Loading...
HomeMy WebLinkAboutResolution - 2024-R0146 - MOU, ATF And LPD, Lubbock Regional ATF Task Force - 03/26/2024Resolution No. 2024-R0146 Item No. 5.47 March 26, 2024 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: T'HAT the Mayor for the City of Lubbock is hereby authori�ed and directed to execute for and on behalf of the City of Lubbock, a Memorandum of Understanding (MOLI) Between the Bureau of Alcohol, Tobacco, I'ireaims and Cxplosives (ATI') and the City of Lubbock on behalf of the Lubbock Police Department as it relates to the Lubbock Regional A"I'F fask rorce (Task Force) regarding investigating firearms trafficking and firearms related violent crimes, gathering and reporting intelligence data relating to trafficking in firearms, and conducting other operations in order that the Task I�orce's activities will result in effective prosecution before the courts, and all related documents. Said MOU is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on March 26 2024 ATTEST: Courtney Pa�, City ecretary AI'1'ROVEll AS 'I'O CONTENT: w . Gregory W. Rushin, Interim Chief of Police "TIZAY � YN ., MAYOIt Al'I'I20VED AS "1'O FOItM: Ry• ` Br e, �eni �r Assistant Cit Attorne � Y Y It�S.MOU A�'1� Task Force 2024 2.22.24 Resolution No. 2024-R0146 MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (AT�, And THE CITY OF LUBBOCK on behalf of the LUBBOCK POLICE DEPARTMENT (LPD) This Memorandum of Understanding ("MOU") is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the City of Lubbock on behalf of the Lubbock Police Department ("LPD") as it relates to the Lubbock Regional ATF Task Force (herein referred to as the "Task Force"). AUTHORITIES The authority to investigate and enforce offenses under provisions of this MOU are found at 28 U.S.C. § 599A, 28 C.F.R. §§ 0.130, 0.131, and 18 U.S.C. § 3051. PURPOSE The Task Force will perform the activities and duties described below: a. Investigate firearms trafficking b. Investigate firearms related violent crime c. Gather and report intelligence data relating to trafficking in firearms d. Conduct undercover operations where appropriate and engage in other traditional methods of investigation in order that the Task Force's activities will result in effective prosecution before the courts of the United States and the State of Texas. MEASUREMENT OF SUCCESS The ability to measure the success of this initiative will depend on the participating agencies' willingness to share certain information, (i.e., crime statistics). Core Functions: A. Illegal Firearms Trafficking B. Firearms Criminal Possession and Use C. Criminal Groups and Gangs ATF JLEO Task Force MOU - 2024 ^ Page 1 Performance Goal Statement: A. Reduce the risk to the public safety caused by illegal firearms trafficking. B. Reduce the risk to public safety by criminal possession and use of firearms. C. Reduce the risk to public safety caused by criminal organizations and gangs. Strategic Objectives: A. Interdict and prevent illegal firearms trafficking. B. Share technology such as NIBIN and E Trace. C. Interdict and prevent criminal use of firearms. D. Identify, disrupt and dismantle violent gangs and criminal organizations emphasizing the use of state and local intelligence to identify the worst of the worst offenders. E. Share intelligence with state and local law enforcement. PHYSICAL LOCATION Officersltrooperslagents assigned to this Task Force by their employer shall be referred to as task force officers (TFOs). TFOs will be assigned to the Lubbock Police Department and will be located at 1205 15�h Street, Lubbock, TX 79401. SUPERVISION AND CONTROL The day-to-day supervision and administrative control of TFOs will be the mutual responsibility of the participants, with the ATF Special Agent in Charge or his/her designee having operational control over all operations related to this Task Force. TFOs 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 and ATF orders, regulations and policies, including those related to standards of conduct, sexual harassment, equal opportunity issues, and Federal disclosure laws. Failure to comply with this section 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 (1) Special Agent to the Task Force. ATF will also, subject to the availability of funds, provide necessary funds and equipment to support the activities of the ATF Special Agents and TFOs 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. ATF JLEO Task Force MOU - 2024 Page 2 Each participating agency agrees to make available to its 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 and policy, and may be required to enter into a separate agreement for their use. To accomplish the objectives of the Task Force, the Lubbock Police Department agrees to detail one (1) fulltime TFO to the Task Force for a period of not less than five (5) years. As per ATF O 3501.1A, a Special Deputy is a sworn State, county, or local law enforcement officer assigned to an ATF task force on a part time basis and whose department has a fully executed task force MOU on file with