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HomeMy WebLinkAboutPR 23568: MOU WITH THE PAPD AND THE UNITED STATES MARSHAL SERVICE City of or/ rtlro www.PortArth urTx.gov INTEROFFICE MEMORANDUM Date: March 28, 2024 To: The Honorable Mayor and City Council Through: Ronald Burton, City Manager From: Timothy W. Duriso, Chief of Police RE: PR 23568; Memorandum of Understanding between the Port Arthur Police Department and the United States Marshal Service. Introduction: The intent of this Agenda Item is to seek the City Council's approval for the City Manager or his designee,the Chief of Police,to enter into a Memorandum of Understanding(MOU) between the Port Arthur Police Department and the United States Marshals Service. Background: The United States Marshals Service (USMS)has been granted authority to direct and coordinate a permanent Regional Fugitive Task Forces consisting of federal, state, and local law enforcement authorities for the purpose of locating and apprehending fugitives. The primary mission of the task force is to investigate and apprehend federal, local, state, and tribal and territorial fugitives,thereby improving public safety and reducing violent crimes. Budget Impact: The USMS will, subject to availability of funds, reimburse the City of Port Arthur for base salary overtime payments made by the city to the officer assigned to the task force for overtime, up to an amount of$20,545.00 Recommendation: It is recommended that the City Council approve the City Manager or his designee,the Chief of Police,to enter into a Memorandum of Understanding between the Port Arthur Police Department and the United States Marshal Service, as discussed above. "Remember,we are here to serve the Citizens of Port Arthur" P.O.Box 1089 X Port Arthur,Texas 77641-1089 X 409.983.8101 X FAX 409.982.6743 P.R. No. 23568 JLH3/28/24 RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE, THE CHIEF OF POLICE, TO EXECUTE THE UNITED STATES MARSHALS SERVICE FUGITIVE TASK FORCE MEMORANDUM OF UNDERSTANDING FOR NON-FEDERAL AGENCIES BETWEEN THE UNITED STATES MARSHALS SERVICE AND THE PORT ARTHUR POLICE DEPARTMENT WHEREAS, the United States Marshals Service (USMS) has been granted authority to direct and coordinate a permanent Regional Fugitive Task Forces consisting of federal, state, and local law enforcement authorities for the purpose of locating and apprehending fugitives; and WHEREAS, the primary mission of the task force is to investigate and apprehend federal, local, state, tribal, and territorial fugitives, thereby improving public safety and reducing violent crime; and WHEREAS, the United States Marshal Services is authorized to enter into Memorandum of Understanding (MOU) concerning agencies participating in the Violent Offender Task Force (VOTF) ; and WHEREAS, the City of Port Arthur desires to enter into such a Memorandum of Understanding (MOU) between the Port Arthur Police Department and the United States Marshal Services as attached as Exhibit "A" . NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct . Section 2 . That the City Council hereby authorizes the City Manager or his designee, the Chief of Police, to execute the United States Marshal Services Fugitive Task Force Memorandum of Understanding (MOU) for Non-Federal Agencies between the United States Marshal Service and the Port Arthur Police Department, in substantially the same form as attached hereto as Exhibit "A" . Section 3 . That a copy of the caption of this resolution shall be spread upon the Minutes of the City Council . I P.R. No. 23568 JLH3/28/24 READ, ADOPTED AND APPROVED on this day of April, A.D. , 2024 , at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote : AYES: Mayor: , Councilmembers : , NOES: . Thurman Bill Bartie Mayor ATTEST: Sherri Bellard City Secretary APPROVED AS TO FORM: IS(4.44, J m s M. Black erim City Attorney APPROVED FOR ADMINISTRATION: Ronald Burton City Manager Timothy Duriso Chief of Police P.R. No. 23568 JLH3/28/24 EXHIBIT "A" United States Marshals Service Fugitive Task Force Memorandum of Understanding For Non-Federal Agencies Rev. 03/2023 PARTIES AND AUTHORITY: This Memorandum of Understanding(MOU) is entered into by the Port Arthur Police Department and the United States Marshals Service(USMS)pursuant to 28 U.S.C. § 566(e)(l)(B). As set forth in the Presidential Threat Protection Act of 2000, codified at 34 U.S.C.41503,and directed by the Attorney General,the USMS has been granted authority to direct and coordinate permanent Regional Fugitive Task Forces consisting of federal, state, and local law enforcement authorities for the purpose of locating and apprehending fugitives. The authority of the USMS to investigate fugitive