Why Should Delaware Care?
Panhandling has become a point of contention in several communities in Delaware, which has raised debate over how to potentially address it. A new proposal from Attorney General Kathy Jennings that aimed to set a standard across the state is now coming under scrutiny by the ACLU.
In a winter marked by debate over how to address panhandling in communities across the state, the latest proposal from the Attorney General’s office that many have hoped could provide guidance is being denounced by the American Civil Liberties Union of Delaware as unconstitutional.
The state ACLU chapter has long been the strongest legal advocate for the rights of the homeless in Delaware, and its opposition likely foreshadows a looming court battle if state officials back a bill put forward recently by Attorney General Kathy Jennings.
In a March 3 letter addressed to Jennings and the General Assembly, the ACLU argues that the drafted legislation is not constitutionally compliant because it is too “vague,” imposes excessive fines on individuals and violates constitutional protections against unreasonable searches and seizures.
This warning comes after the organization reached an agreement with Jennings’ office and the city of Wilmington nearly three years ago over previous loitering laws it also argued were unconstitutional. The ACLU has since weighed in on the constitutionality of similar ordinances in Dover and Wilmington in recent months.
ACLU Interim Legal Director Jason Beehler, who wrote the letter, told Spotlight Delaware that his team believes it “is possible” to write a loitering bill that is constitutionally sound, but Jennings’ bill does not reach that threshold.
“The language is too ambiguous to give citizens or law enforcement clear guidance on what is and isn’t prohibited that leads to arbitrary enforcement,” he said.
In response, the Department of Justice held strong in its defense of the constitutionality of Jennings’ drafted bill.
Caroline Harrison, a spokeswoman for the DOJ, said the legislation is the product of months of “dedicated research and analysis” by attorneys on the department’s legal team.
“We have the deepest confidence in their work and are comfortable defending the constitutionality of the statute in court,” Harrison wrote in a statement to Spotlight Delaware.
The debated legislation
Jennings first made headlines over the bill when she spoke about the legislation at the DOJ’s Joint Finance Committee hearing in mid-February, and members of the legislative committee expressed dismay that they had not been informed of the legislation.
The revised bill comes after the ACLU sued both the city of Wilmington and the state in mid-2023 over their loitering and solicitation statutes, arguing that those pieces of legislation unconstitutionally penalized people occupying public spaces, and harmed individuals experiencing homelessness.
Jennings settled the lawsuit with the ACLU in early 2024, by directing both the state and all municipalities not to enforce any anti-loitering and anti-solicitation laws they had on the books. As a part of the agreement, Jennings said her office would write an updated, constitutionally sound loitering law.
At the JFC hearing, Jennings did not specifically describe how the updated ordinance differed from the unenforceable prior ordinance. She did, however, emphasize that the new bill was constitutional, and would be a useful tool for police departments in places like Wilmington and Dover.
While Jennings’ bill is dated January 2025, Jennings said she did not send the legislation to House and Senate leadership until later in 2025.
Since the JFC hearing debacle, reports have circulated that both Senate Majority Leader Bryan Townsend (D-Newark/Glasgow) and Rep. Stephanie Bolden (D-Wilmington) signed on as sponsors of the bill.
However, both Townsend and Bolden told Spotlight Delaware this week that they never agreed to be sponsors of the legislation. Bolden said she believes the bill needs to “be redone” before it could move forward, while Townsend said he is concerned about just fining or arresting Delawareans without finding a “true solution” to the problem.
Mat Marshall, a spokesperson for Jennings’ office, said in February that the new drafted legislation takes a more “focused scope” in addressing pedestrian safety and loitering concerns, instead of venturing into the territory of First Amendment concerns. For example, the updated bill replaces the phrase “sits idling or loiters” with “sits, or remains.”
The ACLU, however, does not agree with the DOJ’s legal assessment.
In the March 3 ‘warning’ letter, the organization outlined five different constitutional issues that it has identified with the proposed bill.
These issues include that the state has not provided sufficient evidence that there is a safety issue caused by people standing in road medians; the definition of unpermissible loitering is too vague, leaving “unfettered discretion” to individual police officers; and that it violates Eight Amendment protections against excessive fines and fees, as the amount of a fine could be “grossly disproportionate to the gravity of the offense.”
The letter also charges that the law would prohibit people from exercising their constitutional right to travel, which might require “sitting, standing, and congregating in public”; and it violates Fourth Amendment protections against warrantless searches and seizures.
Jonathan Kerr, a Fourth Amendment scholar at Delaware Law School, said he agrees with the ACLU’s critique that the drafted bill is too vague to pass constitutional muster.
“It seems to mean that everybody falls under the ‘reasonable suspicion’ umbrella if the crime is simply standing in an area and not moving on,” Kerr said.
He added that a law outlawing loitering where there are specifically “no loitering” signs present, like the city of Baltimore has, would better align with the Fourth Amendment.
Beehler, the ACLU legal director, said it isn’t his group’s job to suggest to the state how the bill could be adapted to be constitutional, but there are examples of legally compliant loitering laws in other states.
Wilmington, Dover debate how to address panhandling
The ACLU has also weighed in on the constitutionality of drafted loitering ordinances at the city level in recent months.
Late last year, Wilmington City Councilman Chris Johnson proposed a new city loitering ordinance, which would have imposed fines on individuals obstructing the passage of traffic and, or, loitering at a time of day “not usual for law-abiding individuals.”
In response, the ACLU sent Johnson a letter on Feb. 4, arguing that the proposed ordinance is unconstitutional for reasons similar to those they outlined about Jennings’ bill – excessive fines and fees, the constitutionally protected right to travel, and warrantless searches and seizures.
Johnson told Spotlight Delaware in February that he is meeting with local stakeholders and the city police department to revise the ordinance, in light of the ACLU’s and community feedback, before he plans to reintroduce the proposal later this year.
The city of Dover also spent the better part of the past six months debating its own ordinance to address panhandling on city road medians.
While the Dover City Council ultimately voted against the ordinance last week due to council members’ concerns about its constitutionality, the ACLU issued a warning to the city about the ordinance when City Councilman David Anderson first introduced it in late October.
Jared Silberglied, a lawyer for the ACLU, said at the time that the city needed to provide more evidence of a substantial traffic concern to justify the ordinance, and make the proposal more narrowly focused, so as not to violate freedom of speech rights.
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/.
