Current through Register Vol. 28, No. 3, September 1, 2024
26.1 Definitions. The following definitions
apply solely to Section
26.0 of this regulation:
"BWC" means body worn cameras.
"Chief" means the colonel, executive, director or head of the
department or agency, or the Chief's designee.
"DCRPT" means the Delaware Department of Justice's Division
of Civil Rights and Public Trust.
"Officers" shall be those officers described in 11 Del.C.
§
8402A.
"SROs" means School Resource Officers or other officers when
acting in the capacity of SROs.
26.2 As required by 11 Del.C. §
8404(c), Section
26.0 sets forth certain standards
required for policies to be developed for the use of BWC as those cameras are
required to be worn by the officers. Agencies employing officers using BWC are
required to develop policies containing these standards and are encouraged to
expand and to customize those policies so that they both accomplish the
requirements of 11 Del.C. Ch. 84A and meet the needs of their specific
agencies.
26.3 Requirement to Wear
BWC. BWC shall be worn by officers while on duty in a role that is likely to
result in interactions with the public. Officers who serve in administrative
functions or who do not regularly interact with the public are not required to
wear BWC.
26.3.1 Officers who are required to
wear BWC will typically include:
26.3.1.1
Officers in uniform while acting in the performance of official
duties;
26.3.1.2 Officers whose
assigned duties include regular interaction with members of the public where
such duties might lead to an arrest situation or use of force event;
26.3.1.3 Officers assigned to
enforcement-related activities such as demonstrations or potential civil
disturbances, tactical response teams, pre-planned arrest or search warrant
teams, traffic units, proactive enforcement teams, canine officers, mounted
units, probation or parole compliance, security or crowd-control functions at
special events;
26.3.1.4 While in
the field, officers assigned to field investigations for police agencies,
Department of Corrections, and the Department of Services for Children, Youth,
and Their Families; and
26.3.1.5
Officers assigned to "front desk" duty whose duties include interaction with
members of the public.
26.3.2 Officers not required to wear BWC will
typically include:
26.3.2.1 Officers in
undercover assignments, administrative positions, hostage or crises
negotiators, officers meeting with or recruiting confidential sources,
non-uniformed officers assigned to non-enforcement duties;
26.3.2.2 Officers engaged in union
representation of a member of the collective bargaining unit; and
26.3.2.3 In extraordinary circumstances
(riot, large concert), where an agency has to deploy so many officers that the
agency cannot reasonably provide each officer with a BWC.
26.3.2.3.1 Subsection 26.19 concerning
special exceptions must be followed for planned
events.
26.3.3
SROs. School Resource Officers performing in a law enforcement capacity and not
an educational capacity shall follow Section
26.0 of this regulation. SROs have a
unique position in law enforcement; in light of that and the fact that SROs, by
their roles, routinely interact with juveniles and students with special needs,
these mandatory standards shall be interpreted with greater flexibility to
those officers when not engaged in traditional law enforcement
interactions.
26.4
Activation of BWCs. BWC shall be active to record contacts with citizens in the
performance of official duties, including:
26.4.1 During calls for service;
26.4.2 Where an arrest or detention appears
to be likely;
26.4.3 Where use of
force appears to be likely;
26.4.4
Where it appears doing so may promote the safety of people and property;
and
26.4.5 Where doing so may be
helpful to preserve evidence.
26.5 Notwithstanding subsection 26.4, at no
time are officers expected to jeopardize their safety or the safety of others
in order to activate BWC.
26.5.1 BWC shall be
activated as soon as the circumstances permit safe activation.
26.5.2 Officers shall document the exigency
that prohibited the immediate activation of BWC. See also subsection
26.7.
26.6 BWC shall
remain activated until the entire contact is completed in order to ensure the
integrity of the recording unless the contact moves into an area restricted by
these regulations.
26.7 If BWC are
not activated for an entire contact, or a recording is interrupted, the officer
shall document why a recording was not made, was interrupted, or was
terminated.
26.8 Absent exigent
circumstances, recordings shall not be permitted to be reviewed by members of
the public at the scene of an incident or event.
26.9 Agencies shall ensure that officers
assigned BWC receive approved training on BWC use and operation pursuant to
these regulations as well as all applicable law and policies prior to using
BWC.
26.10 Officers who are
assigned or utilize BWCs shall inspect and test the BWC prior to each shift or
special event to verify proper functioning and shall notify their supervisor of
any problems. Officers shall document any unusual circumstances why a test did
not occur such as the emergency activation of a special response
unit.
26.11 Officers shall not, in
any manner, edit, alter, or erase BWC recordings. Officers may duplicate, copy
or distribute BWC recordings with the Chief's prior written approval.
26.12 Officers shall note in incident,
arrest, and related reports when recordings were made during the incident in
question and if a BWC recording was reviewed by the officer prior to or during
report writing. Additionally, an officer's report should note any discrepancies
in material information between the officer's perception and the video. BWC
recordings are not a replacement for written reports.
