Democrats in Delaware propose reforms to Bill of Rights, create civilian review boards

Nearly one year after promising swift and bold changes to policing laws, Delaware Democrats are finally pushing a bill to allow public access to records that have been kept secret by the Law Enforcement Officers' Bill of Rights.

The bill, made public on Tuesday, would also allow state and local governments to create civilian review boards, made up of non-officers, to hear and have a say in police discipline.

It's one of three bills that progressive Democratic lawmakers announced on Tuesday. The other two would change police use-of-force laws.

Of all the proposals that activists, police and public officials have debated over the past year, none are as contentious as amending the Officers' Bill of Rights, a section of state law that lets police decide how to discipline bad-acting officers and limits how much the public can know about any punishment.

Thanks to the law, internal investigations into complaints against police are kept secret. Police are resistant to any changes, but activists like the American Civil Liberties Union of Delaware say amending it is the only way to truly hold police accountable.

Senate Bill 149 by Senate Majority Whip Tizzy Lockman, D-Wilmington would open up internal affairs records to the public and strike out certain provisions about how officers are allowed to be investigated.

Should the bill pass, officers would not have to be questioned within a police agency, and police themselves would not be the final deciders of whether the officer is prosecuted, paving the way for civilian review boards to have a say in how any officer is disciplined.

The police records would be able to be used in court, and police would be barred from destroying or discarding those records, according to the bill.

It would also make public the complaints against officers, including their names, and details of any disciplinary hearings. An officer's personal information, such as phone number or medical history, would remain private.

While other states have similar Officers' Bill of Rights laws, Delaware's is perhaps the most secretive because it's the only one in the U.S. with a confidentiality clause, according to the official summary of the bill.

The bill falls short of a recent effort in neighboring Maryland, where lawmakers repealed its Officers' Bill of Rights after becoming the first state to adopt one in 1974.

But in Delaware, repealing the document would be all but impossible in a statehouse where some of the Democratic Party's leading members are either retired officers or have an affiliation with police.

It's why any amendments to Delaware's Officers' Bill of Rights will face an uphill battle thanks to pushback from police, especially since police don't support civilian review boards.

In an April letter to lawmakers, the Delaware Police Chiefs Council argued that board members could have "personal agendas," and misconduct cases are "best to be investigated by experienced practitioners." The council represents all police departments in the state.

"We're going to have to talk it out and it's going to be some hard conversations," Lockman said during a press conference Tuesday. "I'm hopeful that we can come to some common place."

Even if both the House and Senate pass the bills, it's unclear if Gov. John Carney would sign them into law. When answering questions from reporters during his COVID-19 press briefing on Tuesday afternoon, Carney said he had not read the bill yet.

Lawmakers are in Dover for about five more weeks before the end of the session, June 30. After that, they go on a six-month break. If the bill doesn't pass this summer, the debate would have to wait until next year.

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Bill has been in the works

Delaware Online/The News Journal first reported on the reform bill in April after obtaining a draft. The draft, however, was less aggressive than the final version announced Tuesday because it didn't strike out provisions around how officers are questioned or prosecuted.

Since then, the police task force charged with suggesting policy changes to the General Assembly has been 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. 

Some members who voted yes previously were absent for the second vote, while others switched their vote.

Task force co-chair Rep. Franklin Cooke, D-New Castle, for example, voted "yes" during the first meeting April 29 to amend the Bill of Rights law, then voted "no" in the second meeting May 13. He has yet to explain his position.

The bills come on the anniversary of the death of George Floyd, who died after former Minneapolis police officer Derek Chauvin knelt on his neck for nearly nine minutes. Chauvin was found guilty of murder in April.

Peaceful protests turned violent in Wilmington and Dover days after Floyd's death last spring, and lawmakers responded by creating the police task force, along with announcing a list of other legislative promises that were less aggressive than the proposed Officers' Bill of Rights amendments announced on Tuesday.

In June 2020, one of those promises was to amend the Officer's Bill of Rights, but lawmakers initially only wanted to change the document to let a defendants’ legal counsel get internal investigative records of officers accused of misconduct.

Public access to records, at the time, was not part of the deal.

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Democrats propose use-of-force law changes

Another bill introduced Tuesday, Senate Bill 147 by Sen. Marie Pinkney, D-New Castle, would amend Delaware's use of force law to create a reasonable object standard instead of a subjective one.

Right now, the law allows the use of force if the person "believes" it is necessary. The bill would change that standard to "reasonably believes."

Supporters say the word "believes" on its own is vague, therefore hard to enforce.

The third bill, Senate Bill 148 by Pinkney, would let the state-run Division of Civil Rights and Public Trust review police use-of-force cases that result in serious physical injury.

Right now, the division can only review deadly force cases. The division would report the race of people involved in use-of-force cases and whether it played a role.

Attorney General Kathy Jennings, a progressive Democrat, has pushed both the proposals.

The bills are significantly less controversial than Lockman's, meaning lawmakers will likely pass them more quickly.

Police are likely to support the two bills after expressing support for the same proposals in the April letter from the Police Chiefs Council.

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Sarah Gamard covers government and politics for Delaware Online/The News Journal. Reach her at (302) 324-2281 or sgamard@delawareonline.com. Follow her on Twitter @SarahGamard.