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HomeMy WebLinkAbout16-Police Department CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Date: November 22,2010 Subject: Resolution of the Mayor and Common Council of the Gty of San Bernardino authorizing the execution of a Memorandum of Understanding between The Bureau of Alcohol, Tobacco, Firearms and Explosives (A TF) and the San Bernardino Police Department for participation in the San Bernardino ATF Gun/Gang TaskForce. From: Keith L. Kilmer, Chief of Police Dept: Police Department M/ CC Meeting Date: December 20, 2010 Synopsis of Previous Council Action: None. Recommended Motion: Adopt Resolution. ilL KEITH L. KILME~ Q-llEF OF POLICE Contact person: Lt. Ron Maass Phone: 386-1220 Supporting data attached: Yes Ward: All FUNDING REQUIREMENTS: Amount: N/ A Source: N/ A Finance Council Notes: Agenda Item No.-..l(P /d'dJO "'J-fJI () CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION ST AFF REPORT SUBJECT Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a Memorandum of Understanding between The Bureau of Alcohol, Tobacco, Firearms and Explosives (A TF) and the San Bernardino Police Department (SBPD) for participation in the San Bernardino ATF Gun/Gang Task Force. BACKGROUND In July 2007, the City of San Bernardino partnered with the A TF Violent Crime Impact Team (VCIT) targeting violent crime within San Bernardino. The focus of this partnership was to reduce homicides and violent firearms crimes within the City by utilizing a strategy of reducing the incidents of firearms-related violence in neighborhoods and communities by identifying, arresting, and removing to prison the "worst-of-the-worst" violent offenders in specific targeted areas referred to as hot spots. Since the inception of the partnership, the SBPD has tasked one officer to actively participate with A TF. This original partnership has evolved into the formation of the San Bernardino ATF Gun/Gang Task Force. The Task Force has been continuing to actively investigate firearm and narcotic related violent crime impacting the City of San Bernardino. They investigate firearm and narcotic trafficking, both state and federal, which is likely to result in discovering criminal violations committed by violent offenders, organizations, and felons convicted of prior firearm and narcotic trafficking. The Task Force has been responsible for numerous, multi-defendant, multi-count firearms and narcotics related cases since its inception. These cases have resulted in the seizure of large quantities of narcotics and firearms. The Task Force is currently co-located with the San Bernardino Police Department Vice and Narcotics teams, allowing for exceptional coordination between the SBPD and the Task Force. FINANCIAL IMPACT The City of San Bernardino and A TF currently have a Memorandum of Agreement (MOA) for the reimbursement of overtime salary costs and other costs, with prior A TF approval, including but not limited to travel, fuel, training, and equipment, incurred by the SBPD in providing resources to assist the San Bernardino ATF Gun/Gang Task Force. RECOMMENDA TION Adopt Resolution. 1 2 3 4 5 6 7 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF) AND THE SAN BERNARDINO POLICE DEPARTMENT FOR PARTICIPATION IN THE SAN BERNARDINO ATF GUN/GANG SUPPRESSION TASK FORCE. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1: The Mayor and Common Council of the City of San Bernardino 9 10 11 12 13 14 authorizes the Chief of Police to execute on behalf of the City a Memorandum of Understanding between the City of San Bernardino and The Bureau of Alcohol, Tobacco, Firearms and Explosives for participation in the San Bernardino A TF Gun/Gang Task Force, a copy of which is attached hereto, marked as Exhibit A, and incorporated herein by this reference. 15 SECTION 2: The authorization to execute the above referenced Memorandum of 16 17 18 19 20 21 22 23 24 25 26 27 28 Understanding is rescinded if it is not executed within one hundred and twenty (120) days of the passage of this Resolution. / / / / / / / / / / / / / / / / / / / / / / / / 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (AT F) AND THE SAN BERNARDINO POLICE DEPARTMENT FOR PARTICIPATION IN THE SAN BERNARDINO ATF GUN/GANG SUPPRESSION TASK FORCE. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 7 and Common Council of the City of San Bernardino at a meeting 8 thereof, held on the , 2010, by the following vote, to wit: day of Council Members NAYS ABSENT ABST AIN AYES MARQUEZ DESJARDINS BRINKER SHORETT KELLEY JOHNSON McCAMMACK Rachel G. Clark, City Clerk The foregoing Resolution is hereby approved this _ day of ,2010. Patrick 1. Morris, Mayor City of San Bernardino Approved as to Form: .