City of Seattle v. Slack

• Decision Date: 28 December 1989
• Docket Number: No. 56372-1,56372-1
• Citation: 784 P.2d 494,113 Wn.2d 850
• Parties: CITY OF SEATTLE, Respondent, v. Leonard SLACK, Petitioner.
• Court: Washington Supreme Court

Page 850

113 Wn.2d 850

784 P.2d 494

CITY OF SEATTLE, Respondent, v. Leonard SLACK, Petitioner.

No. 56372-1.

Supreme Court of Washington En Banc.

Dec. 28, 1989.

Seattle-King County Public Defender Ass'n, Robert Adelman, Seattle, for petitioner

Douglas N. Jewett, Seattle City Atty., Charlotte E. Clark-Mahoney, Asst., Seattle, for respondent.

Nancy L. Talner, Seattle, amicus curiae for petitioner on behalf of American Civil Liberties Union.

DOLLIVER, Justice.

On June 26, 1986, at approximately 5 a.m., defendant Leonard Slack was arrested and charged with prostitution loitering under Seattle Municipal Code (SMC) 12A.10.010(B). According to the police report, two officers were called to the corner of Pike and Boren Streets in Seattle, an area well known for prostitution activity, by another officer who suspected several known prostitutes were working the area. When the officers arrived, they observed what they thought were two black females standing on the corner. Shortly thereafter, one officer recognized Slack's face from a photo he had seen on the bulletin board at the precinct which had referred to Slack as a known male prostitute. At the time of his arrest, Slack was dressed in a turquoise blouse, jean shorts, and women's shoes. Slack's companion was recognized as Judy O'Neil, also a known prostitute.

The officers observed the following for approximately 15 minutes before arresting both Slack and O'Neil. At 4:45 a.m., Slack and O'Neil walked to the edge of the curb where Approximately 7 minutes later, O'Neil began walking away from Slack. She was observed having a conversation with a motorist who stopped on the side of the road where she was standing. At this point, the police officers approached Slack and arrested him. They arrested O'Neil shortly thereafter. Slack told the officers he was waiting to be picked up by some friends. On the way to the station, Slack changed his story and told the officers he had driven to the intersection to pick up some friends. Slack also inquired as to how many "contacts" the officers had on him. No argument is presented here that Slack did not make these statements voluntarily.

                a car occupied by a lone male was stopped at a red light.  Slack "bent over from the waist up leaning slightly to his right and looked at the driver."   O'Neil "made a swinging motion with her hips and looked at the driver."   Shortly thereafter, the car drove away.  Approximately 2 minutes later, two cars approached and stopped at the red light.  One of the cars, a pickup truck, had only one occupant.  Slack and O'Neil walked to the edge of the curb [784 P.2d 496] and Slack "leaned over the hood of the pickup and looked through the windshield at the driver".  O'Neil "swung her hips once and slowly walked alongside the pickup and compact car."   When the light changed, the two cars drove off.  Approximately 3 minutes later, another car stopped at the light.  This time Slack and O'Neil crossed the street and stood in front of the car.  Slack "bent over looking at the driver through the windshield."   O'Neil "held out her hands in a pleading motion".  After O'Neil had a short conversation with the driver, the car drove off.  Three minutes later, Slack and O'Neil began watching an approaching vehicle from approximately one block away.  As the vehicle drove by, Slack "stood at the edge of the curb[, ...] bent over and looked at the driver".  O'Neil made a "waving motion" at the driver
                

Slack submitted on the police record alone and was found guilty in the Seattle Municipal Court of prostitution loitering. He appealed his conviction to the King County Is the Seattle prostitution loitering ordinance, SMC 12A.10.010, unconstitutional under the Washington and federal constitutions?

Superior Court, alleging the ordinance was unconstitutionally overbroad and that it violated the state and federal equal protection clauses. The Superior Court affirmed Slack's conviction. Slack sought review before the Court of Appeals. In accordance with RCW 2.06.030, it certified the following question to this court:

We answer this question in the negative and affirm Slack's conviction.

The challenged portion of Seattle Municipal Code 12A.10.010 reads as follows:

B. A person is guilty of prostitution loitering if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to commit prostitution.

