declaration of novella coleman in support of petitioners request for jCal. Super. - 1st Dist.December 4, 20191 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COLEMAN DECL. ISO PET’R’S’ REQUEST FOR JUDICIAL NOTICE CASE NO. CPF-19-516706 Elica Vafaie (SBN 284186) Javeria Jamil (SBN 301720) ASIAN AMERICANS ADVANCING JUSTICE-ASIAN LAW CAUCUS 55 Columbus Ave San Francisco, CA 94111 Telephone: (415) 896-1701 Facsimile: (415) 896-1702 Email: elicav@advancingjustice-alc.org javeriaj@advancingjustice-alc.org Jeffrey Wang (SBN 318403) COUNCIL ON AMERICAN-ISLAMIC RELATIONS, CALIFORNIA 3160 De La Cruz Blvd., Suite 110 Santa Clara, CA 95054 Telephone: (408) 986-9874 Facsimile: (408) 986-9875 Email: jWang@cair.com Novella Y. Coleman (SBN 281632) POLICYLINK 1438 Webster Street, Suite 303 Oakland, CA 94612 Telephone: (510) 663-2333 Facsimile: (510) 663-9684 Email: novella@policylink.org Attorneys for Petitioners Vasudha Talla (SBN 316219) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 Email: vtalla@aclunc.org SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO Asian Americans Advancing Justice- Asian Law Caucus, Council on American-Islamic Relations, California, and American Civil Liberties Union of Northern California, Petitioners, vs. City and County of San Francisco, and William Scott, San Francisco Police Department Chief, Respondents. CASE NO. CPF-19-516706 DECLARATION OF NOVELLA COLEMAN IN SUPPORT OF PETITIONERS’ REQUEST FOR JUDICIAL NOTICE [Filed concurrently with Notice of Motion; Memorandum of Points & Authorities; Declaration of Elica Vafaie with Exhibits 1-5; Declaration of Javeria Jamil; Request for Judicial Notice; Exhibit Index; and Notice of Payment of Court Reporter Fee] Date: August 20, 2019 Time: 9:30 a.m. Dept: 302 Judge: Hon. Ethan P. Schulman Action Filed: June 18, 2019 RESERVATION NO. 07010820-12 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/24/2019 Clerk of the Court BY: VANESSA WU Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- COLEMAN DECL. ISO PETR’S’ REQUEST FOR JUDICIAL NOTICE CASE NO. CPF-19-516706 I, Novella Coleman, declare as follows: 1. I am a member of the State Bar of California. I am a staff attorney at PolicyLink. I am counsel for Petitioners Asian Americans Advancing Justice-Asian Law Caucus, Council on Islamic-American Relations, California, and American Civil Liberties Union of Northern California (“Petitioners”). I have personal knowledge of the facts stated in this declaration, and, if called as a witness, I would and could competently testify to these facts. 2. Attached as Exhibit 6 is a true and correct copy of the 2007 Memorandum of Understanding between the San Francisco Police Department and the Federal Bureau of Investigation (“FBI”) concerning the FBI’s Joint Terrorism Task Force (“JTTF”), which I retrieved from https://www.brennancenter.org/sites/default/files/analysis/SFPD%20MOU- JTTF.pdf. 3. Attached as Exhibit 7 is a true and correct copy of San Francisco Police Department General Order 8.10 (“DGO 8.10”), Guidelines for First Amendment Activities, which I retrieved from https://www.sanfranciscopolice.org/sites/default/files/2018- 11/DGO8.10%20Guidelines%20for%20First%20Amendment%20Activities.pdf. 4. Attached as Exhibit 8 is a true and correct copy of Community Concerns of Surveillance, Racial and Religious Profiling of Arab, Middle Eastern, Muslim, and South Asian Communities and Potential Reactivation of SFPD Intelligence Gathering, San Francisco Human Rights Commission, Sept. 23, 2010 hearing, report adopted February 24, 2011, which I retrieved from https://sf- hrc.org//sites/default/files/Documents/HRC_Publications/Articles/AMEMSA_Report_Adopted_b y_HRC_022411.pdf. 5. Attached as Exhibit 9 is a true and correct copy of the March 8, 2012 Special Meeting Minutes of the San Francisco Human Rights Commission, which I retrieved from https://sf-hrc.org/ftp/meetingarchive/full-commission/sf-hrc.org/sites/sf- hrc.org/files/migrated/FileCenter/Documents/Commission/2012/3_8_12_HRC_Mtg_MINUTES_ Approved_3_22_12_2_.pdf. 6. Attached as Exhibit 10 is a true and correct copy of San Francisco Board of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- COLEMAN DECL. ISO PET’R’S’ REQUEST FOR JUDICIAL NOTICE CASE NO. CPF-19-516706 Supervisors file no. 120046, dated January 9, 2012, concerning an Ordinance to add San Francisco Administrate Code Section 2A.84, which I retrieved from https://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/committees/materials/ps120046tdr.pdf. 7. Attached as Exhibit 11 is a true and correct copy of the May 8, 2012 Agenda of the San Francisco Board of Supervisors, which I retrieved from https://sfbos.org/ftp/uploadedfiles/bdsupvrs/bosagendas/agendas/2012/BAG050812.pdf. Regular agenda item no. 10, file no. 120351 concerns a final vote on Ordinance no. 083-12, adding San Francisco Administrative Code Section 2A.74, which is the Safe San Francisco Civil Rights Ordinance. 