Court Upholds Loitering Law in a Boost for Police

Widening the authority of police, the California Supreme Court on Monday upheld the constitutionality of a state law making it a crime to loiter near a public restroom for a lewd purpose.

The justices, in a 5-2 decision, rejected arguments from civil libertarians that the law was too vague, lacked adequate guidelines for officers and would invite discrimination against homosexuals.

The law, Justice John A. Arguelles wrote for the court, “neither denies fair notice of the acts (prohibited) nor vests constitutionally impermissible discretion in the hands of police.”

Nonetheless, the court sought to emphasize that a suspect’s “sexual orientation,” in itself, could not provide a legal basis for arrest. “Both homosexual and heterosexual persons must have the equal right to use public restrooms without fear of police harassment,” Arguelles said.

The dissenters in the case said that there were other laws to use against lewd conduct and that the statute at issue improperly invaded the “thought processes” of individuals.

” . . . To be vulnerable to prosecution, a person must linger near a restroom and think or fantasize about improper sexual acts or any other crime on the books,” Justice Stanley Mosk wrote in an opinion joined by Justice Allen E. Broussard. “No overt act. No advances toward any other person. Just thoughts.”

The ruling appeared to mark a shift in direction by the new, more conservative court from some past decisions involving lewd behavior in public places.

In 1979 the court, under then-Chief Justice Rose Elizabeth Bird, held that such conduct itself could not be prosecuted unless there was actual touching of private parts for the purpose of sexual arousal or gratification or annoyance. In 1983 the court struck down a state law requiring people convicted of lewd conduct to register with police as sex offenders.

Monday’s ruling resolved conflicting lower-court decisions over the legality of the loitering law--and ironically, it was Arguelles who, as an appellate justice, had joined in a 1985 ruling by the state Court of Appeal holding the statute unconstitutional.

Arguelles said in Monday’s decision that he had since become convinced that the 1985 ruling was wrong. Quoting the late Justice Robert H. Jackson of the U.S. Supreme Court, Arguelles observed: “It is embarrassing to confess a blunder . . . (but) it may prove more embarrassing to adhere to it.”

Lawyers for the defendants in the case and civil libertarians denounced the decision, saying there was no need for a loitering law when separate statutes barring lewd conduct or soliciting lewd conduct could be employed with less risk of discrimination.

“I, like anyone else, want to have the right to think dirty, bad or even illegal thoughts and not be arrested until those thoughts are actually translated into action,” said Jay M. Kohorn of Redondo Beach, one of the attorneys for the defendants. “I’d like to think that whether the court is in a liberal or a conservative cycle, it would still stand by principle.”

Joan W. Howarth, assistant legal director of the American Civil Liberties Union of Southern California, said she was “very disappointed” in the ruling, predicting that the law “will inevitably be enforced on the basis of stereotypes.”

Santa Clara County authorities, who had defended the law in the case before the court, did not return telephone calls Monday.

The law at issue provides that anyone who “loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act” is guilty of a misdemeanor and is subject to six months in jail and $1,000 fine.

16 Charged

The case arose in Santa Clara County, where Ralph Alexander Caswell, Kenneth Eugene Grassi and 14 other defendants charged under the law challenged the statute as unconstitutional.

In May, 1986, a state Court of Appeal in San Jose rejected their contentions, noting that the need for such a law to curb misconduct near public restrooms “is apparent to anyone who, in our increasingly permissive times, has made legitimate use of such a facility.”

Attorneys for the defendants appealed to the state high court, saying the law failed to give adequate notice of just what actions could be prosecuted and encouraged the arrest of undesirables for their mere presence at a public restroom.

Santa Clara County prosecutors defended the statute, denying that it would lead to discriminatory arrests.

The justices, in Monday’s 30-page opinion by Arguelles, held that the wording of the statute was clear enough to provide adequate notice. Nor was the law invalid for lack of guidelines for police, the court said. The statute was limited to loitering with a specific purpose to an area--public restrooms--that “has historically been a problem,” Arguelles wrote.

The court also rejected the argument that the law was legally redundant because it could only be used against persons who commit lewd conduct--an offense in itself.

In another action Monday, the court held 6 to 1 that a group of Yurok Indians could not be prosecuted under state law for the commercial sale of salmon and steelhead fish taken from the Klamath River as it runs through the Hoopa Valley Indian Reservation in Northern California.

The court had reached a similar conclusion in a separate case in 1984, finding that federal law regulating Indian fishing preempted California law.

The justices allowed the Indians to fish in the Klamath waters within their reservation lands and to use gill nets, which are prohibited by state law.