matters as directed by the Attorney General is set forth in 28 USC § 566. The Director's authority to direct and supervise all activities of the USMS is set forth in 28 USC § 561(g)and 28 CFR 0.111.The authority of United States Marshals and Deputy U.S. Marshals, "in executing the laws of the United States within a State . . . [to] exercise the same powers which a sheriff of the State may exercise in executing the laws thereof' is set forth in 28 USC § 564.Additional authority is derived from 18 USC § 3053 and Office of Investigative Agency Policies Resolutions 2 & 15.See also Memorandum for Howard M. Shapiro, General Counsel, Federal Bureau of Investigation concerning the "Authority to Pursue Non-Federal Fugitives," issued by the U.S. Department of Justice(DOJ), Office of Legal Counsel, dated February 21, 1995;Memorandum concerning the"Authority to Pursue Non-Federal Fugitives," issued by the USMS Office of General Counsel,dated May, 1, 1995; 42 U.S.C. § 16941(a)("The Attorney General shall use the resources of Federal law enforcement, including the United States Marshals Service,to assist jurisdictions in locating and apprehending sex offenders who violate sex offender registration requirements."). Additional authority is derived from the Attorney General's Memorandum, Implementation of National Anti-Violent Crime Initiative (March 1, 1994);Attorney General's Memorandum, Policy on Fugitive Apprehension in FBI and DEA Cases (dated August 11, 1988); Memorandum of Understanding between the Drug Enforcement Administration and the United States Marshals Service(dated September 28, 2018, or as hereafter amended); and Federal Rules of Criminal Procedure 41 —Search and Seizure. MISSION: The primary mission of the task force is to investigate and arrest, as part of joint law enforcement operations,persons who have active warrants for their arrest. The intent of the joint effort is to investigate and apprehend federal, local, state, tribal, and territorial fugitives,thereby improving public safety and reducing violent crime. Each participating agency agrees to refer cases for which they hold the primary warrant for the subject to the RFTF(Regional Fugitive Task Force) or VOTF (Violent Offender Task Force) for adoption and investigation. Cases will be adopted by the RFTF/VOTF at the discretion of the RFTFNOTF Chief Inspector/Chief Deputy. Targeted crimes will primarily include violent crimes against persons, weapons offenses, felony drug offenses, failure to register as a sex offender, and crimes committed by subjects who have a criminal history involving violent crimes, felony drug offenses, and/or weapons offenses. Upon receipt of a written request, the RFTFNOTF may also adopt non- participating law enforcement agencies in investigating, locating, and arresting their fugitives. Task force personnel will be assigned federal and adopted fugitive cases for investigation. Investigative teams will consist of personnel from different agencies whenever possible. Participating agencies retain responsibility for the cases they refer to the RFTFNOTF. Federal fugitive cases referred to the task force for investigation by any participating agency will be entered into the National Crime Information Center(NCIC)by the USMS or originating agency, as appropriate. State, local,tribal, or territorial fugitive cases will be entered into NCIC (and other applicable state or local lookout systems)as appropriate by the concerned agency. SUPERVISION: The RFTFNOTF may consist of law enforcement and administrative personnel from federal, state, local, tribal, and territorial law enforcement agencies. Agency personnel must be approved by the RFTFNOTF Chief Inspector/Chief Deputy prior to assignment to the RFTFNOTF. Agency personnel may be removed at any time at the discretion of the RFTFNOTF Chief Inspector/Chief Deputy. Direction and coordination of the RFTFNOTF shall be the responsibility of the RFTF/VOTF Chief Inspector/Chief Deputy. Administrative matters which are internal to the participating agencies remain the responsibility of the respective agencies. Furthermore, each agency retains responsibility for the conduct of its personnel. A Task Force Advisory Committee,consisting of representatives of participating agencies and USMS RFTFNOTF personnel, may be established at the discretion of the RFTFNOTF Chief Inspector/Chief Deputy and will meet and confer as necessary to review and address issues concerning operational matters within the RFTFNOTF. PERSONNEL: In accordance with Homeland Security Presidential Directive 12,personnel assigned to the task force are required to undergo background investigations to be provided unescorted access to USMS offices, records, and