tenet news like it stood in front of the crowd of organizers and attendees at the parade and announced that the public nudity enforcement posture that was in force that special events would be changing being adopted only for gay pride what was left unsaid was that this rule was motivated by a desire to lessen the public nudity only a gay pride was left unsaid was that this rule was going to be selectively enforced against attendees a gay pride and nowhere else in our complaint we allege violations of the fourteenth amendment equal protection clause and those break down under two avenues one on the policy and one on individual i selective enforcement i like to just first address the policy argument in order to determine whether or not a policy was in play here the first question is did that it is like have the approached mr walters in this case he stated my opinion is the only one that matters i'm in charge here to let you know this new policy just for this was the new policy going forward that's an interesting question the deposition testimony was and this is from ms like himself was that this policy was motivated by request to decrease the nudity just that gay pride his jurisdiction that was his testimony deposition was that it was his intent to enforce that he was his intent was that this would be enforced equally but the evidence only for correct but the evidence is wholly unsupportive of that intent and his team which consists of a sergeant and an officer and then other officers that fill in on his team but he's the person in charge so we have like the o t l target which is the over the long term softball tournament played in bathing suits on city park record is replete with photos of women wearing strings and thongs without issue in fact an investigator was able to capture a photo of these officers officer becker when a person is like them standing next to a woman energy string who just competed in the in beauty contest energy string without issue we pulled every ticket every ticket that was issued for public nudity was produced there are no tickets for anybody wearing a g string other than mr walters  correct no ticket so not only do you have no evidence that this was in force that any other special event you have no evidence that this isn't forced on any other beaches parks and bays we presented declarations from recently retired officers many of whom were on the beach in foresman team who testified there's not a problem with the strings on any san diego beaches parks and bass is just not an issue there's nothing nothing we enforce interesting there's another event in the city of san diego called comic con which is own business a bloody patrol pride and that's the problem and that's the problem in this case so you've got no evidence of any enforcement other than a gay pride you have the officer who implemented the policy saying  to lessen the nudity a gay pride in this part of new policy ever written down that's another problem and that's one of the arlington factors there was no policy of being it wasn't brought before city council it wasn't even disseminated in a training briefing to the other police officers this was his policy for his special events that he controlled and that's another one of the problems of theirs and no legislative history because it wasn't adopted in a form fashion which it should have been instead it was adopted informally for his band he's the lieutenant right he's in charge of all these special that special events or are events where people get a permit they pay for the extra police protection and then he's in charge of all these events and there's a ton of them in the city of san diego he sets the policy and all those events and all th special events that he is the more nell spokes person he's the person in charge that's his jurisdiction so he sets the policy there and if you set a policy there it's different and apart from the rest of the city i think that's where we have the protection now important prism upon which to view the factual allegations of discriminatory discriminatory selective enforcement and this course that a plaintiff burden consists of putting forth some facts either anecdotal or statistical demonstrating that similarly situated defendants could have been prosecuted but were not anecdotal or statistical the district court in ruling against mr walters in this case  seven life fifteen said the following there is anecdotal evidence before the court that individuals wearing less than what waters were at the two thousand and eleven pride event may not have been cited for public nudity at different times and in different settings but in this case the district court made the proper findings just didn't reach the right result and that's part of the problem so you have anecdotal evidence from a lot of ads on of minutes of photos and video officers at the scene and women in g s strings no tickets written whatsoever as you have anecdotal evidence and statistical evidence to prove in this case there is two different standards the other thing the district court did was made a finding that it would be difficult for these officers to know who is straight or who was gay at these events and therefore just because it was a gay pride there's a lot of straight attendees a gay pride how would you know i think that that's a little disingenuous well b i kind of wrestled with that myself but i thought of the long lines what if we adopted in the city of san diego adopted a noise abatement ordinance that was going to play only in black history month celebration and not at any other celebrations wouldn't a reasonable inference be in that situation that this was aimed at the african american unit and not anybody else the fact that this was adopted for gay pride i think the reasonable and rational inference is gay pride i think the policy was adopted for gay pride to bring the level of nudity down a gay pride i think it was selectively force in the in the in the initial context of mr walters selectively enforced against  him you have the policy because he was is you get corrected i think that that's that that's the reason the evidence that they knew he was rather than the reasonable rational inference that can be drawn from the fact that he is that's pretty clear if you could drive he's entitled to every reasonable inference that summary justice i guess you could write and i think you could draw a reasonable inference to that effect right i think if we look at  anna florrie's versus morgan hill this court wrote did