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House lawmakers pass police oversight reform bill

Delaware Public Media

House lawmakers passed a slate of proposed reforms to Delaware’s Law Enforcement Officers’ Bill of Rights (LEOBOR) on Thursday — the first changes to the state's police oversight rules in decades — despite objections from civil rights groups who argue the legislation falls short of promises.

The bill, sponsored by State Rep. Melissa Minor-Brown, is a compromise between lawmakers, who have previously promised to improve public oversight of police departments, and law enforcement, who have an interest in limiting public access to internal investigative records.

Among other conditions, the bill would require law enforcement agencies to issue a public report on cases of serious misconduct – including perjury and sexual assault – by police officers, as well as on any serious use of force by an officer.

The bill also requires departments to provide information about the outcome of a misconduct investigation to the person who filed the complaint — or, in some cases, the victim of misconduct. That information would include whether the complaints against an officer were sustained and, if so, any recommendations for further actions.

Notably, the bill lowers the evidentiary standard that internal investigators must meet to sustain a misconduct allegation against an officer from "clear and convincing" — a difficult standard to reach — to a "preponderance of evidence."

But the bill does not offer the public direct access to misconduct investigation records via Freedom of Information Act requests, unlike legislation introduced in Delaware's Senate last year; that legislation did not advance.

House Speaker Pete Schwartzkopf underscored that the proposed changes were heavily shaped by suggestions from law enforcement themselves.

“I also want to thank the police officers in this chamber as well – for coming forward with an idea and saying ‘we’re not fighting anymore – we want to help," he said. "We want to fix this thing.”

Civil liberties groups opposed the bill in committee, arguing that it still enabled law enforcement agencies to determine what information on misconduct cases is accessible to the public — and that misconduct investigations conducted by law enforcement are not unbiased and independent.

State Rep. Frank Cooke, the leader of Delaware’s Legislative Black Caucus and a key backer of the bill, contended that the reforms before the General Assembly this year could be a starting point for further changes.

“We’ve got more work to do, but this is a step forward. LEOBOR hasn’t been touched for almost 50 years for 53 police departments," he said. "It’s time to make a move.”

Delaware's General Assembly first adopted LEOBOR in 1985.

Minor-Brown's bill passed in the House with near-unanimous support.

State Rep. Madinah Wilson-Anton, the sole lawmaker who voted against the legislation, noted that while the bill has been amended to address some basic concerns from civil rights advocates — including requiring law enforcement to disclose the outcome of investigations to complainants or victims of police misconduct rather than giving departments the option to disclose that information — it does not address the more fundamental concerns raised by police oversight advocates.

"What point is there to disclosing information about the outcome of a misconduct investigation when the investigation process itself wasn’t fair and independent?" she said. "At the end of the day, a victim or complainant still relies on police to investigate themselves, decide to initiate a formal investigation, and determine if there was wrongdoing or not."

Wilson-Anton also raised her concern that Thursday's vote could have a chilling effect on future efforts to reform LEOBOR.

"Some say 'something is better than nothing,'" she said. "I worry that this something will be an impediment to future progress, and there are serious concerns that need to be addressed... Compromise is an important part of the political process, but to go forward with a bill that police overwhelmingly support and advocates and impacted families overwhelmingly oppose is a dangerous precedent to set when it comes to setting accountability measures."

The bill also drew criticism from Delaware's Office of Defense Services, which argued that it did not address some fundamental transparency concerns about barriers to accessing internal police records.

Both law enforcement agencies and the Department of Justice are already obligated by federal Supreme Court caselaw to share evidence that could support a defendant's case with defense attorneys, and the bill requires law enforcement agencies to share unsubstantiated misconduct allegations against an officer if the misconduct in question "is alleged to have occurred in the course of the officer’s participation" in the investigation or prosecution of the defendant's case.

But defense attorneys note that LEOBOR prevents any outside oversight of those disclosures, giving them no way to confirm that they have received all evidence to which they are entitled access.

The bill now advances to Delaware's Senate.

Paul Kiefer comes to Delaware from Seattle, where he covered policing, prisons and public safety for the local news site PubliCola.