The conflict was sparked by a case involving a man named Iqbal Jivani, who was cited under the ordinance in August 2022. The ordinance makes it a Class C misdemeanor for a convicted prostitute to loiter on a street corner. It also makes it illegal to repeatedly beckon to others or try to engage them in conversation on the street, or to attempt to stop a vehicle by waving, hailing or using any other bodily gesture. Jivani claims he was merely trying to give some women money for food when he was stopped by police and cited for “manifesting the purpose of engaging in prostitution.”
Jivani and his lawyer Gary Krupkin contested the arrest, claiming the ordinance was unconstitutionally vague and overbroad. They claimed it could lead to people facing arrest for constitutionally protected behavior, such as waving at someone on the street or hailing a ride. A trial court judge agreed and quashed the case. The state appealed but an appeals court judge affirmed the lower court's decision to toss the case, ruling that the ordinance was unconstitutional.
The court ruling led the Dallas Police Department to stop enforcement of the ordinance, and the City Council to issue changes.
The ordinance has stayed the same, more or less, with only a few revisions. The changes adopted by the City Council last week include definitions of various terms, such as “known prostitute or panderer” and “a location frequented by persons who engage in prostitution or solicitation of prostitution.”
Under the revised ordinance, a person commits an offense if they manifest the purpose and intent of inducing, enticing, soliciting or procuring another to commit an act of prostitution. If you’re a known prostitute or panderer or in a location frequented by people who engage in prostitution or the solicitation of prostitution, as determined by the police department, you open yourself up to being cited. From there, you can be cited if you repeatedly beckon to others, stop or attempt to stop or engage passersby in conversation. You can also be cited if you repeatedly stop or attempt to stop a vehicle by hailing, waving your arms or by any other bodily gesture. A new addition to the ordinance says you can also be cited if you repeatedly interfere with the free passage of other people.
Officers must give people a chance to explain their actions before they cite them. If a person can truthfully explain their actions and those actions are lawful, they shouldn’t receive a citation. Violation is still punishable by a fine of up to $500.
The city said in an emailed statement it’s still reviewing the court's ruling and considering enforcement options for DPD. Kristin Lowman, a spokesperson for the department, said that the department will first educate officers about the amended ordinance and use it in ongoing efforts to address prostitution-related offenses.The way they’re trying to get this ordinance through just continues to violate the First Amendment. It’s that simple.” – Gary Krupkin, attorney
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If you ask Krupkin though, the ordinance still doesn’t pass constitutional muster, even after the changes.
“I think less of the new ordinance than I did of the old ordinance,” the attorney said. “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.”
Krupkin thinks the ordinance still criminalizes everyday activity in certain parts of town. “We talk to people on the street every day. We wave to people on the street,” he said. “Essentially, what they’re doing is criminalizing that otherwise innocent activity and they’re saying ‘Well, that innocent activity is fine if you’re in a place like University Park or somewhere else, but it’s not OK if you’re down there on Walnut Hill near I-35 because that’s a known prostitution area.’”
Even if the activity takes pace in an area known for prostitution, Krupkin believes it is constitutionally protected. He also thinks the new ordinance affords the police too much discretion in determining what are known prostitution areas and in determining whether someone is a known prostitute.
“How do you test if it’s in the knowledge of the arresting officer until you get to court?” Krupkin said. “Well, you know, by that time you’ve been arrested, your name has been posted, it’s all over social media. How is that furthering the interest of the First Amendment? It’s not. So, you’re putting a lot of discretion within the knowledge of the arresting officer who may not know a damn thing about the person or anything else.”
Travis Fife, a staff attorney for the Texas Civil Rights Project, said the ordinance is just another attempt by the city to use criminal law as a sword to go after people who need help, not criminalization. “Over and above the constitutional merits, I think it’s just a morally bankrupt ordinance, to go after a class of people that are already so marginalized,” Fife said. He said it reminds him of the city’s efforts to prohibit people from standing on narrow medians, which appeared to be aimed at panhandlers. “You take a problem of really serious social importance with a marginalized group really needing help and just using police and criminal enforcement to only force them to the margins more,” he said.
On the constitutional merits of the ordinance, Fife said Jivani’s case shows how it can be used to criminalize a broad array of everyday behavior and activity. “We are incredibly skeptical and worried of the discretion that the amended ordinance still leaves with officers and the impact it will have for discriminatory enforcement, for the criminalization of everyday activity,” he said. “Targeted, geographically specific criminal ordinances are just really, really dangerous because in our experience this is what leads to discriminatory police stops, discriminatory arrests and all the collateral consequences that come with criminal system involvement even for people who may not ultimately be convicted.”
He added, “I think it’s a really really dangerous path to give officers this type of carte blanche to basically push people out of public spaces and [from] engaging with their communities.”
