Judge rules prostitution ordinance too broad, vague

By Timothy Pratt (contact)

Friday, Feb. 6, 2004 | 11:23 a.m.

A Clark County anti-prostitution ordinance is too broad and too vague -- and therefore unconstitutional, a Justice Court judge ruled this week.

The ordinance, which allowed police to charge people with "loitering for the purpose of prostitution," is unclear about what is illegal and gives police too much leeway in enforcing the law, Justice of the Peace Nancy C. Oesterle said in a decision filed Wednesday.

Experts in law and civil liberties and advocates called the decision good news for the Constitution and prostitutes.

"It's a victory for for the ongoing, documented right of private people not to be stopped without an officer having reasonable suspicion to believe they are committing a specific crime," said Christopher Blakesly, a professor at the University of Nevada, Las Vegas Boyd School of Law and an expert on the constitutional aspects of criminal law.

But Clark County District Attorney David Roger said the judge's decision is not binding in other courts. His office intends to "review the decision and determine whether to appeal," he said.

Blakesly said the decision, while not binding to other courts, will nonetheless have an impact. "It's a matter of principal more than immediate legal precedence ... and therefore the likelihood is that if any other court or judge rules differently, the District Court, Nevada Supreme Court or U.S. Supreme Court will overrule that decision."

Roger said he was "sure defense attorneys will pick up on this issue," so he will be briefing his staff on the decision. "We will make our legal briefs available to any prosecutors who come up against this," he said.

Deputy Public Defender Susan Burke, who defended Lani Silvar in the case, said the ordinance is similar to other loitering laws nationwide that have also run up against the U.S. and state constitutions.

"These kinds of statutes have been found to present problems ... if a person doesn't have an idea of what is prohibited and law enforcement doesn't have sufficient guidelines," Burke said.

Blakesly said, "Since the '20s, the tendency has been to find these statutes unconstitutional."

The case stems from Silvar's August arrest at Fremont and Atlantic streets. In November, Silvar's lawyer filed a motion to dismiss the charges, and after arguments from both sides, the judge ruled this week.

The ordinance says an officer may identify a person loitering in public for the purpose of prostitution if that person "repeatedly beckons to, stops, attempts to stop or engages persons passing by in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture."

Oesterle's ruling says that this means "...a female college student on the street who is beckoning to handsome men she would like to meet could be deemed to be committing conduct 'manifesting the purpose of soliciting prostitution.' "

The judge cites a number of cases in Nevada and other states involving similar statutes that have been struck down, and writes, "(this) ordinance is overbroad and must fail."

Her decision also said, "the potential for arbitrary and discriminatory enforcement ... is serious" under the law, since "an officer can arrest someone on the mere suspicion of future criminality."

Gary Peck, executive director of the American Civil Liberties Union, Nevada chapter, said the law has invited abuse by some officers.

"In their apparent zealousness to 'clean up' Las Vegas, some officers appear to be out of control and making up their own rules as they go along," he said. "Judge Oesterle's ruling makes it clear the law itself didn't provide much help in reining them in."

The decision mentions that other state and county laws on the books make soliciting prostitution illegal except where it is licensed. "Thus, less restrictive means for addressing the prostitution problem already exist," the ruling notes.

Blakesly points out that the laws against solicitation for prostitution require officers "to see something ... they have to do their job."

Blakesly said "all these loitering statutes are designed to make officers' jobs easier." It is easier for police to make arrests under the loitering for prostitution law because the solicitation for prostitution offense requires officers to have evidence of an offer to provide sex for money, he said.

Sgt. Gil Shannon of Metro Police's vice unit did not return calls seeking comment.

The ruling was hailed by advocates for prostitutes elsewhere.

Norma Jean Almodovar, executive director of COYOTE Los Angeles -- which she called the nation's oldest prostitutes' rights organization -- said the decision "was not just a victory for prostitutes ... but for society as a whole.

"If you look at the circumstances under which people can be arrested, this kind of law affects everybody's constitutional rights."

Sun reporter

Jennifer Knight contributed to this story.