Delaware Officers’ Bill of Rights debated

DOVER — Many people may assume misconduct by Delaware police officers is made public, but in fact, that’s not the case. The Delaware Law-Enforcement Officers’ Bill of Rights mandates internal investigations and discipline remain private, meaning officers with dozens of use-of-force reports and even some civilian complaints could be patrolling the streets up and down the state at this very moment.

Passed in 1985, the statute essentially gives police extra legal protection. While it was intended to prevent capricious punishment of individual officers by chiefs, many say the measure has helped erode public trust and reduce transparency among law enforcement.

“It really provides police and law enforcement such broad power and authority and protections that it really does make it impossible to get rid of bad police, and not even get rid of them but even discipline them,” said former Wilmington police officer Dan Selekman.

A 20-year member of the force who now works with police agencies in Pennsylvania on making positive changes in communities and gaining the public’s support, he’s a strong critic of the way law enforcement in Delaware operates.

Police have created a “monster,” he said, describing it as “nearly impossible” to discipline officers even for flagrant violations during his time with the Wilmington Police Department.

Issues with police accountability and trust, particularly among communities of color, go back a long way, but they have intensified in recent years: In August, a Gallup poll reported 48% of Americans have confidence in the police, the lowest level in the 27 years the company has tracked that. The same poll showed that confidence in police rose among Republicans.

That survey came after the high-profile killing of George Floyd, one of many civilians, mostly Black men, whose deaths at the hands of police sparked outrage and calls for change.

The 46-year-old Mr. Floyd, who was Black, lost his life in May after being pinned under Minneapolis police officer Derek Chauvin’s knee for more than nine minutes even while he repeatedly stated he could not breathe. The incident triggered protests across the globe.

In the aftermath, Delaware lawmakers banned police chokeholds and similar techniques and established task forces looking at law enforcement accountability and Black equity. The police accountability panel has been meeting in subcommittees for months, and one of the topics under review by the group focusing on transparency is the Law-Enforcement Officers’ Bill of Rights.

“LEOBOR currently has a confidentiality clause that is the only one of its kind in the country, and that confidentiality clause prohibits the release of police misconduct records,” said Misty Seemans, an assistant public defender serving on the subcommittee. “The only individual to get access to those records are civil attorneys who are suing for specific claims of damages.”

While in theory a criminal defendant can seek records for an officer, which could establish a history of misconduct and thus work in the defendant’s favor, in practice this is very rare, according to a September memo from Ms. Seemans to the subcommittee.

“Even the prosecutor’s office has had to wage this uphill battle. In a 2002 case, State v. Watson, a former Wilmington police officer was charged with four counts of rape. In that case, the Delaware Department of Justice issued a subpoena requesting Watson’s police personnel file. The City of Wilmington opposed,” she wrote.

“After the Court conducted a private review of Watson’s police file, several records were released, including his credibility concerning an automobile accident, credibility concerning sick time policy violations, an incident of use of force, and his association with known criminals. These records were not freely turned over, even to prosecutors, in a rape case, under this current law. The State prosecutors had to involve the court to access these records.

“Thanks to LEOBOR, we have ‘police-only privacy.’ No one else has a privacy right as high as the police in this State.”

The text notes, however, exceptions for personnel files were made for officers who sued their police departments for discrimination.

A similar memo from the Delaware Department of Justice proposes establishing a complainant’s bill of rights similar to the existing crime victim’s bill of rights, making final disciplinary judgments for serious violations of policy open to the public and forming a civilian review board that examines the outcome of administrative investigations and has subpoena power.

An examination of 17 agencies determined citizen review boards “validate police brutality complaints at a higher rate than the departments themselves, suggesting that they could be a more objective entity,” per the Department of Justice memo.

Necessary measures?

After the death of Mr. Floyd, media outlets reported Mr. Chauvin had previously been disciplined internally following complaints and had been involved in several police shootings.

Making misconduct records available in criminal cases is the least the state can do, according to Ms. Seemans, who described any sort of civilian oversight as “symbolic” unless the Law-Enforcement Officers’ Bill of Rights is altered.

Most states allow police disciplinary files to be public, per her memo. California and New York, the only other states with similar confidentiality clauses, repealed them within the past few years.

According to the Office of Defense Services, 20 states have a police bill of rights or similar concept.

