In the final month of the legislative year, Delaware lawmakers are once again making attempts at police reform, introducing two bills on Friday that they say will increase accountability and offer greater transparency into police actions.
The legislation, which has support from much of the legislative Black Caucus, requires the establishment of local police accountability boards, the publication of internal investigations into use-of-force and certain other substantiated allegations, the establishment of uniform standards for police agencies across the state and more.
It comes two days before a planned rally at Wilmington’s Riverfront to demand police reform.
Advertised as the “We still can’t breathe” rally – referencing the May 2020 murder of George Floyd at the hands of a Minneapolis police officer – organizers planned to push for increased accountability measures, which largely did not materialize in Delaware in the years following Floyd’s death.
At the time, state lawmakers said they were committed to passing laws to increase transparency in order to curb systemic racism they believe permeates the law enforcement field. There was also renewed energy to make police disciplinary records public.
Since then, there has been little action. A bill to amend the Law Enforcement Officer’s Bill of Rights was introduced by Senate Majority Whip Elizabeth “Tizzy” Lockman, a Wilmington Democrat, last session. But she received push back from law enforcement and fellow lawmakers.
She then introduced another version, which many viewed as significantly weaker. Both advocates and law enforcement were against the bill.
Friday’s legislation is the result of months worth of work between legislators, community activists, police heads and others, according to those involved in the writing of the bills.
Public accountability, publication of records
Compared to the rest of the country, Delaware is a rarity in how inaccessible police misconduct records are.
Under current state law, police disciplinary records are required to be kept secret from the public, including from criminal defense attorneys. The only non-law enforcement group that can access these records are attorneys representing people who sue the police for physical injury or damages.
As a result, most of the public is in the dark when an active police officer has lied, previously used excessive force, abused their authority, tampered with evidence or engaged in sexual misconduct.
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Friday‘s bills attempt to change this by requiring the publication of a “detailed narrative” regarding investigations into:
- The discharge of a department-issued firearm, even if a person is not struck by bullets
- A sustained finding of sexual assault
- A sustained finding of dishonesty related to the reporting, investigation or prosecution of a crime; or to the reporting or investigation of misconduct by another law enforcement officer; and
- A sustained finding of domestic violence
According to House Bill 205, a “detailed narrative” – which must be finished within 30 days of a completed investigation – is a “complete description of the facts, steps taken to further an investigation, evidence collected, conclusions reached, the names of officers involved for whom misconduct was substantiated, any discipline assigned in connection with the event, and the employment status of disciplined officers.”
The bill, sponsored by House Majority Whip Melissa Minor-Brown, also requires that an investigation into officer misconduct must be completed regardless of his or her employment status.
This makes it so that if an officer resigns or retires while an investigation is pending, the department must complete the investigation and report sustained findings of misconduct to the Police Officer Standards and Training Commission.
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In addition to the public narrative, prosecutors must provide defense attorneys with all records – including those in a personnel or disciplinary file – related to sustained findings of misconduct. This includes misconduct relating to perjury, intentional false statements or false reports, or “destruction, falsification, or concealment of evidence by an officer who participated in the investigation or prosecution.”
HB 205 also requires police agencies to report annually to the state Criminal Justice Council the number of public complaints and internal complaints relating to police misconduct a department receives each year, broken down by type of complaint.
Agencies also must report the number of formal investigations undertaken annually and the number of complaints that were resolved without a formal investigation.
Finally, they must report the number of formal investigations that resulted in a sustained finding of misconduct, an unsubstantiated finding “or any other disposition.” This data will then be published on the Criminal Justice Council’s website for the public to access.
Funding requirements and accountability boards
Perhaps one of the most substantial pieces of the legislation introduced on Friday is the requirement that all Delaware police agencies receive accreditation by the Delaware Police Accreditation Commission.
Agencies can also be accredited by the Commission on Accreditation for Law Enforcement Agencies, according to Delaware Police Accreditation Commission’s website.
Both commissions’ accreditation processes are lengthy and intensive, and all 52 state law enforcement agencies would need to receive accreditation by July 1, 2028. If this passes, Delaware would be the first state in the country to mandate this for all police departments.
Currently, less than half – or 21 – of Delaware’s law enforcement agencies have accreditation from either of these entities, according to the Delaware Department of Safety and Homeland Security. If an agency fails to obtain accreditation, they will lose state money that supplements local police funding.
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This would decimate small agencies, including most municipal departments, and would cripple larger agencies such as New Castle County Police or Wilmington Police, both of which are accredited by the Commission on Accreditation for Law Enforcement Agencies.
HB 206, sponsored by Rep. Kenda Johnson, a Bear Democrat, also focuses on the state panel, known as the Council on Police Training, that establishes training standards for Delaware enforcement. The group, which will be renamed to the Police Officer Standards and Training Commission, will continue to oversee allegations of officer misconduct and hold hearings for possible disciplinary action. The panel can suspend or revoke an officer’s certification.
The legislation would clarify that the panel’s decisions are public record. It also would increase its existing authority to take action in situations where an officer has been decertified in another area or has “received probation before judgment with respect to a felony or any criminal offense involving theft, fraud, or violation of the public trust, or of any drug law,” according to a news release.
The commission, under this new bill, would have the power to issue subpoenas for witnesses, documents and other evidence needed for a hearing.
The legislation would also increase the number of public members appointed by the governor. One religious leader “who has experience with re-entry” and two members who have been impacted directly or have family members who have been impacted by the juvenile or adult criminal justice system.
Police departments would be required to establish, either by themselves or with other departments, an accountability board. The groups would provide advice on issues of policy and training.
Contact Meredith Newman at mnewman@delawareonline.com or at 302-256-2466. Send tips to Isabel Hughes at ihughes@delawareonline.com or 302-324-2785. For all things breaking news, follow her on Twitter at @izzihughes_