computer systems.The USMS shall bear the costs associated with those investigations.Non-USMS law enforcement officers assigned to the task force will be deputized as Special Deputy U.S. Marshals. REIMBURSEMENT: If the Marshals Service receives Asset Forfeiture funding for either 1) overtime incurred by state, local,tribal, or territorial investigators who provide full time support to USMS RFTFNOTF joint law enforcement task forces; or 2)travel,training,purchase or lease of police vehicles, fuel, supplies or equipment for state, local,tribal,or territorial investigators in direct support of state, local, tribal or territorial investigators,the USMS shall, pending availability of funds,reimburse your organization for expenses incurred, depending on which category of funding is provided. Reimbursement of overtime work shall be consistent with the Fair Labor Standards Act. Annual overtime for each state or local law enforcement officer is capped the equivalent 25%of a GS-1811-12 Step 1, of the general pay scale for the Rest of United States. Reimbursement for all types of qualified expenses shall be contingent upon availability of funds and the submission of a proper request for reimbursement which shall be submitted quarterly on a fiscal year basis, and which provides the names of the investigators who incurred overtime for the RFTFNOTF during the quarter; the number of overtime hours incurred,the hourly regular and overtime rates in effect for each investigator, and the total quarterly cost. The request for reimbursement must be submitted to the RFTFNOTF Chief Rev.03/2023 Page 2 of 8 Inspector/Chief Deputy, who will review the request for reimbursement, stamp and sign indication that services were received and that the request for reimbursement is approved for payment. Supporting documentation must accompany requests for reimbursement for equipment, supplies,training, fuel, and vehicle leases. Reimbursement for other types of qualified expenses (i.e., investigative or travel) shall be contingent upon availability of funds and the submission of a proper request for reimbursement. Task force personnel may incur investigative expenses or may be required to travel outside of the jurisdiction to which they are normally assigned in furtherance of task force operations. State, local,tribal, or territorial task force officers(TFOs)traveling on official business at the direction of the USMS shall be reimbursed directly by the USMS for their authorized travel expenses in accordance with applicable USMS policy, federal laws, rules, and regulations. The request for reimbursement must be submitted to the RFTFNOTF Chief Inspector/Chief Deputy,or IOD program Chief(i.e., SOIB or OCAG), and must include appropriate supporting documentation. VEHICLES: Pending the availability of asset forfeiture funding,the USMS may acquire vehicles to be utilized by state, local,tribal, or territorial investigators assigned to the RFTFNOTF. Vehicles provided by the USMS remain in the control of the USMS and must be used solely in support of RFTFNOTF operations.The vehicles must be available for exclusive use of the TFOs assigned to the RFTFNOTF by the undersigned participant agency for the duration of the agency's participation on the task force. If the agency is no longer a participating member of the RFTFNOTF, any USMS vehicle provided to the agency for use by TFO(s) must be returned to the USMS. Operators of USMS-provided vehicles must adhere to USMS policy regarding the use of government owned vehicles. Any violation of the USMS vehicle policy may result in the vehicle being repossessed by the USMS and the operator and/or agency forfeiting the opportunity to utilize a USMS-provided vehicle in the future. Vehicles provided to state, local, tribal, or territorial investigators may be subject to additional regulations or restrictions pursuant to USMS lease agreements. Replacement or removal of any vehicle provided by the USMS will be at the discretion of the USMS and/or subject to lease agreement terms. EQUIPMENT: Pending the availability of Asset Forfeiture funding,the USMS may purchase equipment for state, local,tribal, or territorial investigators assigned to the RFTFNOTF. Equipment purchased by the USMS using Asset Forfeiture funding must be used solely in support of RFTFNOTF operations. The equipment must be available for exclusive use of the TFOs assigned to the RFTFNOTF by the undersigned participant agency for the duration of the agency's participation on the task force. If the agency is no longer a participating member of the RFTFNOTF, any equipment purchased with Asset Forfeiture and provided to TFOs from the agency may be retained by the agency. Equipment