'Hidden from view': The ongoing battle for more police transparency in Delaware
In Florida, the public can request and view most police camera footage. In Georgia, the public can learn names of people arrested the previous day.
And, in Maryland, one can obtain reports of officers punching, shooting, tazing or otherwise using force.
In Delaware, those records range from difficult to impossible to obtain. But as state politics stir amid a turbulent national reform movement, that could change.
“We need to make sure that the public knows that the police officers that utilize excessive force, who violate the law, who violate the public trust are dealt with appropriately,” state Attorney General Kathleen Jennings said.
“And, right now, that’s hidden from view,” she added.
Already, opposition to Jennings’ pronouncements has begun to form into what could become full-fledged backlash to proposed reforms, aimed in part at dismantling the state’s Law Enforcement Officers’ Bill of Rights – a set of statutes that keep complaints against police and their subsequent internal investigations secret.
Fred Calhoun, president of Delaware’s Fraternal Order of Police, said he is willing to negotiate, but Jennings must decide whether she’s the attorney general or “an activist.”
For years, Delaware laws governing access to police information, including misconduct complaints, have been among the country’s most restrictive, largely a result of top Democratic and Republican lawmakers in Dover regularly accommodating police requests for privacy in their on-duty affairs.
In the mid-1990s, the Delaware General Assembly unanimously amended the police bill of rights to tighten controls on information that could be released to the public. Around the same time, then-U.S. Sen. Joe Biden made attempts to pass a federal version of the law.
In subsequent years, critics’ calls for change failed as proponents consistently argued that officers’ livelihoods and even their personal safety would be at risk if their records were open to public scrutiny.
In 1997, challenges to the law were shot down by a Democratic senator who told The News Journal that police need protection from the media, among others.
“You want to open up a case instead of letting it rest and letting a man be an officer again,” the late Bridgeville senator, Thurman Adams Jr., said.
Today, Delaware police privacy laws combine with an increasingly secretive police department in the state’s largest city to form a roadblock preventing the public from learning about many of the state’s most high-profile use-of-force cases.
Sometimes, details come to light from video recorded by onlookers. That was the case when Wilmington police fatally shot Jeremy “Bam” McDole, who was in a wheelchair, in 2015 and a bystander’s cellphone video appeared to contradict police's version of the events.
In other cases, the public may be forever locked out due to specific protections under the police bill of rights, which mandates that all records from an internal investigation or a disciplinary grievance “shall be and remain confidential.”
Last week, a Wilmington police spokesman cited the bill of rights when declining to release details about why an officer, who last year shot 18-year-old Yahim Harris, was no longer employed with the department.
“He is no longer a member of the Wilmington Police Department. Beyond that, we are not able to comment,” police spokesman David Karas said in an email.
The breadth of the privacy laws also can keep Delaware out of national discussions about police reform. A national database of police misconduct compiled last year by a USA Today investigative team included no information on Delaware officers because of the state's police bill of rights.
Mike Brickner, the new executive director of the American Civil Liberties Union of Delaware, recently transferred to the state from Ohio, where for years he had worked on federal consent decrees forcing police departments in Cleveland and Cincinnati to reform their operations.
He called Delaware an “outlier” nationally with respect to releasing public information, particularly police misconduct reports and body camera footage. Neither is required to be released by state law.
“Delaware is kind of far on that extreme,” he said.
‘Take the fight to Legislative Hall’
While support for the Law Enforcement Officers’ Bill of Rights has long been widespread among Delaware legislators, that foundation may be fracturing after weeks of near-daily protests, sparked by the death of George Floyd, a Black man, at the hands of Minneapolis police officers.
Early this month, New Castle County Councilman Jea Street told a group of activists meeting with Gov. John Carney and Wilmington Mayor Mike Purzycki that their hopes for reforms rested with a Delaware Legislature that is "basically run by former police officers."
To have effective civil oversight and police body camera programs, the bill of rights must be reformed, he said, as he encouraged the group of mostly Black activists planning a protest in Wilmington “to take the fight to Legislative Hall.”
