Gladiator outfit over the line in Hillcrest Thongs worn at Fiesta Island Over the Line games acceptable

Exhibit presented in appeal

Is the San Diego Police Department's policy of cracking down on scantily clad partygoers at San Diego's annual gay pride parade while refusing to do the same at beaches and during the Over the Line tournament and other local events legal?

A panel of judges will answer that question when they hear a recently filed appeal from a man who was arrested in 2011 at San Diego's Pride festival for wearing a leather gladiator-style kilt.

The arresting officers claimed San Diego resident Will Walters was over-exposed. Walters and his attorney accuse the city and its police force of using a double standard when enforcing the "special events nudity policy." They say that officers can see more skin on any given day at the beach than what Walters was showing the night he was arrested. The only difference, contends the defense, Walters is gay.

Earlier this year, U.S. District Court judge Cathy Ann Bencivengo dismissed a claim filed by Walters for discrimination and harassment.

According to the appeal, certain commanding officers had their minds made up to target attendees of the gay pride parade before the parade began.

"In the days and weeks leading up to the 2011 San Diego Gay Pride Event, Lieutenant David Nisleit, the newly appointed head of the San Diego Police Department's Special Events Police team met with the Pride event organizers and volunteers to discuss his enforcement policy," reads the appeal. "As for public nudity, in particular 'skimpy' bottoms, Nisleit announced that he was abandoning the policy of his predecessor...and was replacing it with his own interpretation…. Under Nisleit's new policy, all attendees and parade participants would now be required to 'fully cover their buttocks.'"

Organizers and others at the meeting asked Nisleit whether the policy included women in g-strings and skimpy bikinis at the beach and during other large events. Nisleit said they would.

Days later, Nisleit put that plan in action. He approached Walters inside the beer garden at the Pride event. The lieutenant deemed that the leather kilt, fashioned with a 12-inch long and 8-inch-wide flap in both front and back covering a thong, was "borderline." Walters told the officer that he had worn the kilt in the parade earlier that day as well as at the previous year's event. Nisleit left, only to return with backup.

The officers removed Walters from the parade and wrote him a citation. Walters argued that everything was covered; only the sides of his legs were exposed. He began recording, later refusing to sign the citation. Officers placed him in handcuffs and transported him to jail for "public nudity." At no time did officers provide Walters with additional clothing while in jail.

The city attorney's office chose not to prosecute but the damage had been done. Walters wanted to expose what his attorney calls the city's "Gay Special Events Nudity Policy."

"The city was asked to turn over copies of all public nudity citations and arrest reports issued by the San Diego Police Department over the last five years," attorney Christopher Morris wrote in the appeal. "The city produced 104 redacted citations and reports. In not one of those reports was a person arrested or cited for wearing a thong or a g-string type bathing suit bottom."

Now, as the case makes its way through the courts, some have begun to speak out against the city's policy and the arrest. West Hollywood councilmember, attorney, and openly gay man John Duran wrote an op-ed for the Daily Journal, a legal publication for attorneys, denouncing the city's police force and the city for arguing that the arrest had nothing to do with sexual orientation or discrimination.

"If an arresting officer can defeat an objectively supported claim of discriminatory enforcement by simply claiming that he or she did not harbor any discriminatory intent, then what does it matter if ‘facially’ discriminatory laws have been removed from our books?” penned Duran in the September 18, 2014, op-ed.

"The case of Will Walter v. City of San Diego... will provide the court with a clear opportunity to address the crucial and evermore timely issue of discriminatory enforcement of the law about which the [Fourteenth Amendment] is elegant in its simplicity and urgent in its directive."

According to attorney Morris, a hearing date has not been set.