IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) 

 ) 

 ) 

 v. ) I.D. No. 2103011110

 ) 

JAMES MACCOLL, ) 

 ) 

 Defendant. ) 

Submitted: June 6, 2022

Decided: July 1, 2022

Upon Consideration of Defendant’s Motion to Dismiss,

DENIED.

Upon Consideration of Defendant’s Motion in Limine,

DENIED. 

MEMORANDUM OPINION

Mark A. Denney, Jr., Esquire, Deputy Attorney General, DEPARTMENT OF 

JUSTICE, Wilmington, Delaware. Attorney for the State of Delaware. 

Eugene J. Maurer, Jr., Esquire, EUGENE J. MAURER, J.R., P.A., Wilmington, 

Delaware. Attorney for Defendant James MacColl. 

BUTLER, R.J. 
2

Defendant James MacColl is a former Wilmington police officer. He has been 

indicted on obstruction and corruption charges stemming from allegedly false

statements he made during internal affairs (“IA”) interviews about a shooting 

incident. MacColl now moves to dismiss the indictment and to exclude his 

statements, asserting privileges under Garrity v. New Jersey1 and confidentiality 

protections set out in the Law-Enforcement Officers’ Bill of Rights (“LEOBOR”).2

 

The Court concludes that Garrity does not apply on these facts and that MacColl 

lacks standing to invoke LEOBOR. Accordingly, his motions are denied.

BACKGROUND

At this stage, the Court must assume that all the State’s well-pleaded 

allegations are true.3

A. The Gun Barrel Discrepancy

In 2019, MacColl shot a fleeing carjacking suspect. MacColl thought the 

suspect was armed. Evidence at the scene suggested otherwise.

A deadly force investigation followed.4

 As part of that investigation, MacColl

turned in his Wilmington Police Department (“WPD”) gun for testing. The ballistics

1 385 U.S. 493 (1967).

2 11 Del. C. § 9200 (2018).

3 See infra Standards of Review.

4 The State ultimately found MacColl’s use of force appropriate. See Final Report

of the Department of Justice: Use of Force by Wilmington Police Department, Del. 

Dep’t of Just. (Nov. 4, 2019), https://attorneygeneral.delaware.gov/wpcontent/uploads/sites/50/2019/11/Harris-Use-of-Force-Report-11-4-19.pdf.
3

results showed a mismatch between the grooves on the test rounds and the grooves 

on the bullets recovered from the scene. Closer inspection revealed that the gun 

barrel was not a WPD standard issue barrel.

WPD believed that MacColl’s gun barrel was switched after the shooting. 

Unreported and unauthorized modifications to field firearms violate WPD policy.5

 

Accordingly, WPD’s Office of Professional Standards (“OPS”) conducted IA 

interviews with MacColl to determine why the tested gun barrel did not match the 

bullets from the scene.

6

 

B. The IA Interviews

Before each interview, MacColl signed an “investigation rights form” (the 

“Form”). The Form explained that MacColl’s “admissions” would not be used 

against him in a “subsequent criminal proceeding.”7

 The Form also instructed 

MacColl to answer every question “truthfully[.]”8

 The Form last warned that any 

failure to answer could result in “disciplinary action[,]”9 e.g., termination.

MacColl denied changing his gun barrel after the shooting. Instead, MacColl 

stated that he replaced the barrel over a year earlier to improve the accuracy of the 

5 See Exs. A–B to Def.’s Mot. to Dismiss (WPD Compls.).

6

 MacColl was interviewed multiple times by State and WPD criminal investigators. 

For simplicity, and because MacColl’s motions focus solely on the IA interviews, 

this decision does not discuss statements made during other interviews. 7 Ex. B to Def.’s Mot. to Dismiss ¶ 4 (Investigation Rights Form).

8 Id. ¶ 5.

9 Id. ¶ 7.
4

firearm. Despite that timeline, MacColl produced what he claimed was the 

“original”10 barrel to OPS in the middle of an interview. 

In the end, MacColl never admitted to a crime or any wrongdoing. But he 

could not harmonize his answers with the ballistics test results. Nor could he provide 

consistent accounts of his post-shooting whereabouts, which seemed to include an 

unsupervised trip to a WPD weapons locker. 

C. The Subpoena

The State subpoenaed the IA interview transcripts from WPD.

11 WPD 

produced them without objection. A few months after the State received the 

transcripts, WPD terminated MacColl for an unrelated violation. 

Based on the interview transcripts, and separate investigations, the State 

concluded that MacColl’s statements to OPS were false. That allegation led to this 

three-count indictment.

10 The State believes that this barrel was not the true original, but rather was a 

lookalike MacColl acquired to bolster his credibility. The State intends to argue at 

trial that MacColl tampered with three barrels: the true original barrel (which 

apparently was never produced); the modified barrel; and the false original barrel. 

11 MacColl had been slated to be the State’s key witness in the felony case against 

the carjacking suspect. The State avers that it initially sought MacColl’s IA 

interviews to determine whether the transcripts contained Brady or Giglio material 

discoverable in the carjacking case. Citing the impact of MacColl’s IA interviews 

on his witness credibility, the State eventually dropped the carjacking case. See Ex. 

A to State’s Opp’n to Def.’s Mots. to Dismiss & in Lim. (Nolle Prosequi Mem.). 
5

D. The Indictment

The indictment charges MacColl with (1) Providing a False Statement to Law 

Enforcement;12 (2) Tampering with Physical Evidence;13 and (3) Official 

Misconduct.14 Falsity or deception is a material element of Providing a False 

Statement and Tampering with Physical Evidence.

