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HomeMy WebLinkAboutExhibitMEMORANDUM OF UNDERSTANDING BETWEEN THE FEDERAL BUREAU OF INVESTIGATION AND THE BOCA RATON POLICE DEPARTMENT BOMB SQUAD THE BROWARD COUNTY SHERIFF'S OFFICE BOMB SQUAD THE FORT LAUDERDALE POLICE DEPARTMENT BOMB SQUAD THE MARTIN COUNTY SHERIFF'S OFFICE BOMB SQUAD THE MIAMI POLICE DEPARTMENT BOMB SQUAD THE MIAMI-DADE POLICE DEPARTMENT BOMB SQUAD THE MONROE COUNTY SHERIFF'S OFFICE BOMB SQUAD THE PALM BEACH COUNTY SHERIFF'S OFFICE BOMB SQUAD THE PALM BEACH POLICE DEPARTMENT BOMB SQUAD THE SAINT LUCIE COUNTY SHERIFF'S OFFICE BOMB SQUAD THE WEST PALM BEACH POLICE DEPARTMENT BOMB SQUAD MULTI -JURISDICTIONAL RESPONSE TO IMPROVISED EXPLOSIVE DEVICES This Memorandum of Understanding (MOU) is being executed between the Miami Division of the Federal Bureau of Investigation (FBI) and the above named agencies. 1. AUTHORITY Authority for the FBI to enter into this agreement can be found at 28 U.S.C. § 533; 42 U.S.C. § 3771; and 28 C.F.R. § 0.85. 2. PURPOSE AND MISSION The purpose of this MOU is to formalize duties, responsibilities and procedures to be addressed when a public safety risk from explosive materials, suspected Improvised Explosive Device(s) (IED) or other Weapon(s) of Mass Destruction (WMD) is discovered on a terrorist related or other matter that the FBI has primary jurisdiction, and the threat(s) from such devices requires assistance from certified bomb squads from multiple municipalities. This MOU formalizes the manner in which non -Federal officers certified as bomb technicians through the FBI Hazardous Devices School (HDS), assigned to one of the nine bomb squads within the Miami Division, will have deputized authority while acting under direction and authority of the FBI. This MOU is not intended, and should not be construed, to Page 1 of 9 rd(f)4 �, /« create any right or benefit, substantive or procedural, enforceable at law or otherwise by any third party against the parties, the United States, or the officers, employees, agents, or other associated personnel thereof. The mission of the collective participating agencies will be to share available personnel, equipment, resources and expertise in the Miami Division of the FBI, to conduct Render Safe Procedures (RSP) on suspected IEDs and explosive disposal, and in some instances, investigation of explosive related incidents, as part of the counterterrorism initiative of the Miami Division of the FBI. In the event of a major terrorism attack outside of the Miami Division,_ by request of another FBI division, under direction of the Miami Division, this MOU also formalizes the guidelines under which the Federally deputized members of the Miami Division bomb squads may be called upon to assist outside of the Miami Division of the FBI on bomb/explosive related matters in which the FBI has primary jurisdiction. This MOU is not an obligation or commitment of funds, nor a basis for transfer of funds, but rather is a basic statement of the understanding between the parties hereto of the tasks and methods for performing the tasks described herein. Unless otherwise agreed in writing, each party shall bear its own costs in relation to this MOU. Expenditures by each party will be subject to its budgetary processes and to the availability of funds and resources pursuant to applicable laws, regulations, and policies. The parties expressly acknowledge that the above language in no way implies that Congress will appropriate funds for such expenditures. 3. COMPOSITION The Miami Division of the FBI will designate Special Agent Bomb Technician(s)(SABT(s)) within the division to act in support of this MOU with the participating agencies. Other participating agencies will designate available qualified bomb technicians as circumstances and personnel assignments permit, to support this agreement. When the FBI requests that a participating agency supply personnel to respond while under the Federal deputation as outlined in this MOU, each of the participating agencies reserves the right to refuse response of their personnel, when other duties prohibit the response of personnel. Page 2 of 9 4. DEPUTATIONS/CROSS DESIGNATIONS Non -Federal officers participating under this MOU will be sworn in as Special Deputy United States Marshals for purposes of enforcing United States Code, Title 18. This will provide authority for the officers to fully participate in all investigations and respond to bomb or explosive related threats upon request by the Miami Division of the FBI, anywhere within the United States. The Miami Division of the FBI would only make a request for personnel from the participating agencies to respond outside of the Miami Division when a request is made by another FBI field division. These deputations are only in effect when the deputized officers are requested to respond by the Miami Division of the FBI, on bombing or explosive related matters in which the FBI has jurisdiction. These deputations shall remain in effect for two years, as long as the participants are assigned duties consistent with the purposes of this MOU, or until the termination of this MOU, whichever comes first. Active participants must renew deputations every two years. 