DOVER – One year after George Floyd’s murder at the hands of police, Senate Majority Whip Elizabeth “Tizzy” Lockman and Sen. Marie Pinkney sponsored legislation to remove many of the barriers that currently shield Delaware police officers from being held accountable when they violate the public’s trust.
Building on the work of the Justice For All Agenda laid out by the Delaware Legislative Black Caucus in 2020, the three bills introduced Tuesday would significantly improve transparency in cases of police misconduct, create an objective standard governing the use of force by all Delaware police officers and expand the use-of-force subject to review by the Delaware Department of Justice (DOJ).
“Too often, an officer who uses excessive force, abuses their authority, tampers with evidence or engages in sexual misconduct is described as a ‘bad apple,’ a term that is meant to separate police officers who engage in wrongdoing from the upstanding officers they serve alongside,” said Sen. Lockman, D-Wilmington. “Yet, the laws here in Delaware actually prevent us from being able to tell the difference.”
“Our communities and the police officers sworn to protect them deserve better. Honest police officers deserve a disciplinary system that’s fair, transparent, and impartial. Our communities deserve a system that holds ‘bad apples’ accountable. And both deserve lawmakers with the courage to draw a clear distinction between the two,” she said. “This legislation will do just that by ending the culture of secrecy and ambiguity that has allowed hatred, fear and mistrust between law enforcement and communities of color to flourish for far too long.”
LEOBOR Reform
Senate Bill 149, sponsored by Sen. Lockman and Delaware Legislative Black Caucus Chair Rep. Kendra Johnson, would amend sections of the Delaware Law-Enforcement Officers’ Bill of Rights (LEOBOR) by making records of police misconduct publicly accessible for the first time in 25 years.
The First State is the only state that specifically codifies the confidentiality of law enforcement personnel records from public scrutiny in nearly all circumstances.
Currently, police misconduct records are only available to a civil plaintiff alleging an officer caused injury through a breach of their official duty. Criminal defense attorneys cannot access them to show an officer has engaged in a pattern of misconduct and the public cannot inspect them to determine whether a law enforcement agency is holding its officers to a high standard of conduct.
The strict confidentiality clause contained in the Delaware Law Enforcement Officers’ Bill of Rights has enabled a number of officers to continue serving despite repeated and egregious accusations of misconduct, including a former Dover officer whose file contained nearly 30 use-of-force reports before being captured on video breaking a man’s jaw.
Eight states, including California, New York and Maryland have passed similar laws since 2018, joining a majority of states that make police disciplinary records partially or fully available to the public. It’s not only the public demanding increased scrutiny. A recent survey found that 72% of police officers believe their colleagues who consistently do a poor job are not held accountable.
“For too long, police misconduct records have been hidden,” Assistant Public Defender Misty Seemans said. “Delaware is in the minority of states where police misconduct – lying, the excessive use of force, abuse of power, tampering with evidence – is secret. Communities, criminal defendants, judges, and juries should know who is policing their communities and testifying in court. This bill removes the barriers to public access to misconduct records, a misconduct database, and civilian oversight, paving the way for a fairer and more transparent criminal justice system.”
SB 149 would help make Delaware policing more transparent by allowing the public to review police disciplinary records, including any complaints, allegations or charges filed against a police officer, transcripts of disciplinary trials or hearings, and the factual findings and the final disposition of the case. Personal information including home addresses, telephone numbers, any medical history or the names of family members and witnesses would be redacted and remain confidential under the legislation.
SB 149 also would allow any state agency, county or municipality that operates a law enforcement agency to empower a community review board to hear and decide law-enforcement disciplinary matters in place of the Delaware Criminal Justice Council or a tribunal made up of fellow police officers
“If we do not have transparency, there can be no accountability. The two go hand-in-hand when it comes to building trust for all people, but especially between law enforcement and the community they serve,” said Rep. Kendra Johnson, SB 149’s lead House sponsor. “This is a critically important step, and with this framework, we can strengthen public safety and protect the rights of officers and citizens in Delaware. I thank my colleagues for supporting this legislation and taking a stand for change.”
Use-of-Force Reform
Two bills filed by Sen. Pinkney, the secretary of the DLBC, and Rep. Sherry Dorsey Walker, the DLBC’s founding co-chair, would create the first objective use-of-force standard for police officers in Delaware, while expanding the use-of-force cases subject to DOJ review.
Delaware is currently one of only three states that permits police officers to use deadly force whenever they believe it to be justified regardless of whether such a belief is reasonable – a vague and subjective standard that is both difficult to understand and impractical to enforce.
Senate Bill 147 would insert the word “reasonably” throughout Delaware’s use-of-force law to require the same objective standard currently used by 43 other states.
“We need a higher standard for the use of force than to simply allow the officer in question to fall back on the magic words, ‘I believed,’” said Sen. Pinkney, D-New Castle. “At the bare minimum, our courts have to be empowered to ask whether a police officer’s belief is justified or just an excuse without rationale.”
Under the current standard, all 50 instances in which police used deadly force from 2005 to 2019 were found to be justified under Delaware law, including a 2015 case in which a Wilmington police officer shot and killed a man in a wheelchair only seconds after telling him to raise his hands.
“Our laws are only strong when they’re clear, and Delaware has one of the least enforceable, most confusing use of force laws in America,” Attorney General Kathy Jennings said. “Everyone, from the most ardent activists to the most stalwart veterans of law enforcement, believes that excessive force ought to be prosecuted. I’m grateful to Sen. Pinkney and Rep. Dorsey Walker for standing up to say that our laws should reflect that consensus.”
The legislation also would make clear that deadly force includes the use of a chokehold, a practice all police in Delaware were expressly forbidden from using in 2020 except in instances where they believe deadly force is required.
Senate Bill 148, meanwhile, would expand the power of the Delaware Department of Justice’s Division of Civil Rights and Public Trust to review police use-of-force incidents that result in serious physical injury in addition to the office’s existing mandate to review all deadly-force incidents.
“Situations do arise when a police officer needs to use force when interacting with a person. However, it is critical that we help restore public trust by ensuring that there is transparency and accountability for those incidents,” said Rep. Sherry Dorsey Walker, the lead House sponsor of the two use-of-force bills. “Increasing the Division of Civil Rights and Public Trust’s role in use-of-force incidents and applying the ‘reasonable’ standard will greatly improve accountability in situations where an officer uses force. This is why we are working with law enforcement and the community to bring about the changes we desire to see collectively.”
To help Delaware better track whether force is applied differently when it comes to race, SB 148 also would require the division to report the race of individuals involved in use-of-force cases and specify whether race played a factor in how force was applied.
SB 147, SB 148, and SB 149 have been assigned to the Senate Judiciary Committee.
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