15 The State suggests that

evidence of falsity or dishonesty also may be used to prove Official Misconduct.

16

E. These Motions 

MacColl has moved to dismiss the indictment and to exclude his interview 

statements from evidence. He contends that Garrity bars the State from prosecuting

him for any of his incriminating interview statements because he made his 

statements under penalty of termination. He insists alternatively that incriminating 

12 11 Del. C. § 1245A (2012).

13 Id. § 1269 (1995).

14 Id. § 1211(1) (1995).

15 Id. § 1245A(a) (False Statement) (requiring the State to prove that the person

“knowingly provides any false written or oral statement to the law-enforcement 

officer or agency when such statement is material to the investigation” (emphasis 

added)); id. § 1269 (Tampering) (requiring the State to prove that the person “makes, 

devises, alters or prepares false physical evidence”; or “[p]roduces or offers false 

physical evidence at a proceeding, knowing it to be false”; or “suppresses” evidence 

designated for use in “an official proceeding” by “any act of concealment . . . or 

deception” (emphases added) (enumeration omitted)).

16 See id. § 1211(1) (“A public servant is guilty of official misconduct when, 

intending to obtain a personal benefit or to cause harm to another person: . . . 

commits an act constituting an unauthorized exercise of official functions, knowing 

that the act is unauthorized . . . .” (emphasis added) (enumeration omitted)). 
6

statements contained in police IA files are protected by LEOBOR from disclosure

and use. The State opposes MacColl’s motions, which are now ripe for decision.

STANDARDS OF REVIEW

A. Motion to Dismiss

In considering a motion to dismiss an indictment, the Court “accepts as true 

all well-pleaded factual allegations in the indictment.”17 The Court will not dismiss 

an indictment unless the indictment does not provide notice or allow for a defense

or otherwise is legally deficient.

18 “Unless there is a stipulated record, or unless 

immunity issues are implicated, a pretrial motion to dismiss an indictment is not a 

permissible vehicle for addressing the sufficiency of the government’s evidence.”19 

B. Motion to Exclude

The Court balances evidentiary objections against “the end of ascertaining the 

truth[.]”20 The Court will not exclude evidence unless the evidence is irrelevant or 

17 State v. Herbert, 2022 WL 811175, at *1 n.1 (Del. Super. Ct. Mar. 17, 2022).

18 See Ciccaglione v. State, 474 A.2d 126, 128 (Del. 1984); Malloy v. State, 462 A.2d 

1088, 1093 (Del. 1983); Del. Super. Ct. Crim. R. 12(b)(2).

19 United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000). See Wright v. 

Pierce, 43 F. Supp. 3d 405, 410 n.3 (D. Del. 2014) (noting that Delaware courts use 

federal standard in analyzing indictment sufficiency); see generally Valentin v. State, 

74 A.3d 645, 648 n.10 (Del. 2013) (noting applicability of federal precedent to 

Superior Court Criminal Rules that “substantively mirror[]” Federal Rules of 

Criminal Procedure). 

20 Del. R. Evid. 102. 
7

inadmissible under the Rules of Evidence, a statute, or applicable precedent.21 

Evidence that suffers “some constitutional defect is obviously inadmissible.”22 

ANALYSIS

As support for his motions, MacColl cites privileges afforded by Garrity and 

protections codified in LEOBOR. No Delaware case has discussed the interaction 

between IA investigations and Garrity and LEOBOR. Nevertheless, MacColl’s 

motions must be denied because they fail under federal precedent and general 

principles of standing. As explained below, Garrity does not protect statements, like 

those at issue here, that are alleged to be false. And MacColl lacks standing to raise 

his LEOBOR claim because he has not shown an injury that the Court may redress.

A. MacColl is not entitled to Garrity immunity.

1. Consistent with the Fifth Amendment, Garrity only protects truthful 

statements made by police officers under penalty of termination.

MacColl’s motions begin with Garrity v. New Jersey.

23 Garrity concerned a 

New Jersey statute that required police officers to answer questions put to them in 

an internal investigation or else be terminated.

24 A divided United States Supreme 

Court held that self-incriminating statements made by police officers under penalty 

21 Id. R. 402.

22 Id. R. 402 cmt.

23 385 U.S. 493 (1967).

24 Id. at 499. 
8

of termination are “coerced” within the meaning of the Fifth Amendment.

25 Garrity 

thus gave such statements a “self-executing use immunity.”26 Under Garrity, the

government cannot use a police officer’s self-incriminating statements to build

“subsequent criminal proceedings” against the officer if the officer made the 

statements at the risk of losing his job.

27

One might rashly conclude that Garrity is an “inflexible, per se rule[.]”28 But 

the rule is not absolute.29 Garrity “conceded” that there may be “situations where” 

25 Garrity analogized its idea of “coercion” to principles of ancient Hebrew law. See 

id. at 497 n.5. Garrity did not explain why police officers should be entitled to more

Fifth Amendment protection than anyone else. Indeed, “there is no constitutional 

right to be a policeman.” McAuliffe v. City of New Bedford, 29 N.E. 517, 517 (Mass. 

1892) (Holmes, J.). For that reason, some courts have only reluctantly accepted the 

premise that the mere threat of police termination is coercive. See, e.g., Uniformed 

Sanitation Men Ass’n v. Comm’r of Sanitation, 426 F.2d 619, 624 (2d Cir. 1970) 

(Garrity coercion is a bit of ipse dixit); cf. United States v. Friedrick, 842 F.2d 382, 

395 (D.C. Cir. 1988) (Garrity analysis involves a subjective-objective test).

