University of Michigan School of Engineering senior William Royster, 21, stands with the words “#Black Lives Matter” on tape over his mouth
The Delaware Attorney General does not use the grand jury as an investigative body as was done in Ferguson and Staten Island. Local critics charge that the state’s review process is similarly flawed and should a similar situation arise here, the review will not earn the public’s trust.
Currently, a unit the Delaware Attorney General’s Office looks into every police use of deadly force in the state, including when a person is injured and not just when there is a death. A public report is then released by the office.
“There should be a third party without a vested interest,” said Richard Smith, president of the Delaware NAACP. “So the truth comes out.”
Rev. Derrick Johnson, who led a protest march to Wilmington Police Headquarters earlier this month, issued a similar call for a new, independent body – like a special prosecutor – to review citizen claims against police.
ACLU Delaware Executive Director Kathleen MacRae said police are “the only quasi-military body permitted to use force against American citizens in this country with no civilian oversight.”
She said the relationship between law enforcement and the prosecutors’ office is too “intimate” to allow for a dispassionate and unbiased review of police actions, and that some kind of outside organization should be created to conduct such reviews.
Civil rights attorney Thomas Neuberger, who has been involved in a number of civil lawsuits against Delaware police agencies, charged that “there is no hope in Delaware or anywhere in the country that police departments will be held accountable criminally for deaths of unarmed civilians.”
“The only remedy for victims of police brutality is in the civil courts,” he said.
Delaware Fraternal Order of Police President Fred Calhoun said that the state has a good process in place that has never provoked the backlash that is going on elsewhere. As a result, he said he does not favor changing Delaware’s review process, “when we haven’t shown there is a reason to change our system.”
Civil rights attorney David Finger, who has clashed with state officials over other civil rights issues in the past, agreed with Calhoun, saying that just because there are problems elsewhere does not mean there are problems here.
“You have to be careful not to take extreme examples and treat them as the norm,” said Finger.
The situations in Ferguson and Staten Island appear to be anomalies, he said. But he added that it is always good for a government or organization to periodically review how it is operating. “But you shouldn’t start with the assumption that it is broken.”
Tim Mullaney, chief of staff for Attorney General Beau Biden, defended the current system, saying it is far more than a cursory review. It is a full investigation, he said, with Department of Justice investigators who have arrest powers and who go to the scene of incidents and sit in on police interviews and create their own independent report.
The investigators are usually from the fraud division of the Attorney General’s Office and generally don’t have day-to-day interaction with police like employees in the criminal division, said Mullaney, a former U.S. Marshal and Dover Police officer.
Mullaney said if the use of force is justified, he writes up a short, usually two- to three-page public report explaining the finding. If the use of force is not justified, then the officer would be arrested and it would proceed through the criminal justice system like any other case.
Since 2008, Mullaney said he has issued at least 30 reports on police use of force. He said he first started reviewing use of force investigations when he was chief of the fraud division and continued in that role when he became Biden’s chief of staff.
But in all those reports, and as far as anyone can tell in the many years before Mullaney, there has never been a finding by the Delaware Attorney General that the use of force by police was not justified.
“The bottom line: it is what it is. The facts determine what it is,” Mullaney said, adding that to explain why there has never been a finding against police is a near-impossible task because it is like asking him to “argue a negative.”
While there may not be much formal contact between investigators from the fraud division and police, many investigators are former Delaware police officers, including retirees from the Wilmington and New Castle County police.
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