8. Attached as Exhibit 12 is a true and correct copy of file no. 120351 of the May 8, 2018 San Francisco Board of Supervisors agenda item concerning Ordinance no. 083-12, adding San Francisco Administrative Code Section 2A.74, which is the Safe San Francisco Civil Rights Ordinance, which I retrieved from https://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/bosagendas/materials/bag050812_120351.pdf. 9. Attached as Exhibit 13 is a true and correct copy of the May 8, 2012 Meeting Minutes of the San Francisco Board of Supervisors, which I retrieved from https://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/bosagendas/materials/mins_05-08-12.pdf. Consent agenda item for file no. 120351 states that the Board of Supervisors passed Ordinance no. 083-12, adding San Francisco Administrative Code Section 2A.74, which is the Safe San Francisco Civil Rights Ordinance. 10. Attached as Exhibit 14 is a true and correct copy of the April 23, 2019 Meeting Minutes of the Complaint Committee of the San Francisco Sunshine Ordinance Task Force, which I retrieved from https://sfgov.org/sunshine/sites/default/files/complaint042319_minutes.pdf. 11. Attached as Exhibit 15 is a true and correct copy of the August 12, 2016 Letter from the Department of Police Accountability (formerly Office of Citizen Complaints) finding a Training Failure on the part of San Francisco Police Department resulting in a violation of DGO 8.10. 1 2 3 4 5 6 7 8 9 10 11 12 12. Attached as Exhibit 16 is a true and correct copy of a February 1, 2017 letter from Department of Police Accountability Executive Director Joyce Hicks to the San Francisco Police Commission, regarding 2016 First Amendment Compliance Audit of San Francisco Police Department Records Pursuant to San Francisco Police Department General Order 8.10, which I retrieved from https://www.sanfranciscopolice.org/sites/default/files/Documents/PoliceCommission/PoliceCom mission020117-DP A2016FirstAmendmentComplianceAuditDG081 O.pdf. 13. Attached as Exhibit 17 is a true and correct copy of the City and County of San Francisco 2018-2019 Civil Grand Jury report entitled "Joint Terrorism Task Force: Balancing Public Safety with Civil Rights," which I retrieved from http://civilgrandjury.sfgov.org/2018 2019/JTTF Final Report.pdf. 13 I executed this declaration on July ,23, 2019 in Oakland, California. I declare under 14 penalty of perjury under the laws of the United States that the foregoing is true and correct. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- COLEMAN DECL. ISO PET'R'S' REQUEST FOR JUDICIAL NOTICE CASE NO. CPF-19-516706 Exhibit 6 PET057 2007 Memorandum of Understanding between SFPD and FBI PET058 " FOR OFFICIAL USE ONLY JOINT TERRORISM TASK FORCE STANDARD MEMORANDUM OF UNDERSTANDING BETWEEN THE FEDERAL BUREAU OF INVESTIGATION AND THE SAN FRANCISCO POLICE DEPARTMENT PREAMBLE The policy of the United States with regard to domestic and international terrorism is to deter, defeat, and respond vigorously to all terrorist attacks on our territory and against our citizens, or facilities. Within the United States, the Department of Justice, acting through the Federal Bureau of Investigation (FBI), is the lead agency domestically for the· counterterrorism effort. In order to ensure that there is a robust capability to cjeter, defeat, and respond vigorously to terrorism in the U.S. or against any U.S. interest, the FBI recognizes the need for all federal, state, local, and tribal agencies that are involved in fighting terrorism to coordinate and share information and resources. To that end, the FBI believes that the creation of the FBI National Joint Terrorism Task Force (NJTTF) and Joint Terrorism Task Forces (JTTFs) embodies the objectives of the U.S. policy on counterterrorism as set forth in Presidential' Directives. FBI policy for the NJTTF and JTTFs is to provide a vehicle to facilitate sharing FBI information with the intelligence and law enforcement communities to protect tl1e Uni.ted States agiiinst t!Jreats to our national security, including international terrorism, and thereby improve the effectiveness oflaw enforcement, consistent with the protection of classified or otherwise sensitive intelligence and law enforcement information, including sources and methods. All NJTTF and JTTF operational and investigative activity, including the collection, retention and dissemination of personal information, will be conducted in a manner that protects and preserves the constitutional rights and civil liberties of all persons in the United States. I FOR OFFICIAL USE ONLY This document is the.property ofthe·FBl·and'is Ioaued to your agency. N~ither it nor its contents may be released without authorization by FBI Headquarters. \ \ PET059 ,' FOR OFFICIAL USE ONLY This Memorandum of Understanding (MOU) shall serve to establish the parameters for the detail of employees (Detailees or members) from the Participating Agency to the FBI-led JTTFs in selected locations around