26 United States v. Burge, 2009 WL 2972915, at *4 (N.D. Ill. Sept. 11, 2009). 27 Garrity, 385 U.S. at 500.

28 Id. at 531 (White, J., dissenting). See also id. at 510 (Harlan, J., dissenting) 

(opining on ground that Garrity witnesses should be required to prove their 

“statements were, when given, involuntary in fact” (emphasis added)).

29 See United States v. French, 216 F. Supp. 3d 771, 776 (W.D. Tex. 2016) (“Garrity 

is not implicated every time a police officer is questioned by law enforcement.”), 

aff’d, 708 F. App’x 205 (5th Cir. 2018); United States v. Indorato, 628 F.2d 711, 

716 (1st Cir. 1980) (Garrity inapplicable where threat of termination was not 

explicit); United States v. Bloom, 450 F. Supp. 323, 337 (E.D. Pa. 1978) (Garrity 

inapplicable where penalty was not termination); see also Salinas v. Texas, 570 U.S. 

178, 185 (2013) (plurality opinion) (“[T]hreats to withdraw a government benefit 

such as public employment may sometimes make exercise of the [self-incrimination] 

privilege [too] costly[.]” (emphasis added) (citing Garrity, 385 U.S. at 497)).
9

an officer “‘volunteers the information[]’” later used against him.30 In other words, 

Garrity left open the possibility that some statements made by police officers under 

penalty of termination will not be protected from subsequent prosecution.

 False statements close that circle. Post-Garrity decisions make clear that 

neither the Fifth Amendment nor Garrity itself protects false statements, even when

the statements are made under penalty of termination.

 a. The Fifth Amendment does not protect false statements.

The Fifth Amendment of the United States Constitution, applicable to the 

States via the Fourteenth,31 provides that no person “shall be compelled in any 

criminal case to be a witness against himself[.]” The Fifth Amendment’s “sole 

concern . . . is government coercion.”32 It “does not preclude a witness from 

testifying voluntarily in matters [that] may incriminate him.”33 By the same token, 

the Fifth Amendment “does not offer protection to a defendant who voluntarily

incriminates himself[.]”34 “Absent some officially coerced self-accusation, the Fifth 

Amendment privilege is not violated by even the most damning admissions.”35 

30 Lefkowitz v. Turley, 414 U.S. 70, 80 (1973) (quoting Garrity, 385 U.S. at 499).

31 Malloy v. Hogan, 378 U.S. 1, 9 (1964).

32 Turner v. State, 957 A.2d 565, 571 n.7 (Del. 2008) (internal quotation marks 

omitted).

33 Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (internal quotation marks 

omitted). 

34 Hardwick v. State, 2012 WL 1067150, at *4 (Del. Mar. 27, 2012).

35 United States v. Washington, 431 U.S. 181, 187 (1977). E.g., Colorado v. 

Connelly, 479 U.S. 157, 169–70 (1986); Oregon v. Elstad, 470 U.S. 298, 309 (1985).
10

The United States Supreme Court has emphasized repeatedly that the Fifth 

Amendment does not put criminal investigations in a “constitutional straitjacket.”36 

The Fifth Amendment bars introduction of involuntary testimony at trial, not efforts

to make a witness testify involuntarily.37 To the contrary, one of the “necessary and 

most important powers of the States . . . to assure the effective functioning of 

government in an ordered society is the broad power to compel residents to testify 

in court or before . . . agencies.”38 Indeed, witness testimony “constitutes one of the 

[g]overnment’s primary sources of information.”39 Limiting the Fifth Amendment

to involuntary statements thus “assures that the [g]overnment obtains all the 

information to which it is entitled[]” and that it needs to investigate for the truth.40

The “very purpose” of the government’s power to compel testimony is to 

“uncover the truth.”41 False information, then, “has no place” in government 

investigations.42 “Our legal system provides methods for challenging the 

36 Vega v. Tekoh, --- S. Ct. ----, 2022 WL 2251304, at *5 (U.S. June 23, 2022)

(internal quotation marks omitted). 37 See, e.g., Chavez v. Martinez, 538 U.S. 760, 767–70 (2003) (plurality opinion);

New Jersey v. Portash, 440 U.S. 450, 457–59 (1979). See also Murphy, 465 U.S. at 

428 (“The Constitution does not forbid the asking of criminative questions.” 

(alteration and internal quotation marks omitted)). 38 Kastigar v. United States, 406 U.S. 441, 444 (1972). 39 Murphy v. Waterfront Comm’n, 378 U.S. 52, 94 (1964) (White, J., concurring). 

Accord Kastigar, 406 U.S. at 444; State v. Conner, 295 A.2d 704, 708 (Del. 1972).

40 Garner v. United States, 424 U.S. 648, 658 n.11 (1976). 41 Brogan v. United States, 522 U.S. 398, 402 (1998) (emphasis omitted).

42 United States v. Mandujano, 425 U.S. 564, 576, 582 (1976) (plurality opinion). 
11

[g]overnment's right to ask questions—lying is not one of them.”43 Because perjury 

is a crime, not a valid response to questioning, the decision to “communicat[e] false 

information” during a government investigation is not considered a product of 

“testimonial compulsion.”44 In other words, false statements made during 

interrogation are deemed voluntary, not coerced.

