Prostitute ordinance is called too vague, arbitrary

Monday, Oct. 17, 2005 | 7:18 a.m.

CARSON CITY -- The Nevada Supreme Court on Wednesday will hear arguments about whether a Clark County anti-prostitution ordinance is unconstitutional.

A justice of the peace declared the ordinance unconstitutional last year, but a district judge disagreed.

Lawyers for Lani L. Silvar, a woman arrested and charged with "loitering for the purpose of prostitution," argue that the county's ordinance is too vague and "places arbitrary restrictions on personal liberties." The Clark County District Attorney's Office says the ordinance is clearly understood and does not encourage arbitrary arrests.

The ordinance makes it a misdemeanor to induce, solicit, entice or procure another person to commit an act of prostitution.

It says that someone can be considered to be doing this if he or she "repeatedly beckons to, stop, attempts to stop or engaged persons passing by in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waiving of arms or other bodily gestures."

That's one of the main reasons it is being challenged. Susan D. Burke, a deputy public defender representing Lani Silvar, wrote in her filing with the state's high court that the county ordinance impinges upon the "right to move about, or even to wander aimlessly" which falls under the First Amendment and that the ordinance also violates the Constitutional right of free association.

The ordinance "does not provide sufficient guidelines as to what behavior is prohibited as criminal in nature," Burke wrote. And it encourages "arbitrary and discriminatory enforcement on that officers discretion to stop and arrest a citizens is essentially unfettered," Burke wrote.

James Tufteland, chief deputy district attorney for Clark County, counters that "the ordinary person understands from the language of the ordinance what is prohibited." An ordinary citizen understands the meaning of "loitering," Tufteland writes.

The words "inducing, enticing, soliciting, procuring and prostitution" are unambiguous, he adds. After hearing Silvar's case, Justice of the Peace Nancy C. Oesterle had ruled in February 2004 that the ordinance was unclear about what was illegal and gave police too much leeway in enforcing the law. But District Judge John McGroarty subsequently ruled the ordinance met constitutional muster. The case has been held in abeyance to allow the Supreme Court to rule.

Silvar had been near Fremont and Atlantic Streets on Aug. 28, 2003, when Metro Detective J. Signorello drove by. According to the officer, he tried to make eye contact with Silvar, and then drove into the parking lot at Denny's.

Silvar allegedly got into the car and said, "Hey honey, you dating?" Police say dating is a street term for soliciting prostitution. The detective allegedly said he was not dating.

According to Signorello, Silvar became nervous and said she was not dating either, then tried to get out of the car. Signorello identified himself as a detective and Silvar allegedly admitted to him that she had been offering him sex for money. She was arrested, and police then found that that there was a warrant outstanding from Henderson for Silvar's arrest on a prostitution charge as well.

Tufteland said Silvar standing on the street did not create probable cause for an arrest. "But when she entered the police car and asked if he 'dates,' the officer had probable cause," Tufteland said. Burke said the ordinance does not provide sufficient guidance as to what is prohibited.

She said it could be used to arrest people who have done absolutely nothing illegal. As an example, she said a female visitor to Las Vegas "who happens to have the bad taste to dress in flashy, cheap and somewhat revealing clothing" might be on the Las Vegas Strip trying to find her friends. Thinking she sees her friends, she "beckons," but is mistaken.

She could be arrested for trying to flag down a car for a ride if she is picked up by an undercover officer, event though she "would have no reason to believe her conduct is criminal," Burke said.

Tufteland said in this case the tourist should not be arrested and would not be convicted because she would have a chance to tell her story to the undercover agent and to the court.

A law enforcement officer must first afford a person a chance to explain his or her behavior before any arrest can be made, Tufteland said.

The Nevada Supreme Court panel consisting of Justices Michael Douglas, Bob Rose and Ron Parraguirre is expected to take the case under study after oral arguments.