the United States. I. PURPOSE A. The purpose of this MOU is to outline the mission of the JTTF, and to formalize the relationship between the FBI and the Participating Agency; in order to Jllaximize cooperation and to create a cohesive unit capable of addressing the most complex terrorism investigations. B. The MOU specifically represents the agreement between the FBI and the Participating Agency, which will govern the process by which employees of the Participating Agency are detailed to work with the FBI as part of the JTTF. C. This MOU is not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law or otherwise by any third party against the parties, their parent agencies, the U.S., or the officers, employees, agents or other associated personnel thereof. II. MISSION The mission of the JTTF is to leverage the collective resources of the member agencies for the prevention, preemption, deterrence and investigation of terrorist acts that affect United States interests, and to disrupt and prevent terrorist acts and apprehend individuals who may commit or plan to commit such acts. To further this mission, the JTTF shall serve as a means to facilitate information sharing among JTTF members . . III. AUTHORITY .. Pursuant to 28 U.S.C. § 533, 28 C.F.R. § 0.85, Executive Order 12333, Presidential Decision Directives (PDD) 39, PDD 62, and pending approval of National Security Presidential Decision Directive (NSPD) 46 and Homeland Security Presidential Directive (HSPD) 15, the FBI is authorized to coordinate an intelligence, investigative, and operational response to terrorism. By virtue of that same authority, the FBI formed JTTFs composed of other federal, state, local, and tribal law enforcement agencies acting in support of the above listed statutory and regulatory provisions. [Participating agencies may include applicable authority for entering into this MOU.] 2 FQR OFFICIAL USE ONLY This document js the property of the FBI and islo'aned to your age·ncyi Neither it nor its co_ntents may be released without authorization by FBI Headquarters. PET060 FOR OFFICIAL USE ONLY IV. CONTROLLING DOCUMENTS A. Since the JTTF operates under the authority of the Attorney General of the United States, all JTTF participants must adhere to applicable Attorney General's Guidelines and directives, to include the following; as amended or supplemented: 1. Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations; 2. Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection; 3. Attorney General's Guidelines on Federal Bureau of Investigation Undercover Operations; 4. Attorney General's Guidelines Regarding Prompt Handling of Reports of Possible Criminal Activity Involving Foreign Intelligence Sources; 5. Attorney General Memorandum dated March 6, 2002, titled "Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the FBI''; . 6. Attorney General's Guidelines Regarding the Use of Confidential Informants; 7. Attorney General's Guidelines on the Development and Operation of FBI Criminal Informants and Cooperative Witnesses in Extraterritorial Jurisdictions; 8. Attorney General's Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the Course of a Criminal Investigation; and 9. Memorandum from the Deputy Attorney General and the FBI Direcior re: Field Guidance on Intelligence Sharing Procedures for [Foreign Intelligence] and [Foreign Counterintelligence] Investigations (December 24, 2002). B. All guidance on investigative matters handled by the JTTF will be issued by the Attorney General and the FBI. The FBI will provide copies of the above-listed guidelines and any other applicable policies for reference and review to all JTTF members. Notwithstanding the above, this MOU does not alter or abrogate existing directives or policies regarding the conduct of investigations or the use of special 3 FOR OFFICIAL USE ONLY · This document is the property of the FBI and is fo·aned to your agency. · · · Neither it nor its contents may be released without authorization by FBI Headquarters. PET061 FOR OFFICIAL USE ONLY investigative techniques or controlled informants. The FBI agrees to conduct periodic briefings of the member agencies of the JTTF pursuant to all legal requirements and FBI policies. · V. STRUCTURE AND MANAGEMENT OF THE TASK FORCE .·.; __ A. MEMBERS 1. ·Each JTTF shall consist of a combined body of sworn and non°swom personnel from the FBI and each Participating Agency. This MOU shall apply to Participating Agencies that join the JTTF subsequent to execution of this agreement. B. PROGRAM MANAGEMENT. DIRECTION. AND SUPERVISION 1. In order to comply with Presidential Directives, the policy and program management of the JTTFs is the responsibility of FBI Headquarters (FBIHQ). The overall commander of each individual JTTF will be the Special Agent in ·Charge (SAC) or Assistant Director in Charge (ADIC), if assigned, of the FBI's local Field Division. The operational chain of cominand beginning at the highest level, in each FBI Field Division will be as follows: ADIC if assigned, SAC, Assistant Special Agent in Charge (ASAC), and Supervisory Special Agent [JTTF Supervisor]. 