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The ACLU of Delaware updates its case against loitering and solicitation laws in the First State

Delaware Public Media

Delaware Continuum of Care, Friendship House, and NAACP Delaware join the case against Attorney General Kathy Jennings and the City of Wilmington over the state’s solicitation and loitering statutes, and Wilmington's loitering ordinance.

Food Not Bombs, a Wilmington-based mutual aid organization, initiated the case in July.

ACLU of Delaware Legal Director Dwayne Benson says the amended complaint reframes allegations in the initial complaint- which focused on violation of protected First Amendment activities.

“But we’re going a step further here to include Continuum of Care, Friendship House, and NAACP to really elevate the fact that loitering and soliciting laws have a more severe impact on those experiencing homelessness, are along the narrative of the criminalization of poverty, and certainly have a disparate impact related to the race of those who are stopped on loitering and solicitation,” Benson explained.

Benson adds while Food Not Bombs’ initial case was strong, the three new plaintiffs help demonstrate the statewide implications of the loitering and solicitation laws.

Continuum of Care (CoC) is a program designed and funded by the U.S. Department of Housing and Urban Development.

Delaware CoC is a federally mandated entity that works to support efforts by nonprofit providers, and state and local programs to do things like coordinate longterm rehousing efforts, promote planning and strategic use of resources to address homelessness across communities, and conduct data collection and analysis.

“And so they really saw this as central to their mission. These laws really prevent them from being able to do the work that they need to do,” said Benson.

“Similarly, Friendship House has a fund that they use to help support those who are charged with loitering and soliciting and have related fines, fees and court costs because of those charges. So, what we found when we filed the initial complaint was that there were many more folks who had been working in the community statewide and were really concerned about the impact of loitering and solicitiaion laws.”

NAACP-DE’s mission is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate race-based discrimination.

NAACP-Delaware and the ACLU worked together this year to block a proposed loitering ordinance in Dover. This case looks to decriminalize loitering on a state level.

Benson says this litigation is ACLU-DE’s “last ditch effort” to remove the state’s laws and ensure they’re not enforced against vulnerable populations.

“The Attorney General certainly has a role as an elected official in the executive branch to say ‘these laws are unconstitutional and we won’t be enforcing them anymore.’ And the General Assembly has a role too, and could repeal these laws from the books so they’re not enforced. But falling short of action by the Attorney General and the General Assembly. the only mechanism we were left with was to file in federal court,” he explained.

ACLU-DE reached out to the Attorney General’s office and the City of Wilmington prior to filing the initial complaint in July, and were unsuccessful in attempting to remedy the situation through pre-litigation negotiations.

The defendants accepted service after the official complaint was filed, and a response is expected by the end of November.

Quinn Kirkpatrick was born and raised in Wilmington, Delaware, and graduated from the University of Delaware. She joined Delaware Public Media in June 2021.