Just over a month ago, on June 24, 19-year-old Kadir Skinner was shot and killed by a police officer as he ran through his Wilmington neighborhood after leaving his grandmother’s house. Body camera footage shows Kadir dying from his gunshot wounds on the street while his mother, Rashai, looks on.

The City of Wilmington has since launched a probe into the shooting, and public protests continue. Several state representatives have called for increased police accountability, but holding officers who have been accused of misconduct accountable in Delaware remains challenging.

Delaware is what’s known as a “police secrecy” state, meaning that its systems, laws, and policies are meant to protect officers from public exposure by severely limiting public access to information.

“The police profession is structured like a game with a scorecard and playbook,” said Dr. James Nolan, a professor of sociology at the University of West Virginia and a former Wilmington police officer.

“The game is to control crime and maintain order through law enforcement. The game creates a logic for action and an officer’s disposition and way of seeing things. Secrecy is a part of logic.”

Investigations work to confirm or discredit information. Reporters like myself rely on laws like the Freedom of Information Act (FOIA), created in the wake of the Watergate scandal to increase government transparency.

During the actual Watergate investigation, the Washington Post had a rule that every fact must be confirmed by at least two independent sources. That could be a person and a document, body camera footage and an internal report, email communications and security footage, and so on. Reporting on the police — a power institution nearly everywhere in the United States — means that it’s important to get all the facts correct. Liability is a factor, but public trust is critical.

The Law Enforcement Bill of Rights (LEOBOR) is the central piece of legislation and obstacle to police transparency in Delaware. It is effectively a system inside of a system; it favors the law enforcement class of public servants by creating a special administrative structure to ensure they receive due process. One way it does this is by restricting the release of many items included in FOIA requests. LEOBOR contains several “exemptions” clauses, including the often cited “under investigation” exception, which could remain in place indefinitely.

The law enforcement institution in Delaware has a very strong lobbying arm and influence over decisions made in the General Assembly (GA), which shape the laws and policy in the state.

“The General Assembly could decide that they’re going to always make body cam footage available,” said Jared Silberglied, an attorney for the Delaware American Civil Liberties Union, “but [it] has not decided that.”

“The GA makes these decisions in a lot of ways that have decided against transparency. There are obviously some legitimate reasons why you don’t want every single record to be out there all the time, but I think the GA is definitely over-designating items to not be released.”

The Call filed a FOIA with the Delaware Department of Corrections (DOC) in February for information relating to an incident at Georgetown prison. The DOC has a legal obligation to respond within 15 days. When it did not, the onus was then on the Call to follow up. The Call filed a complaint with the Attorney General’s (AG) office, which then compelled the DOC to respond. The DOC didn’t respond to the AG either. Only after that months-long wait did the DOC send a perfunctory response in July denying most of the Call’s request, stating that the incident remained “under investigation”.

In 2023, the Call also filed a FOIA for basic demographic information about Delaware State Police officers, which was denied citing privacy issues, and escalated the matter to the Delaware Supreme Court. The case was heard in May, and an upcoming decision could result in the loosening of LEOBOR’s grip on FOIA requests, or simply reinforce the status quo.

Efforts to improve police transparency in Delaware have been made, such as amendments to LEOBOR in 2023, the creation of the Police Officers Standards and Training Commission, and by the AG’s office, which oversees the Division of Civil Rights & Public Trust (DCRPT).

However, the effectiveness of the police investigating police has been a source of criticism and DCRPT investigations are conducted by former Delaware police officers, similar to internal affairs departments at many local police agencies. Meanwhile, Newark flat out defied the AG’s order for it to turn over information requested through FOIA, risking a lawsuit.

It’s not like this everywhere. Maryland became the first state to reappeal LEOBOR in 2021, and higher police transparency states like California, New Jersey, and Colorado maintain certification databases, make it much easier for the public to access misconduct reports and data, and encourage civilian oversight. Canada recently passed a law that strips its military of its power to investigate and prosecute sexual assault complaints, instead directing them to civilian courts.

The unintended consequence of a strict information system is that, on occasion, someone breaks the rules and leaks information to the press or public. The Watergate investigation was famously supported by an anonymous source — later revealed to be Mark Felt — high up in the FBI. Still, Felt’s information needed to be confirmed with another source to ensure accuracy.

Holding the law enforcement establishment in Delaware accountable is especially difficult. There’s no question that police departments perform an essential public service, one in which citizens have agreed is valuable and worth funding. There are, however, people who have been traumatized by some of those public servants and others who live with a fear that they may be victimized by those who have sworn to serve and protect them.

“The game as constructed does not actually keep communities safe,” said Dr. Nolan.

“It is also the source of systemic harms such as over-enforcement, excessive force, and discrimination. For the police to see the logic of transparency for building trust and community safety, the game must change so that the police are focused on making the community safe rather than making lock-ups. This will make it safer for the community and the police.”