Delaware lawmakers’ latest legislative proposal aimed at police transparency would keep past complaints and disciplinary findings against officers accused of wrongdoing a secret.
On Monday, legislators introduced a new proposal aimed at amending what’s known as the Law Enforcement Officer’s Bill of Rights, which denies the public the ability to review complaints about officers and see how law enforcement polices its own.
The new legislation would allow the public some insight into future complaints against officers that are deemed “serious” and “substantiated,” after such a finding is rendered by that officer’s supervisors. Complaints deemed by police supervisors as unsubstantiated and complaints that predate the legislation — regardless of whether they were deemed serious or substantiated — will remain hidden from public view.
The bill also includes provisions for community review boards to provide some oversight into police disciplinary processes but does not empower those boards to make disciplinary decisions.
Monday’s proposal is the latest in years of stop-start efforts by Democrats who have promised to bring transparency to policing in Delaware.
The new legislation significantly curtails a legislative effort proposed last year that sought to open virtually all police complaints and findings, both historically and moving forward, into public view. That legislation also empowered the creation of community review boards with subpoena power and the ability to make disciplinary findings in response to police complaints.
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That previous effort was cheered by reform advocates. Monday’s proposal is meant as a substitute to that effort, which ultimately died without a full vote in the Delaware House or Senate and under criticism from law enforcement.
Police interests argued airing past complaints against officers and giving non-police citizens say in police discipline would be unfair to officers.
Reformers argue public oversight into historic and future police discipline is necessary to ensure the system is working fairly and to build trust between law enforcement and the communities they police. On Monday, they said the new proposal does not go far enough.
“What may have been questionable in the past: it all remains hidden,” said Shyanne Miller, an activist with Network Delaware, a public advocacy group. “That lack of transparency is really alarming.”
Sen. Tizzy Lockman, a Wilmington Democrat who the bill’s primary sponsor, said the compromise comes after engagement with various “stakeholders” including police and reform interests over the past year.
She believes the changes are necessary to convince her colleagues to approve the bill and to ensure the proposed reforms won’t be bogged down by lawsuits by law enforcement.
“I’m not comfortable with making no steps forward because we cannot take the entire step forward at once,” Lockman said in an interview Monday.
What’s in the bill
Delaware law grants local police unique and broad authority to deny the public the ability to review basic paperwork generated in their work, a situation which is largely a result of top Democratic and Republican lawmakers in Dover regularly accommodating police requests for privacy in their on-duty affairs.
That secrecy includes everything from day-to-day incident reports to complaints and disciplinary actions against individual officers.
The primary argument for allowing the public insight into police discipline is to create some trust that police departments, which handle discipline internally, are adequately policing officers that abuse their authority, lie, or are accused of repeated wrongdoing.
Reformers argue the only way to do that is to have public oversight of how police have been disciplined, giving exposure to whether there are active officers who have been allowed to abuse authority with relative impunity.
While the previous reform package would have made public any complaints against officers, regardless of whether they were deemed substantiated by an in-department investigation, the new legislation strictly opens up records moving forward that have been determined to have been substantiated.
It curtails public exposure only to cases where the misconduct was admitted by the officer, investigated by the officer’s agency and deemed to be credible, or in which the officer has been found guilty by a “decision-making body.”
Law enforcement interests fought the original, more broad proposal, arguing that airing unsubstantiated complaints against officers would open them up to “public ridicule,” by people who have something against the officer, said Jamie Leonard, president of the Delaware Fraternal Order of Police.
Leonard confirmed his organization opposed opening up old records as well as the previous proposal for community review boards staffed by non-police citizens to have power make disciplinary findings. He said he had not read the new bill.
Reformers have argued that only making public what is deemed to be substantiated continues to place full trust in the officers that make those determinations. They argue there are situations in which an officer may be accused of a particular pattern of misconduct, substantiated or not, that the public should have some insight into.
“The community can no longer blindly trust the police to police themselves because they have shown that they’ve failed to hold themselves accountable,” said Haneef Salaam, manager of ACLU Delaware’s Campaign for Smart Justice, after reviewing the new proposal.
