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Using Penal Code 653.22(a), loitering for the purposes of prostitution, is more ambiguous. According to Elizabeth Joh, a professor at the UC Davis School of Law who specializes in criminal law and procedure, this statute has been upheld by a 1998 Court of Appeal judgment. But, she writes in an e-mail, "I wouldn't be surprised if this is used too often. ... It's a very flexible tool that appears to confer a great deal of discretion upon the police."
Criminal law experts note that, historically, loitering statutes have often been abused, particularly by police forces in the segregated South. Robert Weisberg, a professor at Stanford Law School, says the statute's use for prostitution arrests reminds him of an infamous case from 1950s Alabama in which a black man was arrested for an "attempted attempt" to rape a white woman.
Picking up men in prostitution stings means arresting people just for possibly planning to commit a crime, not for actually committing one, he says. Under the loitering statute, he says, the link between the arrest and the actual committing of a crime grows even more tenuous.
Peter Arenella, a UCLA School of Law criminal expert who was a legal analyst during the O.J. Simpson trial, says he thinks San Francisco police are abusing the statute. The point of the law, he says, is to target criminal intent. So, if a man trolling for prostitutes asks a decoy for her phone number and then calls her within minutes of their interaction, that's enough to justify an arrest. But if he asks for her number to use at "some unspecified future time," that's not good enough, "constitutionally speaking," Arenella says. "If all they have is an intent to possibly solicit sex sometime in the future, that's not enough for a conviction under the statute. They're wrong."
It's not just law professors who say San Francisco's loitering arrests are out of the ordinary, but fellow police officers in California. Public information officers and members of the vice divisions in Oakland, San Jose, Riverside, and Anaheim all say they would not arrest johns in their prostitution stings simply for talking to decoy officers and indicating a possible future interest in sex for money.
"We want the people who are serious about doing this," Detective Michael Cobb of the Riverside Police Department says. Cobb says that his department will actually let men drive away, even after they have already negotiated a sex act, if the men show any signs of hesitancy about actually going through with the deal.
Since they're looking for proof of "absolute intent, we figure it's a stronger case if we give them the opportunity to leave."
Anaheim doesn't use the loitering statute against potential johns at all. In Los Angeles, San Jose, and Riverside, it's used rarely — about 95 percent of their arrests in stings targeting johns are solicitation arrests, and 5 percent or less are loitering arrests. "You've got to be fair about this," says Officer Jim Saleda of the Oakland Police Department. "You don't want a law like this — which is a great tool — to be pulled because people abuse it."
Ravella argues that the way San Francisco police use the law poses no risk of arresting men who aren't serious about picking up a prostitute. There's no reason "a normal, average person" would continue talking to a woman once he realizes she's selling sex. "Once he hears that, [a guy will say] 'Oh, I'm not interested in that,' and he's going to move on," he says.
If a crime is committed in a decoy's presence, she has no choice whether to make an arrest: "You don't let a guy go just because he said he was joking."
Most guys claim after the fact that they weren't serious, Dickson says, even when they're on tape agreeing to a specific sex act for money.
From Ravella's perspective, other police departments are taking a chance with their less aggressive use of the loitering statute. What happens, he asks, if the Riverside police let a man go, and then see him again another night? They've failed to document him as a repeat offender.
Police officers outside San Francisco are quick to emphasize that each city's approach is different. What is important, several say, is that they coordinate with the local district attorney, so that the cases from their decoy operations will be strong ones.
But Barge says that his office will almost never file a stand-alone loitering case. They know from experience that San Francisco juries will not convict on a single loitering charge. The hundred-odd men arrested each year for loitering, of course, have no way of knowing that their citations will probably not turn into criminal cases.
The high percentage of Latino men arrested in prostitution stings is not news to the District Attorney's office. After a few years of comparatively low enrollment in the John School, the DA's office appointed Jackie Martinez, who speaks Spanish, to talk to arrested men about their chance to opt into an education program. Enrollment in the school immediately jumped. She estimates that 60 percent of the men arrested are Spanish speakers.