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HomeMy WebLinkAboutRES 19-062RESOLUTION NO. 19-082 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager, or his designee, be and they are hereby authorized to execute a Memorandum of Understanding with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for the purpose of reducing gun violence and improving crime gun intelligence relating to the operation of the National Integrated Ballistic Identification Network (NIBIN). Said Memorandum of Understanding is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. The meeting at which this resolution was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. PASSED BY THE CITY COUNCIL of the City of- Beaumont this the 19th day of March, 2019. i - yor Becky Ames - °ease MEMORANDUM OF UNDERSTANDING Between the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Beaumont Police Department Regarding the National Integrated Ballistic Information Network This Memorandum of Understanding (MOU) is entered into by the U.S. Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the Beaumont Police Department, hereinafter collectively referred to as "the parties," and the Beaumont Police Department, referred to as the "NIBIN Partner." This MOU establishes and defines a partnership between the parties. that will result in an ATF National Integrated Ballistic Information Network (NIBIN) system installation, operation, and administration for the collection, timely analysis, and dissemination of crime gun data to enhance the efforts of law enforcement to integrate resources to reduce firearms violence, identify shooters, and refer them for prosecution. AUTHORITY This MOU is established pursuant to the authority of the participants to engage in activities related to the investigation and suppression of violent crimes involving firearms. ATF's authorities are set forth in Title 28, Code of Federal Regulations, sections 0.130-0.131, and include the power to investigate violations of the Gun Control Act of 1968 (as amended), Title 18, United States Code, Chapter 44. BACKGROUND The ATF NIBIN Program uses sophisticated technology to compare images of ballistic evidence. It is part of an integrated investigative approach to reduce firearms violence and improve crime gun intelligence. Through aggressive targeting, investigation, and prosecution of shooters and their sources of crime guns, Federal, State, tribal, and local law enforcement agencies work in concert to combat firearms -related violence. SCOPE Participation in this program is -expressly restricted to the sharing of ballistic imaging of firearms data associated with crimes recovered by any law enforcement agency in the United States and international law enforcement partners who have entered into agreements with ATF to share ballistic data. ATF may work with our international law enforcement partnemto search their networks in an effort to identify a crime gun in their database against a crime -gun in ATF's NIBIN network. NIBIN systems are to be used to image of ballistic evidence and test fires of firearms illegally possessed, used in a crime, or suspected by law enforcement officials of having been used in a crime. `Ballistics information and/or evidence from firearms taken into law enforcement custody through a gun buy-back program, property damage crimes involving firearms, found or abandoned firearms, and domestic disturbances are also permitted to be entered in the NIBIN system. Pagel of 10 EXHIBIT "A" An ATF -owned NIBIN unit will not be used to capture, share, or store ballistic images acquired at the point of manufacture, importation, or sale of a firearm, or images of law enforcement -issued firearms not associated with crimes. The NIBIN system does not store information related to firearms owners or registration. APPLICABLE LAWS The applicable statutes, regulations, directives, and procedures of the United States, DOJ, and ATF shall govern this MOU and all documents and actions pursuant to it. Nothing in this MOU will prevail over any Federal law, regulation, or other Federal rule recognized by ATF. Notwithstanding the foregoing, nothing in this agreement will be construed as a waiver of sovereign immunity in excess of or beyond that which is authorized by the law of the NIBIN Partner's jurisdiction. This MOU is not a funding document. All specific actions agreed to herein shall be subject to funding and administrative or legislative approvals. MODWCATIONS AND TERMINATIONS This MOU shall not affect any pre-existing or independent relationships or obligations between the parties. If any provision of this MOU is determined to be invalid or unenforceable, the remaining provisions shall remain in force