Guest Commentary: Gatherings and asking for help are being criminalized
Dwayne J. Bensing is the legal director for the American Civil Liberties Union Delaware.
Food Not Bombs Wilmington, a chapter of the nationwide movement to end hunger, homelessness and poverty, was created on the notion that we have a responsibility to fight for a more livable society.
The group aims to ensure that everyone has their basic needs met, by inspiring the public to participate in cooperative, community-driven volunteer efforts that provide essentials like food, housing and health care. FNB’s growing success can be largely attributed to its commitment to physical presence within the community. By holding events in public spaces where they are visible to those who may never otherwise know how to get involved or benefit from provided meals and resources, it truly embodies community-based activism.
However, after nearly five years of service in the Wilmington area, Food Not Bombs’ mission has become nearly impossible. Earlier this year, Wilmington police officers told the group and their participants that their weekly community gatherings were in violation of soliciting and loitering laws, robbing entire communities of a critical aspect of any democratic society: a space to receive help with dignity and respect.
Chances are, you’ve been violating these statues, as well, perhaps even at this very moment (if you’re reading this on a sidewalk). Per the state of Delaware and city of Wilmington, any individual who exists in a public space — be it sitting on a bench in the park, relaxing on the beach or simply taking a walk down the street — can be at risk for being penalized for “loitering” and, therefore, subject to fines or arrest. The same applies to “soliciting,” which entails nothing more than asking for help in a public place and yet is explicitly prohibited under Delaware law.
Publicly available data shows that the state of Delaware charges 250-500 people under these laws every year, and 100-200 of those charges are solely based on violations of the loitering laws. That’s 100-200 people per year arrested, charged and fined for doing no more than simply existing in a public space. Even more troubling, that data does not include the number of times law enforcement officers have used these laws as a reason to indiscriminately stop people without any reasonable suspicion that a true crime (i.e., not simply existing in public or asking for help) has or will occur.
Allowing law enforcement the power to arbitrarily exclude people from public spaces for innocent or even beneficial behavior opens the floodgates to serious violations of our First Amendment right to speech, assembly and association, and our Fourth Amendment’s protections from unjustified stops and searches by police. While directly targeted at people in need and those experiencing homelessness, these attacks impact everyone who wishes to stand and speak in public spaces, from political candidates to community activists to students fundraising for school programs. The implications of the state’s and city’s actions should concern us all.
It’s common sense: We cannot arrest our way out of homelessness, unemployment or poverty. We must not consider the problem solved by pushing those most in need into prison cells at the cost of our constitutionally guaranteed rights. Rather than criminalizing those living in poverty, our local and state governments should be investing in services that will remedy the underlying causes. Initiatives like affordable housing, access to education, job training and mental health services are far more effective solutions than relying on punishment and incarceration.
Soliciting and loitering bans do not improve public safety, and their enforcement only perpetuates vicious cycles of poverty that plague already vulnerable communities. We can increase equality, justice and safety without resorting to criminalization, and address dangerous crime without targeting those who exercise their right to ask for help in public spaces. Prioritizing truly safe and healthy communities should never have to come at the expense of the rights we are guaranteed as members of a free society.
We all deserve to feel safe in public spaces, regardless of who we are, and until all of our basic needs are met, we all have the right to ask for help.
If you or your organization has been impacted by loitering and solicitation laws, please email legal@aclu-de.org.
