Federal complaint filed against AG Jennings, city of Wilmington for anti-loitering laws

The Delaware chapter of the American Civil Liberties Union has filed a federal complaint against Delaware Attorney General Kathy Jennings and the city of Wilmington for their statutes on loitering and soliciting.

The complaint, which was submitted on Friday in U.S. District Court, argues that these rules unconstitutionally penalize people in public spaces, especially protesters and those experiencing homelessness.

The complaint was filed on behalf of Wilmington Food Not Bombs, part of an international organization dedicated to protesting war and poverty. Since its foundation in 2018, Wilmington Food Not Bombs has staged regular demonstrations, distributed flyers and provided food that would have been discarded to community members in need.

According to the ACLU and co-counsel Andres Gutierrez de Cos, Delaware’s laws and Wilmington’s ordinance prohibiting loitering and soliciting unfairly prevent Food Not Bombs and the people that the group helps from congregating and working together in public.

The complaint calls for the overturning of three statutes “criminalizing innocent human behavior,” according to court documents: state laws prohibiting loitering and soliciting, and the Wilmington ordinance against loitering.

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What do the laws mean?

The statutes define loitering as idling in a public place or sidewalk within 50 feet of a residence or business, and soliciting as asking for rides, employment, food or money from vehicles. All of these offenses can result in increasing fines.

“These statutes grant law enforcement a broad tool for arbitrarily excluding people from public places,” Gutierrez de Cos said in an official statement.

As the ACLU put it, the current laws mean that police can decide that a family asking for donations outside of a coffee shop for their child’s sports team is allowed, while a family asking for food outside that same store is considered loitering.

Anti-loitering ordinances statewide have come under fire from activists in recent years. A proposed anti-dawdling law in Dover spurred protests across the community, with everyone from residents to the Central Delaware NAACP president condemning the law as racist and criminalizing homelessness.

The ordinance, which was introduced in late 2021, ultimately did not pass.

What does the complaint allege?

Wilmington Food Not Bombs members Madison Daley and George Jones, who are plaintiffs in the case, said that police stopped them from peacefully protesting and sharing a free meal with the community.

The group typically hosts protests, gives away clothes and sets up a large buffet of food on Saturday afternoons under the Amtrak train overpass at East Front and Poplar streets near Wilmington’s East Side, the complaint explains.

But on Jan. 21, the complaint alleges that Wilmington Police Department officers told organizers that they were loitering and sent everyone away. Officers tried to disband another protest on Feb. 18, according to court records.

Less than a month later, the complaint alleges that Wilmington police set up a “no parking” sign where Food Not Bombs members typically park for protests. This caused a “chilling effect,” court documents state, and no protesters came to that day’s demonstration.

Members of Food Not Bombs began to fear that future protests would result in police being called, according to the complaint, and “no one in the community is sure when and where to go anymore to safely congregate without interference from law enforcement officers.”

“Restricting a vulnerable population’s ability to come together in public spaces not only infringes upon a fundamental aspect of any democratic society, but also deprives entire communities of an important touchpoint for human connection,” said ACLU legal counsel Dwayne Bensing in an official statement.

The complaint accuses Jennings and the city of Wilmington of infringing on peoples’ First, Fourth and Fifth Amendment rights.

“Everyone should be able to address their basic needs,” said Food Not Bombs members Daley and Jones in a written statement. “Why is doing so in public criminalized? Why is taking care of people while not under the auspices of a religious or nonprofit organization discouraged? We have a responsibility to fight for a liveable society. It starts with us.”

The Delaware Department of Justice said it is still reviewing the filing and does not have a comment on it. The Office of the Mayor did not yet have a comment as of Friday.

Send story tips or ideas to Hannah Edelman at hedelman@delawareonline.com. For more reporting, follow them on Twitter at @h_edelman.

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This article originally appeared on Delaware News Journal: ACLU calls Wilmington loitering, solicitation laws unconstitutional