and unaffected to the fullest extent permitted by law and regulation. Except as provided herein, this MOU may be modified or amended only by written mutual agreement of the parties. Either party may terminate this MOU by providing written notice to the other party. The termination shall be effective upon the thirtieth calendar day following provision of notice, unless an alternative date is agreed upon. If either party terminates this MOU, ATF will retain its interest in the electronically stored information contained in the database and any ATF -deployed NIBIN system. ATF agrees to provide to the NIBIN Partner an electronic copy of the data collected by the NIBIN Partner, subject to Federal law and regulation. LIABILITY The NIBIN Partner hereby agrees to assume full and sole liability for atiy damage, injury, or harm of any sort caused by the operation and use of any NIBIN system or related to the use and interpretation of any information contained in, processed by, or extracted from any database subject to this agreement and the protocols and procedures of the NIBIN Program, to the extent allowed by law. The rights and obligations set out in this MOU run between the signatories. Nothing in this MOU is intended to create any substantive or procedural rights, privileges, or benefits enforceable in any administrative, civil, or criminal matter by any prospective or actual third -parties. Page 2 of 10 ATF -DEPLOYED SYSTEM INSTALLATION The NIBIN Partner hereby agrees and acknowledges that all ATF -deployed NEIN systems shall remain the property of ATF and the U.S. Government. ATF agrees to provide, install, and maintain all ATF -deployed NIBIN systems for use by the NEIN Partner and any other law enforcement agencies served by or in partnership with the NIBIN Partner. Should the installation of the NIBIN system require physical construction at the site, the NIBIN Partner will be responsible for such construction and any associated costs. If a system is to be moved to allow additional access outside of a laboratory, ATF will work with the NIBIN Partner to ensure the appropriate protocols are put into place to ensure the integrity of crime gun evidence along with maximum use of the equipment. ATF -DEPLOYED SYSTEM MAINTENANCE ATF will maintain all ATF -deployed NIBIN systems furnished to the NIBIN Partner and repair or replace inoperable or outdated systems in an expeditious manner, subject to availability and funding. However, maintenance and repairs required as the result of unauthorized movement, alteration, damage, or destruction will not be assumed by ATF. At all times, the NIBIN Partner agrees not to make or cause to be made any repairs, alterations, movements, additions, improvements, or replacements to the NIBIN systems not expressly authorized in writing by ATF in advance, and further agrees to exercise due care in every respect to prevent system movement, damage, destruction, or misuse. ATF -DEPLOYED SYSTEM USAGE Because the NIBIN Program focuses on the reduction of firearms -related violent crimes, the NIBIN Partner shall enter all eligible ballistic evidence recovered from crime scenes as soon as possible. In addition, the NIBIN Partner shall enter into NIBIN test -fire cartridge casings from eligible firearms taken into law enforcement custody in a timely manner. All NIBIN Partner -owned NIBIN equipment will be held to same standards as ATF -deployed systems. NIBIN Partners may not charge other law enforcement agencies for the entry of.evidence into ATF -owned or ATF -maintained automated ballistics technology used in the NIBIN Program. ATF -DEPLOYED SYSTEM REMOVAL ATF retains the right to remove a NIBIN system upon: (1) a determination that the equipment is neglected or misused; (2) a determination that the equipment is not used effectively to combat violent crime, (3) failure to comply with any obligations or requirements set forth in this MOU; (4) receipt of written notification of the termination of the participation of the NBIN Partner in the NIBIN Program; (5) the cancellation of this MOU by ATF; or (6) termination of the NIBIN Program by ATF. If ATF intends to remove a NBIN system from the NIBIN Partner, ATF will provide written notice. Page .3 of 10 SYSTEM MOVEMENT If the NIBIN Partner seeks to move its NIBIN system, it must submit a written request to ATF. ATF's decision regarding the proposed move will be provided to the NIBIN Partner in writing. Any movement of the NIBIN system after the initial installation will occur at the expense of the NIBIN Partner and only after receipt of authorization by, and coordination with, FTI. In order to realize maximum use of the equipment, it should be placed where trained personnel can expeditiously enter evidence. ATF will work with each partner to realize optimal placement of equipment to obtain actionable investigative leads. In the event of a natural disaster, ATF will work with the NIBIN Partner to safeguard the NIBIN equipment. Due to communication line installation/move requirements, NIBIN Partners must provide a minimum of 120 calendar days' advance notice to ATF and the NIBIN system manufacturer before the intended move of a NIBIN system. In the event of unauthorized movement, alteration, damage, or destruction of any NIBIN system caused by its employees, contractors, or any other person under its control, the NIBIN Partner agrees to assume the cost of replacement or repairs of the equipment. The NIBIN Partner agrees to report to ATF, within 5 calendar days, any incident involving the following: an unauthorized movement, alteration, damage, or destruction of ATF -deployed NIBIN systems, any unauthorized use of NIBIN systems or the unauthorized release of data related to the NIBIN Program. COMMUNICATION LINES ATF will provide and support primary communication lines necessary for connecting NIBIN systems to the NIBIN network. SECURITY The NIBIN Partner will comply with all ATF, DOJ and/or other Federal security requirements related to the NIBIN program, network, and systems to ensure the integrity of the program. These requirements are set forth under NIBIN security policies. ATF will promptly notify the NIBIN Partner should these requirements change. All NIBIN sites will not knowingly allow a person to access the NIBIN network using another person's user ID and password. The NIBIN Partner agrees to conduct criminal background checks, including fingerprint checks, of all NIBIN users. Upon successful completion of these background checks, the NIBIN Partner will notify ATF's NIBIN Branch in writing. Page 4 or 10 SYSTEM USAGE AND MINIMUM REQUIRED OPERATING STANDARDS To ensure the consistency, integrity, and success of NIBIN, ATF has enacted Minimum Required Operating Standards (MROS). The MROS, listed below, are rooted in ATF's "Four Critical Steps for a Successful NIBIN Program" — comprehensive collection, timeliness, investigative follow-up, and feedback. They identify the practices that best allow NIBIN to provide comprehensive and timely crime gun intelligence. Beginning July 2018, all NIBIN partners will comply with the following: 1. Enter all fired or test fired cartridge cases from serviced law enforcement agencies and/or departments through a NIBIN acquisition machine within 2 business days of receipt. 2. Enter accurately all required information during the acquisition process on the NIBIN acquisition machine. 3. Correlate and conduct a secondary review of any potential NIBIN leads through an approved NIBIN correlation machine within 2 business days. 4. Disseminate NIBIN leads within 24 hours. 5. Designate and maintain a NIBIN program administrator. 6. No policy shall inhibit or restrict NIBIN submissions by serviced law enforcement agencies and/or departments. 7. Operate with only qualified NIBIN users. Please note that Standards 3 and 4 are not applicable to NU31N sites using the NIBIN National Correlation and Training Center for correlation reviews of ballistic images. AUDITS ATF and the NIBIN Partner acknowledge their understanding that the operations described in this MOU are subject to audit by ATF, DOJ, the DOJ Office of the Inspector General, the General Accountability Office, and other auditors designated by the U.S. Government regardless of the funding source for the system (NIBIN Partner or ATF). Such audits may,include reviews of all records, performance measurements, documents, reports, accounts, invoices, receipts, or other evidence of expenditures related to this MOU and the NIBIN Program. Notwithstanding, ATF will conduct initial audits of all NIBIN Partners and their sites by December 31, 2020. After this date, the audits will occur once every two years for the remainder of the MOU. The purpose of the audits is to review and verify compliance with the required MROS. Each site must be in full compliance with the MROS in order to maintain access to NIBIN. Page 5 of 10 Further, the NIBIN Partner agrees to allow auditors to conduct one or more in-person interview(s) of any and all personnel the auditors determine may have knowledge relevant to transactions performed or other matters involving this MOU and the NIBIN Program. The NIBIN Partner hereby acknowledges its understanding that, for accounting purposes, that the principles and standards for determining costs shall be governed by the policies set forth in the Office of Management and Budget Circular A-87, revised (available via the OMB, the Superintendent of Documents at the U.S. Government Printing Office, or via the Internet at http://www.whitchouse.gov/omb/circulars/aO87/aO87-all.html.) PERSONNEL AND TRAINING Prior to the execution of this MOU and a NIBIN system installation, the NIBIN Partner must employ, or have access to, a technical person capable of performing forensic microscopic comparison of bullet and cartridge evidence. The NIBIN Partner agrees to provide and maintain sufficient personnel to operate the NIBIN system and agrees to allow use of the equipment by ATF personnel or our representatives to support the program at the host location. All personnel accessing NIBIN must be a Qualified NIBIN User as required by the MROS. This MOU should not be construed to require the hiring of any new personnel, except at the discretion of the NIBIN Partner. If the NIBIN Partner determines that additional personnel resources are required, all costs associated with this hiring will be borne by the NIBIN Partner. All users of the equipment must satisfy the same requirements as other NIBIN users and be properly trained, qualified and approved in advance by ATF: Following basic entry training, ATF will verify trainee competency before authorizing network access. Individuals trained internally by a NIBIN Partner will not be certified as appropriately trained until they successfully pass a competency test administered by ATF. The NIBIN Partner may provide access to the NIBIN system under its operational control to another law enforcement agency. Any such other law enforcement agency agrees to the same restrictions placed upon the NIBIN Partner by this MOU. However, the NEIN Partner agrees to assume full liability and responsibility for the administration of such access. Access to the NIBIN system will be under the management and control of the NIBIN Panner. The NIBIN Partner will ensure that only trained, cleared and qualified personnel have access to the NIBIN system. Participating agencies will develop the appropriate standard operating procedures to ensure all eligible ballistic evidence will be submitted for NIBIN. Page 6 of 10 COORDINATION ATF and the N[BIN Partner agree to adhere to standardized procedures and policies for collecting, handling, documenting, transporting and preserving firearms, bullets, casings and any similar evidence submitted for analysis and input into NIBIN. ATF and the NIBIN Partner similarly agree to adhere to standardized procedures and policies for the source data collection, input, exchange and protection of information, to include information as to the location where ballistic evidence was collected, the circumstances under which it was collected and all crimes to which the firearm(s) or other ballistic evidence is linked. ATF and the NIBIN Partner agree to cooperate in the development and implementation of data entry protocols and quality assurance procedures for the NIBIN Program. ATF further agrees to cooperate with all participants in the NIBIN Program to establish model standards, protocols, and procedures for the users of the network. Such protocols will be applicable as they are implemented. The NIBIN Partner will require all participating law enforcement agencies to adhere to the protocols, procedures, policies and quality assurance standards as established above. The NIBIN Partner agrees to provide ATF with access to all information, reports and any other relevant information regarding crimes related to evidence entered into the system as well as monthly reports outlining historical, statistical and case adjudication information on the use and results of the use of the'NIBIN Program and/or system and the related services provided by ATF and the system manufacturer in order to ensure the capturing of required performance management information. Such information will be gathered for the purpose of informing the law enforcement community, other Government agencies, Congress and the public on NIBIN results. Additionally, ATF will collect information for results -oriented performance measures. PUBLICITY Any NIBIN Partner who becomes aware of, or participates in, publicity related to the NIBIN system and investigations within their jurisdiction should advise ATF of same within 48 hours. DISCLOSURE OF INFORMATION RELATED TO NIBIN NIBIN system information may be shared with other law enforcement and prosecutors' offices in furtherance of criminal investigations and prosecutions. The NIBIN Partner shall not share any NIBIN system information for other purposes, including requests under the Freedom of Information Act, without express, written authorization from ATF, except as required by law. Page 7 of 10 INCORPORATION OF APPENDIX The Appendix to this MOU includes definitions