45 Accordingly, false statements

are not protected by the Fifth Amendment from subsequent prosecution.46

43 Bryson v. United States, 396 U.S. 64, 74 (1969). 44 United States v. Knox, 396 U.S. 77, 82 (1969). Accord Commonwealth v. Good, 

337 A.2d 288, 290 (Pa. 1975); see Bryson, 396 U.S. at 74 (“A citizen may decline 

to answer the question, or answer it honestly, but he cannot with impunity knowingly 

and willfully answer with a falsehood.” (emphasis added)); see also Shotwell Mfg. 

Co. v. United States, 371 U.S. 341, 348–50 (1963) (holding false statement given 

under grant of immunity was admissible as voluntarily made in subsequent criminal 

prosecution based on the statement). 45 See, e.g., LaChance v. Erickson, 522 U.S. 262, 266 (1998) (“[T]he predicament of 

being forced to choose between incriminatory truth and falsehood . . . does not justify 

perjury.” (omission in original) (internal quotation marks omitted)); see also Harris 

v. New York, 401 U.S. 222, 225 (1971) (The Fifth Amendment “privilege cannot be 

construed to include the right to commit perjury.”); cf. McKune v. Lile, 536 U.S. 24, 

49 (2002) (O’Connor, J., concurring in the judgment) (“Not all pressure compels 

incriminating statements.” (alterations and internal quotation marks omitted)).

46 See Knox, 396 U.S. at 82 (Choosing to lie “is a course” that the Fifth Amendment 

gives an accused “no privilege to take.”); cf. Chavez, 538 U.S. at 769 (plurality 

opinion) (“[T]hose subjected to coercive police interrogations have an automatic

protection from the use of their involuntary statements . . . in any subsequent criminal 

trial.” (second emphasis added)).
12

 b. Garrity does not protect false statements.

Garrity did not rewrite the Fifth Amendment. Garrity immunity parallels 

Fifth Amendment immunity.47 As observed, “the Fifth Amendment does not protect 

perjury[.]”48 So “Garrity does not protect false testimony[]” either.49 Indeed, 

“Garrity protection is not a license to lie . . . .”50 Accordingly, every post-Garrity 

decision has held that Garrity immunizes only truthful statements made by police 

officers under penalty of termination.51 

47 See Garrity, 385 U.S. at 500 (basing immunity doctrine on the due process 

elements incorporated into the Fifth Amendment by the Fourteenth Amendment); 

see also United States v. Stein, 440 F. Supp. 2d 315, 328 (S.D.N.Y. 2006) (“Garrity 

held that statements obtained from police officers in circumstances in which 

invocation of the Fifth Amendment would have required termination of their 

employment were coerced.”).

48 United States v. Yurasovich, 580 F.2d 1212, 1219 (3d Cir. 1978). E.g., United 

States v. Apfelbaum, 445 U.S. 115, 126–31 (1980) (articulating principle and 

explaining reasoning); United States v. Wong, 431 U.S. 174, 178 (1977) (same).

49 United States v. Waldon, 363 F.3d 1103, 1112 (11th Cir. 2004), cert. denied, 543 

U.S. 867 (2004).

50 United States v. Veal, 153 F.3d 1233, 1243 (11th Cir. 1998), cert. denied, 526 U.S. 

1147 (1999).

51 E.g., United States v. Holland, 417 F. App’x 359, 361 (4th Cir. 2011); McKinley 

v. City of Mansfield, 404 F.3d 418, 427 (6th Cir. 2005), cert. denied, 546 U.S. 1090 

(2006); Veal, 153 F.3d at 1240–43, cert. denied, 526 U.S. 1147; United States v. 

Devitt, 499 F.2d 135, 142 (7th Cir. 1974), cert. denied, 421 U.S. 975 (1975); United 

States ex rel. Annunziato v. Deegan, 440 F.2d 304, 306 (2d Cir. 1971). See also 

United States v. Thomas, 612 F.3d 1107, 1128 (9th Cir. 2010); United States v. 

White, 887 F.2d 267, 274 (D.C. Cir. 1989); Fraternal Ord. of Police, Lodge No. 5 v. 

City of Philadelphia, 859 F.2d 276, 281 (3d Cir. 1988); United States v. Phillips, 

540 F.2d 319, 332 (8th Cir. 1976).
13

False statements are not considered “coerced” under the Fifth Amendment or

Garrity.

52 As a result, false statements are not immune to charges based on the 

statements’ falsity even when an officer makes the statements between the “rock” of 

self-incrimination and the “whirlpool” of termination:

53

Giving a false statement is an independent criminal act that 

occurs when the individual makes the false statement; it 

is separate from the events to which the statement relates . . . . 

Garrity-insulated statements regarding past events under investigation

must be truthful to avoid future prosecution for such crimes as 

perjury and obstruction of justice.54

Put another way, “[n]either Garrity nor the Fifth Amendment prohibits prosecution 

. . . for false statements or other crimes committed while making Garrity-protected 

statements.”55 An officer “may not abuse Garrity by committing a crime involving 

false statements and thereafter rely on Garrity to provide a safe haven[.]”56 

52 See Devitt, 499 F.2d at 142 (explaining that Garrity’s protection of truthful 

statements provides “adequate protection” of Fifth Amendment rights and therefore 

declining to extend Garrity to false statements), cert. denied, 421 U.S. 975.

