The protests that continue to rock the country in the wake of George Floyd’s death in police custody have also touched cities and towns throughout Delaware.
But the protests go beyond Floyd’s death, the latest involving an unarmed black man at the hands of police. They are focused on systemic racial injustices.
Now some Delawareans are again demanding change to the way police here use force— and how they are protected under state law when they do.
“It’s almost like it's a wild, wild west,” said New Castle resident and community advocate Jakim Mohammed, at a small protest in Wilmington Wednesday. “Everything goes. As long as a police officer has indemnity and he doesn’t have to think about it, he can say everything was in the fear of their lives. That’s the police bingo.”
“Everybody knows how this is playing out,” he added. “What we want to see is change.”
Delaware law enforcement officers who are sued for using force against a suspect are protected from criminal liability by several justifications in state code.
One defense is also available to civilians. This is use of force in self-protection — which justifies even deadly force if the defendant believes it is necessary to protect themselves from death or serious injury.
The other is specific to law enforcement, who are justified in using force if they feel it is necessary to make an arrest.
“Often a law enforcement officer will use force not to protect themselves, not in self defense, but in order to make an arrest, in order to take someone into custody or in order to prevent someone from escaping custody or a correctional institution,” said Judith Ritter, professor of criminal law at Widener University Delaware Law School. “So self defense doesn’t fit any of those categories, and that’s why there is a defense that says I have a right to, am justified in using force in aid of my job.”
Ritter says Delaware’s justifications for use of force by law enforcement are very similar to those in other states.
“The Delaware statutes are virtually the same as what's in the model penal code,” she said. “So many states have the exact same language in their statutes.”
Where Delaware’s code differs from some states is in what happens to an officer’s defense if a jury finds the officer’s belief that they had to use force unreasonable.
“In other states, if there is unreasonableness, then the defense is just completely prohibited,” said Ritter. “In Delaware, it’s a little bit more lenient.”
Still, Ritter argues the “gap” in holding police accountable for inappropriate use of force often shows up in the courtroom, more so than the statutes.
“We’ve seen, for reasons that sometimes we understand and sometimes we can’t fathom, that jurors seem to be somewhat reluctant to assign the worst motivation to police officers and to second guess reasonableness,” she said.
Mike Brickner, the new executive director of the ACLU of Delaware, agrees. “By and large, courts are siding with the officer.”
Part of the ACLU’s stated mission is combating racial inequities in the criminal justice system and holding police accountable.
Brickner notes while individual police departments have their own use of force policies, the state statutes offer a “floor” or “minimum standard.” He says there are ways to improve them.
“If you look at the state of Tennessee, they actually have a very detailed use of force policy in their state code, particularly around the use of deadly force,” he said. “It really goes into detail about making sure that the officer has to have used all other reasonable alternatives, or that those alternatives aren’t available in that situation, encouraging the officer to give notice to the person that they may use deadly force.”
The Delaware NAACP state conference of branches called on lawmakers, the Governor and the state Attorney General Sunday to strike from state code completely the justifications for use of force in self-protection and in law enforcement.
New Castle County Councilman and NAACP Criminal Justice Committee member Jea Street, Sr. sees them as too generous to police. He points to the case of Jeremy McDole, a wheelchair user who was shot and killed by Wilmington Police officers Joseph Dellose, Daniel Silva, Thomas Lynch and James MacCollin in 2015.
“Shot and killed in a wheelchair, and the Attorney General [Matt Denn] making it crystal clear that because of Delaware code [sections] 464 and 467, although he wanted to bring charges, he didn’t … because he thought he couldn’t get a conviction,” said Street.
The investigation by the state Department of Justice found “serious deficiencies” in the Wilmington Police Department’s use of force policies and training, particularly for suspects with disabilities. DOJ called one officer’s conduct “extraordinarily poor police work” — but found it could not bring criminal charges against any of the officers because their actions were justified under state code.
Since then the Department of Justice has investigated 13 other instances of deadly force used by police in Delaware and has found them all to be justified.
Kathy Jennings, the Attorney General that took office last year, signaled during a live-streamed question and answer session with state Sen. Darius Brown Monday that she would like to see the state’s use of force laws changed.
“Here’s where it gets uncomfortable, but here’s where it gets really important,” she said. “We need to take a fresh look at the use of force laws in our state. They may need changing. That’s going to take, obviously, legislative support, Senator. And I’ll know you’re up for it.”
In a statement Thursday, Brown (D-Wilmington), who is chairman of the Legislative Black Caucus, called for a "serious review" of state code and regulations related to use of force and policing practices. He said he hopes Delaware can become a “national model for addressing America’s original sin through social justice.”
Delaware NAACP President Richard Smith sees the current protests as integral to securing this change.
“If the young folks and everybody raise cane and continue doing what they're doing,” he said, “and we deal with our politicians that’s now a community up and down the state, … we will have the support to get most of these things.”