129 P.3d 682 | Nev. | 2006
In this case, we consider whether Clark County’s prostitution loitering ordinance is unconstitutionally vague or overbroad. Petitioner Lani Lisa Silvar was arrested in Clark County, Nevada, for allegedly violating Clark County Ordinance (CCO) 12.08.030. The Las Vegas Justice Court dismissed the complaint, concluding that the ordinance was unconstitutionally vague and overbroad. The district court reversed and remanded, upholding CCO 12.08.030’s constitutionality. Silvar now petitions this court for a writ of certiorari, challenging the district court’s decision. We grant her petition and conclude that CCO 12.08.030 is both unconstitutionally vague and overbroad.
FACTS AND PROCEDURAL HISTORY
While patrolling in an unmarked vehicle, a Las Vegas Metropolitan Police Department detective observed Silvar standing on the corner of Fremont and Atlantic Streets in Clark County, Nevada. Silvar entered the detective’s vehicle and allegedly asked the detective if he was “dating,” a street term synonymous with seeking prostitution. The detective replied affirmatively. Silvar then became nervous, said to forget it, and attempted to exit the vehicle. The detective identified himself as a vice officer and gave Silvar an opportunity to explain her actions. According to the detective, Silvar admitted she was working as a prostitute and stated that she had recognized the detective from a previous arrest for solicitation, became nervous, and decided against proceeding.
It is unlawful for any person to loiter in or near any public place or thoroughfare in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting for or procuring another to commit an act of prostitution.
Among the circumstances which may be considered in determining whether such purpose is manifested are that such 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. No arrest shall be made for a violation of this section unless the arresting officer first affords such person an opportunity to explain such conduct, and no one shall be convicted of violating this section if it appears at trial that the explanation given was true and disclosed a lawful purpose.
Silvar moved to dismiss the complaint against her, arguing that CCO 12.08.030 was unconstitutionally vague and overbroad and that it violated her right against self-incrimination.
Silvar now petitions for a writ of certiorari, challenging the district court’s decision. Because Clark County’s prostitution loitering ordinance is both unconstitutionally vague and overbroad on its face, we grant Silvar’s petition.
DISCUSSION
We are authorized to review a petition for a writ of certiorari in cases where a district court has considered the constitutionality of a statute or ordinance.
I. Because CCO 12.08.030 is unconstitutionally vague, we grant Silvar’s petition
The void-for-vagueness doctrine is predicated upon a statute’s repugnancy to the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
By requiring notice of prohibited conduct in a statute, the first prong offers citizens the opportunity to conform their own conduct to that law.
A. Because it does not provide adequate notice of prohibited conduct to citizens, CCO 12.08.030 is unconstitutionally vague
An ordinance may be struck under the vagueness doctrine’s first prong if it does not provide adequate notice to the public of the prohibited conduct. Without adequate notice, citizens would be frustrated in their attempts to conform their conduct to the contours of the statute. Because CCO 12.08.030 violates the first prong by failing to provide adequate notice, Silvar argues that the ordinance is unconstitutionally vague. We agree.
Second, the phrase “[ajmong the circumstances which may be considered in determining whether such purpose is manifested” is also unduly open-ended. As the Ohio Court of Appeals noted in Cleveland v. Mathis, “[t]he word ‘among’ indicates there were other circumstances to form the basis of an arrest and conviction.”
Because the ordinance does not provide adequate notice of prohibited conduct, which would enable persons of ordinary intelligence to conform their conduct to the law, CCO 12.08.030 is unconstitutionally vague under the first prong of the vagueness doctrine.
B. Because it does not provide adequate law enforcement guidelines, CCO 12.08.030 is unconstitutionally vague
In many cases, courts have also struck down prostitution loitering ordinances under the vagueness doctrine’s second — and more important — prong, which requires adequate guidelines to prevent arbitrary enforcement. Without these adequate guidelines, the ordinances risk arbitrary and discriminatory enforcement. Because CCO 12.08.030 lacks any guiding circumstances, Silvar argues that the ordinance has an even broader sweep than similar stricken
CCO 12.08.030 is unconstitutionally vague because it violates the second prong in two ways. First, the language of the ordinance does not specify the circumstances for which a person could be arrested for prostitution loitering. Second, although the ordinance provides a right to explain one’s actions, the inadequate guidelines for evaluating these explanations render the right to explain inconsequential, and furthermore an officer could still disregard the explanation. Therefore, CCO 12.08.030 unconstitutionally risks arbitrary and discriminatory enforcement.
