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CONFIDENTIAL CONTRACT — CONTACT LEGAL DEPT. BEFORE RELEASING A COPY
Memorandum of Understanding
between the
Federal Bureau of investigation
and
City of Corpus Christi
CONFIDENTIAL CONTRACT - CONTACT LEGAL DEPT. BEFORE RELEASING A COPY
2012 -059
02/24/12
FBI
INDEXED
LAW ENFORCEMENT SENSITIVE
Updated 1 /31 /12
JOINT TERRORISM TASK FORCE
STANDARD MEMORANDUM OF UNDERSTANDING
BETWEEN
THE FEDERAL BUREAU OF INVESTIGATION
CORPUS CHRISTI POLICE DEPARTMENT
PREAMBLE
U ' ONROInk
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 deter, 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 the United States against threats to our national
security, including international terrorism, and thereby improve the effectiveness of law 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.
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 City of Corpus Christi for the Corpus Christi Police
Department ( "Participating Agency ")-, in order to maximize cooperation and to create a
cohesive unit capable of addressing the most complex terrorism investigations.
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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, as amended, National Security
Presidential Directive (NSPD) 46/ Homeland Security Presidential Directive (HSPD) 15 and Annex II
thereto, 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.
Pursuant to Sec. 792.002, Texas Government Code, the City of Corpus Christi for the Corpus Christi Police
Department, a local law enforcement agency, is authorized to enter into an agreement with FBI, an agency
of the United States, to act in support of the intelligence, investigative and operational response to
terrorism.
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:
I . Attorney General's Guidelines for Domestic FBI Operations;
2. Attorney General's Guidelines on Federal Bureau of Investigation Undercover
Operations;
Attorney General's Guidelines Regarding Prompt Handling of Reports of Possible
Criminal Activity Involving Foreign Intelligence Sources;
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4. Attorney General Memorandum dated March 6, 2002, titled " Intelligence Sharing
Procedures for Foreign Intelligence and Foreign Counterintelligence
Investigations Conducted by the FBl";
5. Attorney General's Guidelines Regarding the Use of Confidential Informants;
6. Attorney General's Guidelines on the Development and Operation of FBI
Criminal Informants and Cooperative Witnesses in Extraterritorial Jurisdictions;
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
8. Memorandum from the Deputy Attorney General and the FBI Director 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 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
Each JTTF shall consist of a combined body of sworn and non -sworn 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
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 command 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].
Each FBI ADIC /SAC, through his or her chain -of- command, is responsible for
administrative and operational matters directly associated with the Division's
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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 conducted by the JTTF must be conducted in
conformance with FBI policy, to include the above stated Controlling Documents.
Each FBI ADIC /SAC, through his or her chain -0f -- 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
personnel matters relating to its employees detailed to JTTFs. 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.
Each JTTF member will be subject to the personnel rules, regulations, laws, and
policies applicable to employees of his 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. JTTF members are subject to removal from the JTTF 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 JTTFs. In the event
of an FBI inquiry into JTTF 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 JTTF
may be subject to interview by the FBI.
C. PHYSICAL LOCATION AND SUPPORT
The FBI will provide office space for all JTTF members and support staff. In
addition, the FBI will provide all necessary secretarial, clerical, automation, and
technical support for the JTTF 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 JTTF Supervisor and in compliance with FBI regulations.
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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.
VI.
SECURITY PROGRAM
A. CLEARANCES
State, local, and tribal members of the JTTFs, 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. JTTF 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 JTTF management personnel must ensure that each participating JTTF'offcer
or agent undertakes all necessary steps to obtain a TS /SCI clearance. Conversion
of FBI counterterrorism and JTTF spaces to Sensitive Compartmented
Information Facilities (SCIFs) is underway. This will require that all JTTF 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 frilly understands that its personnel detailed to the
JTTF are not permitted to discuss official JTTF business with supervisors who are
not members of the JTTF unless the supervisor possesses the appropriate security
clearance and the dissemination or discussion is specifically approved by the FBI
JTTF Supervisor. Participating Agency heads will be briefed regarding JTTF
matters by the SAC or ADIC, as appropriate, through established JTTF Executive
Board meetings.
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
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CONFIDENTIAL
Task Force (NJTTF) at FBI Headquarters - Liberty Crossing 1, are in compliance
with stated directive. In order to comply with DCID 614, 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 throughout the United States.
Under the terms of this MOU, all Participating Agencies agree that non -sworn personnel detailed to the
JTTF will not : (1) participate in law enforcement activities, (2) carry a weapon; or (3) participate in the
execution of scarch/arrest warrants.
VIII. STAFFING COMMITMENT
A. In view of the need for security clearances and continuity of investigators, all personnel
detailed to the JTTF should be expected to be detailed for a period of at least two (2) years.
This MOU imposes no maximum limit as to the time that any individual may remain a
member of the JTTF. All non -FBI members of the JTTF must adhere to the same rules and
regulations as FBI employees with regard to conduct and activities while in FBI space,
while operating FBI vehicles, and while conducting JTTF business. All Task Force
members detailed from other federal agencies are responsible for maintaining an
appropriate case load, as directed by JTTF management.