~ es F. Penman, City Attorney EXHIBIT A MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF), And THE SAN BERNARDINO POLICE DEPARTMENT (SBPD) This Memorandum of Understanding ("MOU") is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the City of San Bernardino Police Department as it relates to the City of San Bernardino ATF Gun/Gang Task Force (herein referred to as the "Task Force"). AUTHORITIES Offenses investigated and enforced pursuant to this MOU are those falling within A TF' s jurisdiction 28 U.S.C. see 599A; 27 CFR sec. 0.130. Specifically, the Gun Control Act of 1968, 18 U.S.C. 921 et. seq. and the National Firearms Act, 26 U.S.C. 5861 et. seq. PURPOSE The Task Force will perform the activities and duties described below: a. Investigate firearm and narcotic trafficking, both state and federal, which is likely to result in discovering criminal violations committed by violent offenders, organizations, and felons convicted of prior firearm & narcotic trafficking. b. Investigate firearm and narcotic related violent crime c. Conduct undercover operations where appropriate and engage in other traditional methods of investigation in order the Task Force's activities will result in effective prosecution before the courts of the United States and the State of California. MEASUREMENT OF SUCCESS The success of this initiative will be measured by the participating agencies sharing certain information, (i.e. crime statistics) for the purpose of measuring the success of the task force as well as its performance. The mission of the task force is to focus on the reduction of violent crime that has been committed by criminal use of firearms within the City of San Bernardino, California and its surrounding area. The mission will be generally accomplished through a maximum effort of investigation, arrest, detention and enhanced prosecution of criminally active violent offenders. Specifically, efforts will focus on individuals who commit gang related crimes that can be either prosecuted in State and or Federal Court. Page 1 PHYSICAL LOCATION Officers/agents assigned to this Task Force by their employer shall be referred to as task force officers (TFOs). TFOs will be assigned to and located at the ATF San Bernardino Satellite Office. SUPERVISION AND CONTROL The day-to-day supervision and administrative control ofTFOs will be the mutual responsibility of the participants, with the A TF Special Agent in Charge or his/her designee having operational control over all operations related to this Task Force. Each TFO shall remain subject to their respective agencies' policies, and shall report to their respective agencies regarding matters unrelated to this agreement/task force. With regard to matters related to the Task Force, TFOs will be subject to Federal law and Department of Justice (DOJ) and A TF orders, regulations and policy, including those related to standards of conduct, sexual harassment, equal opportunity issues and Federal disclosure laws. Failure to comply with this paragraph could result in a TFO's dismissal from the Task Force. PERSONNEL, RESOURCES AND SUPERVISION To accomplish the objectives of the Task Force, ATF will assign one Special Agent to the Task Force. A TF will also, subject to the availability of funds, provide necessary funds and equipment to support the activities ofthe ATF Special Agent and officers assigned to the Task Force. This support may include: office space, office supplies, travel funds, funds for the purchase of evidence and information, investigative equipment, training, and other support items. Each participating agency agrees to make available to their assigned task members any equipment ordinarily assigned for use by that agency. In the event ATF supplies equipment (which may include vehicles, weapons or radios), TFOs must abide by any applicable ATF property orders or policy, and may be required to enter into a separate agreement for their use. To accomplish the objectives of the Task Force, the San Bernardino Police Department agrees to detail at minimum one fulltime TFO to the Task Force for a period of not less than two (2) years. All TFOs shall qualify with their respective firearms by complying with ATF's Firearms and Weapons Policy. SECURITY CLEARANCES All TFOs will undergo a security clearance and background investigation, and A TF shall bear the costs associated with those investigations. TFOs must not be the subject of any ongoing investigation by their department or any other law enforcement agency, and past behavior or punishment, disciplinary, Page 2 punitive or otherwise, may disqualify one from eligibility to join the Task Force. ATF has final authority as to the suitability ofTFOs for inclusion on the Task Force. DEPUTATIONS ATF, as the sponsoring Federal law enforcement agency, may request at its sole discretion that the participating agency's TFOs be deputized by the U.S. Marshals Service to extend their jurisdiction, to include applying for and executing Federal search and arrest warrants, and requesting and executing Federal grand jury subpoenas for records and evidence involving violations of Federal laws. Such requests will be made on an individual basis as determined by ATF. The participating agencies agree that any Federal authority that may be conferred by a deputation is limited to activities supervised by ATF and will terminate when this MOU is terminated or when the deputized TFOs leave the Task Force, or at the discretion of ATF. ASSIGNMENTS, REPORTS AND INFORMATION SHARING An A TF supervisor or designee will be empowered with designated oversight for investigative and personnel matters related to the Task Force and will be responsible for opening, monitoring, directing and closing Task Force investigations in accordance with ATF policy and the applicable United States Attorney General's Guidelines. Assignments will be based on, but not limited to, experience, training and performance, in addition to the discretion of the A TF supervisor. All investigative reports will be prepared utilizing ATF's investigative case management system, (N- Force) utilizing ATF case report numbers. The participating agency will share investigative reports, findings, intelligence, etc., in furtherance of the mission ofthis agreement, to the fullest extent allowed by law. For the purposes of