Democrats drafting bill to end police secrecy in Delaware ahead of task force opinion

Sarah Gamard
Delaware News Journal

Democratic state lawmakers appear to be drafting a bill to erase the state's secretive policing laws and open up disciplinary records to the public.

The proposal is part of a 62-page draft report recently shared with members of Delaware's police accountability task force as it prepares to hold a meeting next week to decide what policing reforms to ask of the General Assembly.

The policy recommendation report, a copy of which was obtained by Delaware Online/The News Journal, includes the draft of a bill to amend the Law Enforcement Officers' Bill of Rights, a controversial section of state law that dictates how officers are disciplined and how much the public is allowed to know about that discipline.

The draft bill by Senate Majority Whip Tizzy Lockman, D-Wilmington, and Rep. Kendra Johnson, D-Bear, which has not been finalized or filed, would also make public the investigatory records related to police discipline.

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

It is unclear if and when the bill would be filed and if it would be approved by the Legislature and signed into law by Gov. John Carney.

But the measures would come at a critical time in U.S. history, in the wake Tuesday of the guilty verdict of Minneapolis police officer Derek Chauvin in the death of George Floyd, who died after Chauvin knelt on his neck for nearly nine minutes.

The draft bill would also strip a section of the Bill of Rights that states police are not required to disclose an officer's personnel file or internal affairs investigatory files unless a civil plaintiff attorney sues for physical injury or damages.

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

"Other than the police department where the officer works, and plaintiff lawyers in some types of cases, no one knows if an active member of a police force has lied, used excessive force in the past, abused their authority, tampered with evidence, or engaged in sexual misconduct," reads part of the draft bill's summary.

Lawmakers created the task force last August that includes police, activists and other stakeholders after widespread protests to Floyd's death. It was a bid to help guide them through potential changes to policing laws by studying different topics — such as use of force policies or public records laws.

The task force has met since August, and April 29 is expected to be one of its final meetings. The group will decide what to recommend to lawmakers before the legislative session ends in June.

What changes could take place in Delaware

Protestors demonstrate on I-95 in front of Delaware State Police in response to the death of George Floyd Saturday, May 30, 2020, in Wilmington.

The bill summary notes that Delaware is the only state in the U.S. with a confidentiality clause in its police Bill of Rights.

The report also included recommendations from the American Civil Liberties Union of Delaware, Attorney General Kathy Jennings and the Office of Defense Services.

Through a spokesman, Johnson declined to comment about the pending legislation.

Lockman said she would not comment on it before the task force's final report is released, but said she was hopeful that lawmakers would make changes to the Bill of Rights this session.

"The Law Enforcement Bill of Rights, as currently drafted, has been used to shield officers who have violated the public’s trust," she said in a statement.

The bill would fall 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, where lawmakers have rarely taken sweeping actions to reform policing, an overhaul of its Bill of Rights would likely be considered a bold move.

Since last summer, police and racial justice activists have clashed over the Bill of Rights, the most contentious topic in the police reform debate. If such a bill makes it to a floor vote, it would potentially expose fissures within the state Democratic Party.

Despite enjoying a three-fifths majority in both chambers and presenting a unified front, Democrats in the General Assembly are increasingly split on police reform.

A handful of majority party members, including in leadership, are either retired officers or have had an affiliation with police.

Meanwhile, voters elected several new, more progressive lawmakers — some of whom participated in Black Lives Matter protests last year.

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A battle brewing at the state Capitol

Sen. Tizzy Lockman, D-Wilmington West (left), and Sen. Darius Brown sit on the Delaware Senate on Jan. 15, 2020.

The issue is, at best, delicate in Dover.

Progressive lawmakers want to heed the growing calls for police reform, but at the same time want to avoid pitting members of their party against each other.

Even the most outspoken progressives who have pushed for police reform have appeared hesitant to publicly express their frustrations for fear of angering their colleagues.

As a result, the journey toward police reform has been slower and more opaque than initially promised after protests erupted last spring. From the start, critics warned that the task force would only serve as a stopgap for action in the statehouse.

The April 29 task force meeting, which will not yield any immediate legislative changes, comes more than 10 months after officials promised to swiftly and robustly reshape the state's law enforcement to foster public trust and safety.

The meeting also comes more than two months after Delaware Online/The News Journal reported that reform advocates and the families of people who have died in officer-involved shootings were disappointed in the task force's pace, arguing that lawmakers have done little to address the root causes of police brutality.

Since then, frustration has only grown. 

In late March, nine subcommittee members sent a letter to the rest of the task force and Black Caucus members expressing no confidence in the task force's ability to properly do its job. They never received an official response to the letter.

"We are disappointed to say that we do not have confidence that the LEATF (Law Enforcement Accountability Task Force) will provide timely and meaningful recommendations for reform and police transparency and accountability," the letter said.

The letter came after the transparency subcommittee issued its final recommendations on March 4, including how to change the Officers' Bill of Rights.

People celebrate as the verdict is announced in the trial of former police officer Derek Chauvin outside the Hennepin County Government Center in Minneapolis, Minnesota on April 20, 2021. Chauvin was convicted of murder and manslaughter on April 20 in a case that roiled the United States for almost a year, laying bare deep racial divisions.

The instructions were vague, recommending only that the General Assembly should "review and amend" the document to "increase transparency and accountability in the police disciplinary process," as well as address how collective bargaining agreements hinder access to public records.

It's not guaranteed that the task force will officially recommend that lawmakers change the Bill of Rights

Even the group does, it will ultimately be up to the General Assembly to decide how to change policing laws — and whether to even touch the Bill of Rights.

Advocates hope that Delaware will feel pressure after the effort in Maryland, where the state's Democrat-controlled General Assembly overrode Gov. Larry Hogan's veto to repeal its Bill of Rights, replacing it with new laws that let members of the public participate in the police disciplinary process.

Lawmakers have until June 30, their deadline of the legislative year, before they go on a six-month break.

Other changes have stalled, such as proposals last year to require all officers in the state to wear body cameras, have stalled.

Carney has asked lawmakers to spend $3.6 million next year to fund body cameras, though the program would not be fully funded until 2025.

Lawmakers, however, have yet to introduce a bill to make that plan a reality.

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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.