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San Diego Gay Civil Rights Appeal Gets 9th Circuit Hearing Over Butt Covering

Will Walters was arrested at San Diego Gay Pride for wearing a gladiator-style kilt over a thong. Straights wearing skimpy thongs are left alone.

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February 9, 2016 :: 4:23 PM

When Will Walters’ selective enforcement lawsuit against the San Diego Police was first publicized in March 2012, it was met with head-scratching jocularity. After all, he was the first person arrested for violating a municipal public nudity code by wearing a gladiator kilt outfit to the San Diego Pride festival. Photos of Sasha Baron Cohen’s straight Borat character in a neon thong often accompanied the stories.

But the incident was no joke to Walters, who received compliments—not complaints—while walking the parade route and upon entering the festival. He was surprised when Special Events Police Team Lt. David Nieslit said his outfit was “borderline” legal. After Walters refused to sign a citation—which he was not allowed to read first—he was arrested and driven to jail, where he sat handcuffed in a closed car in the suffocating heat. Later he was placed in a single cell near check-in, where he was subject to ridicule and harassment. He was not given a blanket nor food nor water for 12 hours before his release on bond.

Walters, represented by former city attorney Christopher Morris, subsequently filed a federal lawsuit against the city, Nieslit and others, saying his civil rights were violated by the police’s selective enforcement arrest and his ill treatment. During a deposition, Nieslit “admitted to revising the nudity policy in an effort to bring the Pride Event into ‘compliance with the municipal code,’” though only his police team and a few Pride officials were aware of the change.

Morris presented evidence of events policed by Nieslet and his team such as Mardi Gras, Comic-Con and the Over the Line Tournament, where women wearing tiny thong bikinis are commonplace.

But in June 2013, a District Court judge granted a summary judgment dismissing the case. Morris has appealed to the 9th Circuit, arguing that Walters deserves a jury trial and asking if Nieslet’s policy was “adopted with an intent to discriminate against homosexuals” in violation of the Equal Protection Clause of the Constitution.

A hearing is scheduled for Friday, March 11 at 9 a.m. in the courthouse at 125 S. Grand Avenue in Pasadena (case number 14-55495). San Diego police are expected to show up to support Nieslet. Any LGBT people who want to attend to support Walters are asked to RSVP at FreeWillUSA.com to reserve seats as his guest.

Here are long excerpts from an extensive interview with Walters and Morris—suggesting that there may be a “God Squad ” in SDPD. It turns out the policy change was specifically ordered by Nieslit, a conservative Christian, now the Captain in charge of Homicide who explained to the media how the recent police shooting of gay Joshua Sisson was justified. What’s so frightening is that what transpired during an otherwise purely normal Pride day celebration could happen to any LGBT person who might wear a gladiator-style kilt with twelve inch square leather flaps front and back over a thong.

Walters’ story is so absurdly inexplicable, it must be read to be believed:

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Q: Will, could you start by telling me what transpired that Gay Pride day five years ago?

Walters: It was 2011. I was 29 years old. I woke up and it was any other Gay Pride day that I’ve been to. I had prepared an outfit of leather gear and I was planning on going to both the parade and the festival. I got to the beginning of the parade around 9:00am, saw a few friends, walked the length of the parade with one friend—and I was actually well received by parade watchers and festival-goers. It seemed that everyone was running up to me to take pictures. So, I mean there are thousands of pictures out there of me that other people have, just in the excitement of what a great outfit.

When we got to the end of the parade, my friend left me to go volunteer at the festival (in Balboa Park). And then I went to the festival gate where I presented my previously bought ticket….I walked maybe about 10 yards and then went into the beer garden where I presented my ID and I was granted access to the beer garden by another Pride volunteer.

My outfit had been given the okay by three different Pride volunteers who had gone through training, so they say, on what is appropriate and what is not.

A lot of people engulfed me at the beer garden. I was kind of the “star of the show” when I arrived….To my surprise, a police officer came up behind me and pushed me. And when I turned around, he says, ‘I want to let you know that your outfit is borderline breaking the law.’ And I said, ‘Excuse me, sir. I want to let you know that there is no such thing as borderline breaking the law so cite me, arrest me, or leave me alone.’ And then he said something about his opinion was the only opinion that mattered ’cause he was a police officer. And I said, ‘No, it isn’t.’ I’m paraphrasing, it’s just been so long.

