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HomeMy WebLinkAbout10030ORDINANCE NO. 10030 AN ORDINANCE APPROVING AND ACCEPTING A MEMORANDUM OF UNDERSTANDING, AND ALL APPLICABLE CONDITIONS PERTAINING THERETO, BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION (“CITY”), AND THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (“ATF”), RELATING TO THE VIOLENT CRIME/NIBIN TASK FORCE, AND AUTHORIZING THE MAYOR TO EXECUTE SAME WHEREAS, the City Council of Pueblo has the authority on behalf of the City of Pueblo, including its Police Department, to accept grants from the state government for public and municipal purposes and to enter into agreements relating thereto; and WHEREAS, City Council approved a MOU with the ATF creating a Project Safe Neighborhood Task Force on February 8, 2010 in Ordinance No. 8139; and WHEREAS, the Pueblo Police Department desires to continue its partnership with the ATF related to the reduction of crime and firearm related violence; and WHEREAS, acceptance and approval of the MOU for the purpose for which it has been made is in the best interest of the City and will benefit the health, welfare and safety of the citizens of the City; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The MOU between ATF and the City of Pueblo and its Police Department, and all applicable conditions pertaining thereto, having been approved as to form by the City Attorney, is hereby accepted and approved. SECTION 2. The Mayor is authorized to execute the MOU in the name of and on behalf of the City. SECTION 3. The officers and staff of the City are authorized to perform any and all acts consistent with the intent of this Ordinance to implement the policies and procedures described herein. SECTION 4. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on October 12, 2021. Final adoption of Ordinance by City Council on October 25, 2021 . President of City Council Action by the Mayor: ☒ Approved on October 26, 2021 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-6 Background Paper for Proposed ORDINANCE COUNCIL MEETING DATE: October 12, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Marisa Stoller, City Clerk FROM: Chief Chris Noeller, Police Department SUBJECT: AN ORDINANCE APPROVING AND ACCEPTING A MEMORANDUM OF UNDERSTANDING, AND ALL APPLICABLE CONDITIONS PERTAINING THERETO, BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION (“CITY”), AND THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (“ATF”), RELATING TO THE VIOLENT CRIME/NIBIN TASK FORCE, AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: The attached Memorandum of Understanding continues the Pueblo Police Department’s participation in the ATF Violent Crime/NIBIN Task Force. PREVIOUS COUNCIL ACTION: On February 8, 2010 in Ordinance No. 8139, Council approved a Memorandum of Understanding with ATF creating a Project Safe Neighborhood Task Force. BACKGROUND: ATF and the Pueblo Police Department has a long-standing Task Force previously named the “Project Safe Neighborhoods (PSN)”. A revamped mission, proactively and reactively, targeting Armed Violent Offenders and NIBIN investigations will focus on intelligence-led policing techniques and target those responsible for committing violent crime in Pueblo, Colorado. Additionally, PPD TFOs assist ATF with violent crime investigations outside the Pueblo, Colorado area when necessary. Since the establishment of this Task Force, the Pueblo Police Department has dedicated two officers to the Task Force. The Task Force has investigated hundreds of cases involving the illegal use of firearms, explosives, and violent crime resulting in successful State and Federal prosecutions. FINANCIAL IMPLICATIONS: There should be no additional cost to the City of Pueblo. The ATF currently reimburses for officer overtime costs through a separate active Memorandum of Agreement. BOARD/COMMISSION RECOMMENDATION: Not Applicable. STAKEHOLDER PROCESS: Not Applicable. ALTERNATIVES: City Council may decline the MOU. If that occurs, the Police Department’s participation in the task force and partnership with the ATF will be jeopardized. RECOMMENDATION: The Police Department recommends approval of the Ordinance. Attachments: Memorandum of Understanding. MEMORANDUM OF UNDERSTANDING BETWEEN THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (ATF), And Pueblo Police Department This Memorandum of Understanding("MOU") is entered into by and between the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the City of Pueblo and its Pueblo Police Department("City"or"PPD") as it relates to the Violent Crime/NIBIN Task Force (herein referred to as the "Task Force"). BACKGROUND • ATF and the Pueblo Police Department has a long standing Task Force previously named the "Project Safe Neighborhoods (PSN)". A revamped mission,proactively and reactively, targeting Armed Violent Offenders and NIBIN investigations will focus on intelligence-led policing techniques and target those responsible for committing violent crime in Pueblo, Colorado. Additionally, PPD TFOs assist ATF with violent crime investigations outside the Pueblo, Colorado area when necessary. 