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06.L. Resolution authorizing a Memorandum of Understanding with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) f44 • 11 .( rr 11 i�O enc u nrry 1 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 6.L. For Meeting of:August 17, 2021 ITEM TITLE: Resolution authorizing a Memorandum of Understanding with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) SUBMITTED BY: Matt Murray, Chief of Police Jay Seely, Captain SUMMARY EXPLANATION: A memorandum of understanding between the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Yakima Police Department as it relates to the ATF Violent Crime Task force. The Task Force will investigate firearms trafficking and firearms related to violent crime, gather and report intel data relating to firearms trafficking, and work closely with the Task Force. ITEM BUDGETED: NA STRATEGIC PRIORITY: Public Safety APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt resolution. ATTACHMENTS: Description Upload Date Type ❑ Resolution 8/11/2021 Corer Memo 0 ATF MOU 7/8/2021 Contract 2 RESOLUTION NO. R-2021- A RESOLUTION authorizing a Memorandum of Understanding between the Bureau of Alcohol, Tobacco Firearms and Explosives ("ATF") and the Yakima Police Department as it relates to the ATF Violent Crime Task Force WHEREAS, the Yakima Police Department and ATF seek to maintain a Violent Crime Task Force to combat firearms trafficking and firearms related violent crime within the City of Yakima; and WHEREAS, the Memorandum of Understanding sets forth the conditions of cooperation between the parties and the obligations of each party with respect to the Task Force; and, WHEREAS, the City Council deems it to be in the best interest of the City to approve the agreement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the Memorandum of Understanding between the Bureau of Alcohol, Tobacco Firearms and Explosives ("ATF") and the Yakima Police Department as it relates to the ATF Violent Crime Task Force. ADOPTED BY THE CITY COUNCIL this 17'h day of August, 2021. Patricia Byers, Mayor ATTEST: Sonya Clear Tee, City Clerk 3 MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF), And THE YAKIMA POLICE DEPARTMENT This Memorandum of Understanding("MOU") is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF")and the Yakima Police Department ("participating agency") as it relates to the ATF Violent Crime 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 Washington. MEASUREMENT OF SUCCESS The success of this initiative will be measured by the participating agencies willingness to share certain information, (i.e crime statistics)for the purpose of measuring the success of the task force as well as its performance. Impact the threat to public safety caused by criminal possession and use of firearms in the commission of a violent or drug related crime. This will be accomplished in deterring illegal firearms trafficking and violent gun crime through a systematic agency approach. The success of this effort will be measured by the percent of all firearms cases referred for prosecution and ultimately indicted,percent of all firearms cases referred for prosecution ultimately convicted, and the number of crime guns take off the streets. ATF JLEO Task Force MOU-March 2021,v2 Page 1 4 PHYSICAL LOCATION Officers assigned to this Task Force by their employer shall be referred to as task force officers (TFOs). TFOs will be assigned to the ATF Yakima Field Office and will be located at both the Yakima Police Department and the ATF Yakima Field Office. 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. 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 ATF 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 Special Agents 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 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 Force 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 Yakima Police Department agrees to detail two fulltime TFOs 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 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 ATF JLEO Task Force MOU-March 2021,v2 Page 2 5 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, 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. A TFO will not be granted Department of Justice legal representation if named as a defendant in a private-capacity lawsuit alleging constitutional violations unless all deputation paperwork has been completed 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, 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(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 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. ATF JLEO Task Force MOU-March 2021,v2 Page 3 6 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. 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. 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 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 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. ATF JLEO Task Force MOU-March 2021,v2 Page 4 7 b. Each participating agency agrees to keep its points of contact list updated. The points of contact for this Task Force are: ATF: Resident Agent in Charge of the Yakima Field Office Participating Agency: Captain of Detectives 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 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 fulltime TFOs will comply with ATF and the Department of Justice's (DOD's)Use of Force orders and policies. TFOs must be briefed on ATF's and DOD's Use of Force policy by an ATF official, and will be provided with a copy of such policy. ATF JLEO Task Force MOU-March 2021,v2 Page 5 8 BODY WORN CAMERAS AND TASK FORCE OFFICERS In accordance with DOJ policy, dated October 29, 2020, 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 parent agency must formally request to participate in the TFO BWC program and, upon approval, shall comply with all DOJ and ATF policies, and the required procedures, documentation, and reporting while participating on the task force. 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 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 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. ATF JLEO Task Force MOU-March 2021,v2 Page 6 9 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 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 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 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. 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 ATF JLEO Task Force MOU-March 2021,v2 Page 7 10 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. 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, 2026. 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. The 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 1 1 Bob Harrison Date Jonathan McPherson Date City Manager Special Agent in Charge, ATF City of Yakima Seattle Field Division ATF JLEO Task Force MOU-March 2021,v2 Page 8