But Jeffrey Horvath, the executive director of the Delaware Police Chiefs’ Council and former chief in Dover and Lewes, feels major changes to the bill of rights are unnecessary and counterproductive.

The measure provides important due process protections to officers while also creating grounds for punishment of bad cops, he said.

Under the Law-Enforcement Officers’ Bill of Rights, police can be compelled to respond to queries in a private administrative hearing.

“As a chief I can tell you we’re going to ask you questions and I’m ordering you to answer these questions and if you don’t answer them truthfully, I’m going to fire you,” he said.

Information from a criminal case can be shared with an internal affairs investigator but not the other way around. If those answers could be released in criminal cases, every officer would simply refuse to talk during private questioning, he noted.

The administrative provision enables a chief to fire an officer who misbehaved and “make sure he’s never a cop again,” Mr. Horvath said.

While police could perhaps do a better job of informing a person who files a complaint what the outcome of that is, he believes law enforcement is sufficiently accountable to the public.

Altering the Law-Enforcement Officers’ Bill of Rights is a “knee-jerk” reaction, Mr. Horvath said.

Both the Department of Justice and the Office of Defense Services suggest creating a database tracking police officers who committed violations. Delaware is the only state, according to USA Today, that does not submit the names of decertified officers to the national database used by some agencies to vet potential hires.

Changing that might have prevented the 2019 death of Anton Black, a Black Maryland man who died during an arrest. Among the officers involved in the incident was Greensboro, Maryland, officer Thomas Webster IV, a former Dover police officer who was criminally charged but acquitted in 2015 for breaking a Black suspect’s jaw with a kick during an arrest. After Dover paid him $230,000 to quit, Mr. Webster was hired by the Greensboro Police Department.

LaToya Holley, Mr. Black’s sister, told a panel discussing criminal justice reform earlier this month that her brother was arrested on spurious grounds and noted Mr. Webster’s hiring came despite 29 use-of-force complaints not disclosed to the state of Maryland.

Broken system?

Among the legislative proposals announced by the Delaware Black Caucus in June but not enacted due to limited time was changing the Law-Enforcement Officers’ Bill of Rights to make internal affairs investigation records available to criminal defendants.

Rep. Kendra Johnson, a Bear Democrat, hopes to introduce legislation to that effect sometime in the first six months of 2021. While she first wants to see the initial conclusions from the accountability committee set to be released in January, she is optimistic about the level of support such a bill might find in the General Assembly.

A spokesman for Gov. John Carney did not respond to a question about whether the governor would be open to altering the Law-Enforcement Officers’ Bill of Rights.

The fact so many legislators attended the announcement of the criminal justice package six months ago “is an indication from our colleagues that they understand the urgency, the need for change and that they will be supportive,” Rep. Johnson said Friday.

But Mr. Selekman, the former Wilmington cop, is less hopeful. He expects the state’s police unions, which have significant sway in the General Assembly, will fight any such proposal tooth and nail and does not think the legislature has the “willpower and courage” necessary to push a bill through.

“Police really haven’t done anything collectively to try to make that better,” he said of recent criticisms and calls for more transparency. “What they’ve done is just insulated themselves further.”

During a panel discussion earlier this month, Mr. Selekman pushed back against the notion that issues with police stem from a few proverbial bad apples. Rather, he said, it’s about the stubborn refusal to look inside and about the “thin blue line” that protects officers and silences dissenters.

“Do you think there would be a global movement for change because there’s a couple bad cops? No, it’s because the culture, our community, realizes the culture in policing, the culture in law enforcement, is corrupted,” he said. “It’s corroded.

“Not that there’s (only) bad cops. There’s wonderful police out there. There’s great human beings that wear the uniform. What we’re saying is the culture itself is broken.”

The memo from Ms. Seemans notes the positive effects more transparency could create: “If there is nothing to hide, the police may benefit from showing how rare police misconduct occurs. Transparency as it relates to police disciplinary records could wipe away the stigma and speculation surrounding police misconduct. If only a minority of police are engaged in misconduct, police could point to all of the officers who are not the subject of these complaints or investigations.”

Only time will tell what happens, of course, but to Mr. Selekman, waiting is a luxury Delaware — and indeed, the entire nation — lacks.

“We really are one bad police shooting away from just imploding the state,” he said.