ATF. For purposes of this particular MOU, SDs are included under the term "TFOs" unless the MOU provision expressly indicates that it applies only to "full-time TFOs." All full-time 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 ATF 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, punitive, or otherwise, may disqualify one from eligibility to join the Task Force. ATF has final authority as to the suitability of TFOs for inclusion on the Task Force. DEPUTATIONS ATF, as the sponsoring Federal law enforcement agency, will require 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. A TFO will not be considered for Department of Justice legal representation if named as a defendant in an individual-capacity lawsuit alleging constitutional violations unless all deputation paperwork has been completed and approved prior to the event(s) at issue in the lawsuit. 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 ATF 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, ATF JLEO Task Force MOU - 2024 Page 3 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 ATF 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 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 ATF Reports of Investigation (ROI), unless otherwise agreed to by ATF and the participating agency. 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 ATF 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 ATF personnel, may be disseminated to any third party, non-task force member by any task force member without the express permission of the ATF 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 federal statutes, regulations, and policies pursuant to the Freedom of Information Act and the Privacy Act, and other applicable federal andlor state statutes and regulations. 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 ATF. 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. ATF JLEO Task Force MOU - 2024 Page 4 INFORMANTS ATF 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 for 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 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 that 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. The points of contact for this Task Force are: ATF: Richard D. Byrd, Resident Agent in Charge, Lubbock Field Office Participating Agency: Greg Rushin, Chief of Police, Lubbock Police Department EVIDENCE Evidence will be maintained by the lead agency having jurisdiction in the court system intended for prosecution. Evidence generated from investigations initiated by a TFO or ATF special agent intended for Federal prosecution will be placed in the ATF designated vault, using the procedures found in ATF orders. All firearms seized by a TFO must be submitted for fingerprint analysis and for a National Integrated Ballistic Information Network (NIBIN) examination. Once all analyses are completed, all firearms seized under Federal law shall be placed into the ATF designated vault for proper storage. All firearms information/descriptions taken into ATF custody must be submitted to ATF's National Tracing Center. JURISDICTION/PROSECUTIONS ATF JLEO Task Force MOU - 2024 Page 5 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 ATF or it is decided that a case will be prosecuted on the state or local level, ATF 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 TFOs will comply with ATF and the Department of Justice's (DOJ's) Use of Force orders and policies. TFOs must be briefed on ATF's and DOJ's Use of Force policy by an ATF official and will be provided with a copy of such policy. BODY WORN CAMERAS AND TASK FORCE OFFICERS In accordance with ATF Order 3020.4, dated June 2, 2022, and incorporated herein, Body Worn Cameras (BWCs) may be worn by TFOs operating on a Federal Task Force when their parent agency mandates their use by personnel assigned to the task force. In such cases, the TFO and parent agency shall comply with all DOJ and ATF policies, and the required procedures, documentation, and reporting while participating on the task force. Further, TFO shall comply with the TFO BWC MOU ADDENDUM, included and incorporated herein as Appendix A. 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, § 6103. Disclosure of tax return information and tax information acquired during the course of investigations involving National Firearms Act (NFA) firearms as defined in 26 U.S.C., Chapter 53 shall not be made except as provided by law. SALARY/OVERTIME COMPENSATION ATF JLEO Task Force MOU - 2024 Page 6 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 inay 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 officersl trooperslinvestigators 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 funding document. In accordance with these provisions and any MOA on asset forfeiture, the ATF 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 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 payrnents 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 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 ATF will become ATF JLEO Task Force MOU - 2024 � T Page 7 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 ATF 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, 28 U.S.C. sections 1346(b), 2672-2680. 