Appeals court judge rules controversial Dallas prostitution ordinance unconstitutional

A Dallas County appeals-court judge has ruled that a controversial Dallas law on prostitution is unconstitutional.

In her ruling Thursday, County Criminal Court of Appeals Judge Kristin Wade said that the city’s prohibition on “manifesting the purpose of engaging in prostitution” — a misdemeanor punishable with a fine of up to $500 — “is seeking a shortcut that trespasses on the constitutional rights of Dallas citizens.”

The offense, spelled out in Section 31-27 of the Dallas City Code, occurs when a person loiters in a public place in a manner that is “manifesting the purpose” of soliciting prostitution. A citation can be issued if, for example, a person is a known prostitute; repeatedly beckons to others or tries to engage them in conversation; or attempts to stop a vehicle by waving, hailing “or any other bodily gesture.”

The ordinance says officers must allow possible offenders to explain their conduct and that no one shall be convicted if they disclose a lawful purpose for their behavior at trial.

The ordinance has been repeatedly criticized for the considerable leeway it gives police officers in determining the purpose of otherwise-innocuous activities.

According to court documents, Iqbal Jivani was cited last August with the Class C misdemeanor after being accused of loitering with the purpose of engaging in prostitution in the 11100 block of Shady Trail, near Interstate 35E and Walnut Hill Lane in northwest Dallas.

“Said actor was in a known prostitution area and stopped to engage passers-by in conversation,” police wrote in a complaint.

Jivani’s attorney, Gary Krupkin, filed a motion to quash the complaint in November, arguing that the charge is in violation of the Fourth Amendment.

“What the city is trying to do is remove criminality from the streets in the form of prostitution,” Krupkin said Saturday. “That’s not the way to do it.”

Municipal Court Judge Jay Robinson found that the offense did not violate the Fourth Amendment, but said the ordinance was unconstitutionally vague and overbroad. The Dallas city attorney’s office appealed, and Wade affirmed Robinson’s ruling.

“An ordinance is overbroad when it punishes constitutionally protected conduct as well as illegal activity,” she wrote.

Wade said lawful behaviors, including talking to passers-by and waving at cars, are targeted under the ordinance and subject to the discretion of law enforcement. A bias toward areas of Dallas that have higher crime rates or a lower-income population could lead to a citation being issued in South Dallas for behavior that is considered lawful in North Dallas, she wrote.

“Everything about this ordinance is highly dependent on the mindset of an arresting officer,” Wade wrote. While it may prohibit soliciting prostitution, “the ordinance also makes it illegal for a woman in high crime area to summon a cab if a police officer is watching.”

Wade also noted that the Texas penal code already penalizes the actual solicitation of prostitution.

The city attorney’s office did not immediately respond to requests for comment Saturday.

Krupkin expects the city to respond by taking the ordinance off the books or rewriting it.

“I thought Judge Robinson had it right from the beginning,” he said. “It’s gratifying to know Judge Wade thinks the same way.”