Crimes and Criminal Procedure
Victims of Crimes
CHAPTER 92. Law-Enforcement Officers’ Bill of Rights
(a) A law-enforcement officer within a jurisdiction in this State has the same rights to engage in political activity as are afforded to any other person. The right to engage in political activity shall not apply to any law-enforcement officer while on duty or when acting in an official capacity or while in uniform.
(b) For purposes of this chapter a “law-enforcement officer” is defined as a police officer who is a sworn member of the Delaware State Police, of the Wilmington City Police Department, of the New Castle County Police, of the University of Delaware Police Division, the Delaware State University Police Department, of the police force established by the Delaware River and Bay Authority, or of the police department, bureau of police or police force of any incorporated municipality, city or town within this State or who is a sworn uniformed police or enforcement officer of the Department of Natural Resources and Environmental Control or of the Delaware State Capital Police, or a Probation and Parole Officer of the Department of Correction or a Probation and Parole Officer of the Department of Services for Children, Youth and their Families, or a State Fire Marshall Deputy or a state detective or special investigator of the Department of Justice, an agent of the State Police Drug Diversion Unit or an agent of the State Division of Alcohol and Tobacco Enforcement; provided, however, that this chapter shall not apply to the Superintendent or Deputy Superintendent of the Delaware State Police, or to any officer above the rank of Captain in the Delaware State Police, or to the chief of police of any police force in this State, or to any other officer who is the highest ranking officer in the law-enforcement agency. Furthermore, no law-enforcement officer not a member of 1 of the above agencies shall be covered by this chapter.
(c) Whenever a law-enforcement officer is under investigation or is subjected to questioning for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or questioning shall be conducted under the following conditions:
(1) The questioning shall be conducted at a reasonable hour, preferably at a time when the officer is on duty unless the gravity of the investigation in the opinion of the investigator is of such degree that immediate questioning is required.
(2) The questioning shall take place at the agency headquarters or at the office of the local troop or police unit in which the incident allegedly occurred as designated by the investigating officer or unless otherwise waived in writing by the officer being investigated.
(3) The law-enforcement officer under investigation shall be informed of the name, rank and command of the officer in charge of the investigation. All questions directed to the officer shall be asked by and through no more than 2 investigators. No formal complaint against a law-enforcement officer seeking dismissal or suspension or other formal disciplinary action shall be prosecuted under departmental rule or regulation unless the complaint is supported by substantial evidence derived from an investigation by an authorized member of the department or another officer who is certified by the Council on Police Training pursuant to Chapter 84 of this title and has experience and/or training on conducting an internal law-enforcement investigation and is appointed by the Chief of Police of the law-enforcement department to conduct the investigation of the officer in question.
(4) The law-enforcement officer under investigation shall be informed in writing of the nature of the investigation prior to being questioned.
(5) Interview sessions shall be for reasonable periods of time. There shall be times provided for the officer to allow for such personal necessities and rest periods as are reasonably necessary.
(6) Except upon refusal to answer questions pursued in a valid investigation, no officer shall be threatened with transfer, dismissal or other disciplinary action.
(7) A complete record, either written, taped or, if taped, transcribed as soon as practicable, shall be kept of all interviews held in connection with the administrative investigation upon notification that substantial evidence exists for seeking an administrative sanction of the law-enforcement officer. A copy of the record shall be provided to the officer or the officer’s counsel at the officer’s expense upon request.
(8) If the law-enforcement officer under interrogation is under arrest or may reasonably be placed under arrest as a result of the investigation, the officer shall be informed of the officer’s rights, including the reasonable possibility of the officer’s arrest prior to the commencement of the interrogation.
(9) Upon request, any officer under questioning shall have the right to be represented by counsel or other representative of the officer’s choice, who shall be present at all times during the questioning unless waived in writing by the investigated officer. The questioning shall be suspended for a period of time if the officer requests representation until such time as the officer can obtain the representative requested if reasonably available.
(10) An officer who is charged with violating any departmental rules or regulations, or the officer’s representative, will be provided access to transcripts, records, written statements, written reports, analyses and video tapes pertinent to the case if they are exculpatory, intended to support any disciplinary action or are to be introduced in the departmental hearing on the charges involved. Upon demand by the officer or counsel, they shall be produced within 48 hours of the written notification of the charges.
(11) At the conclusion of the administrative investigation, the investigator shall inform in writing the officer of the investigative findings and any recommendation for further action.
(12) All records compiled as a result of any investigation subject to the provisions of this chapter and/or a contractual disciplinary grievance procedure shall be and remain confidential and shall not be released to the public.
