United States v. Wilson

KERN, Associate Judge:

The government appeals from the trial court’s dismissal with prejudice of infor-mations charging appellees with solicitation for prostitution in violation of D.C.Code 1973, § 22-2701.1 Appellees had moved to dismiss the informations on the ground that the statute is discriminatorily enforced against women.

The court, after hearing testimony on the motions, concluded that Section 22-*292701 “is enforced exclusively against females”, that “it is neither the policy nor the practice of [the Metropolitan Police Department] to make any effort to arrest male persons who are on the streets looking for females with whom they can engage in sexual acts at a price” and that “it is the explicit policy and practice of the Department not to enforce that statute against males who would invite females to engage in sex for a price”. Accordingly, the court opined that “[s]o long as the . . . Department persists in its policy of enforcing Section 22-2701 solely against females, this court must dismiss the prosecutions resulting.”

The sole evidence before the trial court concerning the policy and practice of the Department in enforcing Section 22-2701 consisted of the testimony of the Commanding Officer of the Prostitution, Perversion and Obscenities Branch of the Morals Division of the Police Department. He testified in essence that:

In order to arrest for violation of Section 22-2701, a police officer must overhear the solicitation for prostitution;

In his opinion an offer by a male to pay a female money to engage in a sexual act with him would constitute the offense of solicitation for prostitution;

One of the functions of police officers assigned to his Branch is to be solicited by a prostitute, and his officers are instructed under no circumstances themselves to solicit but rather to wait until they have been solicited by the prostitute, a sexual act is described by her and a price agreed on before they can arrest her;

The modus operandi of his officers is to walk in the area where prostitutes are believed to be as if they were prospective customers, “the prostitute will normally, as he’s [the officer] walking by, say, ‘hi are you sporting’, and the conversation will go from there”;

The Department on occasion has placed female police officers on the street to pose as prostitutes and, thereafter, males looking for prostitutes were arrested on the charge of soliciting for prostitution; but, the cases “were all dismissed because [of] the entrapment aspect. And we have never had a conviction of a male subject for soliciting a policewoman that I know of”, because “the girl usually does the approaching apd if the policewoman says hi, are you sporting, that’s entrapment”;2 and,

In answer to a question from the trial court as to why women undercover officers posing as prostitutes in order to arrest men seeking to buy the favors of a prostitute could not adopt the same approach taken by undercover male officers making a case against prostitutes, the Lieutenant explained, “That seems to be the problem that it doesn’t just work that way on the street . . . the approach is always made by the girl . . . the john [male customer] feels that the woman should be telling him what he’s going to get . .” The male undercover officer is “able to get around . . . for the simple reason the girl is willing to tell what the act is the man is willing to obtain”.

As a starting point for our analysis we will assume that the Constitution 3 pro*30hibits discriminatory enforcement of criminal laws, and that impermissibly discriminatory conduct by the police bars prosecution under even valid laws.4 At the same time, we must recognize when dealing with law enforcement that prosecutorial discretion “is by its very nature exceedingly broad”. United States v. Bell, 506 F.2d 207, 222 (D.C.Cir. 1974). “The conscious exercise of some selectivity in enforcement is not itself a federal constitutional violation.” Denial of equal protection of the laws can be found only where “selection [is] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962).

One claiming the defense of discriminatory enforcement of the laws bears a heavy burden of proving the actual existence of intentional and purposeful discrimination against him as an individual or the class of which he is a member. United States v. Cozart, supra, at 344; Washington v. United States, supra, 130 U.S.App. D.C. at 384, 401 F.2d at 925. See Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963). Accepting the finding of the trial court that the Metropolitan Police Department is making no effort to seek out and arrest males who solicit females to engage in sexual acts with them for a price,5 such conscious and intentional selectivity in enforcement of the criminal laws is not vio-lative of the Constitution if it rests upon a valid ground. United States v. Steele, 461 F.2d 1148, 1152 (9th Cir. 1972). The police have, and indeed must have, broad discretion in allocating their available resources in the manner they deem will be most effective. Selectivity in law enforcement is impermissible only if designed to discriminate against those prosecuted rather than to be part of a “rational pattern of general enforcement.” People v. Utica Daw’s Drug Co., 16 A.D.2d 12, 21, 225 N. Y.S.2d 128, 136, 4 A.L.R.3d 393, 402 (1962).