53 Garrity, 385 U.S. at 498.

54 Veal, 153 F.3d at 1243 (citation omitted). See, e.g., United States v. Hendricks, 

2015 WL 224747, at *2 (D. Or. Jan. 15, 2015) (“False statements, even when 

compelled, may be used in a prosecution for the falsity of the statements.” (emphasis 

added)); United States v. Dellinger, 2013 WL 4177400, at *4 (D. Ariz. Aug. 15, 

2013) (“Garrity does not require the suppression of false statements that amount to 

an obstruction of justice . . . . Instead, the statements form the basis for an 

independent criminal charge—obstruction of justice . . . .” (citations omitted)).

55 United States v. Jones, 489 F. App’x 364, 365 (11th Cir. 2012) (emphasis and 

internal quotation marks omitted).

56 United States v. Cook, 526 F. Supp. 2d 1, 9 (D.D.C. 2007) (internal quotation 

marks omitted), aff’d, 330 F. App’x 1 (D.C. Cir. 2009).
14

2. Alleged to be false, MacColl’s statements are not protected by Garrity.

When forced to choose between “self-incrimination or unemployment,” a 

police officer “is not privileged to resort to the third alternative, i.e., lying.”57 So 

Garrity gave MacColl only two options. He could have spoken truthfully. Or, he 

could have said nothing at all.

58 He was not free to lie. 

Crediting the indictment’s allegations as true, MacColl made false statements

during his IA interviews about his gun barrel and post-shooting whereabouts. 

Because his statements may be false, the State is permitted under Garrity to use his 

statements against him to prove perjury, obstruction, and public corruption. 

MacColl’s statements are admissible and not privileged. 

3. MacColl’s contrary arguments are unavailing. 

Garrity does not protect MacColl’s allegedly false statements. To achieve the 

opposite result, MacColl advances two unsuccessful arguments.

MacColl first tries to distinguish cases in which false statements were not

given Garrity immunity. He observes, for example, that some of those cases did not 

57 Annunziato, 440 F.2d at 306.

58 See, e.g., United States v. Balsys, 524 U.S. 666, 672 (1998) (“[The Fifth 

Amendment] can be asserted in any proceeding, civil or criminal, administrative or 

judicial, investigatory or adjudicatory . . . .” (internal quotation marks omitted)); 

Bradley v. State, 559 A.2d 1234, 1243–44 (Del. 1989) (observing same).
15

specifically arise from an “internal investigation.”59 But this is a red herring. 

Garrity does not insulate “false statements from a later prosecution . . . whether they 

occur under oath, with immunity, or during a governmental investigation.”60 In this 

case, MacColl was given “immunity” “during a governmental investigation” to 

answer OPS’s questions “truthfully.”61 Labels used in other cases do not matter. 

As a fallback, MacColl turns to semantics. Recall that the Form told MacColl 

that his “admissions” would not be used against him “in a subsequent criminal 

proceeding.”62 MacColl now defines the word “admission” to mean any “oral 

assertion,” i.e., any “statement.”63 So defined, he reasons that the Form immunized

his true and false statements from subsequent prosecution. MacColl’s interpretation 

is strained and not supported by the Form. 

An “admission” is a “statement in which someone admits that something is 

true or that he or she has done something wrong[.]”64 In contrast, a “statement” is 

merely a “verbal assertion[.]”65 So an admission necessarily is a statement, but a 

59 Def.’s Reply to State’s Opp’n to Def.’s Mots. to Dismiss & in Lim. ¶ 4.

60 Veal, 153 F.3d at 1241 (emphasis added).

61 Ex. B to Def.’s Mot. to Dismiss ¶ 5 (Investigation Rights Form).

62 Id. ¶ 4. 63 Del. R. Evid. 801(a), (d)(2).

64 Admission, Black’s Law Dictionary (11th ed. 2019). 65 Statement, in id. 
16

statement is not necessarily an admission. Indeed, the Form itself adopted this logic. 

It used the words “admissions” and “statements” separately, not interchangeably.66

MacColl’s statements are not admissions. He never said that he committed a 

crime or violated WPD policy. Admissions acknowledge truth. MacColl’s 

statements are allegedly false. 

Context reinforces these conclusions. The Form explained that MacColl’s

“admissions” would not be used against him in a criminal case. MacColl signed the 

Form before an interrogation. Anyone in his position thus would think that

“admission” means “confession.”67 After all, Garrity was designed to protect police 

officers who choose self-incrimination over unemployment.

68 Garrity did not 

hamstring the government’s efforts to obtain the truth.

69 

Neither did the Form. The Form immunized MacColl from liability for any 

self-incriminating truths. This protection was consistent with the purpose of WPD’s

66 Compare Ex. B to Def.’s Mot. to Dismiss ¶ 4 (Investigation Rights Form) 

(“admissions”), with id. ¶ 5 (“statements or responses”).

67 See Admission, Merriam-Webster (online ed.), https://www.merriamwebster.com/dictionary/admission#synonyms (last visited June 15, 2022) 

(classifying “confession” as a synonym for “admission”); Confession, Black’s Law 

Dictionary (11th ed. 2019) (“A criminal suspect’s oral or written acknowledgment 

of guilt, often including details about the crime. Cf. Admission[.]” (emphasis added)). 

68 See Garrity, 385 U.S. at 496–97. 69 See Moody v. Mich. Gaming Control Bd., 871 F.3d 420, 429 (6th Cir. 2017) 

(“Garrity immunity prohibits the use of coerced statements in criminal proceedings, 

but it does not protect against the act of coercion itself.”).
17

investigation—i.e., to determine whether MacColl’s actions violated WPD policy or 

constituted a crime.

