The Fourteenth Amendment's Equal Protection Clause protects "similarly situated individuals from being treated differently." But that is exactly what happened to Will Walters when he was arrested for public nudity at the 2011 San Diego LGBT Pride celebration.
Wearing a leather kilt, open at the sides, over thong underwear, an outfit less revealing than most bathing suits found at San Diego beaches, Will Walters was standing in the beer garden inside the festival grounds when he was detained, humiliatingly escorted out, and arrested for public nudity.
Walters is not a litigious man. He simply asked for an apology for his unconstitutional arrest. When the San Diego County Sheriff's Department apologized for abusive treatment he experienced in jail, Walters graciously accepted theapology. He did not sue. But when the city rationalized justified, minimized, and acrobatically defended its police department's conduct, Walters had no choice but to proceed with a claim for the violation of his equal protection rights.
Since his arrest, the city of San Diego has used a strategy designed to delay a trial date in this matter, clearly hoping that Walters and his lawyers would lose steam. That has not happened. The city's day of reckoning is nigh -- just last week the case was finally set for trial. On December 6 of this year, Walters's equal protection claim will finally be heard by a jury in a San Diego federal courtroom.
Will Walters's five-year path to a jury was long and arduous -- one he's persevered on for his own rights and for those of everyone, LGBT or otherwise. After the summary judgment dismissing his claim against the city was at first granted by the trial judge, the case was appealed to the Ninth Circuit U.S. Court of Appeals. When a panel of justices at the Ninth Circuit unanimously overturned that judge's decision, Walterss' case was finally set for trial. But not before the city tried yet again, just last month in fact, to delay a trial. Fortunately for the cause of justice, the judge set December 6 as the trial date -- period.
During his appeal to the Ninth Circuit, Walters's legal team presented the justices with overwhelming evidence of a double standard held for public nudity: one adopted for LGBT people at Pride, and one adopted for everyone else. The panel of judges was shown photos of the officers who arrested Walters happily standing next to women in G-strings at the beach. The panel was presented with deposition testimony from the officer in charge admitting that he adopted the enforcement posture for Pride and that various other scantily clad Pride attendees were also detained for "offending" outfits. The Ninth Circuit panel was also presented with a total absence of any other enforcement of this standard at any other event or venue.
But it was the city's defense that should be of concern to every fair-minded citizen of this great country. Incredibly, the city has taken the position that the nudity standard for Pride is the same as at all events and venues and that the lack of citations or arrests was simply a coincidental lack of enforcement, not evidence of a double standard.
This farcical argument was roundly rejected by the panel. Sensing defeat, the city employed a scare tactic dripping with bias, a tactic designed to invoke visions of nude gay men cavorting on San Diego's public streets with absolute impunity. Incredibly, the city told the panel that if officers' discriminatory actions were not upheld, the San Diego Police Department would be powerless to enforce any public nudity standard at any Pride event.
In so doing, the city first invoked a false premise -- namely, that the inability to enforce its double standard would result in no standard. But more troubling, the false premise was adopted to play on what the city anticipated would be homophobic fears of a gay bacchanal should their double standard be stricken.
That the panel was not persuaded was of little surprise; however, given that the city anticipated that this tactic would be successful is disturbing and, like the puritanical witch hunts of yesteryear, says more about the accuser than the accusee.
That this scheme was devised by leaders and elected officials of an erstwhile progressive city like San Diego should be of great concern to LGBT people, their allies and all equality-minded Americans. It is these same officials, and officials like them in every city, who shamelessly pander to the LGBT community for votes. And while they may play public lip service to "gay rights," for some, the lingering biases of a bygone era lurk just below the surface waiting to be revealed by the crucible of litigation over an ill-conceived policy gone bad.
On December 6, a jury will be seated and evidence will be presented. Our constitution will be tested once again. The outcome of this matter will speak volumes as to how far we, as an LGBT and allied community, have come, and how far we, as a democratic society, have yet to go.
CHRIS MORRIS is a civil rights attorney based in San Diego, a former deputy San Diego city attorney, and lead attorney for Will Walters.