Last week, Jennings announced a broad set of proposals to reform policing, including the bill of rights, which she described as being held “sacrosanct” by many in Delaware government.
At a press conference in front of Legislative Hall, Jennings called for better transparency into complaints of police misconduct, the statewide use of police body cameras, and a dozen other reforms that could give the public an unprecedented glimpse into details of Delaware's policing.
“We have to change the things that haven’t been changed in this state for decades,” Jennings said at the press conference.
She spoke alongside a supportive Delaware governor, legislative leadership and members of Delaware’s Black Caucus, who proposed a separate set of policy changes, including an amendment to the Delaware Constitution to protect against racial discrimination.
Also speaking at the gathering was Delaware’s powerful House Speaker Pete Schwartzkopf, a retired police officer, who sought to quell the idea that he would wholesale block reforms. There are inherent problems in policing that “need to be addressed,” he said, notably an “us versus them mentality.”
Another retired police officer, Rep. Franklin Cooke, D-New Castle, said the current moment of strife hurts him, but the days of “hiding” policies or directives are over.
Cooke is set to lead a new law enforcement accountability task force. Its goal is to bring different sides into a single room to write new legislation that will be considered next year.
Even with various levels of support from lawmakers, Jennings’ proposed reforms have sparked a harsh backlash from police union leaders, who claim that politicians and the everyday public don’t understand the challenges police face.
That potential for misunderstanding would create an unfair situation for an officer subjected to citizen reviews of their actions, said Calhoun, from the state police union.
Calhoun said he believes officers should be held accountable, but argued that everyday use-of-force standards may depend on an individual cop, claiming that a smaller officer “may have to use a taser, or they may have to use their weapon or their stick,” when a larger officer would not.
Last week, Calhoun met with Jennings to discuss her proposed reforms. During the meeting, Jennings asked what he believed were the problems facing policing, Calhoun recounted.
“You should know what my problems are,” he said, recalling the exchange. “My problems are with the safety of my officers.”
Calhoun does not intend to “compromise” on suggested reforms while “people are showboating” and furthermore said problems with police abuse exist largely outside of Delaware – a claim sharply challenged by police reformers.
“Don’t condone uncontrollable violence and then use it as a tool to change policies in a state where we have not had these problems,” Calhoun said, characterizing recent protests in Wilmington and Dover.
Timothy Mullaney, a longtime leader within the Fraternal Order of Police and a former police misconduct investigator, called Jennings a “panderer” and “opportunist” for proposing reforms amid protests. He said the real problem facing the criminal justice system is not police but communities that don’t work with officers to investigate crimes.
“All she does is put this bullshit fake outrage out there,” Mullaney said of Jennings.
The two had sparred before when Mullaney ran for attorney general in 2018 but lost to Jennings in the Democratic primary.
Their apparent disagreements include perceptions about the role race plays in policing. Mullaney said Delaware officers should do their jobs without regard to a person’s racial background. Jennings said they should become “color conscious” instead of color blind, calling systemic racism a problem in all societal institutions.
Jennings buttressed her stance by pointing to a disproportionate share of Black people arrested for drug crimes “even though whites are using them just as often.”
Asked whether personal insults might influence lawmakers away from reforms, Jennings said, “I really don’t have time or energy to respond to attacks because all of my time is dedicated to making the change that needs to happen.”
“I sleep well at night,” she said.
Similarly, barbed political faceoffs between police union leaders and reformers have been occurring across the country in the wake of Floyd’s death, with several states rapidly mobilizing to reform police shield laws.
Last week, reformers’ arguments won the day in New York when the state’s Legislature repealed a controversial statute that kept police disciplinary records confidential.
The repeal drew nationwide attention. It also now leaves Delaware as one of the few, if not the only state in the country, that has such strict secrecy laws on its books.
The power of a video
Wilmington police initially said 28-year-old Jeremy McDole was trying to commit suicide and refused to drop a weapon when they approached him. But then a video hit the internet that did not appear to show the weapon police said he possessed.
What is seen is McDole rubbing his knees as Wilmington Police Senior Cpl. Joseph Dellose and three other officers – identified in the report as Senior Cpl. Danny Silva, Cpl. Thomas Lynch and Cpl. James MacColl – move onto a stretch of Tulip Street in Wilmington.
