Will Walters v. Lieutenant Nieslit , 647 F. App'x 759 ( 2016 )

FILED
NOT FOR PUBLICATION APR 05 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILL X. WALTERS, an individual, No. 14-55495
Plaintiff - Appellant, D.C. No. 3:12-cv-00589-CAB-
DHB
v.
LIEUTENANT NIESLIT; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted March 11, 2016
Pasadena, California
Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.
Appellant Will Walters (“Walters”) appeals the district court’s order
granting summary judgment for the City of San Diego and the individual officer-
defendants (collectively, “Defendants”). We affirm in part, reverse in part, and
remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court erred in granting summary judgment for the City of San
Diego and Lieutenant Nieslit on Walters’ Equal Protection Clause claims.
Viewing all “the evidence in the light most favorable to” Walters, Olsen v. Idaho
State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004), there are material triable
issues of fact as to whether the San Diego Police Department (“SDPD”) adopted a
discriminatory policy of selectively enforcing the City’s nudity ordinance at San
Diego Gay Pride (the “Pride Event”) in 2011.1 Walters presented evidence that
Lieutenant Nieslit, the Lieutenant in charge of SDPD’s Special Events unit,
attended a planning meeting of Pride Event volunteers and announced a new, more
restrictive nudity policy for the Pride Event, which required that attendees fully
cover their buttocks. Previously, by contrast, SDPD had enforced a “one-inch
rule” at the Pride Event, which only required a one-inch strip of fabric covering the
center of an attendee’s buttocks. Walters also presented evidence that beachgoers
and attendees of other special events in San Diego were in violation of the new
nudity enforcement policy, but that SDPD did not increase enforcement anywhere
except the Pride Event. Given this and other evidence, Walters raised material
1
Because the parties did not brief the issue below, nor did the district court
address it, we assume without deciding that Nieslit qualifies as a “final
policymaker.” See Lytle v. Carl, 382 F.3d 978, 982-83 (9th Cir. 2004).
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triable issues of fact as to the existence of a policy of selective enforcement. See,
e.g., Arce v. Douglas, 793 F.3d 968, 977-81 (9th Cir. 2015).
Whether the policy had a discriminatory effect and purpose is also disputed.
See Wayte v. United States, 470 U.S. 598, 608 (1985) (holding that to prevail on an
equal protection claim a plaintiff must show “discriminatory effect” and
“discriminatory purpose”). Although Walters was the only Pride attendee to be
cited, there was evidence that at least 12 to 15 other attendees were warned to
cover up. Combined with the evidence showing an absence of enforcement
elsewhere, this evidence creates material triable issues of fact as to the
discriminatory effect of the nudity policy. See City of Oklahoma City v. Tuttle, 471
U.S. 808, 823-24 (1985); Pac. Shores Props., LLC v. City of Newport Beach, 730
F.3d 1142, 1164-66 (9th Cir. 2013). As for discriminatory purpose, Walters is
entitled at the summary judgment stage to an inference that targeting Pride Event
attendees is tantamount to targeting gay individuals and individuals who support
gay rights. Lacey v. Maricopa Cnty, 693 F.3d 896, 907-10, 920-22 (9th Cir. 2012).
That an officer referred to Walters as a “drama queen” during his arrest is
additional evidence of discriminatory purpose. See Ballstreri v. Pacifica Police
Dept., 901 F.2d 696, 701 (9th Cir. 1990). Although Defendants may ultimately
establish that another purpose motivated their nudity policy at the Pride Event, that
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question is seriously disputed. See Pac. Shores, 730 F.3d at 1159-64. We
therefore reverse the grant of summary judgment in favor of the City of San Diego
and Lieutenant Nieslit on Walters’ first cause of action.
2. In his second cause of action, Walters argued that the individual defendants
enforced the discriminatory policy against him, violating his individual right to
equal protection under the law. In opposition to Defendants’ motion for summary
judgment, Walters presented evidence that his arrest at the Pride Event occurred
pursuant to the new selective enforcement policy. Thus, to the extent the policy
was discriminatory, arresting Walters pursuant to that policy would violate his
equal protection rights. Because we reverse as to Walters’ claim of a
discriminatory policy, we also reverse on his individual equal protection claim.
3. The district court relied solely on its finding that there was no discriminatory
policy to grant judgment in favor of Defendants on Walters’ negligence claim and
in favor of the individual defendants on his Bane Act claim. Because we reverse
the grant of summary judgment on Walters’ policy claim, we also reverse on
Walters’ negligence and Bane Act claims. On remand, the district court may
consider the parties’ other arguments related to those claims.
4. At oral argument, Walters’ counsel conceded that the individual defendants
were entitled to qualified immunity on Walters’ Fourth Amendment claims, and
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agreed to dismiss his false arrest and battery claims. Accordingly, we affirm the
district court’s qualified immunity determination for the individual defendants.
We also affirm the grant of summary judgment in favor of Defendants on Walters’
false arrest claim. As for the battery claim, by failing to address that issue in his
opening brief, Walters waived any challenge to the district court’s ruling.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
The parties shall bear their own costs on appeal.
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