Wilmington, Delaware – As of today, Delaware’s Loitering Statute (11 Del. C. § 1321) and Solicitation Statute (21 Del. C. § 4147) will no longer be enforced, following the ACLU of Delaware’s complaint filed against Attorney General Kathleen Jennings and the City of Wilmington last year. Jennings responded to the ACLU-DE's 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.”
The ACLU-DE lawsuit filed in July of 2023 described how the laws were used to unconstitutionally penalize people for occupying public spaces and criminalize homelessness.
One of the plaintiff organizations, Wilmington Food Not Bombs (FNB), has a history of organizing regularly in the city to raise awareness about homelessness, hunger, and poverty. FNB organizers and participants have repeatedly been targeted by law enforcement, which infringes on their First Amendment right to speech, assembly and association and the Fourth Amendment's protections from unjustified stops and searches by police. The ACLU-DE complaint also highlighted that the laws, in violation of the Fifth and Fourteenth Amendments, were unconstitutionally vague and had a disproportionate impact on people of color.
"As the number of people in Delaware who are unhoused continues to increase every year, the options for where these folks can go to feel safe and welcome are declining,” states Kim Eppehimer, executive director and CEO of Friendship House. “The Attorney General’s commitment to amending these discriminatory laws is a vital step forward to letting all Delawareans know they matter and belong, regardless of their current housing situation."
Additional plaintiffs include Delaware Continuum of Care, Friendship House, and the NAACP Delaware State Conference of Branches. Nicholas Insua and Jason Angelo, of Reed Smith, LLP, provided cooperating counsel.
Jennings has announced plans to introduce legislation in the upcoming 153rd General Assembly to better align the laws with constitutional protections. She has assured the ACLU-DE that any proposed legislation will include “opportunities for those with prior convictions for violating these Statutes to have prior convictions under these Statutes expunged.”