In the instant case, the uncontroverted testimony was that the use of women undercover officers to arrest male solicitors of .prostitutes had proven infeasible, both because of the scarcity of women police officers on the force and because the general rule among streetwalkers is that the women must name the act and the price. The trial court rejected as contrary to “common experience” the testimony that (1) the prostitute makes and is expected to make the solicitation and (2) the Department’s brief experience with the use of women undercover agents had not resulted in convictions.6 We think it was error for the trial court to reject the uncontroverted testimony of the officer. We cannot agree that the testimony was inherently incredi*31ble, see Jackson v. United States, 122 U.S. App.D.C. 324, 353 F.2d 862 (1965), and no basis appears in the record to doubt the witness’s credibility. Apolskis v. Concord Life Ins. Co., 445 F.2d 31 (7th Cir. 1971).

Viewing all the evidence presented in this case, we are not convinced that appellees have, as a matter of law, demonstrated a conscious policy of discrimination based on sex in the enforcement of Section 22-2701.7 Given the testimony as to the nature of the offense at issue here and the past experience of the Department in enforcing the statute, and giving due respect to the discretion vested in the police rationally to allocate their resources and efforts where they find the greatest need and anticipate the greatest benefit, we do not find here administration of the statute with such “an evil eye and an unequal hand”, Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886), as to rise to the level of a constitutional violation.

Accordingly, the orders of dismissal are reversed.

So ordered.

. Section. 22-2701 provides in pertinent part: It shall not be lawful for <my person to invite, entice, persuade, or to address for the purpose of inviting, enticing, or persuading, any person . . . for the purpose of prostitution .... (Emphasis added.)

. We, of course, express no view as to the circumstances, if any, under which a male customer accused of soliciting a female undercover officer could raise the defense of entrapment. The officer’s testimony is significant as it reflects the Department’s lack of success in prior efforts to enforce the statute against men, and therefore bears on the reasonableness of its failure to continue such attempts.

. It is of course the equal protection concepts of Fifth Amendment due process which are applicable in the District. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954) ; Washington v. United States, 130 U.S.App.D.C. 374, 381-82, 401 F.2d 915, 922-23 (1908).

. East Coast Lumber Terminal v. Babylon, 174 F.2d 106, 112 (2d Cir. 1949). See United States v. Cozart, D.C.App., 321 A.2d 342, 343 (1974) ; Washington v. United States, supra at 383, 401 F.2d at 924. But see State v. Hicks, 213 Or. 619, 325 P.2d 794 (1958).

. At the time of appellees’ arrests men were not being arrested for the offense of solicitation for purposes of prostitution. Of the 550 arrests made for the offense in 1973 all were of women, and all were made by male undercover police officers. The Department disclaims any knowledge of men who solicit women to engage in acts of prostitution with them. It maintains no women undercover officers whose function is to be solicited by male customers but it did at the time of the hearing have several women undercover officers working “on the streets” to arrest pimps.

.This testimony must be read in light of the fact that the Department had concentrated the bulk of its enforcement efforts against streetwalkers, and in those areas of the city where streetwalking is most prevalent. They have done so because investigations of call girl activities, where solicitations by men might be more common, have been found to be prohibitively expensive in terms of the time and effort required. No claim is made that this decision is based on impermissibly discriminatory criteria, and we think it is reasonable. “[There] is no requirement of equal protection that all evils of the same genus be eradicated or none at all.” Railway Express Agency v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 466, 93 L.Ed. 533 (1949).

. We found a similar claim of discriminatory enforcement of Section 22-2701 to be likewise unsupported by the record in United States v. Moses, D.C.App., 339 A.2d 46 (1975).