“The Ordinance, by potentially applying to such conduct as talking and waving to other people, clearly implicates protected freedoms,” Judge Jay Robinson said in a May 21 ruling. A spokesperson for DPD confirmed officers would not be enforcing the ordinance to the Dallas Morning News.
Speculation regarding the law’s fairness came to a head in 2022, when Iqbal Jivani was cited with a Class C misdemeanor in Northwest Dallas for “manifesting the purpose of engaging in prostitution” after officers witnessed him handing money to women in a well-known prostitution corridor on Shady Trail. Jivani said he was handing out money so the women could buy food.
Jivani’s lawyer, Gary Krupkin, successfully challenged the law, arguing it violated Jivani’s constitutional rights. In 2022, Judge Robinson agreed that the law's implicative nature was unconstitutional. The state challenged the decision, but a higher court upheld it, and DPD stopped enforcing the ordinance for the first time.
Dallas City Council elected to revise the ordinance after Jivani’s case, and in 2023, added new stipulations, including geographical qualifications for well-known prostitution areas and higher risk for known prostitutes. The ordinance continued to allow for the citation of actions like waving your arms or beckoning cars.
“I think less of the new ordinance than I did of the old ordinance,” Krupkin said to the Observer in October of 2023. “No matter how you try to slice this side of beef, they’re cutting across the grain. The way they’re trying to get this ordinance through just continues to violate the First Amendment. It’s that simple.”
Now, two years later, Robinson has stepped back in to strike down the controversial ordinance for the same reason – it’s too vague and encompasses too many mundane activities as indicative of soliciting sex work.
“Hailing a cab or waving to a friend or passer-by or chatting with a friend or even a stranger on a public street are time-honored pastimes in our State and in our Country, and are clearly protected under both federal law and the Texas Constitution,” Robinson wrote in his ruling.
Lawyers Offer Their Input
Certain corners of Dallas are infamous for their streets of ill repute, which have been largely uncontrolled for decades, despite the city's attempts to crack down on illegal sex work and trafficking.“In trying to solve [the] problem, [the city] created another problem,” said David Coale, an appellate lawyer working in the city. “When you get past all the fancy stuff at the top of the statute, you can't wave your arms in public, and that's a no-go. That's a regulation of expressive conduct. Period, end of sentence.”
Coale says that while waving your arms in the air isn’t the protected jargon we tend to associate with the firm protections provided by the freedom of speech, it’s still a fundamental right.
“It's not core First Amendment protection, but it's protected, and so you have to have some level of certainty," he said. "When you have a law that affects expressive conduct, which is what this is talking about, you're entitled to know what the heck you can do.”
To put it plainly, the law is too broad, and in attempting to curtail one already illegal activity, the city has made too many mundane activities a citable offense, says Coale.
“We already have laws that say you can't go hire prostitutes,” he said. “We have laws that regulate prostitution... So what additional thing is being criminalized by this that isn't already criminalized? It appears to be intentionally making certain gestures in public, and they've called that manifesting the purpose of intent. But that's just a bunch of gobbledygook.”
Another issue with the ordinance, as written, said Chad Ruback, another appellate lawyer working in Dallas, is that the law gives far too much power to the police.
"I agree with the judge, that it seems that this ordinance as written, would allow the police so much discretion to harass and arrest individuals based on the color of their skin, based on how they were dressed, based on past interactions that the police officer might have with the individual, [or] maybe personal dislike for a specific individual," said Ruback.
The two lawyers both point out that enforcing the law would rely on the implication of a crime, and not the actual presence of a crime, and creates far too low a burden of proof.
"I understand what the Dallas City Council is attempting to do," said Ruback. "I think they have a noble purpose. I think they mean well. I don't think there's bad intentions here on the part of the Dallas City Council, but I still think we've got a serious constitutional violation."
Besides, even if you are a “known prostitute,” as defined by the city, waving your hands in the air and flagging down cars is still protected by the freedom of speech.
“If you're a known prostitute, you're entitled to wave your arms,” said Coale. “There's nothing wrong with that inherently."
Coale understands the city’s intention to cut down prostitution, recognizing its long reputation for rampant sex work, but says revising the existing ordinance was a poor attempt at solving the problem. If anything, he says, the city would make better progress tacking onto the existing nuisance statute.
“No one questions the city's authority to regulate nuisances,” he said. “If you approached it that way, you might have a better shot at it. The problem here is that this is not a nuisance law; it's not a prostitution law. It's kind of this weird hybrid of them. As a result, it's vague just because it has to be. The underlying subject matter is kind of vague. Go have a prostitution law or go have a nuisance law, but being in the middle is awkward.”
