                                                                            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                           NOT FOR PUBLICATION                                APR 05 2016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).

                                           2
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


                                           3
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


                                          4
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.




                                           5
