DOVER – Lawmakers filed two measures Friday that would make the first substantive revisions to Delaware’s Law Enforcement Officers’ Bill of Rights in a generation, revamp how officer disciplinary cases are handled and publicly disclosed, and empower members of the public impacted by the criminal justice system by providing them with a role in setting standards for police officers and holding those who violate the public trust accountable.
The bills would increase transparency for a system that has been criticized in recent years for its secretive nature by requiring public disclosure of certain findings against officers, mandating the sharing of certain reports with defense attorneys, and providing for local police accountability boards that include individuals or their family members who have been impacted by the criminal justice system.
“There have been numerous conversations, attempts and false starts at moving forward with LEOBOR reform on both sides of Legislative Hall. What we have brought forward is serious, meaningful legislation that will make a real impact. These bills will increase transparency and public reporting, hold officers accountable, formalize the entire process, and give people who have been part of the criminal justice system a voice and a seat at the table.
“As a Black woman whose family members have had encounters with law enforcement and the criminal justice system, I understand the real challenges our community faces and the need to fix these problems. I also know how critical it is to take those first steps and build a base as we continue to pursue more reforms. These bills move us forward and end years of stagnation on this issue.”
Sponsored by Rep. Minor-Brown, House Bill 205 would make numerous changes to the Law Enforcement Officers’ Bill of Rights, also known as LEOBOR. The bill would distinguish between formal investigations and informal inquiries but require that both follow federal and state law. It would establish “sustained findings,” defined as a violation of law, rule, policy, regulation or guideline determined by a “preponderance of the evidence,” meaning more probably true than not.
HB 205 would require an investigating agency prepare a detailed report of its internal investigation and publicly post it in any case involving:
- An officer’s discharge of a firearm.
- An officer’s use of force that results in serious physical injury.
- 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.
- A sustained finding of domestic violence.
The reports would be posted on the Police Officer Standards and Training Commission’s (currently the Council on Policy Training) website.
The bill also would rename LEOBOR to Police Officer’s Due Process, Accountability, and Transparency.
HB 205 also would require that an investigation into officer misconduct be completed and sustained findings reported, regardless of their employment status, including whether the officer has resigned or retired during the investigation.
The bill also requires that defense attorneys in a criminal or delinquency case be provided – at their request – all records relating to sustained findings of 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.
“Three years have passed since George Floyd’s murder sparked the greatest civil unrest our state has seen in decade, and three years have passed since we vowed to address the systemic racial injustice and police brutality that have impacted people of color for far too long,” Senate Majority Whip Elizabeth Tizzy Lockman, the Senate prime sponsor of HB 205.
“Since that day, we have banned police from using chokeholds, made body cameras mandatory and required a video record of all police interrogation,” she said. “And now, three years later, the time has finally come for us to take the next meaningful step toward fulfilling our promise to remove the systemic barriers that continue to protect law enforcement officers when they betray the public’s trust. Our communities and the police officers who protect them deserve better. That’s why I am committed to getting these bills signed into law this year.”
Additionally, HB 205 would require each law enforcement agency to annually submit its detailed narratives to the Criminal Justice Council, which would publicly post those public reports. The agencies also would annually submit additional information to CJC to be publicly posted:
- The number of public complaints and internal complaints relating to police misconduct that the department received each year, broken down by subject matter of the complaint.
- The number of formal investigations undertaken by the department each year, and the number of complaints resolved without a formal investigation.
- The number of formal investigations that resulted in a sustained finding of misconduct, an unsubstantiated finding, or any other disposition.
Records relating to any incident for which a detailed narrative is required to be prepared and posted must be preserved for at least 25 years.
“Every year that passes without progress on this issue is another year that Delaware’s police records laws remain some of the least transparent in America,” said Attorney General Kathy Jennings. “I’ve been working in support of this effort for more than three years and I’ve seen firsthand how hard and how persistently all sides have worked to come to this agreement. I applaud the strong collaboration between the legislature, law enforcement, and the communities we serve. This bill represents historic progress in our state’s efforts to open up the Law Enforcement Officer’s Bill of Rights and proves that even on contentious issues, progress is always possible.”
House Bill 206, sponsored by Rep. Kendra Johnson, would revamp the Council on Police Training, renaming it the Police Officer Standards and Training (POST) Commission. The panel has a dual role of establishing training standards for Delaware police officers and overseeing allegations of police officer misconduct and conducting hearings for possible suspensions or de-certifications. HB 206 would clarify that decisions of disciplinary panels are public documents.
The bill would increase the number of governor-appointed public members to the commission from two to three and institute eligibility standards for them. One would be required to be a religious leader from the community who has experience with re-entry, and two members must be impacted directly or are immediate family members or caregivers of those impacted by the juvenile or adult criminal justice system.
In addition to its existing powers to suspend or revoke an officer’s certification, the commission would be able to take action in cases where an officer has been decertified in another jurisdiction 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.
The commission also would have the authority to issue subpoenas for witnesses, documents, physical evidence or other evidence needed in connection with a hearing.
HB 206 also would require that all police departments establish, either individually or in combination with other departments, police accountability boards to provide advice to departments on policy, training and other issues relating to or affecting the department and the communities served by the department.
Similar to the proposed POST Commission itself, the local boards would be recommended to include at least one religious leader from the community and at least two public members who have been impacted directly or are immediate family members or caregivers of those impacted by the juvenile or adult criminal justice system.
“The Delaware Legislative Black Caucus’ ‘Justice For All Agenda’ created the Law Enforcement Accountability Task Force and from its recommendations legislation has been passed to ban strangleholds, establish body camera requirements, prohibit the release of juvenile mug shots, redefined the use of force directive and added serious physical injury eligibility for the review of cases, amongst other police reforms,” said Sen. Darius Brown, the lead Senate sponsor of HB 206.
“The Police Officer Standards and Training Commission (POST) continues the work of the ‘Justice For All Agenda’ during the 152nd General Assembly.”
The bill also would implement several technical changes that would untether the commission from the Delaware State Police. The commission also would be required to double its number of meetings to four annually.
The bills filed Friday build on previous police reform efforts, including requiring officers to use body-worn cameras, establishing a statewide use-of-force standard, banning chokeholds, mandating the recording of custodial interrogations, prohibiting the use of deceptive tactics against juveniles, and mandating a minimum age of arrest and prosecution.
HBs 205 and 206 have been assigned to the House Public Safety & Homeland Security Committee. Both bills are scheduled to be heard in committee on Wednesday, June 7.
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