2. Each FBI AD IC/SAC, through his or her chain-of-command, is responsible for administrative and operational matters directly associated with the Division's JTTF(s). Operational activities will be supervised by FBI JTTF Supervisors. Staffing issues are the responsibility of the FBI chain of command. 3. All investigations opened and conducied by the JTTF must be conducted in conformance with FBI policy, to include the above stated Controlling Documents. Each FBI AD IC/SAC, through his or her chain-of-command, will ensure that all investigations are properly documented on FBI forms in accordance with FBI rules and regulations. Any operational problems will be resolved at the field office level. Any problems not resolved at the field office level will be submitted to each agency's headquarters for resolution. 4. Each Participating Agency representative will report to his or her respective agency for personnel administrative matters. Each Participating Agency shall be responsible for the pay, overtime, leave, performance appraisals, and other 4 FOR OFFICIAL USE ONLY This document is the propet'ty of the FBl:in'd is lo'aned. to· your agency; Neither it nor its contents may be released without authorization by FBI Headquarters. PET062 FOR OFFICIAL USE ONLY personnel matters relating to its employees detailed to JITFs. As discussed later herein at Paragraph XI, the FBI and the Participating Agency may provide for overtime reimbursement by the FBI by separate written agreement. 5. Each JITF member will be subject to the personnel rules, regulations, laws, and policies applicable to employees of hi_s or her respective agency and also will adhere to the FBI's ethical standards and will be subject to the Supplemental Standards of Ethical Conduct for employees of the Department of Justice. Where there is a conflict between the standards or requirements of the Participating Agency and the FBI, the standard or requirement that provides the greatest organizational protection or benefit will apply, unless the organizations jointly resolve the conflict otherwise. 6. JITF members are subject to removal from the JITF by the FBI for violation of any provision of this MOU, the FBI's ethical standards, the Supplemental Standards of Ethical Conduct for employees of the Department of Justice, or other applicable agreements, rules, and regulations, 7. The FBI maintains oversight and review responsibility of the JITFs. In the event of an FBI inquiry into JITF activities by an investigative or administrative body, including but not limited to, the FBI's Office of Professional Responsibility or the FBI's Inspection Division, each Participating Agency representative to the JITF. may be subject to interview by the FBI. C. PHYSICAL LOCATION AND SUPPORT: 1. The FBI will provide office space for all JITF members and support staff. In addition, the FBI will provide all necessary secretarial, clerical, automation, and technical support for the JITF in accordance with FBI guidelines and procedures. The FBI will provide all furniture and office equipment. Participating agencies may bring office equipment or.furniture into FBI space with the approval of the FBI JITF Supervisor and in compliance with FBI regulations. 2. The introduction of office equipment and furniture into FBI space by Participating Agencies is discouraged, as any such material is subject to examination for technical compromise, which may result in its being damaged or destroyed, 5 FOR OFFICIAL USE ONLY This document is the property-of the FBI and is loaned to your agency. Neither it nor its contents may he released without authorization by FBI Headquarters. PET063 FOR OFFICIAL USE ONLY VI. SECURITY PROGRAM A. CLEARANCES I. State, local, and tribal members of the JTIFs, as well as appropriate supervisory personnel responsible for these individuals, must apply for and receive a Top Secret/Sensitive Compartmented Information (TS/SCI) Security Clearance granted by the FBI. JTIF members from other federal agencies must obtain a Top Secret/SCI clearance from their agency and have this information passed to the FBI. No one will have access to sensitive or classified documents or materials or FBI space without a valid security clearance and the necessary "need-to-know." Pursuant to the provisions of Section 1.2 of Executive Order 12968, Detailees are required to have signed a nondisclosure agreement approved by the FBI's Security Division. Pursuant to federal law, JTTF members are strictly forbidden from disclosing any classified information to individuals who do not possess the appropriate security clearance and the need to know. 2. All JTIF management personnel must ensure that each participating JTIF officer or agent undertakes all necessary steps to obtain a TS/SCI cleararice. · Conversfon of FBI counterterrorism and JTIF spaces to Sensitive Compartmented Information Facilities (SCIFs) is underway. This will require that all JTIF task force officers enhance their clearances to TS/SCI (SI, TK, Gamma, HCS-P). 