70 

For these reasons, the Form did not also privilege MacColl to lie. If MacColl 

were allowed to lie to OPS, then the Form would not have required him to answer 

“truthfully.”71 If MacColl were not required to answer truthfully, then there would 

have been no point in interviewing him. MacColl’s counterarguments are 

contradicted by the basic reason he signed the Form. 

B. MacColl lacks standing to enforce LEOBOR. 

MacColl alternatively relies on LEOBOR. He contends that LEOBOR 

prevents the State from requesting, and WPD from disclosing, police IA files. Given 

MacColl’s termination as a police officer, the Court questioned MacColl’s standing

to enforce a LEOBOR violation.

72 The parties responded with supplemental 

briefing. Having reviewed those filings, the Court concludes that MacColl’s 

LEOBOR standing fails for lack of redressability. 

70 See, e.g., Exs. A–B to Def.’s Mot. to Dismiss (WPD Compls.) (charging

obstruction violations of WPD policy based on unauthorized field weapon 

modifications and unauthorized retention of removed gun parts); see also United 

States v. Henderson, 406 F. Supp. 417, 428 n.19 (D. Del. 1975) (explaining that 

immunity is designed to prevent—not promote—false testimony by incentivizing 

truth-telling).

71 Ex. B to Def.’s Mot. to Dismiss ¶ 5 (Investigation Rights Form).

72 Although not raised by the parties in their initial briefing, standing is a 

jurisdictional question the Court must raise sua sponte. E.g., Riverfront Hotel LLC 

v. Bd. of Adjustment, 2019 WL 3884031, at *1 (Del. July 11, 2019); Mills v. Trans 

Caribbean Airways, Inc., 272 A.2d 702, 704 (Del. 1970). 
18

1. MacColl bears the burden to demonstrate his standing.

Every claimant must have standing.73 Standing is “the right . . . to enforce a 

claim or to redress a grievance.”74 “It is concerned only with the question of who is 

entitled to mount a legal challenge . . . .”75 Accordingly, “standing is . . . a threshold 

question that the Court may not avoid.”76 

The claimant bears the burden to establish its standing.77 To establish 

standing, a claimant must show, among other things, an “injury in fact, which is the 

invasion of a legally protected interest within the zone of interest sought to be 

protected or regulated by the statute.”78 The injury must be “concrete and 

particularized . . . not conjectural or hypothetical.”79 “For an injury to be 

particularized, it must affect the [claimant] in a personal and individual way.”80 

73 E.g., Ala. By-Prods. Corp. v. Cede & Co., 657 A.2d 254, 264 (Del. 1995).

74 Dover Hist. Soc’y v. Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del. 2003) 

(internal quotation marks omitted).

75 Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991).

76 Morris v. Spectra Energy Partners (DE) GP, LP, 246 A.3d 121, 129 (Del. 2021) 

(alteration and internal quotation marks omitted).

77 E.g., Dover Hist. Soc’y, 838 A.2d at 1109.

78 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 904 (Del. 

1994).

79 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (cleaned up).

80 Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (internal quotation marks 

omitted). See Stuart Kingston, 596 A.2d at 1382 (The claimant’s interest “must be 

distinguishable from the interest shared by other members of a class[.]”).
19

Injury alone does not confer standing. Standing requires injuries to be 

“redressable” too.81 An injury is not redressable unless it is “likely, as opposed to 

merely speculative,” that the requested relief will remedy the alleged violation.

82 

“Relief that does not remedy the injury cannot bootstrap” a claim into court that the 

asserting party otherwise would have no standing to bring.

83

2. MacColl’s claimed LEOBOR violation is not redressable.

“LEOBOR was passed . . . to provide uniform procedural rights to officers 

under investigation by their own departments.”84 Among those rights is a 

confidentiality protection (“Section 9200(c)(12)”).85 Section 9200(c)(12) provides: 

All records compiled as a result of any investigation subject to the 

provisions of this chapter and/or a contractual disciplinary grievance 

procedure shall be and remain confidential and shall not be released to 

the public.86 

Section 9200(c)(12), however, does not specify any remedies for a violation. 

In fact, LEOBOR “does not contain any remedy provisions” that authorize relief in 

81 E.g., Oceanport Indus., 636 A.2d at 904.

82 Lujan, 504 U.S. at 561 (internal quotation marks omitted).

83 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998).

84 Brittingham v. Town of Georgetown, 113 A.3d 519, 525 (Del. 2015).

85 See 11 Del. C. § 9200(c)(12). See also id. § 9200(d), (d)(2). 86 Id. § 9200(c)(12). 
20

a Delaware court.87 It does not even “make any provision for judicial . . . review[.]”88 

Administrative law does not either.89 

Judicial limitations on the scope of LEOBOR review reflect the scope of 

LEOBOR itself. LEOBOR rights apply in “law enforcement disciplinary 

proceedings.”90 In other words, LEOBOR exclusively affords due process-based 

rights to challenge police agency action that results in wrongful terminations. That 

is why terminated officers typically use federal civil rights statutes and analogous 

theories to sue police agencies—not the State91—for procedural violations.

92 

Otherwise, Delaware courts have found only mandamus relief available for 

87 Burge v. City of Dover, 1987 WL 12311, at *7 (Del. Ch. June 8, 1987).

88 Mock v. Div. of State Police, 2022 WL 1744439, at *4 (Del. Ch. May 31, 2022).

89 See 29 Del. C. § 10161 (2018) (Delaware Administrative Procedures Act) 

(omitting provisions for judicial review of decisions rendered by LEOBOR-defined 

police agencies).

90 11 Del. C. § 9209.

