This is Part III 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 addressed “The History” – the history of LEOBOR in the First State. Part III addresses “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.
Myth: An unfounded or false notion
Fact: Something that has actual existence
In police reform – as with other hot button issues – myths have replaced facts in our community dialogue. In this essay, I will try to set the record straight on LEOBOR reform.
But let’s start with a well-known bedtime story. Growing up, I learned the story of Chicken Little. For those not familiar with this story, Chicken Little was, well, a little chicken. One day, Chicken Little was sitting under an oak tree when something hit her head. Chicken Little assumed that the sky was falling and went off to tell the king. However, the entire time, it was just an acorn that fell off a branch. Chicken Little is an allegory that teaches children not to assume the worst.
Chicken Little’s famous admonition, “The sky is falling! The sky is falling!” has more to do with police reform than one may initially think. At countless police reform meetings that I have attended, law-enforcement officials and advocates against reforms have more or less stated that if LEOBOR is reformed, the sky will fall. A parade of horribles will besiege the land. And, presumably, locust will destroy all of our crops, and frogs will fall from the sky. (Please note that these are rhetorical flourishes, and not examples of things that were actually stated. See how this works?)
Nevertheless, I am here to tell you – if LEOBOR is reformed, the sky will not fall in Delaware.
If the sky is falling (which it’s not), it’s because Delaware law requires that police misconduct be secret. We know that things aren’t working with our current LEOBOR and its police misconduct secrecy clause. There have been multiple incidents of police misconduct in Delaware.
If police misconduct records are made public, the sky will not fall. I know this because the sky has not fallen in other states that allow at least some public access to police misconduct records (which a majority of states allow). There are still police departments, police officers, and law and order.
Indeed, the skies over California, New York, and Maryland, are by all reports, still well-positioned above the land. The reason I am singling out these three states is because police misconduct records used to be secret there too. And now, they’re not.
California changed its law in 2018 to allow public access to police misconduct records relating to dishonesty, use of force, and sexual assault. California’s population is 39 times larger than Delaware’s, and this legislative change has made California’s criminal justice system more transparent and fair.
New York repealed its police records law in 2020. In 2021, Maryland made police misconduct public. Simply put, if California, New York, and Maryland can do it, Delaware can do it.
Relatedly, arguments that releasing police misconduct records will impact police recruitment are misguided. First, police officers whose interest in serving our community is contingent on keeping their misconduct private, may not be the best choices for such an important and challenging occupation. Second, I fail to understand why prior police misconduct records being released would impact new police recruits.
Instead, transparency is connected to trust and good community policing. In the words of former New York City Police Commissioner James P. O’Neill, in explaining his support for reforming New York’s (since repealed) police secrecy law:
For neighborhood policing to maximize its potential, however, there must be mutual trust between the police and the public. And nothing builds trust like transparency and accountability.
I have also heard claims that if police misconduct records are made public then officers will be retaliated against. This is an outlandish claim that is not supported by evidence or data. It is a claim that is meant to instill unnecessary fear and scare legislators out of passing a good policy.
In fact, scholars who actually spoke to police chiefs in other states where police misconduct records are public were only told of one example where an officer said that they were subjected to physical harm or a physical threat. No additional information was provided about exactly what happened in that instance. In that study, 344 police chiefs and sheriffs nationwide were surveyed and this was the only example of this kind. What’s more, the original LEOBOR reform bill in Delaware, SB 149, would redact all personal information like phone numbers and addresses from released records.
The myths outlined above are just a few examples. When myths arise about public access to police misconduct records, often the burden of proof is placed on police reform advocates to disprove the myth. In other words, police reform advocates who simply want serious police misconduct made public are challenged to disprove a negative – “this hypothetical claim made by the police will never happen” – whereas there is proof that police misconduct is an issue in Delaware.
Instead, anti-reform advocates should bear the burden of why these records should be kept secret. I would ask that they be required to show why reform shouldn’t happen and why making serious police misconduct public is a bad idea. They should have to provide facts, data, and evidence-based studies of why secrecy is beneficial and why those benefits outweigh the advantages of transparency.
In Delaware, not only is the fox guarding the hen house when it comes to police misconduct records, but the cries of Chicken Little are trying to sound out the voices of those who support fair, reasonable, and meaningful police reform. Secrecy is not working. The time has come for police transparency.
Misty Seemans is an Assistant Public Defender in Wilmington, Delaware