And then he disappears, which I thought was very strange. Well, then he comes back with five other officers that surrounded me. I have no idea what’s going on. But the original officer that talked to me stood in the background and another officer named Mondesir starts talking to me. And he goes, ‘You need to leave the beer garden with us.’ And I said, ‘First, you need to tell me what this is all about and then I’ll think about leaving with you.’

They refused to tell me what it was all about and then I said, ‘I want your names and badge numbers and what you’re doing’ and they wouldn’t tell me.

Then a woman by the name Becker comes from behind me—I can’t remember, I think it was by the back of my neck—and she forces me just outside the beer garden. When I tried to get my composure, I may have brushed up against her and I don’t remember exactly but she said something like I was not allowed to touch her because she can shoot me.

All of them [the officers] were intimidating…..No one under the age of 21 is admitted into the beer garden. It is a totally separate area where there is a booth or a table where two Pride volunteers sit. The reason why a police officer was in the beer garden in the first place is a mystery to everybody.

So when I’m outside the beer garden, the female African American officer comes up to me again and said, ‘Now that we’ve removed you from the beer garden, we need you to actually leave the festival. And you’ve seen what we’ll do. So are you going to come?’ And I said, ‘You still haven’t told me what this is about, you still haven’t told me your names. I don’t even know if you are police officers because I don’t have your badge numbers. So no, I’m not going to go anywhere with you until you tell me what this is about.’ And again that woman, Becker, grabbed me by my neck and pushed me down to the ground actually outside of the festival.

Q: Nobody came to ask what was going on or help?

Walters: No. A friend of mine did try to come to my aid and said, ‘Hey, what’s going on?’ And the officer told him, ‘If you don’t leave here, we will arrest you, too.”

Q: So now you’re down on the ground. Then what?

Walters: I stood up and that’s when Officer Mondesir says, ‘Now that you’re outside of the festival, I want to let you know that you’re here for being naked in public.’

It was crazy. At this point, a short, fat guy in regular clothes comes up and starts screaming. I mean, he wasn’t yelling, he wasn’t talking with confidence—he was screaming. And he said that I needed to give him my ticket stub. Well, I don’t know what to do. I’m looking at everybody and I feel like I’ve taken crazy pills.

So I had a little bag to put my wallet in. I reached in to grab my phone and I said, ‘Look, I don’t know what your problem is. I don’t even know who you are. But I have these officers here that I’m trying to deal with so after I deal with them, I will revisit you.’

And that’s when I turned my phone to the officers and said, ‘I want to let you and all your partners know that I will be recording the duration of this conversation.’ So they made some snide remarks and everyone was really pissed off but I knew what I was doing was legal. Officer Mondesir made this comment about how he doesn’t like it but he’s going to allow me to record.

But the guy that was screaming hit my hand and says, ‘You listen to me! My name is Sean Chamberlain and I’m the head of Pride security and you are hereby banished from San Diego Pride forever because of causing a scene.’ I was blown away—one, because the police officers didn’t seem to care that this crazy man is assaulting me. And then one of the officers, I can’t remember which one, says, ‘Okay, we have it covered, just stand back.’

(It turns out Chamberlain was not part of Pride security,  but a volunteer. Eventually there was a settlement between Pride and Walters and Pride is no longer part of the original lawsuit, after which Pride leadership changed.)

So the guy, Sean Chamberlain, stood back with eight or nine Pride security guards. Then Mondesir comes up to me and says, ‘Okay, you’re naked.’ And I said, ‘Okay, well tell me what’s naked about me.’ And he says, ‘You need to cover up.’ And I said, ‘Okay, that’s fine. But first tell me what I need to cover up. I’m not understanding what’s naked about me.’ And he goes, ‘You just need to change your whole outfit.’ I said, ‘That’s ridiculous, I don’t have another outfit here, I just came to Pride to celebrate.’ And he goes, ‘You need to go home.’

Q: So what was the relationship between Pride and the San Diego Police that this was allowed to occur?