Officers can be heard on the video screaming at McDole to drop his weapon.
Dellose fired at McDole with a shotgun approximately two seconds after initially ordering him to put his hands up, a report from the state attorney general found, creating uncertainty among other officers who, not knowing where the gunfire came from, also turned their weapons on McDole.
Then-Attorney General Matt Denn's office took the unusual step of singling out Dellose for "extraordinarily poor police work" and said he should not be employed by police in any role where he would carry a firearm.
Neither Dellose nor any of the officers were charged in the shooting. Dellose parted ways with Wilmington police in April 2018, but the department did not provide a reason for his departure.
Prosecutors considered charging Dellose with felony assault, but after consulting with two national police use-of-force experts, they determined his conduct was not criminal because of a Delaware law that immunizes officers when they believe force is necessary to protect themselves.
That use-of-force standard is one that Jennings seeks to change.
While no officers were charged in McDole’s shooting, the public was given a glimpse of a heated police moment, with details that went beyond those offered in press releases or provided to the courts in documents.
Yet cases without bystanders’ cameras remain murkier for the public.
In June 2018, 32-year-old Richard Talbot was killed when his bicycle collided with a state police SUV that had been chasing him. Police have not explained how Talbot – who was being pursued as a burglary suspect – collided with the trooper’s Chevrolet Tahoe.
The state Attorney General’s Office, charged with investigating the use of deadly force by police departments, said the death was found to be "an unfortunate accident and not an intentional use of deadly force."
Yet the agency has not provided a report of the incident. Delaware Online/The News Journal filed a Freedom of Information Act request on June 12 seeking more details.
A surveillance camera did show part of the shooting of Yahim Harris on Feb. 2, 2019, by MacColl, the Wilmington officer who also was involved in McDole’s fatal shooting.
While Harris was unarmed, MacColl was cleared of any wrongdoing because he said Harris appeared to have something in his outstretched arm as he ran from police and a stolen Toyota Camry, according to the state Department of Justice’s use-of-force report released in November.
The 11-page report briefly mentioned that the bullet casings recovered at the scene did not match MacColl’s gun, nor another weapon recovered at the scene.
When questioned about the discrepancy in November, the Justice Department said it was up to the Wilmington Police Department to handle the ballistics matter, but also reaffirmed the office’s determination that the shooting was justified.
The Justice Department then pushed forward to convict Harris on carjacking and weapons charges until a tipster told prosecutors about false statements made by MacColl about changes made to his service weapon. Convinced MacColl had “a clear lack of credibility,” prosecutors dropped the criminal charges against Harris.
Wilmington police have repeatedly declined to comment on the matter and have not responded to requests to interview Chief Robert Tracy.
Instead, the department has cited the Law Enforcement Officers’ Bill of Rights as a reason not to disclose further information. MacColl is no longer with the force.
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Three sets of laws in Delaware?
Thomas W. Webster IV had generated 29 use-of-force reports in his roughly 10 years with the Dover Police Department – something few had heard of until after he was charged with kicking an unarmed Lateef Dickerson in the head.
Dickerson was getting into a face-down position on the ground at gunpoint on the order of Webster when the then-Dover police corporal was captured on police dash camera kicking the man and breaking his jaw on Aug. 24, 2013.
Ultimately, Webster was found not guilty of second-degree assault in December 2015. Two months later, Dover announced it had reached an agreement with Webster, paying him $230,000 over six years to resign, and banning him from ever seeking employment with the city again.
Webster then was hired in 2018 by the Greensboro Police Department in Maryland, where he soon became embroiled in another controversy after a 19-year-old man in his custody died.
Webster was removed from the Greensboro department last year and the former Maryland police chief who hired him ended up pleading guilty to intentionally misrepresenting and omitting facts to a Maryland commission tasked with reviewing Webster’s application.
Although the commission was aware that Webster had been acquitted of the 2013 assault charge, the agency did not know about the nearly 30 use-of-force reports in Webster's file during the roughly 10 years he worked for Dover.
