Why Should Delaware Care?
Homelessness continues to be a controversial topic across the state of Delaware, particularly as municipalities try to approve measures criminalizing it, in one form or another. Dover’s proposed anti-panhandling ordinance is another such measure, which has already faced scrutiny from lawyers and advocates over its legality.
Dover leaders are forging ahead with a proposal meant to ban panhandling within the city, despite resident pushback and ongoing legal challenges by the American Civil Liberties Union against similar ordinances across the state.
The Dover City Council asked staff members to revise the proposal – which would ban stopping on street medians and crosswalks, prohibit pedestrians from soliciting money and criminalize drivers giving money to panhandlers – after leaders were notified by the ACLU of Delaware that the civil rights organization believes the ordinance, as written, is unconstitutional.
Last year, Delaware Attorney General Kathy Jennings told all municipalities not to enforce any anti-loitering and anti-panhandling laws on the books, after the ACLU sued the state and the city of Wilmington over their regulations.
While Dover officials are defending their ordinance, saying it addresses traffic safety concerns rather than panhandling and loitering, it remains to be seen whether the courts will deem the finalized ordinance constitutional.
City Councilman David Anderson, who first introduced the proposal in late October, said he is focused primarily on traffic safety, but he does want the regulation to have an impact on panhandling, as well.
“We have a great deal of compassion to help people,” Anderson told Spotlight Delaware. “But it’s not helping for people to be getting hurt, getting money for drugs and feeding the overdoses in the city.”
Seaford and Milford both passed anti-panhandling traffic safety ordinances a couple of years ago, which Dover officials say they used as a model for their proposed ordinance.
Seaford has continued enforcing its ordinance, despite Jennings’ 2024 decision, because the city considers it to address traffic safety and not panhandling, Seaford City Manager Charles Anderson said.
Milford officials did not respond to Spotlight Delaware’s questions as to whether they have continued carrying out the ordinance.
A spokesperson for the Seaford Police Department said its policy is to handle a first violation of the ordinance with “education and a warning,” but further violations could result in a fine.
“Officers always have discretion in how they handle interactions with people,” the spokesperson wrote.
What would the ordinance do?
The Dover City Council first discussed the “stopping, standing and parking” ordinance at its Oct. 28 committee of the whole meeting, after receiving citizen complaints about traffic safety, and hearing from Dover Police Chief Thomas Johnson about two pedestrian fatalities last year, Anderson said.
Although neither fatal pedestrian crashes involved panhandling, according to police reports at the time.
The ordinance, in its current form, prohibits pedestrians from approaching vehicles on the road, bans pedestrians from pausing in the street median for more than two traffic light cycles and bars drivers from stopping to give money to a person standing in the road.
Anderson said the dollar amount of the fine for violating the ordinance has yet to be determined, but it would likely be around $15.
Following the council’s initial discussion of the ordinance and the ACLU raising concerns about its constitutionality to the city solicitor, the council voted to return the proposal to city staff for revisions before voting on it.
Still, a number of citizens turned out to the Nov. 10 city council meeting to protest the ordinance.
Protestors stood outside city hall before the meeting, chanting, “Hey hey, ho ho, punishing the poor has got to go.”
During the public comment portion of the meeting, which was extended by a vote of the council members to allow for more attendees to speak, more than 20 people spoke against what they described as an effort by the city to criminalize homelessness and deflect from truly addressing what poor residents need.
“This ordinance is cruel, and it is ineffective,” resident Christopher Beardsley said at the meeting. “Rather than focusing on long term solutions to housing and homelessness, city leadership is fining people for being poor.”
Other residents said there is no reason to fine people who already cannot afford basic necessities and that nobody wants to be in the position of having to ask for money on the street.
While Councilman Brian Lewis expressed concerns with the ordinance, other members said they see the need for regulation of panhandling and stopping in street medians.
“You have to treat [people panhandling] with compassion, but you have to have some kind of consequences,” Council President Fred Neil told Spotlight Delaware. “If they don’t have the consequences, they’re going to do it again and again.”
Mayor Robin Christiansen said he also agrees with the need for the measure, but he wants to work within the ACLU’s concerns and First Amendment rights protected by the Constitution.
The city has tried to pass similar “anti-dawdling” ordinances and regulations requiring panhandlers to register with the city, but those proposals did not move forward due to constitutional limitations, Christiansen said.
Anderson said the amended version of the ordinance will look similar to the original, with some changes to “tighten up” the language and make clear it only applies to major intersections and not sidewalks.
The council will conduct the first reading of the updated ordinance at its December meeting.
Constitutional questions
While Dover elected officials emphasize the need for the proposed ordinance, advocates and lawyers say the regulation does not stand up against the U.S. Constitution and existing case law.
The ACLU of Delaware sued the state and the city of Wilmington in mid-2023 over both the city and the state’s anti-loitering and anti-solicitation laws, said Jared Silberglied, a lawyer for the ACLU of Delaware.
The case was settled in early 2024, when Jennings, Delaware’s attorney general, told the state and all its municipalities not to enforce any anti-loitering and anti-solicitation laws they currently had on the books.
The Delaware Department of Justice is still working on an updated loitering and solicitation bill that is consistent with the 2024 ruling, but that legislation has not been introduced to the state legislature and/or local jurisdictions, a spokesperson for the department said.
Silberglied said the ACLU views anti-loitering and anti-solicitation laws as unconstitutional because they violate First Amendment freedom of speech rights, and they often are vague, leaving a lot up to the discretion of individual police officers.
He added that it is possible the Dover ordinance could pass as constitutional in the ACLU’s view if the city is able to prove there is a substantial enough traffic concern to justify new regulations, but the city has not yet provided that evidence.
“There are ways to write panhandling laws that satisfy certain time, place and manner restrictions,” Silberglied said.
Jennings’ office did not comment specifically on the proposed ordinance in Dover, but said they continue to work on ways to “preserve the public safety imperatives of loitering enforcement without abridging Delawareans’ constitutional rights.”
A spokesperson added that the 2024 Department of Justice agreement with the ACLU and the city of Wilmington only applies to loitering and solicitation charges, while law enforcement still has charges that often accompany panhandling – like disorderly conduct, harassment or indecent exposure – at their disposal.
As city officials and advocates continue to debate the legality of anti-panhandling rules, University of Delaware professor Steve Metraux, who studies homelessness, said he believes this trend of trying to criminalize homelessness only makes the situation worse.
Individuals who are soliciting money out of necessity end up with fines they cannot pay, Metraux said, which can lead to warrants and other consequences that go on their legal record, making it more difficult for them to find jobs and permanent housing.
“It is punitive,” he added. “In the larger scheme of things, it can extend people’s homelessness through a variety of mechanisms.”