Police Response to Civil Rights Ordinance

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