91 Indeed, the only case MacColl cites was brought by a terminated officer against 

the Cheswold Police Department, not the State. See Def.’s Suppl. Br. at 2 

(discussing Alexander v. Town of Cheswold, 2007 WL 1849089 (Del. Super. Ct. 

June 27, 2007)).

92 See, e.g., Martinez v. Dep’t of Homeland Sec., 2019 WL 1220305, at *10–11 (D. 

Del. Mar. 15, 2019; Poulos v. City of New Castle, 2014 WL 7205169, at *3 (D. Del. 

Dec. 15, 2014); Izquierdo v. Sills, 68 F. Supp. 2d 392, 409–10 (D. Del. 1999); Burge, 

1987 WL 12311, at *7. For that reason, it usually is police agencies—not police 

officers—who raise non-disclosure privileges. See Jones v. City of Wilmington, 299 

F. Supp. 2d 380, 393 (D. Del. 2004) (“According to Defendants, disclosure of the 

information Plaintiff seeks, specifically the OPS files, is clearly prohibited by § 

9200(c)(12) . . . .” (internal quotation marks omitted)); see also Bailey v. City of 

Wilmington, 1997 WL 557555, at *3 n.3 (D. Del. Aug. 14, 1997) (“Because of this 

disposition, the Court also does not reach the issue, argued in the alternative by the 

City, that any complaint filed with [OPS] is protected by a common law privilege.”).
21

LEOBOR violations that result in terminations.93 Any other claim for a “failure to 

follow” LEOBOR’s “procedural requirements”94 (e.g., Section 9200(c)(12)) is 

unreviewable in this Court.95

 MacColl’s claim is unreviewable. Notably, he did not sue WPD for wrongful 

termination or for violating LEOBOR’s disciplinary procedures. Nor has he sought

a writ of mandamus. He did not even move to suppress or allege that the State 

committed a discovery violation. Instead, he has sought Section 9200(c)(12) relief 

against the State through dispositive criminal motions. LEOBOR’s plain language 

does not support this approach. Neither does its fundamental purpose. To the 

contrary, LEOBOR was enacted to address “inconsistencies between departmental 

procedures” governing officers’ disciplinary rights.96 A ruling that excludes

93 See Brittingham, 113 A.3d at 529–30 (observing potential availability of 

mandamus but denying relief as technical and moot); Mock, 2022 WL 1744439, at 

*4 (observing various employment-based violations subject to mandamus relief).

94 Mock, 2022 WL 1744439, at *4.

95 See, e.g., id. at *7; Sapienza v. Del. State Univ. Police Dep’t, 2020 WL 4299137, 

at *2 (Del. Super. Ct. July 24, 2020); Haden v. Bethany Beach Police Dep’t, 2014 

WL 2964081, at *2 (Del. Super. Ct. June 30, 2014); Smith v. Dep’t of Pub. Safety, 

1999 WL 1225250, at *11 (Del. Super. Ct. Oct. 26, 1999); Wescott v. City of Milford 

Police, 1995 WL 465188, at *4 (Del. Super. Ct. July 31, 1995). See also Connick v. 

Myers, 461 U.S. 138, 143 (1983) (“[G]overnment offices could not function if every 

employment decision became a constitutional matter.”).

96 Brittingham, 113 A.3d at 525 (internal quotation marks omitted). MacColl 

misquotes this passage about inconsistent departmental procedures. Def.’s Suppl. 

Br. at 2. The General Assembly’s concern was about “inconsistencies . . . in 

intradepartmental disciplinary hearings,” Alexander, 2007 WL 1849089, at *3 

(emphasis added) (internal quotation marks omitted), not in criminal prosecutions 

brought against police officers, Def.’s Suppl. Br. at 2. Whether “DOJ is exempt 
22

evidence or dismisses an indictment in a criminal case due to a LEOBOR violation 

would grant a law enforcement officer immunities afforded no other class of citizens 

anywhere. That treatment also would contradict the legislature’s goal of procedural 

harmony and improperly widen this Court’s narrow review of LEOBOR claims. 

In short, MacColl attacked the wrong party—the State, rather than WPD. 

LEOBOR created due process rights enforceable against police agencies only. 

Assuming the State violated Section 9200(c)(12), MacColl’s has no relief under 

LEOBOR. The Court cannot redress an injury that it cannot review.

97 

MacColl resists this conclusion in a several unavailing ways. He first urges 

that the State deployed its subpoena to “cherry pick” “confidential” and selfincriminating statements from the interviews.98 This position merely repackages his

Garrity claim as ground for LEOBOR relief. But the Fifth Amendment is not a 

“general protector of privacy[.]”99 And a party may not “bootstrap” its standing to 

assert one claim to the standing on which a separate, failed claim had been based.100 

MacColl’s substantive protections against government coercion come from the Fifth 

from” LEOBOR is a question that must await another day. Def.’s Suppl. Br. at 2. 

MacColl lacks standing to prompt such review.

97 See Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 65–66 (1992) (“[T]he

question of what remedies are available under a statute . . . is analytically distinct 

from the issue of whether [a] right exists in the first place.” (internal quotation marks 

omitted)). 

98 Def.’s Suppl. Br. at 3.

99 Fisher v. United States, 425 U.S. 391, 401 (1976). 

100 Steel Co., 523 U.S. at 107.
23

Amendment, not LEOBOR. The Court has ruled that MacColl’s allegedly false 

statements were not “compelled” under the Fifth Amendment. MacColl cannot 

reassert his Fifth Amendment “compulsion” argument in the guise of an imaginary 

right to eliminate the State’s power to “compel” his statements from someone else. 

