Crimes and Criminal Procedure

Victims of Crimes

CHAPTER 92. Police Officers’ Due Process, Accountability, and Transparency

84 Del. Laws, c. 148, § 1
§ 9200. Limitations on political activity; “law-enforcement officer” defined; rights of officers under investigation.

(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:

(1) “Detailed narrative” means a complete description of the facts, steps taken to further an investigation, evidence collected, conclusions reached, the names of officers involved for whom misconduct was substantiated, any discipline assigned in connection with the event, and the employment status of disciplined officers.

(2) “Formal investigation” refers to an investigation initiated at the request of management after a preliminary determination has been made that a rule or policy of the department may have been violated. A formal investigation is typically conducted by an internal affairs department or its equivalent and is distinguished from an informal inquiry that is more properly considered routine employer supervision.

(3) “Informal inquiry” means questioning by supervisory personnel for purposes of making a preliminary determination whether an officer has violated a rule or policy of the department. An informal inquiry is made only to obtain preliminary facts in order to determine whether a formal investigation should be initiated. An informal inquiry must be conducted in accordance with state and federal law.

(4) “Law-enforcement officer” or “officer” means a full-time or part-time 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 except for the disclosures required under § 9210 of this title, 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. An officer who is not a member of 1 of the above agencies is not covered by this chapter.

(5) “Sustained finding” means after the conclusion of an investigation, a law-enforcement officer’s violation of law, rule, policy, regulation, or guideline was established by a preponderance of the evidence. “Preponderance of the evidence” means more probably true than not.

(c) Whenever a law-enforcement officer is under formal investigation and is subjected to questioning which could lead to disciplinary action, 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 at a time and at the discretion of the department, but no later than prior to formal questioning. 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 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, or the Chief’s designee, 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 shall be kept of all interviews held in connection with the administrative investigation. Upon request, a copy of the record or recording of the interviews shall be provided to the officer.

(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 reasonable 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, and video and audio recordings 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 formal investigation, the investigator shall inform in writing the officer of the investigative findings, conclusions, and any recommendation for further action. Notwithstanding anything in this chapter to the contrary, upon completion of the investigation and any related proceedings, an officer is entitled to access investigatory files regardless of whether charges are sustained.

(12) Except as set forth in subsection (d) of this section and § 9210 of this title, records compiled as a result of any investigation subject to the provisions of this chapter and/or a contractual disciplinary grievance procedure are confidential and may not be released to the public. A contract or collective bargaining agreement that purports to extend confidentiality provisions relating to officer personnel or disciplinary records beyond the scope set forth in this chapter is void and unenforceable as against public policy.

(13) Whenever an investigation is initiated, it must be completed, regardless of the employment status of the law-enforcement officer under investigation. The employing department shall maintain the file relating to the investigation regardless of whether or not the officer separates from the employing department prior to the initiation or completion of a formal investigation and regardless of the investigation’s conclusion. Any sustained finding must be reported to the Police Officer Standards and Training Commission.

(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, §  165 Del. Laws, c. 139, §§  1, 267 Del. Laws, c. 237, §  169 Del. Laws, c. 298, §  170 Del. Laws, c. 175, §  170 Del. Laws, c. 186, §  170 Del. Laws, c. 467, §  171 Del. Laws, c. 456, §  172 Del. Laws, c. 367, §  676 Del. Laws, c. 43, §  376 Del. Laws, c. 303, §§  1, 277 Del. Laws, c. 158, §  178 Del. Laws, c. 155, §  579 Del. Laws, c. 340, §  181 Del. Laws, c. 347, § 184 Del. Laws, c. 148, § 184 Del. Laws, c. 149, § 18

§ 9201. Insertion of adverse material in officer’s file.

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

§ 9202. Disclosure of personal assets.

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, §  170 Del. Laws, c. 186, §  1

§ 9203. Hearing — Required on suspension or other disciplinary action.

If a law-enforcement officer is:

(1) Suspended for any disciplinary 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, §  165 Del. Laws, c. 139, §  370 Del. Laws, c. 186, §  184 Del. Laws, c. 148, § 1

§ 9204. Hearing — Scheduling; notice.

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 45 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, §  170 Del. Laws, c. 186, §  184 Del. Laws, c. 148, § 1

§ 9205. Hearing — Procedure.

(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, §  165 Del. Laws, c. 139, §  470 Del. Laws, c. 186, §  171 Del. Laws, c. 166, §  1

§ 9206. Hearing — Evidence obtained in violation of officer’s rights.

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

§ 9207. Hearing — Written decision and findings of fact to be delivered to officer.

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, §  170 Del. Laws, c. 186, §  1

§ 9208. Extra work as punishment prohibited.

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, §  170 Del. Laws, c. 186, §  1

§ 9209. Application of chapter.

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, §  165 Del. Laws, c. 139, §  5

§ 9210. Authorized disclosures.