3. Federal agency task force officers should contact their Security Officers and request and obtain the following SCI Clearances: SI, TK, Gamma, and HCS-P. If the parent agency refuses or is unable to provide the appropriate clearances, the FBI will request the task force officer's security file. If provided, the FBI will adjudicate SCI clearances. This action may involve a prohibitively long process and _should be avoided. 4. Each Participating Agency fully understands that its personnel detailed to the JTIF are not permitted to discuss official JTIF business with supervisors who are not members of the JTIF unless the supervisor possesses the appropriate security clearance and the dissemination oi: discussion is specifically approved by the FBI JTIF Supervisor. Participating Agency heads will be briefed regarding JTIF matters by the SAC or ADIC, as appropriate, through established JTIF Executive Board meetings. 6 FOR OFFICIAL USE ONLY This document is the property o'fthe FBI and iS!oaiietl to yimr agency; ' · · '· · · Neither it nor its contents may be released without authorization by FBI Headquarters. PET064 FOR OFFICIAL USE ONLY 5. In accordance with the Director of Central Intelligence Directive (DCID) 6/4, entitled Personnel Security Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information (SCI), the FBI will implement protocols to ensure Special Agent (SA) and Task Force Officers (TFO) assigned to Joint Terrorism Task Forces (JTTF) in the field and the National Joint Terrorism Task Force (NJTTF) at FBI Headquarters - Liberty.Crossing !, are in compliance with stated directive. In order to comply with DCID 6/4, all JTTF personnel, including FBI and non-FBI JTTF members and contractors who perform functions requiring access to FBI classified data networks and space, will be given counter-intelligence focused polygraphs. The FBI will recognize polygraph examinations conducted by outside federal agencies that meet the FBI's PSPP requirement. The FBI will make the final determination whether a polygraph examination meets the PSPP requirements. 6. All JTTF members must agree to submit to counter-intelligence focused polygraphs as part of the process for obtaining and retaining a Top Secret Security Clearance. B. RESTRICTIONS ON ELECTRONIC EQUIPMENT · Personally owned Portable Electronic Devices (PEDs) including, but not limited to, personal digital assistants, Blackberry devices, cellular telephones, and two-way pagers are prohibited in FBI space unless properly approved. No personally owned electronic devices are permitted to operate within SCIFs as outlined in DCI Directive 6/9 and existing Bureau policy. All other . non-FBI owned information technology and systems (such as computers, printers, fax machines, copiers, PEDs, cameras, and media including diskettes, CDS, tapes) require FBI approval prior to introduction, operation, connection, or removal from FBI spaces to include SCIFs. Additionally, if approved by the FBI Security Officer, these systems must operate in compliance with the FBI's policies, guidelines, and procedures. VII. DEPUTATION Non-federal members of the JTTF who are subject to a background inquiry and are sworn law enforcement officers will be federally deputized while detailed to the JTTF. The FBI will secure the required authorization for their deputation. Deputation of these individuals will ensure that they are able to assist fully in investigations in compliance with applicable federal statutes. On occasion, investigations may be conducted outside of the JTTF's assigned territory. Deputation will allow non-federal members of the JTTF to exercise federal law enforcement authority tlu·oughout the United States. 7 FOR OFFICIAL USE ONLY This document is the property 'fthe·FBI and is loaned t0your'.·age1rc)'; '·' ·· Neither it nor its contents may be released without authorization by FBI Headquarters. PET067 FOR OFFICIAL USE ONLY XI. FUNDING This MOU is not an obligation or commitment of funds, nor a basis for transfer of funds. Even where one party has agreed (or later does agree) to assume a particular financial responsibility, written agreement must be obtained before incurring an expense expected to be assumed by another party. All obligations of and expenditures by the parties are subject to their respective budgetary and fiscal processes and availability of funds pursuant to all laws, regulations, and policies applicable thereto. The parties acknowledge that there is no intimation, promise, or guarantee that funds will be available in future years. The FBI and the Participating Agency may enter into a separate agreement to reimburse the Participating Agency for approved overtime expenses. XII. TRAVEL All JTTF-related travel