C. Among the circumstances which may be considered in determining whether the actor intends such prohibited conduct are that he or she:

1. Repeatedly beckons to, stops or attempts to stop, or engages passersby in conversation; or

2. Repeatedly stops or attempts to stop motor vehicle operators by hailing, waiving of arms or any other bodily gesture; or

3. Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to stop pedestrians; or

4. Is a known prostitute or procurer ...

Slack first challenges SMC 12A.10.010 as unconstitutionally overbroad under Const. art. 1, § 5 and U.S. Const. amend. 1. He claims the ordinance has a substantial chilling effect on free speech and association rights, particularly those rights relative to persons who are "known prostitutes".

A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. Seattle v. Huff, 111 Wash.2d 923, 925, 767 P.2d 572 (1989); Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Criminal statutes require particular scrutiny and may be facially invalid if they " 'make unlawful a substantial amount of constitutionally protected conduct ... even if they also have legitimate application.' " Huff, 111 Wash.2d 923, at 925, 767 P.2d 572 There is no question but that loitering in a public place is constitutionally protected activity. Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). It is also unquestionable that status alone, such as being a "known prostitute", cannot by itself be criminal. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). However, SMC 12A.10.010 does not purport to make criminal a person's status, nor does it prohibit constitutionally protected conduct or speech. Instead, the ordinance prohibits an individual, including a "known prostitute", from loitering in a public place while possessing the criminal intent to solicit, induce, entice, or procure another to commit prostitution. SMC 12A.10.010(B). An element of specific criminal intent must exist before an individual can be arrested under the ordinance. This element of specific criminal intent saves SMC 12A.10.010 from being unconstitutionally overbroad.

(quoting Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987)).

This is not to say a police officer might not arrest an individual for prostitution loitering when in fact the individual does not possess the required mens rea. However, this would be an improper application of the law. The fact that a law may be improperly applied or even abused does not render it constitutionally invalid. Milwaukee v. Wilson, 96 Wis.2d 11, 21, 291 N.W.2d 452, 458 (1980) (holding a prostitution loitering ordinance similar to Seattle's was not unconstitutionally overbroad).

Other jurisdictions are not in agreement as to whether ordinances similar to Seattle's are unconstitutional. One court has, however, stated that prostitution ordinances which include an element of criminal intent have been overwhelmingly upheld by a majority of the states. State v. Evans, 73 N.C.App. 214, 218, 326 S.E.2d 303, 307 (1985); see also People v. Superior Court, 46 Cal.3d 381, 250 Cal.Rptr. 515, 524, 758 P.2d 1046, 1055 (1988) (citing cases which have found prostitution loitering ordinances similar to Slack compares SMC 12A.10.010 to vagrancy laws which have historically been struck down as overbroad because they cast too large a net in which a substantial amount of protected speech and conduct is caught. We agree laws prohibiting loitering in general suffer constitutional defects because they have an unwarranted chilling effect on a person's freedom of movement and speech. See Papachristou v. Jacksonville, supra 405 U.S. at 164-65, 92 S.Ct. at 844-45. However, it is analytically incorrect to compare general vagrancy laws with prostitution loitering ordinances such as the Seattle ordinance which includes an element of specific intent, thereby shielding it from being overbroad.

Seattle's constitutional as well as cases which have held similar ordinances unconstitutional).

We find Seattle's prostitution loitering ordinance, which requires some showing of specific intent to solicit, induce, entice, or procure another to commit an act of prostitution, is not unconstitutionally overbroad.

Nor do we find SMC 12A.10.010 overbroad under Washington's constitution even though Const. art. 1, § 5 has already been interpreted as providing greater protection for speech than its federal counterpart. Bering v. Share, 106 Wash.2d 212, 234, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987). SMC 12A.10.010 prohibits only conduct which is not constitutionally protected, namely, loitering with the intent to solicit for prostitution. Speech directed towards procuring another to commit an act of prostitution does not enjoy constitutional protection. State v. Carter, 89 Wash.2d 236, 241, 570 P.2d 1218 (1977).

Defendant Slack also challenges SMC 12A.10.010 as unconstitutionally vague. We have previously upheld Seattle's former prostitution loitering ordinance against a vagueness attack. Seattle v. Jones, 79 Wash.2d 626, 488 P.2d 750 (1971). The defendant in Jones was arrested twice for prostitution loitering. Jones, at 627, 488 P.2d 750. On both occasions the arresting officer was aware the defendant had been convicted of prostitution-related crimes. Jones, at 627, 488 P.2d 750. The defendant challenged the constitutionality of the ordinance The...