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Dover City Council begins reviewing loitering ordinance, drawing ACLU attention

Milton Pratt
Delaware Public Media

Dover’s City Council is moving forward with updates to the city’s loitering ordinance, prompting the ACLU of Delaware to warn councilmembers against passing the measure.

Dover’s City Council has considered various strategies targeting loitering over the past decade, focusing largely on the several-blocks surrounding downtown. In their view, enforcing loitering laws – and panhandling restrictions – will play an important role in the economic development of the city’s struggling commercial core.

The most recent proposal began forming in October, when Police Chief Thomas Johnson suggested council refashion elements of Delaware’s statewide loitering prohibition into local code. While state law deems loitering a violation – one step down from a misdemeanor – Johnson said that may be too harsh because it creates a permanent record. And Dover’s current loitering ordinance, which he says gives officers flexibility to be more lenient, only applies to city parks.

“So that raises a bit more of a challenge as far as authority goes," he said, "for us to use local resources and a local enforcement option to achieve the desired goals of a reasonable approach to this problem without being too heavy-handed in situations where it’s not warranted.”

The new proposal, introduced in the council’s Safety Committee last week, draws heavily from the state’s loitering law but would impose a fine rather than creating a permanent record.

But ACLU of Delaware Policy and Advocacy Director Javonne Rich says that given her organization's objections to the state's loitering laws, the proposed Dover ordinance's similarities to the state criminal code don't shield it from scrutiny. “The ACLU of Delaware has some concerns about the state code anyway," she said, "so for Dover to copy the state code is still going to be concerning either way.”

After the ordinance reached the committee stage last week, the ACLU of Delaware sent a letter warning Dover City Council that the proposed loitering restrictions could run afoul of established constitutional protections and present the risk of disproportionate enforcement against people experiencing homelessness. "The ordinance may be unconstitutionally overbroad in that it prohibits unavoidable, harmless, inoffensive conduct that the homeless or others are forced to engage in within public spaces," Rich wrote in the letter.

The ACLU also argued that the ordinance may not achieve the results the city desires, arguing that imposing fines for loitering could simply saddle low-income people with new debts rather than resolving the underlying challenges for downtown Dover.

Meanwhile, discussions of a much narrower loitering ordinance among Milford's city council have stalled.

Paul Kiefer comes to Delaware from Seattle, where he covered policing, prisons and public safety for the local news site PubliCola.