The ACLU of Delaware is taking legal action to fight loitering and solicitation laws in the First State.
The ACLU filed a federal lawsuit Friday against Attorney General Kathy Jennings and the City of Wilmington over the state’s solicitation and loitering statutes - as well as the City of Wilmington's loitering ordinance.
It was filed on behalf of the organization Food Not Bombs, a mutual aid organization which since 2018 has regularly gathered in Wilmington to raise awareness about homelessness and poverty. The gatherings also offer resources and free meals for those in need.
The complaint claims the City of Wilmington and the State of Delaware used solicitation and loitering laws to target the organization and deter their work, which also harms those utilizing their services.
But ACLU of Delaware Legal Director Dwayne Bensing says Food Not Bombs is not the only victim.
“What happens with laws like these that are vague and arbitrary is you get arbitrary enforcement,” he explained. “You leave it up to the police officer to decide who gets to speak in the public forum, and who gets charged with the solicitation statute.”
Delaware's solicitation statute is especially broad, prohibiting anything from ride-hailing to panhandling on roads and highways.
The ACLU is still collecting information on this case, but Bensing says the data they’ve reviewed so far shows a high number of pedestrians being stopped by officers without reasonable grounds.
“We think that police officers across the state are using these statues and local ordinances to stop folks when otherwise it would be an impermissible, unconstitutional stop... the loitering and solicitation statues invites police presence and allows them to ask folks what they’re doing when they're not doing anything wrong.”
The ACLU has not been able to review Wilmington police data on the total number of people stopped for loitering or solicitation, but available law enforcement data reveals recent arrests and prosecutions for loitering and solicitation, as well as arrests for other crimes — including possession of a firearm — that began as stops for loitering or solicitation.
Friday’s complaint alleges four Constitutional violations, including that the statutes enable infringement on the right to assemble in public spaces, provide police pretext to stop civilians without any reasonable suspicion of criminal acts, do not enable law enforcement to give adequate notice of criminal acts, and enable illegal retaliation in response to protected First Amendment activities.
The ACLU has previously fought against loitering ordinances on the municipal level: in December, the ACLU joined opposition to a Dover City Council effort to refashion elements of Delaware’s statewide loitering prohibition into city code, arguing that providing additional opportunities for police to enforce loitering laws would primarily serve to burden unhoused people with court fines.
The council eventually tabled the proposal under threat of a civil rights lawsuit.
In the case of Food Not Bombs, Bensing says they’re seeking an immediate halt in the use of loitering and soliciting laws in the state, and the retraining of police officers that previously relied on these laws to engage with civilians.
Delaware is not the only state to see challenges to these laws. The enforcement of loitering and solicitation laws have been challenged more and more across the country as violations of First Amendment rights.
Bensing remains confident that the Attorney General’s Office and the City of Wilmington will respond to the complaint amicably; if not, the ACLU could pursue an injunction to immediately halt enforcement of the state's loitering and solicitation statutes.
Though state Rep. Eric Morrison proposed legislation that would have stricken the loitering and solicitation statutes in 2021, action by the General Assembly on the issue appears unlikely in the immediate future.