uniformity, there will be no duplication of reports, but rather a single report prepared by a designated individual which can be duplicated as necessary. Every effort should be made to document investigative activity on A TF Reports of Investigation (ROI), unless otherwise agreed to by ATF and the participating agency(ies). This section does not preclude the necessity of individual TFOs to complete forms required by their employing agency. Information will be freely shared among the TFOs and A TF personnel with the understanding that all investigative information will be kept strictly confidential and will only be used in furtherance of criminal investigations. No information gathered during the course of the Task Force, to include informal communications between TFOs and A TF personnel, may be disseminated to any third party, non-task force member by any task force member without the express permission of the A TF Special Agent in Charge or his/her designee. Any public requests for access to the records or any disclosures of information obtained by task force members during Task Force investigations will be handled in accordance with applicable statutes, regulations, and policies pursuant to the Freedom of Information Act and the Privacy Act and other applicable federal and/or state statutes and regulations. Page 3 INVESTIGATIVE METHODS The parties agree to utilize Federal standards pertaining to evidence handling and electronic surveillance activities to the greatest extent possible. However, in situations where state or local laws are more restrictive than comparable Federal law, investigative methods employed by state and local law enforcement agencies shall conform to those requirements, pending a decision as to a venue for prosecution. The use of other investigative methods (search warrants, interceptions of oral communications, etc.) and reporting procedures in connection therewith will be consistent with the policy and procedures of A TF. All Task Force operations will be conducted and reviewed in accordance with applicable ATF and Department of Justice policy and guidelines. None ofthe parties to this MOD will knowingly seek investigations under this MOD that would cause a conflict with any ongoing investigation of an agency not party to this MOD. It is incumbent upon each participating agency to notify its personnel regarding the Task Force's areas of concern and jurisdiction. All law enforcement actions will be coordinated and cooperatively carried out by all parties to this MOD. INFORMANTS A TF guidelines and policy regarding the operation of informants and cooperating witnesses will apply to all informants and cooperating witnesses directed by TFOs. Informants developed by TFOs may be registered as informants of their respective agencies for administrative purposes and handling. The policies and procedures of the participating agency with regard to handling informants will apply to all informants that the participating agency registers. In addition, it will be incumbent upon the registering participating agency to maintain a file with respect to the performance of all informants or witnesses it registers. All information obtained from an informant and relevant to matters within the jurisdiction of this MOD will be shared with all parties to this MOD. The registering agency will pay all reasonable and necessary informant expenses for each informant that a participating agency registers. DE CONFLICTION Each participating agency agrees the deconfliction process requires the sharing of certain operational information with the Task Force, which, if disclosed to unauthorized persons, could endanger law enforcement personnel and the public. As a result of this concern, each participating agency agrees to adopt security measures set forth herein: a. Each participating agency will assign primary and secondary points of contact. b. Each participating agency agrees to keep its points of contact list updated. Page 4 The points of contact for this Task Force are: Bureau of Alcohol, Tobacco, Firearms and Explosives: RAC Keith Krolczyk City of San Bernardino Police Department: Captain E. Lemos EVIDENCE Evidence maintained by the lead agency having jurisdiction in the court system intended for prosecution. Evidence generated from investigations initiated by a TFO or A TF special agent intended for Federal prosecution will be placed in the ATF designated vault, using the procedures found in ATF orders. JURISDICTIONIPROSECUTIONS Cases will be reviewed by the A TF Special Agent in Charge or his/her designee in consultation with the participating agency and the United States Attorney's Office and appropriate State's attorney offices, to determine whether cases will be referred for prosecution to the U.S. Attorney's Office or to the relevant State's attorney's office. This determination will be based upon which level of prosecution will best serve the interests of justice and the greatest overall benefit to the public. Any question that arises pertaining to prosecution will be resolved through discussion among the investigative agencies and prosecuting entities having an interest in the matter. In the event that a state or local matter is developed that is outside the jurisdiction of A TF or it is decided that a case will be prosecuted on the state or local level, A TF will provide all relevant information to state and local authorities, subject to Federal law. Whether to continue investigation of state and local crimes is at the sole discretion of the state or local