provided by the USMS that is not purchased using Asset Forfeiture funding remains the property of the USMS and will be issued to state, local,tribal, or territorial investigators for exclusive use in support of the RFTFNOTF. If the investigator or agency is no longer a participating member of the RFTFNOTF, any equipment issued that was not purchased with Asset Forfeiture funding will be returned to the USMS. BODY-WORN CAMERAS AND TASK FORCE OFFICERS: As per USMS Policy, Body Worn Cameras (BWC) may be worn by TFOs operating on a USMS Task Force when their parent agency mandates their use by personnel assigned to the task force. A partner agency must Rev.03/2023 Page 3 of 8 formally request to participate in the TFO BWC program and, upon approval, comply with all USMS policies,procedures, documentation,and reporting during their participation. The USMS will inform all partner agencies of which other partner agencies, if any, have been authorized to have their TFOs wear BWCs on the Task Force. Accordingly, all partner agencies should be aware that TFOs may be participating in the TFO BWC program and may be operating with BWCs on USMS task force operations in their agency's jurisdiction. TFOs whose parent agency is not approved for participation in the TFO BWC program are not allowed to deploy with BWCs on USMS missions.As of September 2021, DOJ law enforcement components are implementing BWC into their agency missions. Accordingly, all partner agencies should be aware that USMS and other DOJ law enforcement personnel may be operating with BWCs on USMS task force operations. RECORDS,REPORTS,AND TESTIMONY: After the RFTFNOTF has adopted a warrant, all investigative reports, evidence, and other materials generated, seized or collected by the RFTFNOTF, relating to the fugitive investigation, shall be material within the custody and control of the RFTFNOTF. Physical evidence,such as drugs, firearms, counterfeit credit cards, and related items may be released to the appropriate prosecuting agency. Records and information obtained during the RFTFNOTF fugitive investigation are ordinarily not evidence and may not be released unless authorized by the Office of General Counsel (OGC).A participating agency may retain copies of RFTFNOTF investigative reports, and other documents or materials, but they may be released only upon approval of the USMS (OGC), in consultation with the local U.S. Attorney's Office, if and as applicable. If an applicable state law mandates the release of records or reports pertaining to RFTFNOTF activities,those documents may only be released after coordination with USMS OGC. RFTFNOTF records and documents will be maintained in USMS electronic records and/or paper case files.All investigative reporting will be prepared in compliance with existing USMS policy and procedures utilizing USMS case management systems. Every effort should be made to document investigative activities on USMS forms, such as USM-i 1 s and USM-210s. Reports should never contain information related to sensitive USMS programs that are deemed privileged and not subject to reporting. Task force statistics will be maintained in the USMS case management systems. Statistics will be made available to any participating agency upon request. To the greatest extent possible,all communications regarding USMS task force operations should be conducted on USMS email accounts and USMS cellular devices (if issued to the TFO). If required as per policy, a TFO may complete parent agency investigatory forms pertaining to task force operations. However, copies of such investigatory forms will be provided to the task force's USMS supervisory personnel for inclusion in the relevant USMS case file. The USMS has an interest in reports documenting task force related investigations or activities prepared by a TFO on their parent agency form, and any task force related email or text exchanges done on a parent agency issued account or device. Accordingly, if a state open records request for task force records held on parent agency electronic systems or devices or in paper files is received by a TFO, and an applicable state records law mandates the disclosure of task force records, the Rev.03/2023 Page 4 of 8 parent agency agrees to notify USMS of the request and coordinate with the USMS prior to any proposed disclosure. Information that identifies,or tends to identify, a USMS confidential source, a USMS sensitive program, or the use of sensitive equipment/techniques will not be recorded on parent agency forms or parent agency issued devices and will not be released outside of the USMS unless approved by the Office of General Counsel(OGC). Absent exceptions noted below for