1. CCO 12.08.030 does not enumerate circumstances that subject a person to arrest
CCO 12.08.030 does not enumerate circumstances for which a person could be arrested for prostitution loitering. Thus, the enforcing officer has discretion over deciding whether a particular unenumerated circumstance supplies the necessary probable cause for arrest. This standard could shift from officer to officer or circumstance to circumstance because the ordinance lacks definitive guidelines. These inconsistent standards could lead to absurd results. For example, high school cheerleaders advertising a carwash fundraiser from a sidewalk or a corner could be subject to arrest under the ordinance, as could effusive tourists celebrating a public holiday by strolling the streets and waving to cars and other passersby. Indeed, this amount of discretion proved fatal to similar ordinances in three other jurisdictions.
First, for example, in Brown v. Municipality of Anchorage,
Second, in Wyche v. State,
Third, in Coleman v. City of Richmond,
By failing to enumerate circumstances for which a person could be arrested for prostitution loitering, CCO 12.08.030 gives officers too much discretion in enforcing its provisions. Other courts have struck similar loitering ordinances for similar reasons. We have no reason to rule differently in this case. Therefore, we conclude that CCO 12.08.030 unconstitutionally risks arbitrary and discriminatory enforcement.
For two reasons, the right to explain one’s actions provided in CCO 12.08.030 is inconsequential. First, any explanation could not be properly evaluated against the ordinance’s inadequate guidelines.
Second, the enforcing authorities could simply disregard the explanation. Under CCO 12.08.030, only the opportunity to explain is required; once afforded, the person may be arrested regardless of his or her explanation. The enforcing authorities are not required to give the explanation any weight.
Because we determine that CCO 12.08.030 (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct was prohibited and (2) lacks specific standards, thus risking arbitrary and discriminatory enforcement, we conclude that Clark County’s prostitution loitering ordinance is unconstitutionally vague.
II. Because CCO 12.08.030 is unconstitutionally overbroad, we grant Silvar’s petition
In addition to violating the vagueness requirements of the Constitution, CCO 12.08.030 also fails the Constitution’s test for over-breadth. The overbreadth doctrine invalidates laws, such as this ordinance, that infringe upon First Amendment rights. For example, this court held in City of Las Vegas v. District Court that the “overbreadth doctrine provides that a law is void on its face if it ‘sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of’ protective First Amendment rights, such as the right to free expression or association.’ ’
However, the overbreadth doctrine has its limits. The Virginia Court of Appeals in Coleman recognized that “[t]he Supreme Court [cautioned that] the overbreadth doctrine is ‘strong medicine’ and that a statute should not be void unless it is substantially over-broad in relation to the statute’s plainly legitimate sweep.”
In this case, Silvar argues that CCO 12.08.030 is substantially overbroad because it criminalizes conduct — for example, beckoning to or waving at another — that merely indicates prostitution loitering. For two reasons, Silvar’s argument has merit. First, the conduct the ordinance criminalizes is constitutionally protected. Because CCO 12.08.030 chills this conduct, the ordinance is substantially overbroad in relation to its “legitimate sweep.” The ordinance’s provision for an opportunity to explain one’s conduct does not mitigate this chilling effect. Second, the ordinance contains no specific intent element; therefore, it cannot make constitutionally protected conduct criminal. Because the ordinance’s substantial overbreadth is unconstitutional, we grant Silvar’s petition.
A. CCO 12.08.030 chills constitutionally protected conduct
CCO 12.08.030 chills constitutionally protected conduct because it substantially envelops ordinary activities that may only be mere indicators of prostitution loitering. The ordinance suggests that repeatedly beckoning to, stopping, attempting to stop, or engaging passersby in conversation, or repeatedly stopping or attempting to stop operators of motor vehicles by hailing, waving of arms, or any other bodily gesture are circumstances indicative of prostitution loitering. However, these actions, in and of themselves, are constitutionally protected activities that may be performed without any regard to prostitution whatsoever.
Providing the opportunity to explain one’s conduct does nothing to stave off this chilling effect. An arresting officer need not accept the explanation or give it any weight.
B. CCO 12.08.030 lacks a specific intent element
CCO 12.08.030 also lacks a specific intent element. Although other jurisdictions have prostitution loitering ordinances that clearly require specific intent, Clark County’s ordinance does not.