participating agency. USE OF FORCE All fulltime TFOs will comply with ATF and the Department of Justice's (DOl's) use of force policies. TFOs must be briefed on ATF's and DOl's use of force policy by an ATF official, and will be provided with a copy of such policy. MEDIA Media relations will be handled by ATF and the U.S. Attorney's Office's public information officers in coordination with each participating agency. Information for press releases will be reviewed and mutually agreed upon by all participating agencies, who will take part in press conferences. Assigned personnel will be informed not to give statements to the media concerning any ongoing investigation or prosecution under this MOU without the concurrence of the other participants and, when appropriate, the relevant prosecutor's office. All personnel from the participating agencies shall strictly adhere to the requirements of Title 26, United States Code, S 6103. Disclosure of tax return information and tax information acquired during the Page 5 course of investigations involving National Firearms Act (NF A) firearms as defined in 26 D.S.C., Chapter 53 shall not be made except as provided by law. SALARY/OVERTIME COMPENSATION During the period ofthe MOD, participating agencies will provide for the salary and employment benefits of their respective employees. All participating agencies will retain control over their employees' work hours, including the approval of overtime. ATF may have funds available to reimburse overtime to the State and Local TFO's agency, subject to the guidelines of the Department of Justice Asset Forfeiture Fund. This funding would be available under the terms of a memorandum of agreement (MOA) established pursuant to the provisions of 28 D.S.C. section 524. The participating agency agrees to abide by the applicable Federal law and policy with regard to the payment of overtime from the Department of Justice Asset Forfeiture Fund. The participating agency must be recognized under State law as a law enforcement agency and their officers/ troopers/investigators as sworn law enforcement officers. If required or requested, the participating agency shall be responsible for demonstrating to the Department of Justice that its personnel are law enforcement officers for the purpose of overtime payment from the Department of Justice Asset Forfeiture Fund. This MOU is not a {undin!!: document. In accordance with these provisions and any MOA on asset forfeiture, the A TF Special Agent in Charge or designee shall be responsible for certifying reimbursement requests for overtime expenses incurred as a result of this agreement. AUDIT INFORMATION Operations under this MOD are subject to audit by ATF, the Department of Justice's Office of the Inspector General, the Government Accountability Office, and other Government-designated auditors. Participating agencies agree to permit such audits and to maintain all records relating to Department of Justice Asset Forfeiture Fund payments for expenses either incurred during the course of this Task Force or for a period of not less than three (3) years and, if an audit is being conducted, until such time that the audit is officially completed, whichever is greater. FORFEITURES/SEIZURES All assets seized for administrative forfeiture will be seized and forfeited in compliance with the rules and regulations set forth by the D.S. Department of Justice Asset Forfeiture guidelines. When the size or composition of the item(s) seized make it impossible for ATF to store it, any of the participating agencies having the storage facilities to handle the seized property agree to store the property at no charge and to maintain the property in the same condition as when it was first taken into custody. The agency storing said seized property agrees not to dispose of the property until authorized to do so by ATF. The MOD provides that proceeds from forfeitures will be shared, with sharing percentages based upon Page 6 the U.S. Department of Justice Asset Forfeiture policies on equitable sharing of assets, such as determining the level of involvement by each participating agency. Task Force assets seized through administrative forfeiture will be distributed in equitable amounts based upon the number of full-time persons committed by each participating agency. Should it become impossible to separate the assets into equal shares, it will be the responsibility of all the participating agencies to come to an equitable decision. If this process fails and an impasse results, A TF will become the final arbitrator of the distributive shares for the participating agencies DISPUTE RESOLUTION In cases of overlapping jurisdiction, the participating agencies agree to work in concert to achieve the Task Force's goals and objectives. The parties to this MOU agree to attempt to resolve any disputes regarding jurisdiction, case assignments and workload at the lowest level possible. LIABILITY A TF acknowledges that the United States is liable for the wrongful or negligent acts or omissions of its officers and employees, including TFOs, while on duty and acting within the scope of their federal employment, to the extent permitted by the Federal Tort Claims Act. Claims against the United States for injury or loss of property, personal injury, or death arising or resulting from the negligent or wrongful act or omission of any Federal employee while acting within the scope of his or her office or employment are governed by the Federal Tort Claims Act, 28 U.S.c. sections 1346(b), 