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The History: Why we need access to police misconduct records in Delaware

Part II: How the First State came to adopt LEOBOR

 · January 30, 2023

This is Part II of a five-part series about how and why Delaware’s Law-Enforcement Officers’ Bill of Rights (LEOBOR) needs to be reformed, and reformed now. Part I addressed “The Problem” – how LEOBOR has kept police misconduct secret. Part II addresses “The History” – the history of LEOBOR in the First State. Part III will address “The Myth” – how myths and facts have informed and influenced this debate. Part IV will address “The Solution” – the need for defense counsel access to these records. And, finally, Part V, “The Public,” will address why public access matters. 

The year was 1991. “Summertime” by DJ Jazzy Jeff and the Fresh Prince (aka Will Smith for anyone younger than 30) dropped. Fashion trends included ripped jeans, fanny packs, and bucket hats.

It was also the year of the Rodney King beating. 

And, just like fashion trends, history repeats itself. 

On March 3, 1991, Rodney King was badly beaten by LA police. Another man happened to videotape the beating and sent the video to a local news station. The video was of Rodney King, an unarmed Black man, being Tased as well as repeatedly and mercilessly struck with police batons. The incident made international news.

What does this have to do with Delaware’s LEOBOR?

Well, I was recently asked, Why is there a police misconduct confidentiality clause? And, in my opinion, it’s because of two words: Rodney King. 

In 1991, LA police beat Rodney King. It was caught on tape, in a pre-iPhone world. Also in 1991, the Delaware General Assembly passed a confidentiality clause making police misconduct records secret.

The connection between public outrage at police brutality and trying to hide proof of police brutality is more than a coincidence. It is supported by Delaware’s legislative history of LEOBOR and the confidentiality clause. 

But let’s go back, back to the beginning. 

Police bills of rights as a reaction to the civil rights movement

There is a good argument made that the whole idea of LEOBOR was a reaction to the civil rights movement of the 1960s. One journalist has written:

The Law Enforcement Officers’ Bills of Rights were originally developed in the late 1960s and early 1970s amid growing demands by civil rights advocates for police accountability. They originally called for civilian review boards to investigate alleged officer misconduct and pushed to hold officers accountable for alleged wrongdoings. Rank and file officers responded to the movement by seeking greater protections for themselves in misconduct investigations. 

Indeed, in 1964, the Civil Rights Act passed. In 1965, the Voting Rights Act passed. In the 1970s, police unions started to lobby for their own rights bills. In the early 1970s, the first proposed statutory LEOBOR was introduced in the U.S. House of Representatives. A federal LEOBOR came closest to enactment in 1991 when the U.S. Senate passed S.1043 by a vote of 55-43. The legislative sponsor for that effort? Delaware Senator – Joseph R. Biden Jr. 

Despite all of this, it’s at the state level where LEOBORs were the most successful. The first LEOBOR was passed in Maryland in 1974 (and has since been repealed in 2021). More than a dozen states followed suit with their own LEOBORs. 

LEOBOR in Delaware

In Delaware, our state’s LEOBOR has been on the books since 1985. I should note that it did not initially pass. 

A review of 1985 Delaware General Assembly audio recordings shows that Delaware police chiefs were not in support of LEOBOR. In fact, in a vote taken by chiefs of police before the legislative floor debate, there was not one police chief vote cast in support of LEOBOR. City and local governments were also not in favor of LEOBOR and the City of Wilmington wanted to be exempted.

The 1985 recordings show concerns of LEOBOR making police chiefs powerless; police protecting their own; and that police should be held to the highest standards and not fear oversight.

An exchange between Representative James H. Sills Jr. (later the first Black Mayor of Wilmington) and Representative William Oberle Jr., foretell our current predicament: 

Rep. Sills: “The bill would establish a review panel comprised only of police officers to investigate and make a judgment about misconduct on the part of other police officers. That seems to set a dangerous precedent to me since other governmental employees do not have that particular right; the right to investigate and make judgments of themselves or be in control of the investigative process. 

It also, that part of the bill, is at variance with an established and a rather sacred principle in this country, namely that the police and the military are controlled by civilian forces and civilian personnel. 

I wonder if you might explain what is, what are the circumstances that would justify only police having the right to investigate and make judgment about the misconduct of other police officers. On what basis can we justify that?”

Rep. Oberle: “I think there’s a suggestion here, and correct me if I’m wrong Representative Sills, I don’t want to construe anything out of what you’ve said but . . . A suggestion that perhaps we’re setting up a situation where the chickens, or the foxes are guarding the chicken house. And I really don’t see that, sir. What I see is there is a group of individuals, a paramilitary organization taking care of their own.” . . .

Rep. Sills: “It seems to me that the administrators who employ police ought to have some right to review the actions of police. I don’t feel like you’ve given sufficient justification for taking that right away from elected officials and other appointed government administrative officials. And give police the sole right to review and make judgments about other police officers.” 