of terms used and is fully incorporated herein. Because requirements may change over time, due to technological advances, security enhancements, or budgetary matters, the Appendix may be updated. AGREEMENT ATF and the NIBIN Partner hereby agree to abide by the terms and conditions of this MOU, including any appendices, and all policies of the.NIBIN Program. The terms and conditions of this MOU will be considered accepted in their entirety upon the signature by the ATF Special Agent in Charge and the NIBIN Partner signature. Chief James Singletary Beaumont Police Department 255 College Street Beaumont, Texas 77701 Date Frederick Milanowski Date Special Agent in Charge, Houston Field Division Bureau of Alcohol, Tobacco, Firearms and Explosives Sharon M. Buchanan NIBIN Site Operations Branch Chief, Firearms Operations Division Bureau of Alcohol, Tobacco, Firearms and Explosives Page 9 of 10 Date APPENDIX TERMS Acquisition - An entry of a ballistic image. ATF — Bureau of Alcohol, Tobacco, Firearms and Explosives, a principal law enforcement agency within the U.S. Department of Justice. Bullets — Designated calibers of projectiles fired from rifles, revolvers, and pistols. Cartridge Casings — Designated metal casings from cartridges fired from rifles, shotguns, revolvers, and ejected from pistols. Correlation — Automated data comparison of signature images to a database. Crime Gun — Any firearm that is illegally possessed, used in a crime, or suspected by law enforcement officials of having been used in a crime or act of terrorism. Found or Abandoned Firearms — Firearms that come into the custody of law enforcement outside of investigative or judicial process. A found firearm is located by law enforcement or a non -owner and the owner -possessor is not readily identifiable (e.g., a firearm -found in an open field). An abandoned firearm may be a found firearm or a firearm where the possessor chooses to permanently relinquish control of the firearm and abandon any rights of ownership. ATF suggests that NIBIN Partners provide written notice to those persons permanently abandoning or temporarily relinquishing custody of a firearm that the firearm will be test fired and the results entered into the NEIN System. NIBIN Network -- An ATF -designed and maintained system of interconnected computer systems and terminals used in support of the NIBIN Program. NIBIN Program — The integration of aggressive targeting, investigation, and prosecution of shooters and their sources of crime guns usitlg automated ballistics technology. NIBIN Program Administrator — An individual the NIBIN site has designated to communicate with all parties (e.g., submitting law enforcement agencies, ATF Crime Gun Intelligence Centers) involved in the NIBIN process. The NIBIN Program Administrator must be a qualified NIBIN user and full-time employee of the NIBIN site. The NIBIN Program Administrator should be responsible for implementing and directing policies and procedures of the NTBIN site. NIBIN System — Refers to the integrated ballistic imaging, analysis, and information processing system for use with automated ballistics technology. Performance Measurements � Various management instruments used to evaluate program effectiveness in successfully removing shooters and their crime gun sources. Performance measurements also include the NBIN Minimum Required Operating Standards and related audits. Page 9 of 10 Potential Candidate for Confirmation — Two bullets or cartridges cases displaying sufficient similarity during a correlation review such that the items should be compared using traditional comparative microscopy by a trained firearm examiner to determine if they can be associated to the same firearm. Qualified NIBIN User — technician and/or firearms examiner trained by ATF, Forensic Technology, and/or a NIBIN Authorized Trainer program to perform acquisition and/or correlation reviews of ballistic images on the NIBIN network. Security Requirements — Types and levels of physical and cyber protection necessary for equipment, data, information, applications, and facilities to meet security policies and standards. Security Policies — The set of laws, rules, directives, and practices that regulate how an organization manages, protects and distributes controlled information. Timely — Occurring at a suitable time and without unnecessary delay. Some NIBIN submissions require a response within 48 hours to be considered timely. Volunteer — An individual who has chosen to perform services without charge or payment and has entered into a written agreement with a NIBIN Partner addressing issues of confidentiality, costs, and waiver of all claims against the Federal government. Pugs 10 of 10