2672-2680 (unless the claim arises from a violation of the Constitution of the United States, or a violation of a statute of the United States under which other recovery is authorized). Except as otherwise provided, the parties agree to be solely responsible for the negligent or wrongful acts or omissions of their respective employees and will not seek financial contributions from the other for such acts or omissions. Legal representation by the United States is determined by the United States Department of Justice on a case-by-case basis. A TF cannot guarantee the United States will provide legal representation to any State or local law enforcement officer. Liability for any negligent or willful acts of any agent or officer undertaken outside the terms of this MOU will be the sole responsibility ofthe respective agent or officer and agency involved. DURATION This MOU shall remain in effect until it is terminated in writing (to include electronic mail and facsimile). All participating agencies agree that no agency shall withdraw from the Task Force without providing ninety (90) days written notice to other participating agencies. If any participating agency withdraws from the Task Force prior to its termination, the remaining participating agencies shall determine the distributive share of assets for the withdrawing agency, in accordance with Department of Justice guidelines and directives. Page 7 The MOD shall be deemed terminated at the time all participating agencies withdraw and ATF elects not to replace such members, or in the event A TF unilaterally terminates the MOD upon 90 days written notice to all the remaining participating agencies. MODIFICATIONS This agreement may be modified at any time by written consent of all participating agencies. Modifications shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each participating agency. ENDORSEMENTS This agreement shall be effective on the date of signature by all participating parties. Parties to this agreement may terminate their participation at any time upon written notification of their intent to withdraw to all other parties in agreement. In witness whereof, the parties have hereunto executed this memorandum of understanding. John A. Torres Date Special Agent in Charge Bureau of Alcohol, Tobacco, Firearms and Explosives Keith L. Kilmer Date Chief San Bernardino Police Department Page 8 MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF), And THE SAN BERNARDINO POLICE DEPARTMENT (SBPD) This Memorandum of Dnderstanding ("MOD") is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the City of San Bernardino Police Department as it relates to the City of San Bernardino ATF Gun/Gang Task Force (herein referred to as the "Task Force"). AUTHORITIES Offenses investigated and enforced pursuant to this MOD are those falling within A TF' s jurisdiction 28 D.S.C. sec 599A; 27 CFR sec. 0.130. Specifically, the Gun Control Act of 1968, 18 D.S.C. 921 et. seq. and the National Firearms Act, 26 D.S.C. 5861 et. seq. PURPOSE The Task Force will perform the activities and duties described below: a. Investigate firearm and narcotic trafficking, both state and federal, which is likely to result in discovering criminal violations committed by violent offenders, organizations, and felons convicted of prior firearm & narcotic trafficking. b. Investigate firearm and narcotic related violent crime c. Conduct undercover operations where appropriate and engage in other traditional methods of investigation in order the Task Force's activities will result in effective prosecution before the courts of the Dnited States and the State of California. MEASUREMENT OF SUCCESS The success of this initiative will be measured by the participating agencies sharing certain information, (i.e. crime statistics) for the purpose of measuring the success ofthe task force as well as its performance. The mission of the task force is to focus on the reduction of violent crime that has been committed by criminal use of firearms within the City of San Bernardino, California and its surrounding area. The mission will be generally accomplished through a maximum effort of investigation, arrest, detention and enhanced prosecution of criminally active violent offenders. Specifically, efforts will focus on individuals who commit gang related crimes that can be either prosecuted in State and or Federal Court. Page 1 PHYSICAL LOCATION Officers/agents assigned to this Task Force by their employer shall be referred to as task force officers (TFOs). TFOs will be assigned to and located at the A TF San Bernardino Satellite Office. SUPERVISION AND CONTROL The day-to-day supervision and administrative control of TFOs will be the mutual responsibility of the participants, with the A TF Special Agent in Charge or hislher designee having operational control over all operations related to this Task Force. Each TFO shall remain subject to their respective agencies' policies, and shall report to their respective agencies regarding matters unrelated to this agreement/task force. With regard to matters related to the Task Force, TFOs will be subject to Federal law and Department of Justice (DOJ) and A TF orders, regulations and policy, including those related to standards of conduct, sexual harassment, equal opportunity issues and Federal disclosure laws. Failure to comply with this paragraph could result in a TFO's dismissal from the Task Force. PERSONNEL, RESOURCES AND SUPERVISION To accomplish the objectives of the Task Force, ATF will assign one Special