discovery related purposes, information related to RFTF/VOTF activities will not be disseminated at any time to any third party (including a non-task force law enforcement officer or other law enforcement agency)by any task force member without notification to the RFTF/VOTF Chief Inspector/Chief Deputy or his/her designee, in consultation with USMS OGC where appropriate. This guidance applies to requests to share reports, memoranda,or other records (both formal and informal)compiled during the course of RFTF/VOTF operations. Nothing in this paragraph supersedes requirements pursuant to federal discovery obligations and/or the DOJ Touhy regulations,28 C.F.R. § 16.21,et seq. All requests for task force-related information,testimony (including any preparation in support) and documents (whether maintained in USMS systems and/or parent agency systems) in connection with state or federal litigation require compliance with the DOJ Touhy Regulations. Any disclosure of records pertaining to task force operations in state and federal litigation will only be done by or with the permission of the U.S.Attorney's Office(Civil Division)and the Office of General Counsel. The partner agency agrees TFOs receiving requests to testify in federal or state litigation regarding task force matters, or for the disclosure of records pertaining to task force matters in federal or state court,will notify the Office of General Counsel. The TFO will await authorization for such testimony or record disclosure prior to testifying,engaging in trial preparation with a prosecutor, and/or providing records, consistent with the DOJ Touhy regulations. TFOs whose parent agency are properly onboarded to the USMS Body Worn Camera Program (BWCP)may wear parent agency issued BWC during certain USMS task force operations. TFOs are governed by the provisions set forth in the USMS TFO BWC Standard Operating Procedures and USMS Policy Directive 2.11, Body Worn Cameras. Any copy of TFO BWC recording shared with the USMS upon culmination of an enforcement action is deemed a federal record, subject to federal disclosure laws and DOJ policies. If a partner agency receives a request for TFO BWC footage pursuant to state records laws,that agency agrees to provide USMS with advance written notification of the request and proposed disclosure. Requests to the USMS for footage in connection with state or federal criminal prosecutions or civil litigation will be handled pursuant to the DOJ Touhy Regulations and/or applicable federal discovery rules and routed to the USMS Office of the General Counsel. CONFIDENTIAL SOURCES/CONFIDENTIAL INFORMANTS: Pending the availability of funds,the USMS may provide funding for payment of Confidential Sources (CS)or Confidential Informants(CI). The use of CS/CIs,registration of CS/CIs and all payments to CS/CIs shall comply with USMS policy. USMS payment to an individual providing information Rev.03/2023 Page 5 of 8 or"tip" related to a USMS offered reward on an active fugitive case shall be accomplished by registering the individual or"tipster"through the established USMS CS payment process. USE OF FORCE: All members of the RFTFNOTF will comply with their agencies' guidelines concerning the use of firearms, deadly force,and less-than lethal devices,to include completing all necessary training and certification requirements. All members of the RFTFNOTF when operating on task force missions will adhere to the DOJ Policy Statement on the Use of Force, dated May 20, 2022, and the DOJ Policy Statement on the Use of Less-Than-Lethal Devices, dated May 16, 2011,and their parent agencies will review the Policy Statement to assure that they approve.Additionally, all members of the RFTFNOTF when operating on task force missions will adhere to the DOJ Deputy Attorney General memorandum, dated September 13, 2021, prohibiting the use of chokeholds or carotid restraint techniques unless deadly force is authorized. Copies of all applicable firearms,deadly force,and less-than-lethal policies shall be provided to the RFTFNOTF Chief Inspector/Chief Deputy and each concerned TFO. In the event of a shooting involving task force personnel,the incident will be investigated by the appropriate agency(s). Additionally, in the event of a shooting,the required reporting for the FBI National Use of Force Data Collection(NUOFDC) should be accomplished by the involved task force personnel's employing agency when the TFO is inside their primary/physical jurisdiction and by the USMS when the TFO is outside their employing agency's primary/physical jurisdiction. If the employing agency wishes to submit such NUOFDC entries regardless of the physical location of the event,that is allowed