5. INVESTIGATIVE REPORTING PROCEDURES The agency(s) having primary jurisdiction is responsible for collection, maintenance, and dissemination of reports and other documents in conjunction with activities of the participants of this MOU and in compliance with applicable Federal, state and local laws. This agreement does not prohibit dissemination by individual participants of information to other Federal, state or local law enforcement agencies, as allowed by law to ensure public safety. With respect to FBI prepared documents, such must be prepared and maintained in compliance with applicable Federal law and Department of Justice (DOJ) policy. Consequently, all records prepared and shared among participating agencies in accordance with this MOU may not be released or distributed to third parties, except as noted above, without the express permission of the originating agency. 6. OVERTIME REIMBURSEMENT When personnel from a participating agency respond at the request of the Miami Division of the FBI under the authority of this MOU, the participating agency will be reimbursed for Page 3 of 9 overtime, per diem, and lodging incurred by deputized personnel acting under this MOU. Overtime will be paid by the FBI in accordance with a separate Cost Reimbursement Agreement. 7. SUPERVISION AND CONTROL Overall direction of the responding Hazardous Devices School (HDS) certified technicians with regards to render -safe procedures shall be the senior HDS certified technician on scene. Overall direction of the personnel acting under Federal authority regarding investigations, shall be the FBI SAC. Responsibility for conduct, not under the direction of the FBI, of each participant, both personally and professionally, shall remain with the respective agency head and each agency shall be responsible for the actions of their respective employees; Each participant will be subject to the personnel rules, regulations, laws, and policies applicable to those of their respective agencies. Each participant will continue to report to his or her respective agency head for matters not detailed in this MOU 8. EVIDENCE Participants agree to conform to Federal standards concerning evidence collection, processing, and storage. The FBI will maintain evidence collected during investigations conducted under the authority of this MOU. 9. PROSECUTIONS Joint bombing/explosives related investigations conducted under this MOU will conform to the requirements for Federal prosecution, and will generally be prosecuted in Federal courts. A determination will be made on a case -by -case basis whether the prosecution of cases arising under this MOU will be at the State or Federal level. This determination will be based on the evidence obtained and a consideration of which level of prosecution would be of the greatest overall benefit to the objectives of criminal justice and national security. Page 4 of 9 10. LIABILITY Unless specifically addressed by the terms of this MOU, the parties agree to be responsible for the negligent or wrongful acts or omissions of their respective employees. Legal representation by the United States is determined by the Department of Justice (DOJ) on a case -by -case basis. The FBI cannot guarantee the United States will provide legal representation to any Federal or state law enforcement officer or employee. Congress has provided that the exclusive remedy for the negligent or wrongful act or omission of an employee of the United States government, acting within the scope of his/her employment, shall be an action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Section 1346(b), and Sections 2671 - 2680. For the .limited purpose of defending claims arising out of activity under this MOU, state/local officers who have been specifically deputized and who are acting within the course and scope of their official duties and assignments pursuant to this MOU, may be considered an "employee" of the United States government as defined in 28 U.S.C. Section 2671. See 5 U.S.C. Section 3374 (c) (2) . Under the Federal Employees Liability Reform and Tort Compensation, Act of 1998 (commonly known as the Westfall Act), 28 U.S.C., Section 2679(b)(1), the Attorney General or his/her designee may certify that an individual defendant acted within the scope of his employment at the time of the incident giving rise to the suit. id., 28 U.S.C. Section 2679(d)(2). The United States can then be substituted for the employee as the sole defendant with respect to any tort claims. 28 U.S.C. Section 2679(d)(2). If the United States is substituted as defendant, the individual employee is thereby protected from suits in his/her official capacity. 