Kevin O’Connell, chief defender with the Delaware Office of Defense Services, the state’s public defender unit, described the updated bill as disappointing. His office has been pushing for greater transparency around police discipline in order to determine if an officer’s credibility should be questioned when they testify in a criminal trial.
As of now, he said there is no “meaningful access” to such information right now.
“This is a bill that will not provide meaningful reform to law enforcement,” O’Connell said Monday.
In some states, similar reforms have led to serially abusive officers being exposed as well as courts ruling that some criminal defendants didn’t get a fair trial because of failures to disclose police misconduct. Similar reforms in New York were subject to lawsuits by law enforcement interests seeking to blunt public disclosures over police discipline. Maryland’s legislature passed sweeping police reform last year.
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Lockman said she is “sympathetic” to the viewpoint that the new proposal does not go far enough, but said she fears opening up historic police records would open the state up to lawsuits by police that claim such exposure would be a violation of the union contracts they’ve operated under.
“Quite frankly, the retroactivity question was a significant one. Are we going to put ourselves in a place of just being stuck in litigation instead of getting started creating more transparency,” Lockman said.
Absent public review of all complaints and how they were processed, Lockman said community review boards empowered by the bill would provide some oversight of police disciplinary processes moving forward.
The previous proposal would have empowered local government authorities, for example, New Castle County government, to create community review boards which would have access to complaints, subpoena power to investigate those complaints and the authority to make decisions on police discipline.
The new proposal introduced Monday gives the review boards fewer teeth: they can’t issue subpoenas and they cannot supplant in-department disciplinary processes.
It would empower the creation of two levels of review boards: one at the local level and one at the state level.
The legislation states that these boards will have power to gather statistics on allegations of misconduct, conduct “performance reviews” of investigations, issue reports regarding trends and review policies and procedures to make recommendations regarding officer training.
These boards will be given some access to newly created complaints against officers, but the officer’s name will be kept secret and the board members cannot reveal the complaint to the public.
The boards will not have decision-making capacity as it relates to officer discipline, but the local board can ask the state board to review a local police agency’s finding that a complaint against an officer is unsubstantiated.
The bill allows the state board to be made up of people who are not former or current public office holders or police. Delaware’s Attorney General is also tasked with appointing the executive director of that board and assigning a state attorney to serve as counsel.
Salaam said the bill takes “community oversight out of the community” by removing the authority of review boards to make decisions regarding discipline.
Lockman said the local boards can “engage in dialog” about police “practices and training and give feedback about how it impacts the community,” while the state board will have “more teeth” to look at individual cases and complaints.
Moving forward
The new proposal is the latest chapter in lawmaker efforts to implement police reforms following the summer 2020 murder of George Floyd, who died after former Minneapolis police officer Derek Chauvin knelt on his neck for more than nine minutes.
Protests gripped Wilmington and Dover days after Floyd’s death, and lawmakers responded by creating a police task force, along with announcing a list of other legislative promises aimed at police reform.
That task force, charged with suggesting policy changes to the General Assembly, was inconsistent in its recommendations surrounding the Officers’ Bill of Rights, first voting to amend it and then voting against amending it in two consecutive meetings.
Lockman introduced her first proposal at reforming the Officer’s Bill of Rights last spring.
That proposal passed through a legislative committee, but was never put up for a vote in the Senate.
Many questioned its chances of passage because, despite Democrats holding a three-fifths majority in both chambers, a handful of legislators, including in House leadership, are either retired officers or have had an affiliation with police.
Since Monday’s proposal is a substitute for that failed legislation, another committee hearing will not be necessary and the new proposal could head to the Senate floor for a vote “very soon,” Lockman said.
On Monday, Attorney General Jennings said she supported the reworked proposal.
“We need to get reform through,” Jennings spokesperson relaye in a written statement. “We support the best possible bill that can reach the governor’s desk and we believe this is that bill.”
Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareon
