By Craig Anderson

DOVER — In a letter to legislators on March 10, 27 organizations signed on to support the pending Senate Bill 149 aimed at increasing law enforcement transparency and accountability.

The organizations called on legislators to enact concrete law, pointing to what they said were commitments made by the Delaware Legislative Black Caucus nearly two years ago to increase police transparency.

There’s been ample public discussion in Delaware regarding the Law Enforcement Officers’ Bill of Rights (LEOBOR), which became law in 1985 and allows police misconduct records to be kept private and not accessible to criminal defense counsel, the media, or the public.

The bill’s original synopsis says “Delaware is (currently) in the minority of states that bar public access to police misconduct records, and is the only state in the country with a specific confidentiality clause in its (LEOBOR).”

According to the originally proposed SB 149’s language “other than the police department where the officer works, and plaintiff lawyers in some types of cases, no one knows if an active member of a police force has lied, used excessive force in the past, abused their authority, tampered with evidence, or engaged in sexual misconduct.”

Among other factors, the bill, according to sponsors, would increase trust of law enforcement within the community and increase fairness in the criminal justice.
State Sen. Elizabeth “Tizzy” Lockman, D-Wilmington, is sponsoring the bill. Senate spokesman Scott Goss said, “For months, Sen. Lockman has been actively working with criminal justice reform advocates, law enforcement and her fellow legislators in an effort to develop proposed reforms to the Law Enforcement Officers’ Bill of Rights that will restore public trust through transparency and accountability.

“Those discussions are nearing their conclusion and she will be more than happy to discuss her legislation once a substitute version of Senate Bill 149 is introduced in the coming weeks.”

The bill was released from the Senate Judiciary committee on June 16, 2021.
The Delaware Association of Chiefs of Police did not respond when asked about the bill.

While Chief Defender of the Office of Defense Services Kevin O’Connell said the office is in support of the original bill, “We understand that a substitute bill is in the works, and we are withholding judgment until it is officially introduced.”

But, he said the office “strongly advocates for greater transparency and accountability in our criminal justice system.

“In Delaware, police misconduct records are shielded and inaccessible to criminal defense counsel, the media, the public, and sometimes even other police agencies. This makes us one of the most secretive states in the country when it comes to law enforcement discipline.”

In fact, Maryland’s General Assembly last year passed Anton’s Law (the Maryland Police Accountability Act of 2021) to bring more transparency to police discipline records by making them available under the state’s Public Information Act.

The movement for reform began with the 2018 death of Anton Black, a 19-year-old Black teen who died in police custody after being restrained by three police officers in Caroline County. He was one of 31 people who died that year through the actions of police, according to the Maryland Governor’s Office of Crime Control and Prevention, Youth and Victim Services.

Black’s case was closed by the Maryland State Police and the three officers involved were cleared both criminally and administratively, but his family had questions about the investigation.

Under the state law in effect at the time, Marylanders who filed a complaint of police misconduct could not find out how the department investigated the complaint, or, in many cases, even its outcome. Those complaints were considered part of the “personnel record” of a police officer, and all personnel records were shielded under the Public Information Act.

Starting Oct. 1, 2021 in Maryland, police internal discipline and complaint records are considered separate from personnel records, so they would be accessible under the Public Information Act. If the records are part of an ongoing investigation, they may still be shielded as “investigatory” and exempt from the Public Information Act.

Other government employee personnel records remain exempt from disclosure.

Mr. O’Connell said, “Delaware must be proactive and institute changes that facilitate transparency, accountability, and meaningful community oversight. Too often police misconduct is followed by revelations that the warning signs were already there.”

“Dover understands this well following the excessive force incidents involving former officer Thomas Webster (who was acquitted of assault in 2019 regarding an arrest, and had nearly 30 use-of-force reports in his personnel file),” he said. “Police are often the most significant witnesses in a case and this information is vital to ensure that any trial that they testify in will be fair. For a defendant whose liberty and livelihood are at stake, knowing the background of an officer – like if they have a history of lying, of falsifying evidence or of using excessive force – is of paramount importance to ensuring that their trial is fair.”

Delaware Attorney General Kathy Jennings “was an early, outspoken supporter of reforms to LEOBOR, and Senate Bill 149 remains one of her top priorities,” according to spokesman Mat Marshall.

“We are working to support Sen. Lockman’s efforts to deliver the best possible bill to the Governor’s desk.”

As the Delaware General Assembly convened in January, Senate President Pro Tempore David Sokola, D-Newark, said that “There seems to be a lot of consensuses that there needs to be greater transparency and great public accountability.

“There are some differences on what exactly that means, but I’m cautiously optimistic.”

The groups attached to the letter sent last week maintain that a statewide poll showed 68% of Delawareans support the disciplinary records of police officers in the state being publicly available.

Also, according to the letter, the groups are pushing for law to:

• Provide public access to serious and substantiated police misconduct records--including records that show conduct unbecoming of a police officer and sexual assault.
• Provide public access to redacted, unsubstantiated police misconduct records.
• Ensure local community oversight boards have subpoena power, investigatory power, disciplinary power, and access to both substantiated and unsubstantiated police misconduct records.

Among the groups signing on were the Delaware Democratic Party Black Caucus, Progressive Democrats of Delaware, League of Women Voters, Delaware United, Delaware Coalition against Domestic Violence, and Southern Delaware Alliance for Racial Justice.

Standing in front of Legislative Hall in November 2021, civil rights activist Al Sharpton voiced his support for SB 149 at a rally for police accountability and reform at a rally organized by Citizens for a Pro-Business Delaware.

“If you have nothing to hide, then open up the files,” he said. “Make it open to scrutiny by the citizens that pay you, so that people can see what is going on.”

Prior to that, supporters rallied there in June. “Delaware police officers enjoy more protections from discipline than any other government entity, any other,” said Delaware Campaign for Smart Justice Manager Haneef Salaam. “Nobody gets protected like the police and I have family and friends that are officers so I know the importance of being a law officer and I want my family and friends to come home every night.

“But that does not mean that disciplinary records cannot be accessible to the public.”