Agent to the Task Force. A TF will also, subject to the availability of funds, provide necessary funds and equipment to support the activities of the ATF Special Agent and officers assigned to the Task Force. This support may include: office space, office supplies, travel funds, funds for the purchase of evidence and information, investigative equipment, training, and other support items. Each participating agency agrees to make available to their assigned task members any equipment ordinarily assigned for use by that agency. In the event A TF supplies equipment (which may include vehicles, weapons or radios), TFOs must abide by any applicable ATF property orders or policy, and may be required to enter into a separate agreement for their use. To accomplish the objectives of the Task Force, the San Bernardino Police Department agrees to detail at minimum one fulltime TFO to the Task Force for a period of not less than two (2) years. All TFOs shall qualify with their respective firearms by complying with A TF' s Firearms and Weapons Policy. SECURITY CLEARANCES All TFOs will undergo a security clearance and background investigation, and A TF shall bear the costs associated with those investigations. TFOs must not be the subject of any ongoing investigation by their department or any other law enforcement agency, and past behavior or punishment, disciplinary, Page 2 punitive or otherwise, may disqualify one from eligibility to join the Task Force. ATF has final authority as to the suitability ofTFOs for inclusion on the Task Force. DEPUTATIONS ATF, as the sponsoring Federal law enforcement agency, may request at its sole discretion that the participating agency's TFOs be deputized by the U.S. Marshals Service to extend their jurisdiction, to include applying for and executing Federal search and arrest warrants, and requesting and executing Federal grand jury subpoenas for records and evidence involving violations of Federal laws. Such requests will be made on an individual basis as determined by ATF. The participating agencies agree that any Federal authority that may be conferred by a deputation is limited to activities supervised by ATF and will terminate when this MOU is terminated or when the deputized TFOs leave the Task Force, or at the discretion of ATF. ASSIGNMENTS, REPORTS AND INFORMATION SHARING An A TF supervisor or designee will be empowered with designated oversight for investigative and personnel matters related to the Task Force and will be responsible for opening, monitoring, directing and closing Task Force investigations in accordance with ATF policy and the applicable United States Attorney General's Guidelines. Assignments will be based on, but not limited to, experience, training and performance, in addition to the discretion ofthe A TF supervisor. All investigative reports will be prepared utilizing A TF' s investigative case management system, (N- Force) utilizing ATF case report numbers. The participating agency will share investigative reports, findings, intelligence, etc., in furtherance of the mission of this agreement, to the fullest extent allowed by law. For the purposes of uniformity, there will be no duplication of reports, but rather a single report prepared by a designated individual which can be duplicated as necessary. Every effort should be made to document investigative activity on A TF Reports of Investigation (ROI), unless otherwise agreed to by ATF and the participating agency(ies). This section does not preclude the necessity of individual TFOs to complete forms required by their employing agency. Information will be freely shared among the TFOs and A TF personnel with the understanding that all investigative information will be kept strictly confidential and will only be used in furtherance of criminal investigations. No information gathered during the course of the Task Force, to include informal communications between TFOs and A TF personnel, may be disseminated to any third party, non-task force member by any task force member without the express permission of the A TF Special Agent in Charge or his/her designee. Any public requests for access to the records or any disclosures of information obtained by task force members during Task Force investigations will be handled in accordance with applicable statutes, regulations, and policies pursuant to the Freedom of Information Act and the Privacy Act and other applicable federal and/or state statutes and regulations. Page 3 INVESTIGATIVE METHODS The parties agree to utilize Federal standards pertaining to evidence handling and electronic surveillance activities to the greatest extent possible. However, in situations where state or local laws are more restrictive than comparable Federal law, investigative methods employed by state and local law enforcement agencies shall conform to those requirements, pending a decision as to a venue for prosecution. The use of other investigative methods (search warrants, interceptions of oral communications, etc.) and reporting procedures in connection therewith will be consistent with the policy and procedures of A TF. All Task Force operations will be conducted and reviewed in accordance with applicable ATF and Department of Justice policy and guidelines. None of the parties to this MOU will knowingly seek investigations under this MOU that would cause a conflict with any ongoing investigation of an agency not party to this MOU. It is incumbent upon each participating agency to notify its personnel regarding the Task Force's