26.13 Recording Prohibitions. BWC shall be
used only in conjunction with official law enforcement duties and to record
interactions with the public and, absent exigent circumstances, shall not be
used to record:
26.13.1 Private communications
with other police personnel without the permission of the Chief;
26.13.2 Encounters with undercover officers
or confidential informants;
26.13.3
Moments while on break or otherwise engaged in personal activities;
26.13.4 Any location where individuals have a
reasonable expectation of privacy, such as a restroom or locker room;
26.13.5 A strip search;
26.13.6 Court proceedings by non-court
personnel officers, except where an incident occurs during a court proceeding;
and
26.13.7 Any other situation
where applicable law or regulation provides for confidentiality including but
not limited to:
26.13.7.1 HIPAA;
26.13.7.2 Conversations between medical
treatment providers and patients;
26.13.7.3 Conversations with counsel or union
representatives; and
26.13.7.4 Any
other privileged conversations.
26.13.7.5 Where an officer feels it is
necessary to stop recording to facilitate speaking with a witness or a member
of the public. When feasible, the officer will state an intent to stop
recording before stopping the BWC and, upon reactivation, state that the BWC
was restarted, but in all cases, video interruptions will be indicated in a
written report.
26.14 Storage of Digital Files
26.14.1 Agencies will not store digital files
in an unsecured manner.
26.14.2
Considering the rapid evolution of technology, it is expected that agencies
will utilize best practices related to cyber security.
26.14.3 Local storage will feature competent
security barriers and full-sized backup capacity.
26.14.4 Remote storage vendors will have
competent security protocols and proven ability in public sector
service.
26.14.5 All access to BWC
data (images, sounds, and metadata) must be specifically authorized by the
Chief, and all access is to be audited on a reasonable schedule to ensure that
only authorized users are accessing the data for legitimate and authorized
purposes.
26.14.6 Files should be
securely stored in accordance with any state or municipal records retention law
or policy and no longer than useful for purposes of liability protection,
training or for use in an investigation or prosecution.
26.15 Agencies will adopt quality control
mechanisms to ensure compliance with these regulations.
26.16 Dissemination. In addition to the
prohibitions in subsection 26.11, no officer shall access, view, copy,
disseminate, or otherwise use a BWC recording except for an official purpose as
specified in subsection 26.16 and applicable law. BWC recordings shall not be
divulged or used by any law enforcement agency for any commercial or other
non-law enforcement purpose. Access to and use of a stored BWC recording is
permitted only:
26.16.1 When relevant to and
in furtherance of an official investigation or prosecution;
26.16.2 To principals or their family
members, or vested individuals, when deemed necessary and
appropriate;
26.16.3 When relevant
to and in furtherance of a management review process to identify circumstances
indicating possible police misconduct or to determine the existence of a
pattern or practice of possible misconduct;
26.16.4 When relevant to a supervisor's
review of an officer's actions as part of the supervisory process authorized by
the agency;
26.16.5 To comply with
the State's discovery obligations in prosecutions pursuant to court
rules;
26.16.6 To comply with any
other legal obligation to turn over the recording to a person or
entity;
26.16.7 For training
purposes, provided the recording is edited so that the identity of individuals
depicted in the recording cannot be determined by persons viewing the training
video unless the depicted individual has consented to the recording being used
for training purposes;
26.16.8 To
conduct an audit to ensure compliance with these regulations and a department's
policy, standard operating procedure, directive, or order promulgated pursuant
to these regulations;
26.16.9 To
enhance officer and public safety by providing intelligence information in
preparation for a raid/warrant execution (e.g., by providing information about
the layout of a premises to be searched);
26.16.10 To assist an office in writing their
report;
26.16.11 Subject to
subsection 26.16.12, any other official and specified purpose where the Chief
determines that good and sufficient cause exists to authorize access to a
particular BWC recording as specified in a written policy of the department.
26.16.11.1 This determination will take into
consideration the public interest, the rights of any potential criminal
suspect, and the applicability of any rights and protections provided anyone
under state and federal law, including consideration of the Delaware Lawyer's
Rules of Professional Conduct.
26.16.11.2 Video shall not be released until
DCRPT has completed any criminal investigation or subsequent prosecution,
unless authorized by DCRPT.
26.16.12 Video of a use-of-force incident
resulting in death or serious bodily injury shall not be released until the
following additional conditions are met:
26.16.12.1 Key witness interviews are
substantially completed;
26.16.12.2
The victim's family is afforded the opportunity to review the video;
26.16.12.3 Witness and other confidential
information is redacted; and
26.16.12.4 DCRPT approval is
obtained.
26.17
Any authorized dissemination will include appropriate redactions for statutory
and common law regulations, including but not limited to:
26.17.1 Victim's Bill of Rights;
26.17.2 Right to Privacy; and
26.17.3 Considerations in subsection
26.13.7.
26.18 Nothing in
these regulations shall create a private right of action in any third party.
These regulations set mandatory standards for implementation and enforcement by
agencies employing officers using BWC and it shall be the responsibility of
such agencies to enforce their policies and issue any appropriate discipline
for violations of those policies.
26.19 Exemptions from the requirements in
subsection 26.3.2.3 are permitted only when approved by the Chief, and only
under special circumstances that warrant an exception. The reasons for the
exemption must be documented and demonstrate a special need. Such requests for
exemption, when possible, shall be made in advance and approved in writing by
the Chief.