Among Jennings’ proposed reforms is the creation of a “do not hire list,” a public, searchable database of officers who have been fired or resigned because of misconduct.
La Mar Gunn, a Delaware civil rights advocate and former head of the NAACP in Kent County, said the problem of a lack of transparency goes beyond Delaware’s police departments.
“It’s more so the elected officials who promote this type of behavior,” said Gunn, adding that 99% of police officers are “good guys” who would be open to transparency.
Transparency needs to extend to the attorney general as well, Gunn said, arguing the office gets “a free pass to do whatever they want.” He said he would like to see what choices are made by that office because he suspects there are effectively three sets of laws in Delaware.
“One for white folks, a second set for white police officers and the third set for everybody else,” he said.
As an example, Gunn pointed to prosecutors pushing to send former Dover police officer Frederick Pierce to prison for an off-duty crash that killed Catina Isaacs in September 2018, while a Maryland man who killed five members of a family in a Route 1 crash that same year was allowed to plea to a crime that got him one year of probation.
Pierce is Black, while the Maryland man, Alvin Hubbard III, is white.
“The Fred Pierce case is a perfect example,” Gunn said. “Even when you’re a bad officer like Webster, this state will do everything to protect you, even getting you a job, paying you your pension out. Helping you get hired in another jurisdiction.”
Delaware’s trend toward confidentiality also extends across state government, where records ranging from vehicle crashes on highways to bulk lists of state-registered companies sit unavailable to the public. The state also exempts from open records requests any document in its possession that could be part of an investigation.
The News Journal’s recent attempts to document the deadliest roads in the state have been stymied after the state denied open records requests for vehicle crash data.
In an email sent last year, a spokesman for the Transportation Department cited a recently passed law stating that "accident reports and crash data under this section are not public records."
‘There are going to be some hits coming’
Cooke, the New Castle lawmaker, says his goal as chairman of a new police task force is to find a consensus between police and reformers. He acknowledged the steep challenge.
“It’s going to be hard, and I told them down in Leg Hall I need to put on my Superman cape because there are going to be some hits coming,” he said.
Cooke, a 30-year police veteran and a Black man, said he expects the group to hold difficult discussions before ultimately recommending a compromise on reforms to be legislated next year.
The perspective is common in state politics, where the act of bringing influential stakeholders into a room to hammer out deals has been long dubbed “the Delaware Way.”
But Cooke’s task force could be a messier forum than what are often sanitized discussions in the state. In addition to police, members of the Attorney General’s Office and the Black Caucus, Cooke said the task force will include people who “have been impacted by use of force.”
Among the most vocal of those is the family of Jeremy McDole. Asked if they would be invited to join, Cooke said, “I don’t know because I’m going to have people that have fair minds.”
“I really can’t answer that by saying, ‘I’m going to use this person or that person.’ I can’t even say how many police officers I’m going to have,” he said.
Whether the meetings will be open to the public also has not been determined, he said. Delaware law calls for gatherings of a quorum for public bodies to be open to the public.
What is certain is Cooke will take lessons learned from his career in policing for New Castle County to lead the task force. When asked about systemic racism in police departments, Cooke said he had seen cases of officers who would create charges out of nowhere after pulling over a driver.
Cooke said he wasn't perfect, but he was a good cop – in part because he grew up in the area in which he policed. Knowing the families of young people in the street allowed him to be a better fact-finder, he said.
“I didn’t have to harass them to get a name or an address,” he said. “I could always say, ‘I’m going to tell your mothers.’”
Asked what specific problems the task force will address, Cooke first said police should end their practice of distributing the mugshots of children and teens, an ask included in the proposal from the Delaware Legislative Black Caucus. He then turned to a need to find a “common goal” with respect to use of force and police accountability.
The police bill of rights is “one of the biggest things we have to look at,” he said.
Reporters Isabel Hughes and Jeanne Kuang contributed.
Contact Karl Baker at firstname.lastname@example.org or (302) 324-2329. Follow him on Twitter @kbaker6. Contact Esteban Parra at (302) 324-2299, email@example.com or Twitter @eparra3.