of non-FBI personnel requires the approval of the appropriate JTTF Supervisor and Participating Agency authorization prior to travel. In order to avoid delay in operational travel, the Participating Agency will provide general travel authority to all of its participating employees for the duration of the employee's membership in the JTTFs. For domestic travel, each agency member will be responsible for appropriate notifications within his or her own agency, as well as standard FBI travel approvals and notification. The FBI will obtain FBIHQ authorization and country clearances for all JTTF members who are required to travel outside the United States. As noted above, the appropriate security clearance must be obtained prior to any international travel. The FBI will pay costs for travel of all members of the JTTFs to conduct investigations outside of the JTTF's assigned territory. XIIL VEHICLES AND EQUIPMENT A. In furtherance of this MOU, employees of the Participating Agency may be permitted to drive FBI owned or leased vehicles. for surveillance, case management and investigation in connection with any JTTF investigation. FBI vehicles must only be used for official JTTF business and only in accordance; with applicableFBlrules andxegulations. B. [non-Federal entities only] Any civil liability arising from the use of an FBI owned or leased vehicle by a Participating Agency task force member while engaged in any conduct other than his or her official duties and assignments under this MOU shall be the responsibility of the. Participating Agency. The Participating Agency will indemnify and hold harmless the FBI and the United States for any claim for property damage or personal injury arising from any use of an FBI owned or leased vehicle by a Participating 10 FOR OFFICIAL USE ONLY ·This document is' the· property of the FBI·and·is Idaned to your·agency:" · · Neither it nor its contents may be released without authorization by FBI Headquarters. PET068 FOR OFFICIAL USE ONLY Agenc)'. JTIF member which is outside of the scope of his or her official duties and assignments under this MOU. C. For official inventory purposes, all JTIF equipment including badges, credentials and other forms of JTIF identification subject to FBI property inventory requirements will be produced by each JTIF member upon request. At the completion of the member's assignment on the JTIF, or upon withdrawal or termination of the Participating Agency from the JTIF, all equipment will be returned to the supplying agency. XIV. FORFEITURE The FBI shall be responsible for the processing of assets seized for federal forfeiture in conjunction with JTIF operations, as provided by these rules and regulations. Asset forfeitures will be conducted in accordance with federal law and the rules and regulations set forth by the U.S. Department of Justice and the FBI. Forfeitures attributable to JTIF investigations may be distributed among the Participating Agencies in JTIF-related operations at the discretion of the FBI. XV. HUMAN SOURCES A. All human sources developed through the JTIF will be handled in accordance with the Attorney GeneraI's and the FBI's guidelines, policies and procedures. · B. All human sources developed during the course of any JTIF investigation shall be . operated with all appropriate FBI suitability paperwork completed prior to use. All source debriefings or written products of information obtained from any human source will use FBI document format and handling procedures. C. The FBI, as permitted by federal law, agrees to pay reasonable and necessary human source expenses incurred by the JTIF. ·All expenses must be approved by the FBI before they are incurred. No payments may be made to JTIF human sources without prior FBI approval. XVI. MEDICAL A. All Participating Agencies will ensure that detailed JTIF members are medically qualified according to their agencies' standards to perform law enforcement duties, functions and responsibilities. 11 FOR OFFICIAL USE ONLY This document is the·property·of the FBI· and is· loaned to·your·agency. ·' '· Neither it nor its contents may be released without authorization by FBI Headquarters. PET069 FOR OFFICIAL USE ONLY B. To ensure protection for purposes of the Federal Employees' Compensation Act (FECA), JTTF members should be detailed to the FBI consistent with the provisions of the Intergovernmental Personnel Act (IPA), 5 U.S.C. § 3374(d). This Act stipulates that "[a] State or local government employee who is given an appointment in a Federal agency for the period of the assignment or who is on detail to a Federal agency and who suffers disability or dies as a result of personal injury sustained while in the performance of his duty during the assignment shall be treated .... as though he were an employee as defined by section 8101 of this title who has sustained the injury in the performance of duty." Other provisions of federal law may extend FECA benefits in