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, (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 for individual capacity claims is determined by the United States Department of Justice on a case-by-case basis. ATF 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 of the respective agent or officer and agency involved. DURATION This MOU is effective with the signatures of all parties and terminates at the close of business on September 30, 2029. This MOU supersedes previously signed MOUs and shall remain in effect until the aforementioned expiration date or until it is terminated in writing (to include electronic mail and facsimile), whichever comes first. 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. ATF JLEO Task Force MOU - 2024 Page 8 This MOU shall be deemed terminated at the time all participating agencies withdraw and ATF elects not to replace such members, or in the event ATF unilaterally terminates the MOU 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. SIGNATURES JEFFRY Digitally signed by EJEFFREYBOSHEK BOSHEK 05-004 110:063 � 03-26-2024 Y00' Date Jeffery C. Boshek Date Special Agent in Charge, ATF Dallas Field Division Attest: (6 U\h Courtney Paz, City Secr ary City of Lubbock Approved as to Content: Greg Rushin, Chief of Police Approved as to Form: 0 Senioy/Assistant City Attorney City of Lubbock ATF JLEO Task Force MOU - 2024 Page 9 t t ; �)��} . �;:� ,,�;-,_ : . n_. f:,;;,� ti�� � �;,;, , Bureau of Alcohol, Tobacco, Firearms and Explosives Body Worn �amera Program TFO BWC MOU ADDENDUM Appendix A The following is controlling guidance for situations that may affect a Task Force partner agency regarding the TFO (Task Force Officer) BWC (Body Worn Camera) MOU (Memorandum of Understanding) Addendum. This guidance is issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Body Worn Camera Program (BWCP) and ATF Office of Chief Counsel (CC): Review Boards/Other Public Dissemination: If an agency is under a consent decree or otherwise required by statute, law, or agreement to disclose BWC footage to a review board, that entity and their access to the agency BWC and the qualifying events or incidents that are the subject of the agreement will be described in a letterhead memo that the ATF will keep in the BWC MOU tracking system. The memo should include the timeline for that board to receive the footage, if their access to an agency BWC Video Retention System is direct or indirect, and whether the review board has independentlunilateral public disclosure authority. This information will assist the ATF Chief Counsel in determining what timeline they may be under to perform agency review if a qualifying incident occurs where TFO and/or ATF BWC footage has been recorded. State Law/Agency Policies: If state law or qualifying agency policy requires recording outside the parameters of ATF TFO BWC MOU Addendum, the agency will provide that information and a copy of the policy to the ATF B WCP. Any recording of events outside of the TFO enforcement action (i.e., medical facilities, prisoner transport) should be separated if possible. This separation can be achieved by deactivating the recording of the TFO BWC prior to re-activation of recording upon the start of an ATF enforcement action, and/or deactivating the recording of the TFO BWC when a scene is concluded and secure. The TFO can then reactivate recording when the officer is operating under their agency policy alone for a non- TFO agency responsibility. When separate recording(s) are possible, ATF will receive only the enforcement BWC recording. If deactivation and reactivation of recording are not feasible or are not permitted by state law or parent agency policy, the entire recording will be shared with ATF with the understanding that ATF will, if necessary, redact the entire portion of any recording that shows the TFO performing an agency duty where they are not operating under the ATF Task Force (TF) MOU parameters for enforcement actions. If a partner agency TFO BWC has the technical capability to apply a marker during a recording, the TFO will apply the marker at the beginning and end of the enforcement action, if feasible. Short term operations: Any partner TF agency not covered by an existing executed ATF TFO BWC MOU Addendum and any non-partner state, local, federal, or tribal agency are authorized to utilize their BWC during an ATF short term operation or ATF led national initiative after agreeing to share any BWC footage obtained during the operation with the ATF upon request. Any BWC footage of a critical incident such as an Officer Involved Shooting or other use of force leading to death will be shared as soon as possible after the incident. Other footage will only be requested if the ATF has a mission-related requirement that can only be supported by receipt of the BWC recording from the BWC agency.