under this MOU with prior written notice to the USMS. NEWS MEDIA: Media inquiries will be referred to the RFTFNOTF Chief Inspector/Chief Deputy. A press release may be issued,and press conference held, upon agreement and through coordination with participant agencies'representatives. All press releases will exclusively make reference to the task force and participant agencies. RELEASE OF LIABILITY: The Parties acknowledge that this MOU does not alter the applicable law governing civil liability, if any, arising from the conduct of personnel assigned to the RFTFNOTF. Each participating agency shall immediately notify the USMS Office of General Counsel of any civil, administrative,or criminal claim, complaint,discovery request,or other request for information of which the agency receives notice,concerning or arising from the conduct of personnel assigned to the RFTFNOTF or otherwise relating to the RFTFNOTF. Each participating agency acknowledges that financial and civil liability, if any and in accordance with applicable law, for the acts and omissions of each employee detailed to the RFTFNOTF remains vested with his or her employing agency. If a civil claim or complaint is brought against a state or local officer assigned to the RFTFNOTF,the officer may request legal representation and/or defense by DOJ, under the circumstances and pursuant to the statutes and regulations identified below. For the limited purpose of defending against a civil claim arising from alleged negligent or wrongful conduct under common law under the FTCA,28 U.S.C. § 1346(b)and §§ 26712680: an individual assigned to the RFTFNOTF who is named as a defendant in a civil action as a Rev.03/2023 Page 6 of 8 result of or in connection with the performance of his or her official duties and assignments pursuant to this MOU may request to be certified by the U.S. Attorney General or his designee as having acted within the scope of federal employment at the time of the incident giving rise to the suit. 28 U.S.C. § 2679(d)(2). Upon such certification,the individual will be considered an "employee"of the United States government for the limited purpose of defending the civil claim under the FTCA,and the claim will proceed against the United States as sole defendant. 28 U.S.C. § 2679(d)(2). Once an individual is certified as an employee of the United States for purposes of the FTCA,the United States is substituted for the employee as the sole defendant with respect to any tort claims. Decisions regarding certification of employment under the FTCA are made on a case-by-case basis, and the USMS cannot guarantee such certification to any RFTF/VOTF personnel. For the limited purpose of defending against a civil claim arising from an alleged violation of the U.S. Constitution pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971): an individual assigned to the RFTF/VOTF who is named as a defendant in a civil action as a result of or in connection with the performance of his or her official duties and assignments pursuant to this MOU may request individual- capacity representation by DOJ to defend against the claims. 28 C.F.R. §§ 50.15, 50.16. Any such request for individual-capacity representation must be made in the form of a letter from the individual defendant to the U.S. Attorney General through the USMS Office of General Counsel. In the event of an adverse judgment against the individual, he or she may request indemnification from DOJ. 28 C.F.R. § 50.15(c)(4). Requests for DOJ representation and indemnification are determined by DOJ on a case-by-case basis. The USMS cannot guarantee the United States will provide legal representation or indemnification to any RFTF/VOTF personnel. Liability for any conduct by RFTF/VOTF personnel undertaken outside of the scope of their assigned duties and responsibilities under this MOU shall not be the responsibility of the USMS or the United States and shall be the sole responsibility of the respective employee and/or agency involved. EFFECTIVE DATE AND TERIVIINATION: This MOU is in effect once signed by all parties. Participating agencies may withdraw their participation after providing 30 days advanced written notice to the RFTF/VOTF Chief Inspector/Chief Deputy. Rev.03/2023 Page 7 of 8 Task Force: TX-E VOTF UNITED STATES MARSHAL: Print Name: John Garrison Signature: Date: RFTF COMMANDER (where applicable): Print Name: Signature: Date: PARTNER AGENCY: Name: Port Arthur Police Department Location (City, State): Port Arthur, TX PARTNER AGENCY REPRESENTATIVE: Print Name and Title: Timothy Duriso,Chief of Police Date: Signature: ASSISTANT DIRECTOR,INVESTIGATIVE OPERATIONS DIVISION: Print Name: Signature: Date: Rev.03/2023 Page 8 of 8