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. Section 2679(d) (3). Liability for any negligent or willful acts of participating agency members, undertaken outside the terms of this MOU, will be the sole responsibility of the respective employee and agency involved. Page 5 of 9 Liability for violations of Federal constitutional law rests with the individual Federal agent or officer pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) or pursuant to 42 U.S.C. Section 1983 for state officers or cross -deputized Federal officers. Both state and Federal 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). Participating agency personnel may request representation by the U. S. Department of Justice for civil suits against them in their individual capacities for actions taken within the scope of employment, if and when civil actions are levied against them, pursuant to 28 C.F.R. Sections 50.15, 50.16. An employee may be provided representation "when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee's employment and the Attorney General, or his/her designee, determines that providing representation would otherwise be in the interest of the United States." 28 C.F.R. Section 50.15(a). Deputized personnel's written request for representation should be directed to the Attorney General and provided to the Chief Division Counsel (CDC) of the Miami FBI. The CDC will then forward the representation request to the FBI's office of General Counsel (OGC) together with a letterhead memorandum concerning the factual basis for the lawsuit. FBI/OGC will then forward the request to the Civil Division of DOJ together with an agency recommendation concerning scope of employment and Department representation. 28 C.F.R. Section 50.15 (a)(3). If deputized personnel are found to be liable for a constitutional tort, he/she may request indemnification from DOJ to satisfy an adverse judgement rendered against the employee in his/her individual capacity. 28 C.F.R. Section 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. Section 50.15(a). Determinations concerning legal representation and indemnification by the United States are discretionary and are made by the 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 Page 6 of 9 detailed to any of the participating agency members, and nothing in this Article shall be deemed to create any legal right on the part of any participating agency member. 11. TRAINING An additional goal of this agreement will be to facilitate co -training ventures among participants to ensure continuity of responses to incidents involving threats to public safety. Participants of this agreement will meet routinely, as mutually agreed, to discuss and establish training activities and venues, as well as other mutual concerns. 12. MEDIA All media releases and statements related to activities under the purview of this MOU will be mutually agreed upon and jointly handled according to FBI and participating agency guidelines. 13. DURATION The term of this MOU is for five years, renewable upon written agreement by the participating agencies. Any participating agency may withdraw from the MOU at any time by providing written notification to the Miami FBI at least 30 days prior to withdrawal. 14. MODIFICATIONS This agreement may be modified at any time by written consent of all involved agencies. Modifications of this MOU shall have no force and effect unless such modifications are reduced to writing and signed by an authorized representative of each participating agency. 15. SETTLEMENT OF DISPUTES Disagreements between the participants arising. under or relating to this MOU will be resolved only by consultation between the participants and will not be referred to a court of law or to any other person or entity for settlement. The final authority to resolve any disputes will be the SAC of the Miami FBI. Page 7 of 9 FBI/ Contracting CY ficer 16. CONCLUSION Nothing in this MOU is intended to create additional liabilities on the part of any participating agency, nor does this MOU change or modify other formal or informal agreements with any of the participating agencies. Signed and agreed to by: im�\1V ) . WOY' athan I. Solomon Special Agent in Charge, FBI Miami ti 1 1/Z />a.' Maury V. Taylor Contracting Offfooi ftiorel BtueMM O Daniel Alexander Chief of Police, Boca Ratdn Police Department Al Lamberti Sheriff, Broward County Sheriff's Office Bruce G. Roberts Chief of Police, Fort Lauderdale Police Department Robert L. Crowder Sheriff, Martin County Sheriff's Office Page 8 of 9 John Timoney Chief of Police, Miami Police Department Robert Parker Director, Miami -Dade Police Department Richard D. Roth Sheriff, Monroe County Sheriff's Office Ric L. Bradshaw Sheriff, Palm Beach County Sheriff's Office Michael S. Reiter Chief of Police, Palm Beach Police Department Ken J. Mascara Sheriff, St. Lucie County Sheriff's Office Allan Orthman Captain, West Palm Beach Police Department Page 9 of 9 CITY OF MIAMI, a municipal Corporation of the State of Florida ATTEST: PRISCILLA THOMPSON PEDRO G. HERNANDEZ CITY CLERK CITY MANAGER APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: LEEANN BREHM JULIE O. BRU RISK MANAGEMENT CITY ATTORNEY