Rather than criminalizing loitering with a specific intent to commit an act of prostitution, CCO 12.08.030 criminalizes loitering “in a manner and under circumstances manifesting the purpose” to engage in prostitution. In Rowland, the Supreme Court of Ohio failed to find a specific intent element in a drug loitering ordinance that used language identical to that in CCO 12.08.030 and further determined that such an element was irreconcilable with the ordinance’s goal:
[S]pecific intent . . . cannot be found in the language of the ordinance. More significant, a specific intent requirement is irreconcilable with the goal of the ordinance, which is to permit arrest and conviction when an individual is acting under “circumstances manifesting the purpose” to commit a drug crime. [But ajcting under “circumstances manifesting” a purpose to do something is a far cry from specifically intending to do something. For example, a carpenter carrying a tool belt and ladder down a dark street late at night may well be manifesting the purpose to burglarize a home. This evidence, however, certainly does not show that he or she specifically intends to commit burglary.34
Similarly, under CCO 12.08.030, high school cheerleaders flagging down cars for a carwash fundraiser or celebratory tourists reveling with passersby during a public holiday may also be “manifesting the purpose of” inducing, enticing, soliciting for or
In contrast to CCO 12.08.030, most of the prostitution loitering ordinances that have been upheld clearly require a specific intent element. Those ordinances criminalized loitering “with the intent to commit prostitution”;
Because CCO 12.08.030 chills constitutionally protected conduct and lacks a specific intent element, the prostitution loitering ordinance is unconstitutionally overbroad.
CONCLUSION
For the reasons discussed above, we conclude that Clark County’s prostitution loitering ordinance, CCO 12.08.030, is both unconstitutionally vague and overbroad and therefore void.
Silvar did not raise this last issue in her petition to this court.
NRS 34.020(3); City of Reno v. District Court, 83 Nev. 201, 202, 427 P.2d 4, 5 (1967).
Sheriff v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486 (2002).
Id.
Id.
Id.
Id. at 857, 59 P.3d at 486-87; State of Nevada v. Father Richard, 108 Nev. 626, 629, 836 P.2d 622, 624 (1992); see also City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (plurality opinion); Kolender v. Lawson, 461 U.S. 352, 357 (1983); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972).
City of Las Vegas v. Dist. Ct., 118 Nev. 859, 864, 59 P.3d 477, 481 (2002).
Kolender, 461 U.S. at 358 (internal quotation marks omitted).
Cf. Akron v. Rowland, 618 N.E.2d 138, 146 (Ohio 1993) (holding drug loitering ordinance to be either unconstitutionally vague or overbroad).
Id.
Id.
735 N.E.2d 949, 952 (Ohio Ct. App. 1999) (striking down prostitution loitering statute as unconstitutionally vague and overbroad).
Id.
584 P.2d 35 (Alaska 1978).
Id. at 37.
Id.
619 So. 2d 231 (Fla. 1993).
Id. at 237.
Id.; see also Johnson v. Carson, 569 F. Supp. 974, 980 (M.D. Fla. 1983) (“Would a political candidate, a motorist in distress, or a member of a religious group realize that repeatedly waving to cars passing by could subject him or her to arrest?”).
Wyche, 619 So. 2d at 237.
364 S.E.2d 239 (Va. Ct. App. 1988).
Id. at 244.
Id.
See, e.g., Johnson, 569 F. Supp. at 980. But see City of Seattle v. Jones, 475 P.2d 790, 796 (Wash. Ct. App. 1970) (“[T]he opportunity to explain afforded by the ordinance is a safeguard designed to discourage wholesale preventive arrests — a practice which is repugnant to the constitutional guarantees of individual freedom.”), aff’d, 488 P.2d 750 (Wash. 1971).
Brown, 584 P.2d at 38; Coleman, 364 S.E.2d at 244.
118 Nev. at 863 n.14, 59 P.3d at 480 n.14 (quoting Thornhill v. Alabama, 310 U.S. 88, 97 (1940)).
619 So. 2d at 234 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963)).
364 S.E.2d at 243 (internal quotation marks omitted).
Cf. Wyche, 619 So. 2d at 235.
See id.
Johnson, 569 F. Supp. at 978-79.
Coleman, 364 S.E.2d at 243.
Rowland, 618 N.E.2d at 144.
Cal. Penal Code § 653.22, upheld in People v. Pulliam, 73 Cal. Rptr. 2d 371, 376 (Ct. App. 1998).
Cleveland Codified Ordinances § 619.11, upheld in City of Cleveland v. Howard, 532 N.E.2d 1325, 1326 (Ohio Mun. Ct. 1987).
Seattle Mun. Code 12A. 10.010(B), upheld in City of Seattle v. Slack, 784 P.2d 494, 496 (Wash. 1989).
City of Milwaukee v. Wilson, 291 N.W.2d 452, 457 (Wis. 1980) (quoting Milwaukee Mun. Code § 106.31(l)(g)) (emphasis added).
We note that prostitution and soliciting are still unlawful under CCO 12.08.015 and 12.08.020, respectively. We further note that a prostitution loitering statute that adequately satisfies constitutional vagueness and overbreadth concerns is N.Y. Penal Law § 240.37(2) (McKinney 2000).