Nevertheless, LEOBOR passed that year. And over time, more and more police departments were added to its protections. Currently, Delaware’s LEOBOR protects all 48 police departments statewide, as well as probation officers and officers from various other agencies. It does not cover police chiefs

Connection between Rodney King beating and Delaware’s police misconduct secrecy law

It’s important to stress that while a police bill of rights passed in 1985 in Delaware to protect officers’ rights during disciplinary hearings, the confidentiality clause making police misconduct records secret did not become law until 10 years later, in 1995.

Indeed, the path to Delaware’s secrecy clause was fraught and some unexpected political actors did not support adding the confidentiality language. From introduction to law took four years. 

So, going back to Rodney King. The beating happened in LA in 1991. Here in Delaware, the police misconduct secrecy clause was introduced the same year. Legislative audio recordings reflect the following exchanges:

Sen. Herman Holloway, Sr.: “What I do not want to be a part of is shielding a law-enforcement officer or anyone else from the same exposure and scrutiny that every other public servant is subjected to when they are charged with some serious wrongdoing and violation. There are far too numerous accounts of corrupt police officers across this country and they give everybody a bad name. . . .

All of the good that they do can be ruined – spoiled –  by some overzealous [UI] cop out here parading around and thinking he’s going to take the law into his own hands.” . . .

Sen. Steele: “I want to be absolutely certain that no material evidence will be concealed from a reasonable, required investigation into an officer’s misconduct. . . . Suppose an officer has done some wrongdoing like they did in LA by beating an individual? If that’s in that file, can that file be opened up irrespective of this?

Delaware State Police representative: “No, but that’s a perfect example. That’s the Rodney King event. That would have nothing to do with the internal file anyway. That’s clear to public scrutiny. In that case alone, I know there’s, it’s clearly a criminal, civil rights underway by the FBI. There’s clearly a 1983 or civil rights violation for civil damages underway in that particular incident. I know that the Los Angeles Police Department are conducting a criminal investigation. That’s evidenced by the fact that a number of officers have been indicted before a grand jury.

The internal file will speak to the punishment those officers will have to deal based under the rules and regulations that they operate under. There’s no material matter concealed. And I’m here to tell you, as I read this amendment I’m satisfied in my heart and, I mean, that’s as best as I can give you. I’m satisfied that it’s not going to protect somebody who shouldn’t be protected.”

Well folks, at least the police advocate felt satisfied in his heart that it was all going to work out.

Unusual suspects opposed secrecy clause

The police misconduct secrecy clause passed the General Assembly in 1991 but was vetoed by none other than Republican Governor Mike Castle. In July 12, 1991 The News Journal reported: 

Although Castle acknowledged the shield offered by the bill might be justified in some situations, he said it would “diminish the public’s confidence . . . by creating an adversarial relationship between two governmental agencies dedicated to law enforcement” – police and the prosecution. 

Yes, dear readers. Delaware’s secrecy clause was vetoed by a Republican Governor. And, why? Because the Delaware Department of Justice (DOJ) opposed it. And why did the DOJ oppose it? Well, according to a June 28, 1991 News Journal article (and it’s worth quoting the article at length):

Attorney General Charles M. Oberly III has asked Gov. Castle not to sign legislation that would make files on police officers under internal investigations off limits. . . .

Oberly, in a letter to Castle Wednesday, argued that “the intent of this bill . . . is to keep police internal investigatory files out of the hands of anyone except the police. This creates very serious problems in the handling of criminal cases.”

If the Department of Justice is considering bringing charges against a police officer accused of misconduct, Oberly said, “it is absolutely essential” that the department have access to all statements taken in the case by police internal affairs investigators. 

Oberly wants the bill amended to give his office access to the information, though it isn’t clear whether that is possible at this late date.  

The article concludes by stating, “The police don’t want files made available to the public, particularly to attorneys who may be representing clients with complaints against officers.”

But after its 1991 veto, the secrecy clause was eventually signed into law in 1995 by then-Governor Tom Carper.

Restrictions and carveouts to Delaware’s police misconduct secrecy law

The next year, in 1996, a carveout was made so that attorneys representing those injured by the police could have records access in civil claims for damages.

To this day, there is no statutory access for criminal defense attorneys, who represent those largely impacted by police misconduct. And there is no access to members of the public, who are not entitled under Delaware law to learn the results of their complaints against the police.

And there is no statutory access for police officers who feel that they are discriminated against by their police department, although a carveout has been made by the federal court. In these contexts, police officers have wanted to compare whether they are discriminated against based upon race or ethnicity by comparing their promotions and disciplinary actions against others within their department.

History needn’t repeat itself

As I write this essay, 32 years after the Rodney King beating, it is incumbent upon me to point out that yet again, another police beating of a Black man, Tyre Nichols, is in the news. Another beating. Another video. And in Tyre’s case, death.

History repeats itself but the law can change. If in 1991, the reaction to police brutality was to increase police secrecy; in 2023, the reaction needs to be police transparency. Delaware’s police secrecy clause needs to be repealed, and repealed now. 

Misty Seemans is an Assistant Public Defender in Wilmington, Delaware

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