The D.C. attorney general’s office said Tuesday that the District’s temporary “prostitution-free zones” are probably unconstitutional, raising fresh doubts about a bill before the D.C. Council that would broaden the zones and make them permanent.

The comments by Ariel Levinson-Waldman, senior counsel to Attorney General Irvin B. Nathan, came during a hearing on whether the District should expand its use of the zones.

In areas designated as prostitution-free zones, police can make arrests for up to 24 consecutive days if two or more people congregate in public in certain neighborhoods and ignore dispersal orders. Concerned about chronic prostitution in parts of her ward, Council member Yvette Alexander (D-Ward 7) has introduced a bill that would empower police to make the zones permanent.

But Levinson-Waldman and Assistant Police Chief Peter New­sham expressed broad reservations about the bill Tuesday because of what Levinson-Waldman said were flaws in the original premise of the 2006 law authorizing the zones.

“We have substantial concerns about the bill in its current form as it relates to constitutional soundness and its practical utility,” Levinson-Waldman said. “Authorization of permanent prostitution-free zones . . . could exacerbate the constitutional concerns.”

In his testimony, Newsham told council members that the city’s well-publicized prostitution-free zones appear to have played only a minor role in an overall reduction of prostitution in the city. Despite common perceptions, Newsham said, police have never made an arrest using the prostitution-free zone statute.

“While PFZs may have contributed to a temporary displacement of street-level prostitution, development and changing trends in prostitution have likely played a greater role,” Newsham said, noting that there has been a steep decline in prostitution-related calls in the District.

The statements from police and the attorney general, as well as concerns from social service and gay rights activists, present fresh hurdles for Alexander’s efforts to combat prostitution District-wide, especially along Eastern ­Avenue in Northeast.

In an interview after the hearing, Alexander appeared to concede that there was little chance of her bill passing in its current form.

“I just want to start the discussion, and this was just an idea to get at the issue because there is a problem,” Alexander said.

At the hearing, several Ward 7 residents testified about the problems associated with prostitution along Eastern Avenue near Deanwood, near the border with Prince George’s County.

“Businesses and churches are left with the task of sweeping used condoms from their doorways,” said Jesse N. Holmes of the 6200 block of Southern Avenue NE. “Property values are threatened as lawns and stairwells of private homes are being trespassed by johns and prostitutes.”

Despite residents’ concerns, a broad coalition of advocates testified against Alexander’s bill, citing constitutional concerns.

Robert M. Gorman, a lawyer with the American Civil Liberties Union of the National Capital Area, said the courts upheld a person’s right to loiter so long as it’s not “being done with the specific intent to commit an illegal act.”

Under current law, Gorman said, police do not need “probable cause” to arrest someone using the prostitution-free zone statue. For that law — and Alexander’s proposal — to pass constitutional muster, the attorney general’s office recommends it be amended to require police to prove “intent” before making an arrest in the zone.

“It should be recognized that the standard of proof required in the District to show intent to engage in prostitution is high, and may be hard to prove in many cases,” Levinson-Waldman said.

Council member Phil Mendelson (D-At Large), chairman of the Judiciary Committee, said he thinks the zones are useful in combating crime because johns and prostitutes have been less likely to do business in those areas.

“It’s about disrupting,” Mendelson said. “If the market has to move because of a prostitution-free zone, it’s going to hurt business.”


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