(a) (1) Beginning on August 7, 2023, an investigating agency shall prepare, within 30 days following the completion of a formal investigation and the conclusion of any hearing required by this chapter, a detailed narrative of the investigation, not including any compelled statements of an officer, and forward the detailed narrative to the Criminal Justice Council (CJC), with regard to any of the following:

a. Incidents where a law-enforcement officer has discharged a firearm at a person.

b. A law-enforcement officer’s use of force that results in serious physical injury.

c. An investigation that results in a sustained finding that a law-enforcement officer engaged in a sexual assault or sexual harassment. For purposes of this paragraph, “sexual assault” means the commission or attempted initiation of a sexual act by means of force, threat, coercion, extortion, or offer or implication of leniency or official favor, under the color of authority. Propositioning sex or commission of a sexual act while an officer is on duty is deemed a “sexual assault.”

d. An investigation that results in a sustained finding that a law-enforcement officer engaged in dishonest conduct. This includes, but is not limited to sustained findings of perjury, false statements, filing false reports, witness tampering, and destruction, falsification, or concealment of evidence.

e. A sustained finding of domestic violence by a law-enforcement officer.

(2) The detailed narratives required by this subsection may not reveal the name or any personal identifying information of a victim or witness. In a domestic violence case where revealing the name of the officer would also allow identification of the victim, the officer’s name may be redacted.

(3) The Criminal Justice Council shall post the narratives they receive under this paragraph on their website within 30 calendar days of receipt.

(b) Departments shall provide information to a complainant or victim of officer misconduct regarding the resolution of that complaint, including the investigative findings, conclusions, and any recommendation for further action.

(c) (1) Notwithstanding anything in this chapter to the contrary, the Department of Justice must disclose in a criminal or delinquency matter, at the request of a defendant, all existing records, including those contained in a personnel or disciplinary file, relating to sustained findings of misconduct relating to perjury, witness tampering, intentional false statements or false reports, or destruction, falsification, or concealment of evidence by an officer who participated in the investigation or prosecution.

(2) The Department of Justice is responsible for gathering records from law-enforcement agencies that are responsive to a request under paragraph (c)(1) of this section and shall facilitate the transfer of records, pursuant to a confidentiality order entered by the court that restricts use or dissemination of such information beyond proceedings in that case and requires secure handling of the records.

(3) The Department of Justice shall diligently advise all agencies involved in criminal and juvenile justice matters of the agencies’ continuing duty to identify, preserve, and disclose to the prosecutor, information required to be disclosed under this subsection.

(4) Prior to the transfer of records under this subsection, the Department of Justice shall redact all of the following:

a. The home address, home telephone number, work or school address, work telephone number, e-mail address, and Social Security number of a law-enforcement officer or officer’s family member, a complainant or complainant’s family member, or a witness or witness’ family member.

b. The medical history and detailed medical information of a law-enforcement officer or a complainant. This paragraph (c)(4)b. may not be construed to permit redactions to any descriptions of injuries or conditions that are the subject of the complaint or caused by or resulting from a law-enforcement officer’s alleged conduct.

(d) A law-enforcement agency must disclose to the Department of Justice unsubstantiated allegations of misconduct in which the following 3 criteria are satisfied:

(1) A formal investigation is ongoing.

(2) The allegations relate to perjury, witness tampering, intentional false statements or false reports, or destruction, falsification, or concealment of evidence by an officer who participated in the investigation or prosecution of a pending criminal matter.

(3) The misconduct at issue is alleged to have occurred in the course of the officer’s participation in the investigation or prosecution of that same pending criminal matter.

(e) In addition to any existing obligation under federal or Delaware state law, the Department of Justice has the following disclosure obligations to the defense in a criminal or delinquency matter:

(1) The Department shall immediately disclose an unsubstantiated allegation of misconduct meeting the criteria in subsection (d) of this section where the evidence or information is exculpatory.

(2) The Department shall disclose an unsubstantiated allegation of misconduct meeting the criteria in subsection (d) of this section where the evidence or information is admissible for impeachment of a witness.

(3) The Department shall submit to the Court for in camera review all unsubstantiated allegations of misconduct meeting the criteria in subsection (d) of this section that are not otherwise disclosed to the defendant. Upon review, the Court shall order disclosure of an unsubstantiated allegation of misconduct if it is determined to be exculpatory or admissible for impeachment of witness. Where the Court orders disclosure, the disclosure shall be made under a protective order.

(f) If an allegation disclosed under subsections (d) and (e) of this section is determined at the conclusion of the formal investigation to be unsubstantiated, information relating to that allegation may not be used in any criminal or delinquency proceeding.

(g) A law-enforcement agency must require every new hire to sign an agreement allowing that officer’s personnel file, and any disciplinary or investigative records relating to misconduct to be shared with any future law-enforcement agency, in this State or another jurisdiction, that hires or has made a conditional offer of hire to that officer. The sharing of these records with another law-enforcement agency that hires or makes a conditional offer of hire to an officer is not a violation of this chapter.

84 Del. Laws, c. 148, § 1

§ 9211. Annual reporting and record retention.

(a) Beginning in 2024, each law-enforcement agency shall annually report to the Criminal Justice Council (CJC), and the CJC shall post on its website, all of the following information:

(1) The number of public complaints and internal complaints relating to police misconduct that the department receives each year, broken down by subject matter of the complaint.

(2) The number of formal investigations undertaken by the department each year, and the number of complaints resolved without a formal investigation.

(3) The number of formal investigations that resulted in a sustained finding of misconduct, an unsubstantiated finding, or any other disposition.

(b) Notwithstanding any other law to the contrary, records relating to any incident for which a detailed narrative is required to be publicly posted pursuant to this chapter, shall be preserved for at least 25 years.

84 Del. Laws, c. 148, § 1