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 related violent crime. b. Gather and report intelligence data relating to criminal firearms investigations. c. Investigate NIBIN leads. 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 Colorado. ATF JLEO Task Force MOU—March 2021,v2 Page 1 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. • Criminal prosecutions (State and Federal) • Overall reduction of violent crime in Pueblo • Firearms seizures • NIBIN investigations cleared • Collaborative investigations between PPD and ATF 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 Pueblo Police Department and will be located at 200 S. Main St, Pueblo, CO 81003. SUPERVISION AND CONTROL The day-to-day supervision and administrative control of TFOs will be the mutual responsibility of the participants and PPD chain of command with the ATF Resident 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 2 PPD TFOs to the Task Force. ATF will also, subject to the availability of funds,provide necessary funds and equipment to support the activities of 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. ATF JLEO Task Force MOU—March 2021,v2 Page 2 • To accomplish the objectives of the Task Force, the PPD agrees to detail 2 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 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,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 upon receipt of written notice of the termination. 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 ATF JLEO Task Force MOU- March 2021,v2 Page 3 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. 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 ATF JLEO Task Force MOU-March 2021,v2 Page 4 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: Brandon Garcia and Marc Wood Participating Agency: Captain Jeff Bodmer and Sgt. Rich Reyes 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 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 ATF JLEO Task Force MOU-March 2021,v2 Page 5 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 (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 DOJ policy, dated October 29, 2020, Body Worn Cameras (B WCs)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 associated with Federal prosecutions 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 JLEO Task Force MOU- March 2021,v2 Page 6 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 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. FUND AVAILABILITY; SUBJECT TO LAW The financial obligations of City, if any, after the current year in which this Agreement is signed by both parties are contingent upon funds for that purpose being appropriated,budgeted and otherwise made available by Pueblo City Council and City executive departments. Nothing herein shall be deemed to create an ongoing financial obligation of City. With regard to City financial obligations, this Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi-year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, §20 of the Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this Agreement,with respect to any financial obligation of City which may arise under this Agreement in any fiscal year, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation, such failure shall not constitute a default by or breach of this Agreement, including any sub-agreement, attachment, schedule or exhibit thereto, by the City. City may in its sole and absolute discretion terminate this Agreement for reasons of non-appropriation immediately upon written notice without causing default or breach. 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. ATF JLEO Task Force MOU -March 2021,v2 Page 7 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 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. To the extent permitted by law, the United States shall be substituted for ATF JLEO Task Force MOU-March 2021,v2 Page 8 I the employee as the sole defendant with respect to any tort claims so that the individual employee is protected from suits in his or her official capacity to the greatest extent possible. 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. Nothing in this Agreement is intended, nor should it be construed, to create or extend any rights, claims or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations otherwise conferred upon the City of Pueblo, a Municipal Corporation under or by virtue of federal or state law, including but not limited to the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq. 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 2t(Oget, Aatf;1 ,/4� 4`s, -"S �+' " DigitDatea2021/0lly 29 14 7by V077 ID 06 BOOTH00' Nicholas Gradisar Date Dave Booth Date Title: Mayor Special Agent in Charge, ATF City of Pueblo—Pueblo Police Department Denver Field Division ATF JLEO Task Force MOU- March 2021,v2 Page 9 I