Delaware looks to N.J. for guidance on use-of-force reforms

A legislative task force working to recommend police reforms in Delaware turned to neighboring New Jersey to get some insight on that process this week. Garden State Attorney General Gurbir Grewal talked to members of Delaware’s Law Enforcement Accountability Task Force about his efforts to rewrite use-of-force policies in Jersey.

Generally, use-of-force policies guide police by outlining what level of force is authorized under specific circumstances. The deaths of George Floyd, Breonna Taylor and many other unarmed Black people have brought widespread attention to police using excessive force and not being held accountable.

“These documents must constantly evolve, they must be living documents that can change rapidly as new evidence and new practices and new techniques come to light,” Grewal said via Zoom to members of the Use of Force Subcommittee. New Jersey’s use-of-force standard hasn’t evolved at all over 20 years. “It doesn’t reflect who we are as a state today, it doesn’t reflect our values as a state today, and it doesn’t reflect the changes that happened in policing over the last 20 years.”

He said finding the right solution requires robust stakeholder engagement. “That’s what will ensure that the final policy actually ensures minimizing inappropriate instances of use of force without prompting serious unintended consequences.”

After input from police groups, activists and more than 1,000 public comments, Grewal expects New Jersey’s new use-of-force policy to be ready by the end of the year.

Delaware Attorney General Kathy Jennings, who chairs the Use of Force Subcommittee, said she’s often looked to New Jersey’s experience to guide Delaware policy. “It would be really beneficial for us to have that as we examine model policies. Historically, I heavily relied on your body-worn camera model policy in New Jersey when we worked with the police chiefs’ council to develop one,” she said. “We are trying to achieve a uniform statewide use-of-force policy and have been working with the police chiefs’ council on that.”

Grewal’s authority in New Jersey is different from Jennings’ in Delaware. The New Jersey AG is an appointed position with broad authority to enact policies that affect state and local police. In Delaware, Jennings is about to enter the third year of her four-year elected term. Though she doesn’t have authority to change policing policies throughout the state, she can advocate for lawmakers to approve legislation to do so.

Lt. Thomas Brackin, president of the Delaware State Trooper Association, questioned Grewal’s sweeping authority to make new policy. “When you embolden one person with the unilateral power to make such major changes in such important areas, it’s a dangerous thing,” he said. “If someone gets into that position and has an activist mentality or has an agenda that they want to put across, it can become very divisive and difficult to work within.”

Grewal agreed to some extent. “If it’s unilateral authority exercised unilaterally in a vacuum, of course it can be dangerous,” he said, adding that he’s had a lot of input from various groups and members of the public as he develops the new policy.

Over the last 15 years, police in Delaware have shot 56 people, three this year alone. Officers have killed 30 of them, including an innocent robbery victim. A WHYY News analysis of police shootings earlier this year found each of those incidents have one common denominator: no officers have been charged with a crime. No charges have been filed, even where use of deadly force has been questioned by state prosecutors, members of the public and lawyers for the victims.

Jennings was quick to point out that the issue of reforming the use-of-force policy is different from changing the statute that determines whether an officer violates Delaware’s criminal code when using force. Jennings has joined reform advocates calling for lawmakers to change the state’s standard.

Her legislative proposal would require officers to “reasonably” believe deadly force is necessary, instead of simply believing it is necessary.

A late proposal to make that change this year ended without action by state lawmakers.

Any legislative changes the task force recommends will have to wait until the General Assembly convenes its next session in January.