Murphy v. Delaware State Police

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

ERICA MURPHY and EDWIN )
SANCHEZ as Guardians ad )
Litem of J.S., a Minor, ALFRED )
EVANS, and KAIMYHRE IBN- )
BRITT-JACKSON, ) C.A. No. N25C-07-163-CEB
)
Plaintiffs, )
)
v. )
)
DELAWARE STATE POLICE )
OFFICER CORPORAL )
DEMPSEY R. WALTERS, )
NEWPORT POLICE OFFICER )
THOMAS D. KASHNER, )
DELAWARE STATE POLICE )
OFFICER CORPRAL EARL )
MARCHIONE, DELAWARE )
STATE POLICE DETECTIVE )
DAVID ARMSTRONG, JANE )
DOE9S0, JOHN DOE9S0, )
DELAWARE STATE POLICE )
DEPARTMENT, NEWPORT )
POLICE DEPARTMENT, and )
ELSMERE POLICE )
DEPARTMENT, )
)
Defendants. )

ORDER DENYING APPLICATION FOR CERTIFICATION OF
INTERLOCUTURY APPEAL
1. The Court has previously issued a ruling in this matter dismissing

claims against fictitious, unnamed police officers employed by the police

departments of Elsmere, Newport, New Castle County and the Delaware State

Police. 1 This was predicated on long standing precedent that eschews the use of
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fictitious name practice in Delaware.

2. As part of Plaintiffs’ pleading in opposition to the motion to dismiss the

fictitious names of these unnamed police officers, Plaintiffs raised the Law

Enforcement Officers Bill of Rights (“LEOBOR”). The relationship of LEOBOR to

Plaintiffs’ complaint using fictitious names for unknown police officers was not

clear. Plaintiffs complained about LEOBOR but never identified what about

LEOBOR was keeping Plaintiffs from learning the identity of these unknown

officers. Plaintiffs never claimed that they attempted to determine the names of these

officers but were rebuffed by a government agency, the police department, or

LEOBOR. In their application for interlocutory review, Plaintiffs write that

“Because LEOBOR bars access to police records and investigative materials,

Plaintiffs are prevented from obtaining the information necessary to identify the

officers responsible for the alleged misconduct and to plead claims capable of

surviving a motion to dismiss.” 2 1F

1
2025 WL 3162346 (Del. Super. Nov. 12, 2025) (Butler, R.J.).
2
Pls.’ Appl. for Certification of Interlocutory Appeal, D.I. 58, at 8.
2
3. It is difficult to see exactly how LEOBOR is the problem here.

Plaintiffs have not alleged what they did to learn the identity of the unnamed officers

that was barred by LEOBOR. LEOBOR is found in the Delaware Code at 11 Del.

C. §9200 et. seq. Section 9209, “Application of Chapter” says that it applies to “all

law-enforcement disciplinary proceedings throughout the State.”

4. But a civil rights claim by a Plaintiff is not a disciplinary proceeding

against a law enforcement officer. Internal disciplinary proceedings against an

officer may be protected from disclosure under LEOBOR, but when a claim is made

by a “citizen against a law-enforcement officer alleging that the officer breached the

officer's official duties and that such breach resulted in injury or other damage to the

citizen,” disclosure may be authorized. 3 2F

5. Or maybe not. Plaintiffs filed no motion seeking disclosure over an

objection under LEOBOR and the issue has not been put to the Court. The Court

is certainly not making a ruling on an issue not before it. The point is only that

Plaintiffs’ bare claim of the unconstitutionality of LEOBOR is not sufficiently

developed by a record or a demonstrable harm to require immediate appellate

interpretation.

3
11 Del. C. §9200(d).
3
6. Under Superior Court Rule of Civil Procedure 74, the Superior Court is

directed to follow Supreme Court Rule of Appellate Procedure Rule 42 in deciding

applications for interlocutory review.

7. Supreme Court Rule 42(b)(i) states that only orders of the trial court

that decide a “substantial issue of material importance” should be certified for

interlocutory appeal. It is unknown whether this is a substantial issue because we

do not know whether LEOBOR kept Plaintiffs from learning the identity of the other

officers or the availability of other options. We also do not know if it is materially

important because only the known officer – Dempsey Walters – is known to have

directly assaulted Plaintiff JS. What the other officers did is not described in the

Complaint, so the “substantiality” of the importance of their identities is only a

guess.

8. Rule 42(b)(ii) says applications should be exceptional “because they

disrupt the normal procession of litigation, cause delay, and can threaten to exhaust

scarce party and judicial resources.” So noted.

9. Rule 42(b)(iii) contains eight factors that should be considered in

deciding whether to grant and interlocutory appeal. They follow here.

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A. Does the order involve a question of law resolved for the first
time in this state? Answer: Perhaps it does, but it is not clear
what question is being asked. Plaintiff has not explained why
LEOBOR is relevant to his claim.

B. Are there conflicting decisions in the trial court? Answer: None
that have been identified by the parties.

C. Does the question relate to a statute’s constitutionality or
construction that has not been, but should be, settled by a court
before a final decision? Answer: The question relates to the
constitutionality of LEOBOR, but as a practical matter, the
answer will not affect this dispute – the statute of limitations on
the fictitious named defendants has run and whether they are
identified now or not will not override the statute of limitations.

D. Is the jurisdiction of the court in controversy? Answer: No.

E. Did the trial court order set aside a prior ruling such that an
interlocutory order may reduce further litigation or serve the
interests of justice? Answer: No.

F. Did the interlocutory order vacate or open a prior judgment?
Answer: No.

G. Could review of the interlocutory order terminate the litigation?
Answer: No.

H. Would review serve considerations of justice? Answer: No.
There may be good reason to reconsider the bar against fictitious
name practice in Delaware, and doing so may well further
considerations of justice. But LEOBOR is not the reason
Delaware law bars fictitious name practice and whether
LEOBOR is constitutional or not will not answer that question.

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The reasons, if any, for granting Plaintiffs’ request for Certification of

Interlocutory Appeal being far outweighed by the reasons for denying it, Plaintiffs’

Application is DENIED.

IT IS SO ORDERED.

/s/ Charles E. Butler
Dated: December 11, 2025 Charles E. Butler, Resident Judge

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