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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.
It wasn't always that way: In 2000, only a tiny fraction of the men arrested were Spanish speakers, according to Martinez' analysis of the arrest records. But, in recent years, the proportion of Latino men arrested has grown to become the majority of the arrests.
This has been a longstanding source of concern at the public defender's office. But Adachi says his office was not aware that many Latino men were arrested for loitering as well. "The court and the District Attorney should be concerned about a disproportionate number of Latino men being arrested for a charge where the evidence is also questionable," he says. He says the high percentage of Latinos raises "grave concerns," especially because the men who are arrested are given the option to attend the John School — and pay a fine of up to $1,000 — before their cases are examined to see whether the charges are provable.
Erica Terry Derryck, a spokeswoman for the District Attorney's office, says that the point of the program is to give men the chance to avoid the criminal court system altogether.
Because of a lack of comprehensive records, it's hard to find out what happens to men picked up for loitering. According to statistics from the District Attorney's office, most don't end up at the John School, even though most are eligible. Only 34 of the men arrested for loitering chose to attend the school in 2009, about a third of the total arrests, and the proportion was even lower in 2008.
Barge says the District Attorney sets aside some loitering cases, hoping that the same men will get cited again — which, he says, does happen occasionally. But most loitering cases are transferred to community court, where the men have a chance to tell their side of the story to a panel of community members who serve as judges.
Paula Bullock, a coordinator for the city's community courts, says that a small number of these men convince the community panel that they're not guilty; the majority pay a fine of up to $500 or agree to community service.
Of course, for many men, even being accused of solicitation is deeply shameful. Law professors say that whether or not the men are ultimately convicted doesn't matter. "The punishment is the arrest," Arenella says.
Because of the large numbers of Latino men arrested in prostitution stings, it might be possible to challenge the legality of the arrests in court, Adachi says. But that would require demonstrating discriminatory intent on the part of the police.