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B. All investigators detailed to the JTTF will be designated either full -time or part- time. The
operational needs of the JTTF require that any assignments to special details, or duties
outside of the JTTF to fiffl time JTTF members be coordinated with the FBI JTTF
Supervisor. Though each JTTF member will report to his or her respective Participating
Agency for personnel matters, he or she will coordinate leave with the JTTF's FBI JTTF
Supervisor.
C. During periods of heightened threats and emergencies, the JTTFs may be expected to
operate 24 hours per day, seven days per week, for extended periods of time. To function
properly, the JTTF depends upon the unique contributions of each Participating Agency.
Accordingly, during these periods, each Participating Agency member will be expected to
be available to support JTTF activities.
IX. RECORDS, REPORTS AND INFORMATION SHARING
A. All JTTF materials and investigative records, including any Memorandum of
Understanding, originate with, belong to, and will be maintained by the FBI. All
investigative reports will be prepared by JTTF personnel solely on FBI forms. All
information generated by the FBI or the JTTF will be controlled solely by the FBI and may
not be removed from FBI space without the approval of the JTTF Supervisor.
Dissemination, access or other use of JTTF records will be in accordance with Federal law,
Executive Orders, and Department of Justice and FBI regulations and policy, including the
dissemination and information sharing provisions of the FBI Intelligence Policy Manual.
As FBI records, they may be disclosed only with FBI permission and only in conformance
with the provisions of federal laws and regulations, including the Freedom of Information
Act, 5 U.S.C. Section 552, and the Privacy Act of 1974, 5 U.S.C. Section 552a, as well as
applicable civil and criminal discovery privileges. This policy includes any disclosure of
FBI information, including JTTF materials and investigative records, to employees and
officials of a Participating Agency who are not members of a JTTF, which must be
approved by the JTTF supervisor. All electronic records and information, including, but
not limited to, systems, databases and media, are also regulated by FBI policy. JTTF
members may request approval to disseminate FBI information from the JTTF Supervisor.
B. Each Participating Agency agrees to have its Detailees to the JTTF execute an FD -868, or a
similar form approved by the FBI. This action obligates the Detailee, who is accepting a
position of special trust in being granted access to classified and otherwise sensitive
information as part of the JTTF, to be bound by prepublication review to protect against the
unauthorized disclosure of such information.
C. The participation of other federal, state, local, and tribal partners on the Tl TF is critical to
the long -term success of the endeavor. Articulating the level of effort for these
partnerships is a key measure of the JTTF's performance. Accordingly, all task force
members will be required to record their workload in the Time Utilization Recordkeeping
(TURK) system used by the FBI.
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Neither it nor its contents may be released without authorization by FBI Headquarters.
X. COORDINATION FOR OFFICIAL USE ONLY CONFIDENTIAL
A. The Participating Agency agrees to not knowingly act unilaterally on any matter affecting
the JTTF without first coordinating with the FBI. The parties agree that matters
designated to be handled by the JTTF shall not knowingly be subject to non -JTTF or
non -FBI intelligence, law enforcement, or operational efforts by the Participating Agency.
Intelligence, law enforcement, and operational. actions will be coordinated and
cooperatively carried out within the JTTFs.
B. JTTF criminal investigative procedures will conform to the requirements for federal
prosecution. It is expected that the appropriate United States Attorney, in consultation
with the FBI and affected JTTF partners, will determine on a case -by -case basis whether
the prosecution of cases will be at the federal or state level, based upon which would better
advance the interests of justice.
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.
XIII. 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 applicable FBI rules and regulations.
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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 not be the
responsibility of the FBI or the United States. To the extent permitted by applicable law,
the Participating Agency will 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 Agency JTTF member which is outside of the scope of his or her official
duties and assignments under this MOU.
C. For official inventory purposes, all JTTF equipment including badges, credentials and other
forms of JTTF identification subject to FBI property inventory requirements will be
produced by each JTTF member upon request. At the completion of the member's
assignment on the JTTF, or upon withdrawal or termination of the Participating Agency
from the JTTF, 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
JTTF 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 JTTF investigations may be distributed among the Participating Agencies in
JTTF - related operations at the discretion of the FBI.
XV. HUMAN SOURCES
A. All human sources developed through the JTTF will be handled in accordance with the
Attorney General's and the FBI's guidelines, policies and procedures.
B. All human sources developed during the course of any JTTF 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 JTTF. All expenses must be approved by the FBI before
they are incurred. No payments may be made to JTTF human sources without prior FBI
approval.
XVI. MEDICAL
A. All Participating Agencies will ensure that detailed JTTF members are medically qualified
according to their agencies' standards to perform law enforcement duties, functions and responsibilities.
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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 ddfined 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.
X V II. TRAEIBNG
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 Services under this Act)
from being used as a posse comitatus or otherwise 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 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 of law enforcement activities.
XX. MEDIA
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sml
All media releases will be mutually agreed upon and jointly handled by the member Participating Agencies
of the appropriate JTTF. