UPDATE: Victory! (10-24-2024)
Delaware’s Loitering Statute (11 Del. C. § 1321) and Solicitation Statute (21 Del. C. § 4147) will no longer be enforced. Attorney General Kathy Jennings responded (letter linked below) to our concerns about the Statutes’ constitutional violations with a promise to withhold enforcement of the statutes until they are amended to address their unconstitutionality. All Delaware law enforcement agencies will receive instructions dictating that “reliance on the Statutes for any law enforcement activity, including any stop, search, or arrest, shall cease immediately.”
UPDATE: Amended Complaint Filed (10-04-2023)
The ACLU of Delaware amended their federal complaint against Attorney General Kathy Jennings and the City of Wilmington in response to the State of Delaware’s Solicitation Statute, Loitering Statute, and the City of Wilmington's Loitering Ordinance. The plaintiffs now include Delaware Continuum of Care, Friendship House, and the NAACP Delaware State Conference of Branches. In addition to First Amendment challenges initially brought by Wilmington Food Not Bombs, the amended complaint alleges that the State of Delaware and City of Wilmington’s solicitation and loitering laws criminalize homelessness and disproportionately target people of color.
The ACLU of Delaware filed a federal complaint on July 7, 2023 against Attorney General Kathy Jennings and the City of Wilmington in response to the State of Delaware’s Solicitation Statute, Loitering Statute, and the City of Wilmington's Loitering Ordinance. The complaint, filed on behalf of plaintiffs Food Not Bombs, Madison Daley, and George Jones, claims that these statutes not only unconstitutionally penalize people occupying public spaces, but also harm people in need and those experiencing homelessness.
Since June 2018, Food Not Bombs (FNB) has been an instrumental part of organizing weekly protests in Wilmington to raise awareness about homelessness, hunger, and poverty. In addition to general awareness and education, the gatherings also foster a space for public dialogue about issues impacting the community as well as an open exchange of resources and information for those in need. Free meal services are provided for all who attend.
In response, the City of Wilmington and State of Delaware have weaponized soliciting and loitering statutes/laws to deter FNB’s efforts. Wilmington and the State joins numerous other cities and states nationwide that have used anti-soliciting, loitering, and panhandling statutes to further criminalize homelessness and poverty under the guise of maintaining law and order.
The City of Wilmington’s and State of Delaware’s actions pose clear violations of the First Amendment right to speech, assembly and association and the Fourth Amendment's protections from unjustified stops and searches by police.
Recently, federal courts across the country have seen loitering and solicitation ordinances challenged and struck down as violations of an individuals’ First Amendment right to exist in and ask for help in public spaces free from government intrusion. The ACLU of Delaware believes strongly that the State of Delaware’s Solicitation Statute, Loitering Statute, and the City of Wilmington's Loitering Ordinance are no different. Just earlier this year, proposed Dover Ordinance #2022-26, an attempt to enact penalties for any activity deemed to be “loitering,” was withdrawn after months of tireless advocacy from community advocates, as well as threatened legal action from ACLU-DE in response to clear First Amendment violations.