more limited Circumstances. The Department of Labor's Office of Workers' Compensation Programs is charged with making FECA coverage determinations and is available to provide guidance concerning specific circumstances. XVII. TRAINING All JTTF members are required to attend FBI legal training in compliance with FBI regulations and any other training deemed necessary by the FBI chain of command. The FBI is responsible for the costs of such training. The Participating Agency will bear the costs of any training required of its own employees detailed to the JTTF. · XVIII. DEADLY FORCE AND SHOOTING INCIDENT POLICIES Members of the JTTF will follow their own agency's policy concerning use of deadly force. XIX. DEPARTMENT OF DEFENSE COMPONENTS The Posse Comitatus Act, 18 U.S.C. § 1385, prohibits the Army and Air Force (Department of Defense regulations now restrict the activities of all branches or components of the Armed S_ervices under this Act) from being used as a posse comitatus or othenvise to execute the laws entrusted to civilian law enforcement•authorities. The restrictions of the Act.do not apply to civilian employees of the Department of Defense who are not acting under the direct command and control of a military officer. Other statutory provisions specifically authorize certain indirect and direct assistance and participation by the military in specified law enforcement functions and activities. All Department of Defense components (except strictly civilian components not acting under direct command and control of a military officer) who enter into this agreement, shall comply with all Department of Defense regulations and statutory authorities (describing restrictions, authorizations and conditions in support of law enforcement) including but not limited to Department of Defense Directives 5525.5, and 3025.15, Chapter 18 of Title 10 of the United States Code dealing with military support for. civilian law enforcement agencies and any.other or. 12 FOR OFFICIAL USE ONLY This document is the property· Of the FBI aiid is loaned to your agency. ·. ··· · Neither it nor its contents may be released without authorization by FBI Headquarters .. · PET070 FOR OFFICIAL USE ONLY subsequent rules, regulations, and laws that may address this topic or that may amend, or modify any of the above provisions. This MOU shall not be construed to authorize any additional or greater authority (than already described) for Department of Defense components to act in the support oflaw enforcement activities. XX. MEDIA All media releases will be mutually agreed upon and jointly handled by the member Participating Agencies of the appropriateJTTF. ·Press releases will conform to DOJ Guidelines regarding press releases. No press release will be issued without prior FBI approval. XXI. LIABILITY The 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 JTTF remains vested with his or her employing agency. However, the Department of Justice (DOJ) may, in its discretion, determine on a case-by-case basis that an individual should be afforded legal representation, legal defense, or indemnification of a civil judgment, pursuant to federal law and DOJ policy and regulations. A. COMMON LAW TORT CLAIMS 1. Congress has provided that the exclusive remedy for the negiigent or wrongful · act or omission of an employee of the U.S. Government, acting within the scope of his or her employment, shall be an action against the United States under the FTCA, 28 U.S.C. § 1346(b), and§§ 2671 - 2680. 2. Notwithstanding the provisions contained in Article XIII of this MOU, for the limited purpose of defending civil claims arising out of JTTF activity, a state, local, or tribal law enforcement officer who has been federally deputized and who is acting within the course and scope of his or her official duties and assignments pursuant to this MOU may be considered an "employee" of the U.S. government, as defiii.ed at 28 U.S.C. § 2671. See 5 U.S.C. § 3374(c)(2). 3. Under the Federai Employee Liability Reform and Tott Compensation Act of 1998 (commonly known as the Westfall Act), 28 U.S.C. § 2679(b)(l), if an employee of the United States is named as a defendant in a civil action, the Attorney General or his or her designee may certify that the defendant acted 13 FOR OFFICIAL USE ONLY This document is the property'ofthe FBI and iHoan:ed·to'yolir·agency; · • ·· ·, JI/either it nor its contents may be released without authorization by FBI Headquarters. PET071 ,: ... ' ' FOR OFFICIAL USE ONLY within the scope of his or her employment at the time of the incident giving rise to the suit. 28 U.S.C. § 2679( d)(2). The United States can then be substituted for the employee as the sole defendant with respect to any tort claims alleged in the action. 28 U.S.C. § 2679(d)(2). If the United States is substituted as defendant, the individual employee is thereby protected from suit on any tort claim arising out of the incident. 