Morris: What we uncovered in depositions was that there was a Lieutenant Kendrick, a female, and she was the head of what’s called the Special Events Policing Team. These are the people that are assigned to police special events held on public property and the organizers pay the police for their special overtime. It’s kind of a specialized, hybrid unit and there’s five officers permanently assigned to this unit.

So the lieutenant that approached Will in the beer garden was the new lieutenant. But the former lieutenant had established a one-inch-strip policy for Pride and for all the other different events where—as long as long as you had a once inch strip up the back—you were fine. And that was easily understood by the officers in her command and easily understood by everybody.

It turns out that this new guy gets appointed just a month or two before Pride, shows up at the event and his testimony was that somebody who was in Pride asked him to bring Pride into compliance. Pride hotly contested that issue and said nobody from Pride has ever approached him and told him to tighten the noose at Pride. But whatever it may be, he stood up and explicitly said I’m changing the policy and the impetus was trying to bring Pride into compliance. That was his statement and that’s what he admitted in deposition.

And so he changed the one-inch-strip policy to a really exacting reading of the municipal code that says your buttocks must be covered. Well, nobody understood what the hell that even meant. You had to wear like full shorts? You couldn’t wear the regular bathing suit that you can wear at the beach? So people at Pride who were there when this change was announced said, ‘Hey, wait a minute. This is a different standard than we see everywhere else.’ And he said, ‘Yeah, it’s a different standard but that’s just the way it is.’

But the Pride people who were there didn’t take issue or didn’t contest it. So the police and Pride were working together to change the policy that then went into effect—unbeknownst to any of the parade-goers or the festival attendees.

 

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So the evidence in the case was that this rule didn’t go into effect at any other special event, not Over The Line and not ComicCon, not Mardi Gras—not any places where you might see a g-string or two. It went into effect in no other place but Pride and that’s the context that this all took place with Will.

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Q: Was there some sort of impetus for this change?

Morris: The pendulum had swung back from being more accepting, I think. In 2011 there was a nasty lawsuit that the firefighters launched against the city because they said that they were forced to put their fire trucks into Gay Pride. And so they sued the city for a hostile work environment because these fire fighters were subjected to gay men yelling at them about their hoses.

The city lost, but it was a hung trial. I was a city attorney at the time and we said that’s bullshit. These guys who drag burning people out of buildings were irreparably damaged by being told show me your hose. That was their claim. So the police jumped on the bandwagon. I think, it was a combination of that and this new lieutenant getting involved. This guy— David Nieslit—is a very conservative Christian guy.

In the depositions, we did note that there were Christian beliefs in a lot of what the other officers did. I mean, take Officer Becker. She made it a point to say that she goes to her women’s group at a very anti-gay church.

Q: There was an anti-gay “God Squad” under LAPD Chief Daryl Gates. With San Diego’s conservative streak, it’s not unthinkable that there may be a kind of god squad operating within the San Diego Police Department.

Morris: No, it’s not. But with respect to Nieslit—I didn’t get his religious background out in the deposition. With Mondesir and Becker, they let me ask the questions and they let them answer and those two were very involved in Christian religion and being born-again Christians.

Q: So how does that figure into the hypocrisy of strictly enforcing the municipal code at Pride and not at the Over The Line tournament?

Morris: It’s the same cops who police all these different events. It’s headed up by Nieslit. Mondesir and Becker were permanently assigned to special events. But I think the record was that the other two who were involved in arresting Will just happened to be line cops who were assigned to Gay Pride that day.

Q: So Will, what happened after Officer Mondesir said you needed to cover up or go home?

Walters: I said I didn’t drive here. I assumed I’d be drinking and the last time I checked drinking and driving is against the law. And he said, ‘In that case, you need to walk home.’ And I said, ‘Well I live in Point Wilma so it’ll take me about three to four hours to walk home. So what you’re telling me is that what I’m wearing is not okay for the beer garden here at Gay Pride—but it is okay for me to walk the streets of San Diego? And he, ‘Well you have a grace period.’ And I said, ‘A grace period?’

