1 Del. Admin. Code § 801-26.0

Current through Register Vol. 28, No. 5, November 1, 2024

Section 801-26.0 - Mandatory Standards for Use of Body Worn Cameras

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.

1 Del. Admin. Code § 801-26.0

10 DE Reg. 341 (08/01/06)
11 DE Reg. 180 (08/01/07)
13 DE Reg. 840 (12/01/09)
22 DE Reg. 230 (9/1/2018)
22 DE Reg. 783 (3/1/2019)
23 DE Reg. 939 (5/1/2020)
24 DE Reg. 1012 (5/1/2021)
26 DE Reg. 222 (9/1/2022) (Final)