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- To: Honorable Mayor and Members of the City Council
- From: Christine Daniel, Interim City Manager
- Submitted by: Michael Meehan, Chief of Police
- Subject: Response to Questions regarding Mutual Aid Memoranda of Understanding
- RECOMMENDATION
- Approve the remaining Memoranda of Understanding that were not approved on
- November 8, 2011.
- FISCAL IMPACT OF RECOMMENDATION
- The cost incurred by a natural or man-made disaster or other emergency within the City
- is difficult to estimate, but could easily reach into the tens of millions of dollars. Several
- of the agreements recommended for approval will help insure a rapid and complete
- response in the event of such a major incident by strengthening our partnerships with
- neighboring agencies, and renewing our commitment to continued cooperation with
- them.
- CURRENT SITUATION AND ITS EFFECTS
- The Berkeley Police Department Agreements, Letters and Understandings regarding
- Mutual Aid, Information Sharing and Cooperation with other Law Enforcement, Military
- Entities, and Private Security Organizations were submitted to the City Council for
- approval on November 8, 2011. They had last been approved as a whole on April 10,
- 2010. All agreements and understandings were approved at the conclusion of the
- November 8, 2011 City Council Meeting with the exception of five items discussed
- below. Only three of these items are agreements which require City Council approval.
- The Council asked for clarification on issues related to these five items, and this report
- is the response to those questions.
- The agreements and understandings between the Berkeley Police Department and
- other law enforcement agencies have been grouped into two categories; written
- agreements and verbal understandings. Written agreements are generally for the
- purpose of establishing responsibility in overlapping jurisdictions, to establish financial
- responsibility for joint activities, or to establish parameters for the use of shared
- facilities. General agreements to cooperate with each other in pursuit of common law
- enforcement goals when needed are found in the verbal understandings category.
- Response to Questions regarding Mutual Aid ACTION CALENDAR
- Memoranda of Understanding February 14, 2012
- 1.) Northern California Regional Intelligence Center (NCRIC) {Agreement 3-12}
- The agreement with NCRIC is a verbal understanding. The stated mission of NCRIC is
- to coordinate the exchange of information regarding criminal intelligence, threats, and
- hazards and to facilitate regional communication among Northern California law
- enforcement, first responders, and government and private sector partners. NCRIC
- works with works with local hospitals, regional transportation agencies, major employers
- and many other non-law enforcement entities to analyze crimes and reports of
- suspicious activities that may be associated with criminal and terrorist activity.
- Questions have been raised regarding the standard of submission for a Suspicious
- Activity Report (SAR); that standard is “reasonable suspicion.” Reasonable suspicion is
- a legal standard established by the United States Supreme Court, which applies to
- every law enforcement agency in the United States including the Berkeley Police
- Department.
- BPD has implemented an added level of accountability through the Chain of Command.
- If an officer observes suspicious activity, a first level supervisor (sergeant) will typically
- review the information, and determine if it should be passed on to a command level
- manager (lieutenant) for consideration. If the manager determines that it meets the
- standard of reasonable suspicion of criminal activity, only then is the information
- submitted as an SAR. SAR’s are not submitted by individual officers outside of this
- above outlined procedure. However, any person can call NCRIC directly and report
- suspicious activity whether that suspicion is founded or not. The Berkeley Police
- Department goes above this standard to be sure that SAR’s are not submitted unless
- they constitute at least reasonable suspicion that a crime has occurred or is being
- planned. The Chain of Command also vets incoming information to be certain its
- dissemination is consistent with our policy.
- September 11th, 2001 is the most visible and tragic example of a criminal plot that likely
- could have been thwarted by sharing information about several suspicious, but in and of
- themselves non-criminal, events. By way of example, a violent anti-government group,
- whose interactions with law enforcement have resulted in numerous shooting deaths is
- active in the Bay Area. NCRIC has provided general information to the Police
- Department about contacts with this group in the Bay Area when these individuals are
- engaged in law breaking, or present a threat to our officers, or members of the
- community.
- 2.) Urban Area Security Initiative (UASI) {Agreement 3-6}
- The agreement with UASI is a verbal understanding. UASI is essentially a grant making
- entity funded by the federal government to provide training opportunities and other
- opportunities for collaboration among law enforcement agencies in order to enhance a
- region’s ability to respond to emergent events. Declining to participate in UASI training,
- Response to Questions regarding Mutual Aid ACTION CALENDAR
- Memoranda of Understanding February 14, 2012
- as has been suggested, would represent a significant loss in terms of training,
- experience and equipment for the Berkeley Police Department’s tactical team. The
- tactical teams are the officers that are tasked with handling the most critical and
- potentially dangerous situations which the police department may be called on to
- handle. It is in the City’s best interest to ensure that these officers are given the
- absolute best training available. Additionally, UASI has provided significant funding for
- vital technological improvements such as a bomb robot for the Explosive Ordinance
- Disposal Team.
- There have been questions about one of the training programs known as Urban Shield.
- Urban Shield is an internationally recognized training exercise for tactical teams,
- hostage negotiators, and ordinance disposal teams. The training is the gold standard
- for preparing teams to respond to large scale incidents that could occur within our city
- and region. Our teams are not otherwise afforded the opportunity to work through
- realistic scenarios in trains, airplanes, boats, and other types of infrastructure that we
- may not have access to until an emergency response is needed. The Urban Shield
- training also allows us to learn best practices and evaluate equipment.
- The 2011 UCPD Urban Shield scenario enacted the possibility of armed terrorists
- attacking the UC Berkeley Glickman Laboratory.
