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Delaware Senate Democrats

Senate passes legislation to establish objective use-of-force standard

June 10, 2021

DOVER — The Delaware State Senate on Thursday passed legislation to remove a major barrier that has long prevented Delaware police officers from being held accountable when they violate the public trust.

Sponsored by Sen. Marie Pinkney and Rep. Sherry Dorsey Walker, Senate Bill 147 would create the first objective use-of-force standard for police officers in Delaware by stipulating that the use of both lethal and non-lethal force is legally justifiable only if that belief is determined to be reasonable. The legislation would insert the word “reasonably” throughout Delaware’s use-of-force law to require the same objective standard currently used by 43 other states. 

“Under current Delaware law, any use of force by a police officer, no matter how egregious and unnecessary, is considered perfectly legal as long as the officer in question uses the magic words, ‘I believed,’” said Sen. Marie Pinkney, D-New Castle.

“I think we all agree there is such a thing as excessive force and it should be prosecuted,” she said. “This legislation will allow us to finally hold police officers accountable in a court of law when they commit unjustifiable acts of violence, something that is absolutely necessary if we ever hope to restore trust between law enforcement and the communities they serve.”

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.

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 Jeremy McDole in a wheelchair only seconds after telling him to raise his hands and a 2015 case in which a Dover police officer was captured on video kicking Lateef Dickerson in the head, breaking his jaw. 

SB 147 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.

“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 Senate on Thursday also passed Senate Bill 148, companion legislation sponsored by Sen. Pinkney and Rep. Dorsey Walker that 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.

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.

“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. I look forward to advancing these bills in the House.”

SB 147 and SB 148 now head to the House for consideration.