So if I was driving drunk, should I tell the officer that I have a grace period? And he said, ‘No, no. You know what? Just forget it. Just sign the citation and I’ll let you go.’ And I said, ‘Okay. Let me read the citation.’ And he said, ‘Oh no, no, no. You sign the citation first and then I’ll give it to you and I’ll let you read it.’ And I said, ‘Wait a second. So you’re not gonna let me read the citation until I sign it?’ And he said, ‘Yes.’

And then he said, ‘’Cause if you don’t sign it, then I’m going to take you to jail.’ At that point I said, ‘Ya know what, then you’re gonna have to take me to jail ’cause I’m never gonna sign something that I’m not allowed to read first.’ And that’s when they all kind of engulfed me and put the handcuffs on. They were so tight my wrists bled.

Getting to the jail took quite a while because we stopped at the police station. It was one of the hottest days of 2011 and they left the car on—the car was in the sun—they put all the windows up and then they just left me in the car. For about 20 to 30 minutes. It was basically to punish me.

When I complained and said I couldn’t breathe, Officer Ramirez says, ‘I would call you a drama queen but then I’d get in trouble.’ You can’t even leave your dog in a hot car like that.

Q: So they finally take you to jail. Then what happened?

A: Now I’m no longer with SDPD. I’m with San Diego County Sheriffs. They process me and put me in a single cell. I think, at this point, it’s finally gonna get better. I come to find out that the cell that they put me in was right across from the booking window so I was basically put on display for every person that came into the jail to look at and scoff at. The officers would kind of encourage the other inmates that were coming in to make fun of me. The officers made hand gestures to me. They said some horrible things. It was the other inmates that said, ‘Hey, leave him alone. It’s Gay Pride.’

Morris: When this all started coming to light, the San Diego Sheriffs were very proactive, apologized both privately and publicly to Will, said that what happened was in appropriate and that he should have been given a blanket or some other clothing. That’s all Will has ever really wanted—an acknowledgement that what happened to him was wrong and inappropriate. So San Diego Sheriffs were never part of this lawsuit because they handled it correctly.

Q: How did this wind up in federal court?

Morris: It’s a civil rights violation. There is an Equal Protection claim under the 14th Amendment, that all people will be treated equally and not deprived of their life or liberty without due process. So what the theory is: it’s a facially neutral statute or interpretation of the statute but enforced in a discriminatory way, in a policy that was adopted for a discriminatory purpose. And so that’s the crux of the claim, if you adopt this thing that says, ‘Oh, you must cover the buttocks but it applies only to Gay Pride and adopted just to “bring Gay Pride into compliance.”….

It really is pretty stark in the evidence we have of how it was adopted for a discriminatory purpose. (Nieslit) is on the record as saying I’m the one who adopted the policy and I’m the one who adopted it because I wanted to bring Gay Pride into compliance with this arcane Municipal Code 5653 (which says the butt must be covered)….We had all this evidence from the lifeguards and police officers who retired who all said that g-strings on men or women at the beach or at OTL—Over the Line tournament, which is a softball tournament held on public property by the beach every year—or at ComicCon—all these different g-strings are everywhere and that has never been a problem under their former interpretation of the municipal code. So it was really just a change in enforcement posture by giving a more exacting reading of the municipal code just at Gay Pride.

Q: What happened with the federal judge who dismissed the complaint?

Morris: This woman is a conservative justice. She first granted, then dismissed what’s called the 12B6 motion, which is a challenge to the complaint. So the complaint stood where they’d raised all these same arguments. And then they filed a summary judgment motion—basically it just was self-serving declarations from the police officers that said, ‘Well I didn’t harbor any ill intent. I didn’t harbor any discriminatory intent,’ which stood in direct contrast to what their admissions were on the record. So this judge just took their own self-serving declarations and used that as a basis to throw out the whole case.

That’s why we’re on appeal because that’s just not the law and as long as there is even a scintilla of evidence in our favor, it’s a claim that should have gone to the jury to let a jury sort it out, not just a judge dismiss it out of hand.

Q: The 9th Circuit appeal hearing is on March 11th?

Morris: Yes. We hope people will come out to support Will. They can RSVP to Freewillusa.com to let us know that they want a seat in the court in Pasadena. And if they don’t get inside the court, maybe they could be outside with banners saying equal justice for Will.

 

 

 

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