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Delaware Supreme Court ends lawsuit to keep governor’s emergency orders away from worship

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Delaware Supreme Court ends lawsuit to keep governor’s emergency orders away from worship


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The Delaware Supreme Court has agreed with two lower courts that dismissed lawsuits filed by two pastors seeking to prevent the state’s governor from imposing future restrictions on religious worship.

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In its opinion issued Thursday, the court said freedom of religion is an essential tenet of democracy and restrictions on religious worship must be viewed with a great deal of skepticism. But the judiciary is not the forum to debate and resolve hypothetical questions regarding the constitutionality of restrictions that were lifted long before any legal action was filed.

“Moreover, public officials who act under emergent conditions and make careful, discretionary decisions based on the best information available are immune from personal liability if those actions are later determined to be contrary to the law,” the five justices said in the opinion. “For those reasons, we agree with our trial courts that the appellants’ claims could not proceed.”

Gov. John Carney’s office did not respond to a Thursday email seeking comment. Lawyers at the Neuberger Firm, one of the firms representing the pastors, said they were still digesting the ruling.

“We have 90 days to look into that which may be an error in an area not often before our state courts,” Attorney Thomas S. Neuberger said.

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What the lawsuits argued

The Rev. Alan Hines, of Townsend Free Will Baptist Church in Townsend, and the Rev. David Landow, of Emmanuel Orthodox Presbyterian Church in Wilmington, filed the lawsuits in late 2021 seeking an injunction against future emergency orders that place restrictions on houses of worship such as those imposed by Carney in 2020 as the COVID-19 pandemic spread.

The pastors had sought a declaration that Carney’s emergency orders were illegal, including:

  • Prohibiting in-person Sunday religious services
  • Preventing indoor preaching.
  • Banning singing.
  • Barring the elderly from church.
  • Prohibiting Baptism.
  • Prohibiting the Lord’s Supper.
  • Favoring Jewish circumcisions over Christian baptisms.

More: Lawsuits ask that governors’ emergency orders keep their ‘hands off’ houses of worship

The pastors’ lawsuits claimed Carney’s emergency orders early in the pandemic denied them their “absolute religious freedoms.”

Through their lawsuits, the pastors asked Carney and future Delaware governors to keep their “hands off” the church in future emergencies, regardless of any pretense they may offer.

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In Carney’s motion to dismiss the case, his attorneys argued the governor is immune from damages for the alleged violations. They also argued for dismissal because the pastors’ violations of rights were “past exposure,” which is “insufficient to demonstrate that there is a current case or controversy entitling them to declaratory relief.”

On Thursday, the state Supreme Court said all the restrictions challenged by the pastors were lifted by June 2020 — more than 18 months before the pastors filed suit in the Chancery Court. That action, seeking injunctive relief against restrictions that no longer were in effect, was dismissed by Vice Chancellor J. Travis Laster after he concluded Chancery Court lacked subject matter jurisdiction.

More: Why a Delaware judge dismissed a lawsuit challenging future COVID-19 restrictions

The Supreme Court then pointed out the pastors transferred the lawsuit to state Superior Court, where Judge Meghan A. Adams also dismissed the action, saying the pastors’ claims for declaratory relief were not capable of being decided by legal principles or by a court of justice. Adams also concluded the governor was immune from being sued for the damages claims.

More: Why a second judge dismissed lawsuits to stop Delaware governor from restricting worship

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In a 45-page opinion, the state Supreme Court agreed with both lower courts.

While the case might appear to be done for now, Neuberger’s firm said the state’s highest court made it clear that governors can never issue such orders again and referred to the final page of the opinion where justices wrote:

“Case law that has developed since the Challenged Restrictions were lifted support the view that the restrictions violated Appellants’ rights. Well after the Challenged Restrictions were lifted, the United States Supreme Court issued its opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, in which the Court held that a church and synagogue established that they would likely prevail in proving that occupancy limitations at public places of worship violated the Free Exercise Clause of the First Amendment. A future governor confronted with a future public-health emergency would have the benefit of that precedent, but it was not available at the time Appellee made the decisions at issue.”

Send tips or story ideas to Esteban Parra at (302) 324-2299 or eparra@delawareonline.com.



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Snake-infested lakes and ponds in Delaware. What to know before you go

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Snake-infested lakes and ponds in Delaware. What to know before you go


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It could be one of your worst nightmares.

You’re enjoying a summer day in the water when you feel something brush past your leg. You turn, and there’s a snake.

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While the chances of that scenario playing out are highly unlikely, there is a good chance the waters you enjoy playing in are also inhabited by snakes.

The danger level might not be as high as Florida’s, but it’s still something to be aware of when you go into the outdoors.

Here’s a look at the snake-infested lakes and ponds in Delaware, according to worldatlas.com.

Nanticoke River

The Nanticoke River runs 64 miles from southern Delaware to the Chesapeake Bay, winding through marshlands, forests, and farmland along the way. The habitat is perfect for the Northern watersnake. The snakes are nonvenomous, but they will defensively strike if you corner them or try to hold them.

