YOUNGSTOWN Judge weighs law on loitering

The ordinance allows police to consider if the suspect is a prostitute and interpret her actions.
By JoANNE VIVIANO
VINDICATOR STAFF WRITER
YOUNGSTOWN -- A local judge will decide if police officers have too much discretion when applying the city's loitering law.
Judge Elizabeth A. Kobly of municipal court questioned a city prosecutor and a defense attorney Wednesday about the law in an attempt to determine if it violates constitutional rights.
"The whole bottom line is people need to know what conduct is criminal ... so they can conform their conduct to the law," Kobly said. "If the ordinance encourages unfettered discretion by the officer, then the ordinance has got to go."
Kobly was handed the task of making that determination after Atty. James J. Connelly of Northeast Ohio Legal Services asked her to dismiss a loitering charge against his client Diane M. Fisher, who is accused of loitering for prostitution on the South Side.
Connelly requested the dismissal based on a contention that the law is unconstitutional because it is vague and overbroad.
What ordinance does: The law prohibits loitering for prostitution in a public place and says an officer may consider if the alleged loiterer is a known prostitute, engages a passer-by in conversation, or stops or attempts to stop motor vehicles by hailing or waving.
Judge Kobly pointed out that the criteria listed in the ordinance are not illegal activities on their own but might be considered criminal only if an officer considers a suspect a known prostitute.
That could mean the law leads to discriminatory enforcement in which officers single out certain individuals, she said.
Ben Joltin, assistant city prosecutor, argued that the wording of the statute prevents an officer from being discriminatory. Joltin said the officer may consider certain criteria but can also consider other factors.
"Individuals' rights are not being violated," Joltin said. "An officer looks to a totality of circumstances, not to one."
Joltin said that the ordinance also makes it clear that there must be intent to engage in prostitution before an arrest can be made.
Fisher, 35, of West Chalmers Avenue, was arrested in August and charged with loitering for prostitution after Officer Dan Mikus saw her and another woman waving down cars near Oakhill and Cleveland avenues.
Fisher told the officer she had gone to the store to buy cigarettes, but the store was closed. Mikus noted that the store was open and Fisher carried no money.
The officer refers to Fisher as a "known hooker" in his report. She has three convictions for loitering for prostitution, but none for soliciting or prostitution.
Defense argument: Connelly said the law makes it illegal to beckon a car to ask for change or a cigarette. He also questioned the ordinance's definition of "public place," which is defined as an area where sexual offenses are known to have been committed.
Further, he said, an accused loiterer must give up her right to remain silent because the ordinance requires an officer to demand that the accused explain her conduct.
Connelly offered a handful of cases in which higher courts have ruled unconstitutional what he considers similar laws.
Judge Kobly ignored some of the rulings because they relate to loitering for drug activity, not prostitution, but Connelly maintains that they deal with similar issues.
Concluding the hearing, Judge Kobly told the lawyers she wants to compare the city ordinance to state loitering law and review other high court rulings before rendering a decision.