After several months of discussion regarding the use of force, workforce development and community policing, the State of Delaware Law Enforcement Accountability Task Force Subcommittee released recommendations for consideration by the full task force regarding methods to address police reform. The recommendations related to use of force, training, collection of data, feedback from personnel and funding.
“The nine recommendations presented here are the product of months of data analysis, listening sessions, dialogue, discussions and healthy debate among subcommittee members, each of whom participated thoughtfully and professionally in our deliberations,” Michelle Taylor, Subcommittee Chair, wrote in the report. “Of course, as is always the case when a diverse group of citizens gathers to consider a weighty issue, such as law enforcement reform, it is not unusual that there will be diversity of opinion; in fact, it is welcome. In the final analysis, the majority of the subcommittee members came together as a group on most issues, as is reflected in the vote record in our report. And, in every case, no matter the individual’s vote, every subcommittee member acted from conscience and in the best interest of the community, as he or she believes that interest to be.”
The first of the nine recommendations is to introduce and pass legislative amendments to the Law Enforcement Officer Bill of Rights (LEOBAR) to increase transparency and accountability. The recommendation suggests that criminal defense attorney and the public be able to access police misconduct records as well as additional citizen oversight be provided for police data. The recommendation also asked the full committee to address qualified immunity which may now be used to protect officers who consistently display negative behavior.
“Our lawmakers need to move ahead with recommendations that were made today and bring reform to the LEOBAR to bring real changes to a statute that only serves to protect police at all costs,” Haneef Salaam, ACLU of Delaware’s Campaign for Smart Justice Manager, said.
However, the Delaware Police Chief’s Council has serious concerns regarding this recommendation, stating that immunity under the statute is limited and is also afforded to elected officials, prosecutors and judges.
“Qualified immunity only applies when the constitutional right was not clear at the time the officer acted and it is unfair to hold an officer liable for violating a constitutional right that a reasonable officer could not have known essential,” Chief Patrick A. Ogden, Chairman, and Chief Jeffrey Horvath (Retired), Executive Director, wrote in a letter to the General Assembly. “LEOBOR allows a police chief to order a police officer to honestly answer all questions asked during the administrative investigation and has no bearing on criminal investigations. LEOBOR also prevents internal politics and nepotism from governing police agencies and ensures officers cannot be disciplined on a whim, disciplining or terminating an officer because they had a bad day, a police chief does not personally like an officer or because some outside person or group is demanding it. Instead, there must be an investigation and evidence of wrongdoing.”
Another recommendation was to establish a standardized data collection process, analysis and publication for all law enforcement agencies. According to the task force, the current method is inconsistent, fragmented and, in some cases, non-existent, according to Sherese Brewington-Carr, Delaware Department of Labor who chairs the committee’s Workforce Development subcommittee.
The subcommittee also recommended the establishment of an Advisory Council to engage and empower the community to identify problems and develop solutions, building trust in the community. They also recommended an emphasis on reporting and incentives for de-escalation as well as alternatives to arrest when appropriate.
The Delaware Police Chief’s Council supports the implementation of ensuring transparency and accountability in policing through public access of open data sets, increasing public access to decertification decisions and enhancing and implementing mandatory training for topics such as de-escalation, cultural competency, bias-based profiling, fair and impartial policing and crisis intervention. The organization also supports other recommendations regarding transparency.
“DPCC supports implementing a state-wide requirement for use of body worn camera devices for all police officers assigned to routine patrol duties and special operation events, to include the Department of Correction officers assigned to the Governor’s Task Force and Operation Safe Streets,” the letter stated. “We also support the implementation of mandatory statewide early warning systems to track use of force incidents, citizen complaints, vehicle pursuits and officer-involved vehicle crashes. We also support the amending of Delaware’s Use of Force statute to clarify that the “reasonableness” of a particular use of force “must be judged from the perspective a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The organization also supports expanding the Division of Civil Rights and Public Trust statutory requirement to include use of force reviews for incidents resulting in serious physical injury.”
The ACLU stated that there needs to be revision to the use of force law so that officers can be held accountable when they engage in unconstitutional misconduct, also pointing out that one thing that was clear in the meetings was that Delawareans want increased police accountability and transparency and that they “want them now.”
“We can no longer wait for task force red tape and meetings that don’t meet the promises they make,” Salaam said. “Transparency and accountability are necessary for due process, a fairer legal system, trust between police and our communities, and trust within law enforcement agencies. We must end this practice of police investigations being shrouded in secrecy without community oversight. Delawareans have spoken, and we deserve swift action, without any further delay.”
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