The Brandywine

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This is where you need to be very careful. The Eastern copperhead is a confirmed and documented presence, and a small group exists at Alapocas Run State Park along the water near Wilmington. The snakes won’t chase you, but if you step too close or don’t see them, they will strike. You should watch your step near log piles and rocky outcrops.

Millsboro Pond

Millsboro Pond is the home to perch, black crappie and frogs, which is the perfect food for snakes including northern water snakes, plain-bellied water snakes, queen snakes and common ribbon snakes.

The Eastern copperhead lives in southern Sussex County, which includes the pond. However, sightings are rare. It’s something to watch out for when you are at the pond.

Lums Pond

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The pond, located in Lums Pond State Park, has numerous varieties of snakes. However, the inlets and small islands are perfect for northern water snakes to bask in the sun. The snakes thrive on fish and amphibians and benefit from the surrounding forest and wetlands.

One snake to watch for is the ringneck snake. It has a mild venom and its teeth have trouble puncturing human skin, but for those with venom allergies, you should treat it like any other venomous species.

Trap Pond

Trap Pond, located in Trap Pond State Park, is noted for its cypress swamp. The bald cypress trees and the tree’s root structure provide a great hiding place and basking spot for eastern garter snakes and northern water snakes.

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Silver Lake

Located in Dover, Silver Lake is lined with trees and vegetation, making it a great place for snakes. The northern water snake is seen here, but eastern kingsnakes are also occasionally seen in the wooded areas of the lake.

Garrison Lake

Garrison Lake is a popular spot in Kent County for fishing and boating. The marshy areas and dense vegetation are perfect habitats for northern water snakes, eastern garter snakes and eastern rat snakes. The wetlands are attractive to snakes due to the abundance of prey and the availability of cover.

Red Mills Pond

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Red Mills Pond, located near Lewes, has a rich biodiversity supporting numerous amphibians and small mammals, which attract snakes. Among the snakes you may see in and around the pond are the northern water snake, eastern ribbon snake and eastern ribbon snake.



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Delaware Online wins investigative reporting prize, 17 other awards

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Delaware Online wins investigative reporting prize, 17 other awards


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Delaware Online/The News Journal won the A-Mark Prize for Investigative Journalism for its reporting revealing hundreds of invalid teacher licenses in Delaware.

The work by reporters Kelly Powers and Esteban Parra led to lawmakers proposing a bill that would tighten licensing requirements for public school employees and penalize districts that retain unlicensed staff.

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The judges cited the work for “meticulous and thorough reporting” and “a fair and balanced presentation of the situation.”

The A‑Mark prize honors excellence in watchdog and accountability reporting. It is backed by The A‑Mark Foundation, a nonpartisan nonprofit supporting investigative and unbiased social‑issue journalism, in partnership with the Maryland‑Delaware‑DC Press Association.

“The reporting from Kelly Powers and Esteban Parra reflects the very best of investigative journalism in Delaware – thorough, fair and impactful,’’ said Mike Feeley, executive editor of The News Journal and Delaware Online. “We are proud to see their work awarded with the inaugural A-Mark Prize in a highly competitive field.

“I congratulate all of Delaware Online’s award winners in this year’s MDDC Awards for their commitment to journalism that strengthens our communities,’’ Feeley said.

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Delaware Online/The News Journal won a total of 18 awards May 8 at the MDDC Press Association’s annual conference.

The MDDC Awards recognizes news publications from Maryland, Delaware and the District of Columbia. For each category, a first- and second-place winner is chosen based on circulation divisions. A part of the largest-circulation division, Delaware Online/The News Journal competes against news sites like the Baltimore Sun, Baltimore Banner and Washington Post.

Here is the list of winners, with links to the stories that took home the prizes.

Best of Show

  • News-Driven Art or Illustration: Luis Solano, “American’s deadliest habit”

First Place

Second Place

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  • Feature Story: Non-Profile: Xerxes Wilson, “Why this Delaware prison is making tattooing part of its educational programming”
  • Sports Feature Story: Brandon Holveck, Martin Frank, “Eagles’ Saquon Barkley’s historic season built on selflessness, generational athleticism”
  • Local Column: Critical Thinking: Xerxes Wilson, “Broken bones, brick walls and searching for accountability”
  • Sports Photo (Feature): Benjamin Chambers, “Delaware wins 61-31 against UTEP in Conference USA regular season finale”
  • Public Service Reporting: Krys’tal Griffin, “While these Delaware riders depend on Paratransit, the service still lags post-pandemic”
  • Breaking News: The News Journal staff, “Delaware State trooper killed by shooter prevented other deaths, state officials say”
  • News Page Design: Luis Solano, “American’s deadliest habit”
  • Page 1 Design: Stephanie Lindholm, “Musical haven in Delaware”
  • Continuing Reporting: Kelly Powers, Shane Brennan, “Your property taxes are changing. What Delaware homeowners should know about new laws”
  • General Website Excellence, The News Journal



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Lawsuit says Delaware prisoners forced to ‘marinate’ in pepper spray

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Lawsuit says Delaware prisoners forced to ‘marinate’ in pepper spray


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A lawsuit seeking to represent all people locked up by Delaware claims that prisoners are routinely left to “marinate” in a high-concentration pepper spray. 