4. If the Attorney General declines to certify that an employee was acting within the scope of employment, "the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment." 28 U.S.C. § 2679(d)(3). 5. Liability for any negligent or willful acts of JITF members undertaken outside the terms of this MOU will be the sole responsibility of the respective employee and agency involved. B. CONSTITUTIONAL CLAIMS I. Liability. for violations of federal constitutional law may rest with the individual federal agent or officer pursuant to Bivens v. Six Unknown Names Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) or pursuant to 42 U.S.C. § 1983 for state officers. 2. Federal, state, local, and tribal officers enjoy qualified immunity from suit for constitutional torts, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800 (1982). 3. If a Participating Agency JITF officer is named as a defendant in his or her individual capacity in a civil action alleging constitutional damages as a result of conduct taken within the course of the JITF, the officer may request representation byDOJ. 28 C.F.R. §§ 50.15, 50.16. 4. An employee may be provided representation "when the actions for which . representation is requested reasonably appears to have been performed within the scope of the employee's employment, and the Attorney General, or his or 14 FOR OFFICIAL USE ONLY This document is the property 'of the FBlaild is·!Oaned to your' agency;'"' · · Neither it nor its contents may be released without authorization by FBI Headquarters. PET072 FOR OFFICIAL USE ONLY her designee, determines that providing representation would otherwise be in the interest of the United States." 28 C.F.R. § 50.15(a). 5. A JTIF member's written request for representation should be directed to the Attorney General and provided to the Chief Division Counsel (CDC) of the FBI division coordinating the JTIF. The CDC will forward the representation request to the FBI's Office of the General Counsel (OGC), together with a letterhead memorandum concerning the factual basis of the lawsuit. FBI' s OGC will then fo1ward the request to the Civil Division of DOJ, together with an agency recommendation concerning scope of employment and DOJ representation. 28 C.F.R. § 50.15(a)(3). 6. If a JTIF member is found to be liable for a constitutional tort, he or she may request indemnification from DOJ to satisfy an adverse judgement rendered against the employee in his or her individual capacity. 28 C.F.R. § 50.15(c)(4). The criteria for payment are substantially similar to those used to determine whether a federal employee is entitled to DOJ representation under 28 C.F.R.§ 50.15(a). 7. Determinations concerning legal representation and indemnification by the United States are discretionary and are made by DOJ on a case-by-case basis. The FBI cannot guarantee that the United States will provide legal representation, legal defense, or indemnification to any federal or state employee detailed to the JTIF, and nothing in this Article shall be deemed to create any legal right on the part of any JTIF personnel. C. EXPRESS RESERVATIONS 1. Nothing in this Article shall be deemed to create an employment relationship between the FBI or the United States and any Participating Agency JTIF member ·other than for exclusive purposes of the FTCA, as outlined herein. 2. The participating agencies do not waive any available defenses and/or limitations on liability. No Participating Agency shall be considered to be an agent of any other Participating Agency. 15 FOR OFFICIAL USE ONLY This document is•the' property ·of•the·FBI and is loaned to your agency; ·· Neither it nor its contents may be released without authorization by FBI Headquarters. PET073 :• ;_. FOR OFFICIAL USE ONLY XXII. DURATION A. The term of the MOU shall be an indefinite period. The MOU may be terminated at will by any party, provided written notice is provided to the other parties of not less than sixty (60) days. Upon termination of the MOU, all equipment will be returned to the supplying agency(ies). It is understood that the termination of this agreement by any one of the Participating Agencies will have rio effect on the agreement between the FBI and all other pa!iicipating agencies .. B. Notwithstanding this provision, the provisions of Paragraph IX, entitled RECORDS, REPORTS AND INFORMATION SHAIUNG, and Paragraph XXI, entitled LIABILITY, will continue until all potential liabilities have lapsed. Similarly, the inherent disclaimer limitation contained in the EXPRESS RESERVATION provision will survive any termination. XXIII. AMENDMENTS ·· This agreement in no manner affects any existing MOUs or agreements with the FBI or any other agency. This agreement may be amended only by mutual written consent of the parties. The. modifications shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of the FBI and the Participating Agency. 16 FOR OFFICIAL USE ONLY This documenMs·the property of the FBI and·is I!iiuied t