areas of concern and jurisdiction. All law enforcement actions will be coordinated and cooperatively carried out by all parties to this MOU. INFORMANTS A TF guidelines and policy regarding the operation of informants and cooperating witnesses will apply to all informants and cooperating witnesses directed by TFOs. Informants developed by TFOs may be registered as informants of their respective agencies for administrative purposes and handling. The policies and procedures ofthe participating agency with regard to handling informants will apply to all informants that the participating agency registers. In addition, it will be incumbent upon the registering participating agency to maintain a file with respect to the performance of all informants or witnesses it registers. All information obtained from an informant and relevant to matters within the jurisdiction ofthis MOU will be shared with all parties to this MOU. The registering agency will pay all reasonable and necessary informant expenses for each informant that a participating agency registers. DECONFLICTION Each participating agency agrees the deconfliction process requires the sharing of certain operational information with the Task Force, which, if disclosed to unauthorized persons, could endanger law enforcement personnel and the public. As a result of this concern, each participating agency agrees to adopt security measures set forth herein: a. Each participating agency will assign primary and secondary points of contact. b. Each participating agency agrees to keep its points of contact list updated. Page 4 The points of contact for this Task Force are: Bureau of Alcohol, Tobacco, Firearms and Explosives: RAC Keith Krolczyk City of San Bernardino Police Department: Captain E. Lemos EVIDENCE Evidence maintained by the lead agency having jurisdiction in the court system intended for prosecution. Evidence generated from investigations initiated by a TFO or A TF special agent intended for Federal prosecution will be placed in the ATF designated vault, using the procedures found in ATF orders. JURISDICTIONIPROSECUTIONS Cases will be reviewed by the ATF Special Agent in Charge or his/her designee in consultation with the participating agency and the United States Attorney's Office and appropriate State's attorney offices, to determine whether cases will be referred for prosecution to the U.S. Attorney's Office or to the relevant State's attorney's office. This determination will be based upon which level of prosecution will best serve the interests of justice and the greatest overall benefit to the public. Any question that arises pertaining to prosecution will be resolved through discussion among the investigative agencies and prosecuting entities having an interest in the matter. In the event that a state or local matter is developed that is outside the jurisdiction of A TF or it is decided that a case will be prosecuted on the state or local level, A TF will provide all relevant information to state and local authorities, subject to Federal law. Whether to continue investigation of state and local crimes is at the sole discretion ofthe state or local participating agency. USE OF FORCE All fulltime TFOs will comply with ATF and the Department of Justice's (DOl's) use of force policies. TFOs must be briefed on ATF's and DOl's use of force policy by an ATF official, and will be provided with a copy of such policy. MEDIA Media relations will be handled by ATF and the U.S. Attorney's Office's public information officers in coordination with each participating agency. Information for press releases will be reviewed and mutually agreed upon by all participating agencies, who will take part in press conferences. Assigned personnel will be informed not to give statements to the media concerning any ongoing investigation or prosecution under this MOU without the concurrence of the other participants and, when appropriate, the relevant prosecutor's office. All personnel from the participating agencies shall strictly adhere to the requirements of Title 26, United States Code, S 6103. Disclosure of tax return information and tax information acquired during the Page 5 course of investigations involving National Firearms Act (NF A) firearms as defined in 26 U.S. C., Chapter 53 shall not be made except as provided by law. SALARY/OVERTIME COMPENSATION During the period of the MOU, participating agencies will provide for the salary and employment benefits of their respective employees. All participating agencies will retain control over their employees' work hours, including the approval of overtime. ATF may have funds available to reimburse overtime to the State and Local TFO's agency, subject to the guidelines of the Department of Justice Asset Forfeiture Fund. This funding would be available under the terms of a memorandum of agreement (MOA) established pursuant to the provisions of 28 U.S.C. section 524. The participating agency agrees to abide by the applicable Federal law and policy with regard to the payment of overtime from the Department of Justice Asset Forfeiture Fund. The participating agency must be recognized under State law as a law enforcement agency and their officers/ troopers/investigators as sworn law enforcement officers. If required or requested, the participating agency shall be responsible for demonstrating to the Department of Justice that its personnel are law enforcement officers for the purpose of overtime payment from the Department of Justice Asset Forfeiture Fund. This MOU is not a fundiD!