we present enough evidence to raise the inference of discriminatory intent not just conclusory allegations so my burden of plaintiff's burden this case was to present enough evidence to raise the inference and certainly i think the inference is there given the tilt howdie of the circumstances just turning out just briefly to the fourth amendment claim a qualified immunity has what the district court rested the fourth amendment claim on fourth amendment claim of qualified immunity cannot cough i mean it cannot rest on a misunderstanding of the law like say the rest what's the correct definition well according to webster's it's the rounded part that the person sits on in the back and so when i show the officers photos of women wearing normal bathing suits they're saying that the hips in the back and the upper thighs that there really is no credible evidence here establishing a material fact let's talk about the photographs that council has referred to these black foundation their hearsay there's no one who's ever testified with respect to these documents admissible evidence to show they would have the facility take a photo i mean who took the photo testifies to when they took the photo with the photo yes but also that that person was not subsequently contacted for example let's talk about comic con in the san diego union tribune there's a photograph of lieutenant ms light with a woman in a leotard this is the following year this photograph is of one of the big pages of our local newspaper he was in fact making a contact at that moment looking at the news articles with respect to that photograph you would think the lieutenant is just chatting with this party go or there's also the it would be documented if he had contact inside her there would be documentation of was a new policy that lieutenant nestl enact it right when he became in charge of the when he became in charge of special events but it was simply applied the same as other subsequent events this is not a new policy let me clarify that this is the san diego nudity borgen it this is the law the fact that officers are apply the law there's no policy there's no well  francisco pride but wearing the outfit alone if no officer comes in contact with you there's no way with thousands of people that in every instance an officer is going to contact every single person a real to see every single person in addition it's not a top priority the officers are not out there to just try to spot nudity and try to enforce this law they're out there for multiple reasons the fact that they may come across one person on one incident and request that they inch rule at least to create tribal issue a fact as to whether before this event there was a one inch rule and subsequent to the event that there would be a more strict literal interpretation of the new delete ordinance is that fair to say well even if that were you know contested but even if that were it's not a material fact it doesn't it doesn't indicate anything you need for selective enforcement you need to show that sexuality was was the purpose that it was in force in the law based solely on someone's sexuality not because of a legitimate government purpose which is to bring everybody into compliance at these family oriented events or what is becoming more family oriented were the public at large is attending these these events where it's become more acceptable it does not it has to show that it's being enforced for right now but i think you're now mixing apples and oranges because we're talking about whether there's a trouble issue as to  a difference and policy or change in policy and now you're what you're talking about goes more towards whether there is discriminatory purpose and i think that gets to the discussion that council had earlier with judge pius regarding inferences why isn't  mr walters entitled to all reasonable inference s in this case because there still are no no facts that matter with respect to the elements in these causes of action to show that there's an equal in forstmann you need some admissible evidence any evidence and just simply saying that you got a citation the one person got a citation is not it's not evidence that it was selectively enforced let's let's take something shows a lot more even under judge precautions definition and yet there's no indication that there was an foresman there is not enough to create an inference we're not talking about the merits award here we're talking about sufficient in s to survive summary judgment but there was evidence though because there were declarations from all three officers that said that they enforce this nudity ordinance at different events in san diego not only were the declarations but you know councils mentioned testimony of a model at comic con where in a very similar outfit the week after mr walters a on flights which is a comic book character who wears a very small leather strap the outfit very similar to what mr walters was wearing she was contacted by these officers there are photographs all over the internet with her kind of short around her waist in walking back to her hotel she was interviewed by howard stern and she talked about this event being contacted by these officers lieutenant as light testified with respect to this contact clearly other people similarly similarly situated are being contacted by the police department there are no other citations because everybody comes in compliance everybody else has agreed to tie short on the right to put short side change clothing so there's no such complete comprehensive statistical study showing that it's only enforced here and not in force there in fact the evidence is to the contrary opposition know when to enforce the order well again this would fall into the fourth amendment qualified immunity the interpretation of but talks is up to officers discretion if they believe something violates that ordinance it's just reasonable suspicion to believe they're violating crime it doesn't mean that they have to have probable cause that doesn't mean probably i mean i'm sorry they have probable cause but that it has to be proven that at trial they just need reasonable suspicion no counsel talks about this mistake of law the mistake of law that's outlined in cases are let's say an officer comes from another state and the laws with respect to nudity in this other state are more less strict or that they're not as strict and then he comes to california and enforces the law from another state thinking them that's california law