Undaunted, MacColl next tries to stand in WPD’s shoes. He suggests that the 

State’s subpoena forced WPD to relinquish the IA interviews, thereby causing WPD 

harm MacColl now seeks to remedy. Standing “cannot be inferred argumentatively” 

but rather “must affirmatively appear in the record.”101 Here, WPD willingly 

complied with the subpoena. So MacColl cannot assert “third party standing.” 

To derive standing from another person’s injury, the claimant must show, 

among other things, that the person faced “obstacles that prevent[ed] it from 

pursuing its own claims.”102 WPD did not object to the State’s subpoena. And 

MacColl does not identify an obstacle that blocked WPD from objecting. WPD thus 

effectively waived MacColl’s challenge to the subpoena. Accordingly, the subpoena 

did not cause WPD an injury-in-fact. MacColl lacks standing to argue otherwise.

As a last resort, MacColl backdoors a lawsuit against WPD that he never filed. 

MacColl now claims that “WPD’s production of the OPS file in response” to the 

101 Spencer v. Kemna, 523 U.S. 1, 10–11 (1998) (internal quotation marks omitted).

102 Pa. Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 288–89 

(3d Cir. 2002), cert. denied, 537 U.S. 881 (2002).
24

State’s subpoena violated Section 9200(c)(12).103 Even if that is true, MacColl still 

would lack standing.

An injury’s redressability is assessed “at the time” the claim is raised.104 Here, 

the proverbial damage has been done. At the time MacColl’s motions were filed, 

WPD had already disclosed the IA interviews to the State. There is nothing the 

Court can do about that now.105

True, courts have “loosened the strictures” on redressability for injuries 

involving “procedural rights” that protect “concrete interest[s].”106 LEOBOR does 

use procedure to safeguard disciplinary rights. Even so, “the relaxed redressability 

requirement is met” only where “correcting the alleged procedural violation could 

still change the substantive outcome in the [claimant’s] favor[.]”107 At this point, 

correcting any Section 9200(c)(12) violation would not put the interview transcripts 

back in their folders or wipe their contents from the State’s memory. Any correction 

103 See Def.’s Suppl. Br. at 3.

104 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 191

(2000). See generally Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633, 636 (D.C. 

Cir. 2000) (This rule “may sound like one of mootness—a justiciable controversy 

existed but no longer remains—but the timing makes [it] one of standing.”).

105 There is an exception for injuries that are ongoing or will recur in the future. See 

City of Los Angeles v. Lyon, 461 U.S. 95, 107–10 (1983). MacColl has not offered 

a reason to think WPD continues to or again will disclose IA material about him. 

106 Summers v. Earth Is. Inst., 555 U.S. 488, 496–97 (2009) (emphasis and internal 

quotation marks omitted). See Lujan, 504 U.S. at 572 n.7.

107 Narragansett Indian Tribe Hist. Pres. Off. v. FERC, 949 F.3d 8, 13 (D.C. Cir. 

2020) (emphases added) (original emphasis omitted).
25

also is not likely to make this prosecution go away.108 The Court cannot undo what 

already has been done. Relaxed or not, redressability has not been satisfied here. 

The Court is mindful that a decision addressing LEOBOR on the merits would 

serve the public interest. Alerted to nationally reported instances of police 

misconduct, Delaware legislators recently have sought to amend Section 

9200(c)(12) “to increase transparency and allow for more meaningful oversight.”109 

The possible real-world impact of the Senate’s proposed amendments has polarized 

debate.110 Nevertheless, without standing there is no “‘case or controversy’ that is 

appropriate for exercise of the court’s judicial powers.”111 No matter an issue’s

importance, the Court cannot resolve it without jurisdiction to do so. A closer

108 See In re Grand Jury Investigation, 445 F.3d 266, 273 (3d Cir. 2006) (“[N]o 

subpoena case is moot so long as the court can provide redress by sealing the 

documents or testimony against future use.” (internal quotation marks omitted)); cf. 

Brittingham, 113 A.3d at 530 (“[M]andamus is not the proper remedy to compel the 

undoing of acts already done or the correction of errors or wrongs already 

perpetrated[.]” (internal quotation marks omitted)).

109 Synopsis to An Act to Amend Title 11 of the Delaware Code Relating to the LawEnforcement Officers’ Bill of Rights, S.B. 149, 151st Gen. Assemb. (2022). 

110 Compare Morgan R. Kelly, New Data Shows Delawareans Overwhelmingly 

Support LEOBOR Reform, Del. Am. Civ. Liberties Union (June 22, 2021, 5:15 PM), 

https://www.aclu-de.org/en/news/new-data-shows-delawareans-overwhelminglysupport-leobor-reform, with Patrick A. Ogden, Opinion, Delaware General 

Assembly Must Partner with Police Leaders on Meaningful Reform, Del. Online 

(Mar. 26, 2022, 4:46 AM), 

https://www.delawareonline.com/story/opinion/2022/03/26/delaware-generalassembly-must-partner-police-leaders-reform/7168291001/.

111 Dover Hist. Soc’y, 838 A.2d at 1110.
26

analysis of LEOBOR’s effects on criminal prosecutions and police disclosures must 

await another day.

CONCLUSION

Garrity does not protect MacColl’s allegedly false statements. And he lacks 

standing to enforce a claim under LEOBOR. Accordingly, MacColl’s motions are 

DENIED. 

IT IS SO ORDERED. 

 

 Charles E. Butler, Resident Judge