Amid nationwide protests over police brutality, advocates in Delaware are looking to increase transparency in policing. The state NAACP is focusing on a portion of state code meant to protect officers known as the Law Enforcement Officers’ Bill of Rights.
The statute governs how police can be investigated internally for misconduct. It requires questioning of police officers be done at a reasonable hour and for a reasonable amount of time. It also keeps records of these investigations private.
“Whatever investigation is held, the information is never released,” said New Castle County Councilman and state NAACP criminal justice committee member Jea Street, Sr. “So nobody knows, number one, who the officers were, but more importantly what the final determination of the investigation was.”
Street and other advocates argue this hurts the public.
“Officers who had allegations or actual findings of bad behavior— it’s incredibly important for us to know when that happens,” said Mike Brickner, executive director of the ACLU of Delaware. “It’s also important for other police departments or other employers to know when a person has maybe exhibited bad behavior.”
The Delaware NAACP is calling for a repeal of the Law Enforcement Officers’ Bill of Rights. NAACP leaders contend it conflicts with the spirit of the state’s Freedom of Information Act (FOIA). The Legislative Black Caucus and the state Attorney General proposed changes to the statute Wednesday.
The Law Enforcement Officers’ Bill of Rights specifies that all records compiled as a result of an investigation or contractual disciplinary grievance procedure shall remain confidential and "shall not be released to the public.”
The statute also ensures law-enforcement agencies will not be required to disclose personnel files or internal investigatory files in any civil proceeding, other than one brought by a citizen alleging an officer breached their official duties, causing injury.
Kimeu Boynton, assistant professor of sociology and criminal justice at Delaware State University, sees the Law Enforcement Officers’ Bill of Rights (LEOBOR) as “well intentioned due process.”
Boynton says of the roughly 14 states across the country that use LEOBOR procedures, Delaware has one of the strongest provisions for the privacy of records.
“Misconduct that might end up in personnel files, complaints made by other citizens, use of force issues, these are some of the biggest and most common [things that stay private in Delaware],” he said. “Certainly things that show patterns of misconduct, bad policing.”
Boynton says this makes it harder for complainants to argue an officer displays a pattern of behavior. But Boynton also sees the other side.
“If I’m on the law enforcement side, I don’t want people knowing every little thing that someone’s complained about,” he said. “And people complain about law enforcement officers all the time. But if you think about just being in a regular job, do you want your employee files available to the public?”
State Fraternal Order of Police president Fred Calhoun says the protections in the LEOBOR are necessary to prevent the public from holding complaints or investigations that prove unfounded against officers.
“If an officer had 10 use of force complaints against him, but five of them or seven of them or eight of them have all been deemed to be not violations or not anything criminal, that information— because of how the public opinion goes— will still be used ... to accuse him of being a violent police officer,” said Calhoun. “That’s what’s happening now in society. One officer commits a crime, all officers are condemned for it.”
Calhoun also says the LEOBOR lets law enforcement agencies force their officers to answer to an investigation.
“It depends on what side of the fence you’re on as to how you look at the police officers’ bill of rights. Most officers know what the police officers’ bill of rights is, and know that [with] misconduct, they’re going to get caught,” he said. “If I am a civilian and I tell you, ‘no,’ I don’t have to talk. If you are a police officer, you don’t have that option.”
The LEOBOR states, “except upon refusal to answer questions pursued in a valid investigation, no officer shall be threatened with transfer, dismissal or other disciplinary action.”
DSU’s Boynton interprets this differently.
“It’s doesn’t necessarily automatically say termination. It’s a bit ambiguous,” said Boynton. “The refusal [to answer] doesn’t mean the person is going to be terminated, but [the provision] does speak to the fact that they should cooperate with an investigation.”
In fact, Boynton says the LEOBOR gives officers more rights when under investigation than civilian suspects have.
“When they are accused of some type of misconduct, they are given the opportunity to know what the complaint is, who’s making the complaint in some cases,” he said. “They are given the opportunity to schedule a time and a place in some cases for the interrogation. They can have a union rep or other representative or attorney with them. Whereas you or I am not going to be able to say, ‘I’ll come down next Wednesday for questioning in my murder case, I’m busy until then.’”
The LEOBOR specifies that questioning of officers under investigation should happen when the officer is on duty, “unless the gravity of the investigation in the opinion of the investigator is of such degree that immediate questioning is required.”
Boynton says this ambiguity can allow for time to pass between the incident and when the investigation begins.
“It can be implied that they may even have a ‘cooling off period’ where they may be able to get their stories together,” he said. “Their protections are a lot more defined than even many, many years of criminal justice jurisprudence will give to a civilian.”
The state NAACP is demanding a review of all police department’s records of disciplining or charging officers with misconduct. The group is also advocating for changes to state use of force laws, creation of civilian police review boards and recruitment of more black and brown officers.
Many elected officials in Delaware have expressed interest in changing state code related to policing over the past two weeks.
The Delaware Legislative Black Caucus unveiled a “Justice For All” agenda Wednesday, which includes a revision of LEOBOR.
The lawmakers plan to amend the statute to allow criminal defendants’ legal counsel to receive internal affairs investigation records of law enforcement officers accused of wrongdoing.
State Attorney General Kathy Jennings’ office announced a different proposal to amend LEOBOR Wednesday, along with a list of other policy changes aimed at addressing the “racial impact” of policing.
Jennings’ proposed LEOBOR revision would focus on “improving transparency, ensuring investigations are unimpeded, and requiring drug and alcohol testing following a use of force incident.”
This story has been updated.