Nieslit had singled him out as a gay man, and the officer's interpretation of the city's nudity law violated his rights under the Equal Protection Clause of the Fourteenth Amendment.
Nieslit, and by extension the city, had enforced the nudity policy selectively, Walters claimed. The police, he said, would not cite or jail a woman for wearing a g-string in a beach volleyball tournament.
Even though the black leather gladiator kilt opened on its sides, Walters' complaint said his outfit completely covered his "genitals, pubic hair, buttocks, perineum, anus or anal region," as required by San Diego's nudity ordinance.
Walters appealed to the Ninth Circuit after U.S. District Judge Cathy Ann Bencivengo granted summary judgment to Nieslit, the city and their co-defendants in 2014.
Attorney Christopher Morris, representing Walters, told a three-judge panel of the appeals court on Friday morning that in the run-up to the 2011 San Diego Gay Pride parade, Nieslit - who headed a special events police team - met with pride organizers and said attendees would have to cover their buttocks.
"What was left unsaid was that this rule was going to be selectively enforced against attendees at gay pride and nowhere else," Morris said, adding that there was no record of anyone else being cited for wearing a g-string other than his client.
Nieslit said he had attempted to enforce the policy at San Diego's Comic-Con and officers had ejected "American's Next Top Model" winner Adrianne Curry from the event because of a revealing "Aeon Flux" character costume she was wearing.
But according to Morris, a police department representative had said the events did not happen as reported.
"Apparently, San Diego police is only in the business of booty patrol at gay pride. And that's a problem," Morris said.
Circuit Judge Richard Paez asked Morris if police were singling out Walters because he's gay or because he was at a gay pride event.
"It could be someone straight out there in a loin cloth," the Bill Clinton appointee noted.
Morris said he had considered the same question but wondered what would happen if the city enforced a noise abatement law only at Black History Month events.
"Wouldn't the reasonable inference be in that situation that this was aimed at the African-American community and not anybody else?" Morris asked.
Deputy City Attorney Bonny Hsu told the panel that Walter was the only person cited under the ordinance because most people the police come into contact with comply with law enforcement.
Circuit Judge Jacqueline Nguyen noted, however, that the one person on the record was Walter, who "happens to be an attendee at a pride event."
"The evidence is that there are other events, non-pride events at which people were wearing a lot less, that shows a lot more, and yet there's no indication that there was enforcement there," Nguyen, a Barack Obama appointee, said. "We're not talking about the merits. We're talking about sufficient inferences to survive summary judgment."
But Hsu said three officers had signed declarations that they had enforced the nudity ordinance at other events in San Diego.
As to the incident involving Curry, officers had made contact with the model, Hsu said.
"There are photographs all over the Internet with her tying a shirt around her waist and walking back to her hotel," Hsu said, noting that Curry had talked about what happened on Howard Stern's radio show.
The attorney added: "Everybody else has agreed to tie a shirt, put shorts on, change clothing. So there's no comprehensive statistical study showing that it's only enforced here and not enforced there. In fact, the evidence is to the contrary."
Circuit Judge Harry Pregerson joined Paez and Nguyen on the panel. The court did not indicate when it would rule.
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