- 3.) Jail Operations, General Order J-1 {Agreement 6-7}
- The question raised regarding Police Department General Order J-1 concerned a
- request for a policy change to prohibit the Berkeley Jail from complying with civil
- detainers placed on detainees by the United States Immigration and Custom
- Enforcement (ICE). The requested change to General Order J-1 cites Council
- Resolution No. 63,711, which prohibits using City resources to assist in federal
- immigration law enforcement, except as required by law. At this time, additional
- research is needed to determine whether compliance with an ICE civil detainer is legally
- required and to what extent. If compliance is required by law, then Council Resolution
- No. 63,711 would not apply. However, staff could still evaluate the risks and benefits of
- non-compliance. This issue requires further review.
- While a policy change of not holding detainees solely pursuant to a civil detainer by ICE
- may be feasible, we cannot make a blanket policy to not transfer potentially
- undocumented prisoners to other jail facilities. All in-custody arrestees are transported
- to the County Jail for prosecution in the criminal court system. The only way to avoid
- transferring a person who is potentially undocumented to the County Jail is to not
- pursue charges against any arrestee who may possibly fall into that category. This is
- impractical because it would significantly impede criminal prosecution of crimes. As the
- Resolution prevents an officer from asking an arrestee about their immigration status,
- we would have no way of knowing who not to transfer.
- Response to Questions regarding Mutual Aid ACTION CALENDAR
- Memoranda of Understanding February 14, 2012
- 4.) Criminal Intelligence, General Order C-1 {Agreement 6-5}
- The question raised concerns Police Department General Order C-1 regarding the need
- for a criminal predicate for creating an intelligence file, and gathering intelligence.
- These issues are only in reference to the General Order, an internal policy document,
- which already adheres to the criteria of needing a reasonable suspicion of a crime to
- initiate a criminal intelligence file. In any event, the issues do not fall under the purview
- of an agreement with an outside agency, and are more appropriately discussed in a
- separate forum.
- While individuals and groups possess First Amendment rights to protest lawfully,
- unlawful activity such as blocking roadways remains illegal and subject to police
- enforcement. In practice, the Police Department takes an “event management”
- approach to protest activity involving civil disobedience crimes. However, it is
- impractical to fashion a blanket rule requiring no investigation or enforcement of any
- criminal activity associated with an individual or group solely because the group or
- organization has an expressive message under the First Amendment. Rather, the
- Police Department needs to remain flexible in investigating and responding to planned
- incidents of civil disobedience even when associated with protests. In certain instances,
- acts of civil disobedience, such as blocking a roadway, can escalate into violent
- confrontations and create public safety emergencies such as when an ambulance is
- blocked. Accordingly, a blanket policy to neither investigate nor take action with respect
- to planned civil disobedience protests is not well-founded.
- 5.) University of California Mutual Aid Agreement {Agreement 1-12}
- A question was raised regarding the University of California Police Department’s
- (UCPD) policy for towing vehicles. The Berkeley Police Department has an excellent
- working relationship with UCPD; however both agencies are governed by different
- regulations, state laws, and constituencies. UCPD is open to discussing a common
- practice for towing, but it is not an issue that the City of Berkeley can legally impose
- upon UCPD due to their independent authority under state law to patrol within one mile
- of the UC campus. Nevertheless, Berkeley Police Department staff can engage in a
- dialogue with UCPD about common practices.
- In terms of the overall approach to mutual aid, the scope and definition of County, and
- Regional wide mutual aid is fully delineated in the State-wide Law Enforcement Mutual
- Aid Plan; this is the document by which all law enforcement agencies in the state
- operate.
- Response to Questions regarding Mutual Aid ACTION CALENDAR
- Memoranda of Understanding February 14, 2012
- BACKGROUND
- The Berkeley Police Department Agreements, Letters and Understandings regarding
- Mutual Aid, Information Sharing and Cooperation with other Law Enforcement, Military
- Entities, and Privates Security Organizations were submitted to the City Council for
- approval on November 8, 2011. They had last been approved as a whole on April 10,
- 2010. All agreements and understandings were approved at the conclusion of the
- November 8, 2011 City Council Meeting with the exception of five items discussed
- above. The Council asked for clarification on issues related to these five items, and this
- report is the response to those questions.
- As part of the action taken on November 8, 2011, the City Council also referred the
- items to the Police Review Commission for further review. Staff understands that the
- Commission has appointed a subcommittee to undertake review of all of the
- Memoranda of Understanding previously reviewed in 2011 and will be bringing a
- comprehensive recommendation to the City Council in the next few months. However,
- given the need to obtain clarity and move forward with the current agreements, staff is
- recommending that the City Council approve the remaining three agreements now. The
- Police Department and the Commission will return with recommendations resulting from
- the 2012 review later this year.
- RATIONALE FOR RECOMMENDATION
- Several questions were raised by the City Council and the Peace and Justice
- Commission regarding the five items not approved on November 8, 2011. The
- discussion above is provided in response to those questions
- Within Berkeley we have an earthquake fault-line, a high pressure gas line, rising water
- levels, and the fire prone, drought sensitive Berkeley Hills. In preparing for
- emergencies related to any of these known hazards, as well as to other emergent
- events, the Berkeley Police Department prepared the series of agreements commonly
- known as the mutual aid agreements.
- Approving these agreements shows a willingness to cooperate, and collaborate with our
- regional partner agencies on the best approaches to protecting our community. The
- relationships established by these agreements also provide the opportunity to facilitate
- ongoing dialogue with our partners regarding how we respond to various events.
- CONTACT PERSON
- Michael K. Meehan, Chief of Police, 981-5700
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