~ document. In accordance with these provisions and any MOA on asset forfeiture, the A TF Special Agent in Charge or designee shall be responsible for certifying reimbursement requests for overtime expenses incurred as a result of this agreement. AUDIT INFORMATION Operations under this MOU are subject to audit by ATF, the Department of Justice's Office ofthe Inspector General, the Government Accountability Office, and other Government-designated auditors. Participating agencies agree to permit such audits and to maintain all records relating to Department of Justice Asset Forfeiture Fund payments for expenses either incurred during the course of this Task Force or for a period of not less than three (3) years and, if an audit is being conducted, until such time that the audit is officially completed, whichever is greater. FORFEITURES/SEIZURES All assets seized for administrative forfeiture will be seized and forfeited in compliance with the rules and regulations set forth by the U.S. Department of Justice Asset Forfeiture guidelines. When the size or composition of the item(s) seized make it impossible for ATF to store it, any of the participating agencies having the storage facilities to handle the seized property agree to store the property at no charge and to maintain the property in the same condition as when it was first taken into custody. The agency storing said seized property agrees not to dispose of the property until authorized to do so by ATF. The MOU provides that proceeds from forfeitures will be shared, with sharing percentages based upon Page 6 the U.S. Department of Justice Asset Forfeiture policies on equitable sharing of assets, such as determining the level of involvement by each participating agency. Task Force assets seized through administrative forfeiture will be distributed in equitable amounts based upon the number of full-time persons committed by each participating agency. Should it become impossible to separate the assets into equal shares, it will be the responsibility of all the participating agencies to come to an equitable decision. If this process fails and an impasse results, A TF will become the final arbitrator of the distributive shares for the participating agencies DISPUTE RESOLUTION In cases of overlapping jurisdiction, the participating agencies agree to work in concert to achieve the Task Force's goals and objectives. The parties to this MOU agree to attempt to resolve any disputes regarding jurisdiction, case assignments and workload at the lowest level possible. LIABILITY A TF acknowledges that the United States is liable for the wrongful or negligent acts or omissions of its officers and employees, including TFOs, while on duty and acting within the scope of their federal employment, to the extent permitted by the Federal Tort Claims Act. Claims against the United States for injury or loss of property, personal injury, or death arising or resulting from the negligent or wrongful act or omission of any Federal employee while acting within the scope of his or her office or employment are governed by the Federal Tort Claims Act, 28 U.S.C. sections 1346(b), 2672-2680 (unless the claim arises from a violation of the Constitution of the United States, or a violation of a statute ofthe United States under which other recovery is authorized). Except as otherwise provided, the parties agree to be solely responsible for the negligent or wrongful acts or omissions of their respective employees and will not seek financial contributions from the other for such acts or omissions. Legal representation by the United States is determined by the United States Department of Justice on a case-by-case basis. A TF cannot guarantee the United States will provide legal representation to any State or local law enforcement officer. Liability for any negligent or willful acts of any agent or officer undertaken outside the terms of this MOU will be the sole responsibility ofthe respective agent or officer and agency involved. DURATION This MOU shall remain in effect until it is terminated in writing (to include electronic mail and facsimile). All participating agencies agree that no agency shall withdraw from the Task Force without providing ninety (90) days written notice to other participating agencies. If any participating agency withdraws from the Task Force prior to its termination, the remaining participating agencies shall determine the distributive share of assets for the withdrawing agency, in accordance with Department of Justice guidelines and directives. Page 7 The MOD shall be deemed terminated at the time all participating agencies withdraw and A TF elects not to replace such members, or in the event A TF unilaterally terminates the MOD upon 90 days written notice to all the remaining participating agencies. MODIFICATIONS This agreement may be modified at any time by written consent of all participating agencies. Modifications shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each participating agency. ENDORSEMENTS This agreement shall be effective on the date of signature by all participating parties. Parties to this agreement may terminate their participation at any time upon written notification of their intent to withdraw to all other parties in agreement. In witness whereof, the parties have hereunto executed this memorandum of understanding. John A. Torres Date Special Agent in Charge Bureau of Alcohol, Tobacco, Firearms and Explosives Keith L. Kilmer Date Chief San Bernardino Police Department Page 8