The lawsuit filed May 7 in Delaware Court of Chancery seeks an injunction barring correction officials from using the spray until leaders enforce rules the lawsuit says require staff to decontaminate prisoners after they are targeted.

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In interviews, state prisoners have frequently described officers’ use of so-called OC spray, a more concentrated form of pepper spray only available to law enforcement, as cruel. Prisoners say the spray is deployed unnecessarily, recklessly, frequently and causes intense burning on the skin and through the respiratory system.

“Imagine taking a glass bottle, smashing it up and grinding it up and snorting that up your nose, then times that by 1,000,” said a former prisoner, William Davis, describing being sprayed during a previous interview about a similar use‑of‑force lawsuit involving Sussex Correctional Institution. “I felt it burn for days.” 

Records obtained through a Freedom of Information Act request show OC spray — short for oleoresin capsicum — is used hundreds of times a year and is a frequent issue in Delaware prison lawsuits. The new ACLU lawsuit seeks class-action status on behalf of all Delaware prisoners and focuses on what happens after someone is sprayed.

The lawsuit claims officers routinely ignore training, policy and clear health risks by failing to properly flush and clean people after using OC spray. It argues the practice violates Delaware’s constitutional ban on “cruel” punishment.

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Prisoners allege they were sprayed while handcuffed, naked or already subdued, including one who said officers sprayed him through his cell door while he was locked inside, and another who said he was forced during a strip search to touch his genitals and then his mouth after being sprayed.

In each of these episodes, the lawsuit states that prisoners were not properly decontaminated, some were left unattended, returned to a contaminated cell, left in clothes drenched in spray and some were not allowed to shower for a day or more after.

“Refusing to decontaminate prisoners is cruel because it subjects them to hours of needless suffering. Prolonged exposure is also potentially deadly,” the lawsuit states.

Delaware Department of Correction officials did not respond to requests for comment.

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The allegations of the lawsuit are built partially on declarations from eight named plaintiffs in Delaware prisons. Additionally, it leans on video and deposition evidence from two other excessive force cases the ACLU is litigating on behalf of Delaware prisoners.

In those other cases, several officers have testified in depositions that they had not decontaminated individuals they sprayed and were unaware if others had, the new lawsuit states.

The lawsuit also cites Department of Correction training materials turned over in other lawsuits. Policy and training documents outline that OC spray is only to be used when no reasonable alternative is available, not as retaliation or punishment and in short bursts from a safe distance.

A training presentation describes the health risks of OC spray and says sprayed individuals should be moved to fresh air, assessed for medical conditions and repeatedly flushed and wiped to decontaminate them.

It notes that people who have been sprayed must be monitored. It underscores these instructions with a red skull and crossbones.

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Other litigation: New lawsuit claims excessive force used by Delaware officers during September prison raids

In interviews, prisoners have reported that officers would “empty the can” in long bursts directed closely at their face. The named plaintiffs in the new lawsuit include asthmatic individuals who said they were denied their inhaler after being sprayed.

Besides pain, OC spray can cause difficulty breathing, gagging, heart distress and blindness. It can also induce a feeling of suffocation and helplessness, according to a department training presentation. Failure to decontaminate can cause blindness, respiratory failure and skin conditions, the lawsuit states.

If sprayed too close, the OC molecules can cause what’s known as “hydraulic needling of the eyes” where the spray causes lacerations, the complaint states, noting that multiple prisoners in other states have died after being sprayed.

The lawsuit also claims that officers deploy OC spray in numerous ways, which include a grenade, fogger, spray, muzzle blast rounds, as well as pepper balls fired from a weapon similar to a paintball gun.

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One of the named plaintiffs was shot numerous times by a pepper ball gun, rupturing the globe of his right eye. A separate lawsuit filed on behalf of that prisoner was dismissed because he didn’t address written complaints about the episode through prescribed channels inside the prison.

Rather than seeking damages for federal constitutional violations, the lawsuit asks only for an injunction forcing changes to decontamination practices. And instead of following the typical federal-court path for prisoner-rights cases, it was filed in Delaware’s Court of Chancery — the state’s business court, where cases tend to move more quickly.

It names Department of Correction Commissioner Terra Taylor as its lone defendant, claiming that the department has knowingly failed to follow its own policy regarding the spray’s use.

It also cites a deposition given by Taylor in other litigation in which she states there is no specific process for decontaminating those targeted with OC, that she hasn’t taken any steps to require officers to do so, and that she doesn’t believe there is an obligation to do so.

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com.

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