these are the mistakes of law not with respect to the term by tox which i believe that most people have a general idea of what a and clearly from the photographs we do see portions of his side rump so officers here are entitled to that qualified immunity in thinking having a reasonable suspicion that he is in violation of this and that they are entitled and absolutely immune from making that contact having that conversation requesting him to put shorts on who many people were cited the day  sighted and he was quite a distance from the parade all the parade was over so that was over yes but from the location of the parade the parade passes through belle ballpark that naval hospital part yes so i don't know the exact parade route if if at some point they go through what i'm not sure but it goes around baba park it your the city's position that that on the evidence they presented  no reasonable trier of fact could conclude that there was any discriminatory purpose here absolutely i believe the district court was correct in that finding that based on they haven't as there was no evidence that shows discriminatory and there's nothing that shows that sexuality his his status of the homosexual male is what motivated this contact you know that he can't show that if you were a straight male wearing that outfit he would not have been also contacted there's an absolutely no evidence of that so the district court didn't the district i can't remember if they looked at this earlier in the week but the district court address qualified immunity for the officers yes they did and it did fine the officers had qualified immunity but i guess if there's no constitutional violation and there's no need to get to the second part absolutely so in  in in in in your understanding of the law in this area if the case were to go to trial would you believe you would have to prove in order to prevail well i believe the burden would be on the pla discriminate or either it to purposely discriminate or it had a discriminatory effect on only this protected class which would be homosexuals could it be it just anybody who participated in the gay parade no because that's not a protected class the protected classes is homosexuality ticket got into the it's a fenced area so he's in the park fenced in and then within that festival there's a beer garden so he had to actually show id and pay an additional fee to get into the beer garden so he's standing in the beer garden having a picture taken what he's approached in detail so he's in the park on city park land not in an enclosed festival in an enclosed beer garden that's when he died so  though i'm not sure how i could be borderline and he said well my opinion is only one that matters i'm a charges event he left and came back with four other officers they grabbed him took him out of the beer garden took him out of the festival took him outside and that's when they cited him for public nudity in public nudity alone i was the only citation anything i was given them was public nudity the evidence was that other individuals dressed similarly were that they were also approached were also approached by this officer and told to cover up or do something just for evidence that people attending other events like the over over on line event lots of scantily clad women leave and that they were also contacted pursuant to the policy no evidence at all none in fact the evidence is just the opposite these exact same officers were arrested both walters are seen in photographs standing next to women with sashes on just participating in the beauty contest where g strings these exact same officers who arrested him are seen in the company of women in g strings with no issue so that's where we start having a problem this is not fair you can't have one standard for public nudity that applies to gay pride and another standard altogether that applies everywhere else you just can't have it and interesting thing about the ayaan flux i just want to just zero two and they said under brown said it must have been somebody at private security at the event we don't aren't in the business of policing that so that's the  police department spokesperson so that they never contacted anybody at any other event this particular comic con event  s with respect to qualified immunity i think that reason minds can differ on qualified immunity to the fourth amendment claim reason the minds cannot differ on qualified immunity to the state of the fourteenth amendment claim i think the right to be free from state false arrest claim of the state false arrest claim again rests on whether or not there is probable cause for the arrest and i think probable cause for the rest goes back to whether or not you can actually believe that this person was publicly  organizers and that's what's really interesting to see is that stood in front of them said ok the one that stripped rules no longer in place we're going to go with complete coverage of box and members of the private stuff and say wait a minute you're creating a double standard here and that's the testimony that a deposition testimony and in response ms that said well technically those guys that o t l and those guys on the beach they're in violation too and left it at that didn't say he would amend it or change it or do anything so we talk about discriminatory intent he was actually put on notice by members of pride that hey you're discriminating against gay people in this in this policy and it was brought to his attention he left his side and you have to understand that this change in policy from the one it stripped to the four but that was not announced that any other because the way the city's interpret the policy makes criminal criminals out of every beachgoer and so it's got a lot of local coverage because in order to justify this stop and detention you have to say that he was publicly nude and he's nude and everybody knew  to twelve inch flat front and back twelve inch twelve inch by square from back how can that be publicly nude and beaches in bathing suits not be if you have your equal protection claim discriminately force that tied to the existence of a policy i was separate i think i have two separate arguments i have one that the existence of a policy which is a policy adopted a discriminatory tent on hundred v underwood comedian versus lightfoot pacific shores all those different cases a policy adopted discriminatory tent subject to injunction and is a violation of equal protection clause so there is one both sides of the