Why Should Delaware Care?
Homelessness in Dover has drawn significant attention in recent months. Now residents and elected officials across the state are splintered over whether whether an ordinance would make roadways safer, or is a veiled attempt to criminalize panhandling.
As a proposal to reduce panhandling in Dover approaches a final vote in January, the question of whether it could survive a constitutional challenge remains.
For nearly two months, city officials and residents in Delaware’s capital city have engaged in a heated debate over the ordinance, which would limit panhandling by prohibiting pedestrians from stopping and standing on street medians.
Proponents say it would improve pedestrian and traffic safety. Critics argue it is a violation of the First Amendment, and would leave the city vulnerable to lawsuits.
Legal experts in the region appear to be divided about whether the law could survive a Constitutional challenge – even after the Dover City Council revised the proposal to address concerns previously expressed by the ACLU of Delaware.
Those revisions clarified that the ordinance applies only to street medians, and not sidewalks or other pedestrian walkways. They also stated that violators would first be issued a written warning, before receiving a fine on a second offense.
City Councilman David Anderson, who first introduced the proposal, said the updates are meant to make it “crystal clear” that it is intended to keep people out of unsafe areas – rather than restricting free speech.
But Jared Silberglied, an attorney for the ACLU of Delaware, told Spotlight Delaware that “little of substance” has changed with the ordinance. As a result, his civil liberties organization still does not believe the ordinance is constitutional.
“I have not yet seen evidence showing that they need it for traffic safety, which is what the requirement is under the First Amendment,” Silberglied said.
David Finger, a Wilmington-based lawyer who specializes in First Amendment cases, also said the City of Dover would need to provide substantial evidence that pedestrians standing in the road are in danger, in order for the ordinance to hold up.
Other attorneys have different interpretations.
Mark Graber, a professor at the University of Maryland law school, said he considers the ordinance to be a “valid traffic safety measure” because it would apply equally to panhandlers and to people soliciting money for other reasons, such as for a political candidate or a school fundraiser
“The basic principle is simple. Do not loiter in the street for any reason,” he said.
Dover City Solicitor Daniel Griffith said he believes that the City Council has addressed constitutional questions by taking “extraordinary measures” to gather data and amend the ordinance’s language.
The Dover City Council is scheduled to vote on the ordinance during its next meeting on Jan. 12.
Anderson said it is possible that the ordinance is held for a few more weeks if more evidence is needed to prove the ordinance’s legality.
Extended deliberations
At recent meetings, Dover City Council members have spent hours discussing the panhandling ordinance, including ways to amend it to address potential legal challenges.
Meanwhile, dozens of residents and community organizers have shown up at those meetings to express their feelings about the ordinance. The majority have opposed it.
In its current form, the ordinance prohibits pedestrians from staying in the street median for more than two traffic light cycles, and prohibits drivers from stopping in the middle of the road when a person is standing in the median.
Violators would be issued a warning for a first offense, followed by a $15 fine on a second offense, and $50 fine for a third offense within a 12-month period.
At a City Council meeting earlier this month, several council members said they could not support an ordinance that would lead to tickets for people who don’t have the money to pay. They also shared concerns about exposing the city to potential litigation.
“This is about safety for me, but I don’t agree with penalizing individuals with fines and fees,” Councilman Roy Sudler said at the meeting.
Sudler told Spotlight Delaware that he had met with community organizers over the summer to brainstorm a way to safely get people off of street medians. Then Anderson proposed his ordinance and made it more focused on panhandling than Sudler intended, he said.
On the other side, Police Chief Thomas Johnson and City Council President Fred Neil have held steady alongside Anderson in their support for the ordinance.
“What this does is give us the legal authority to ask somebody to step out of harm’s way in no uncertain terms,” Johnson said at the December meeting.
“I’ve got to panhandle. Otherwise, I might as well crawl into a hole and die.”
Homeless Dover resident speaking to the city council
At that same meeting was a homeless resident of Dover who identified himself as Ronald. In comments to the council, he joined a handful of other unhoused people who have spoken during public comment sections of council meetings. Many have argued the ordinance would take away a crucial source of money, without addressing the housing, food, or other problems they face.
“I’ve got to panhandle. Otherwise, I might as well crawl into a hole and die,” Ronald said to the council members.
Also in opposition to the measure are members of activists groups including the H.O.M.E.S campaign and the League of Women Voters of Delaware.
During a November council meeting, H.O.M.E.S campaign coordinator Shyanne Miller stated unequivocally that the city “will get sued when this passes, if it passes.”
The H.O.M.E.S campaign has collected over 300 signatures on a petition opposing ordinance.
At a Nov. 25 Council Committee of the Whole meeting, five of the nine council members, including Sudler, Lewis, Donyale Hall, Tricia Arndt and Andre Boggerty, voted against moving the amended ordinance out of committee.
The ordinance ultimately was narrowly approved to move out of committee because of the votes of two members of the Legislative and Finance Committee that are not on the city council – and therefore will not participate in the final vote on the ordinance.
What will state officials do?
Complicating constitutional questions surrounding the ordinance is a 2024 agreement by Delaware Attorney General Kathy Jennings that all municipalities should not enforce any anti-loitering and anti-panhandling laws on the books. That order came after the ACLU sued the state and City of Wilmington over its loitering ordinances.
The Delaware Department of Justice has created an updated loitering and solicitation draft bill, which prohibits individuals from blocking the flow of traffic, while protecting individuals’ rights to solicit money, a spokesperson for the DOJ said.
The updated bill has been shared with the General Assembly, but has not been passed into law.
The DOJ spokesperson did not comment on the constitutionality of the potential Dover regulation, specifically.
Anderson said he believes that the language of the proposed Dover ordinance is consistent with the Attorney General’s draft legislation, so the city could serve as a model for the state to update its rules.
“We need to lead, not follow, because we don’t know when the state legislature will act, or if they’ll act,” he said.
Maggie Reynolds is a Report for America corps member and Spotlight Delaware reporter who covers rural communities in Delaware. Your donation to match our Report for America grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://spotlightdelaware.org/support/.