(d) Unless otherwise required by this chapter, no law-enforcement agency shall be required to disclose in any civil proceeding, other than those brought by a citizen against a law-enforcement officer alleging that the officer breached the officer’s official duties and that such breach resulted in injury or other damage to the citizen, any:
(1) Personnel file; or
(2) Internal affairs investigatory file compiled in connection with a law-enforcement officer under investigation or subjected to questioning for any reason which could lead to disciplinary action, demotion, or dismissal.65 Del. Laws, c. 12, § 1; 65 Del. Laws, c. 139, §§ 1, 2; 67 Del. Laws, c. 237, § 1; 69 Del. Laws, c. 298, § 1; 70 Del. Laws, c. 175, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 467, § 1; 71 Del. Laws, c. 456, § 1; 72 Del. Laws, c. 367, § 6; 76 Del. Laws, c. 43, § 3; 76 Del. Laws, c. 303, §§ 1, 2; 77 Del. Laws, c. 158, § 1; 78 Del. Laws, c. 155, § 5; 79 Del. Laws, c. 340, § 1; 81 Del. Laws, c. 347, § 1;
No law-enforcement agency shall insert any adverse material into the file of any officer except the file of the internal investigation or the intelligence division unless the officer has had an opportunity to review, sign, receive a copy of and comment in writing on the adverse material.65 Del. Laws, c. 12, § 1;
No officer shall be required or requested to disclose any item of personal property, income, assets, sources of income, debts, personal or domestic expenditures (including those of any member of the officer’s household), unless such information is necessary in investigating a violation of any federal, state or local ordinance with respect to the performance of official duties or unless such disclosure is required by state or federal law.65 Del. Laws, c. 12, § 1; 70 Del. Laws, c. 186, § 1;
If a law-enforcement officer is: (1) suspended for any reason, or (2) charged with conduct alleged to violate the rules or regulations or general orders of the agency that employs the officer, or (3) charged with a breach of discipline of any kind, which charge could lead to any form of disciplinary action (other than a reprimand) which may become part of the officer’s permanent personnel record, then that officer shall be entitled to a hearing which shall be conducted in accordance with this chapter unless a contractual disciplinary grievance procedure executed by and between the agency and the bargaining unit of that officer is in effect, in which case the terms of that disciplinary grievance procedure shall take precedence and govern the conduct of the hearing.65 Del. Laws, c. 12, § 1; 65 Del. Laws, c. 139, § 3; 70 Del. Laws, c. 186, § 1;
In the event an officer is entitled to a hearing, a hearing shall be scheduled within a reasonable period of time from the alleged incident, but in no event more than 30 days following the conclusion of the internal investigation, unless waived in writing by the charged officer. The officer shall be given written notice of the time and place of the hearing and the issues involved, including a specification of the actual facts that the officer is charged with having committed; a statement of the rule, regulation or order that those facts are alleged to violate; and a copy of the rule, regulation or order. The charge against the law-enforcement officer shall advise the officer of the alleged facts and that the violation of the rule constituted a basis for discipline, and shall specify the range of applicable penalties that could be imposed.65 Del. Laws, c. 12, § 1; 70 Del. Laws, c. 186, § 1;
(a) An official record including testimony and exhibits shall be kept of the hearing.
(b) The hearing shall be conducted within the department by an impartial board of officers. The prosecuting party and the officer and/or the officer’s representative shall be given an opportunity to present evidence and argument with respect to the issues involved. Both the department and the officer may be represented by legal counsel. In the event an impartial board cannot be convened, then a board of 3 officers or more shall be convened under the auspices of the Delaware Criminal Justice Council. Any officer appointed under this subsection, either within the department or under the auspices of the Criminal Justice Council, shall not be liable for civil damages from any acts or omissions arising out of such officer’s service on the board as long as the member of the board of officers acted in good faith and without malice in carrying out that member’s responsibilities or duties. A member of the board of officers is presumed to have acted in good faith and without malice unless proven otherwise.
(c) Evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs shall be admissible in evidence and given probative effect. The tribunal conducting the hearing shall give effect to the rules of privilege recognized by law and may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence. All records and documents which any party desires to use shall be offered and made a part of the record. Documentary evidence may be received in the form of copies of excerpts or by incorporation by reference.
(d) Every party shall have the right of cross-examination of witnesses who testify and may submit rebuttal evidence.
(e) The tribunal may take notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within its specialized knowledge. Parties shall be notified beforehand of the materials so noticed by the trial board. No law-enforcement officer may be adjudged guilty of any offense unless the hearing tribunal is satisfied that guilt has been established by substantial evidence.65 Del. Laws, c. 12, § 1; 65 Del. Laws, c. 139, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 166, § 1;
No evidence may be obtained, received or admitted into evidence in any proceeding of any disciplinary action which violates any of the rights established by the United States Constitution or Delaware Constitution or by this chapter. The tribunal may not enter any judgment or sustain any disciplinary action based on any evidence obtained in violation of the officer’s rights as contained in this chapter.65 Del. Laws, c. 12, § 1;
Any decision, order or action taken following the hearing shall be in writing and shall be accompanied by findings of fact. The findings shall consist of a concise statement upon each issue in the case. A copy of the decision or order accompanying findings and conclusions along with the written action and right of appeal, if any, shall be delivered or mailed promptly to the law-enforcement officer or to the officer’s attorney or representative of record.65 Del. Laws, c. 12, § 1; 70 Del. Laws, c. 186, § 1;
No law-enforcement officer shall be compelled to work extra duty without compensation as a penalty for a disciplinary infraction. No suspension for any period of time provided in departmental rules and regulations shall affect the law-enforcement officer’s eligibility for pension, hospitalization, medical and life insurance coverage or other benefits specifically protected under the contract of employment. Suspension may affect time of pension eligibility by contractual provision or other statutory provision. Nothing herein shall prevent any law-enforcement agency from requiring reimbursement by a suspended law-enforcement officer of the officer’s employee contribution to benefits during the officer’s time of suspension.65 Del. Laws, c. 12, § 1; 70 Del. Laws, c. 186, § 1;
The chapter shall apply to all law-enforcement disciplinary proceedings throughout the State, conducted by the law-enforcement agencies specified in § 9200(b) of this title.65 Del. Laws, c. 12, § 1; 65 Del. Laws, c. 139, § 5;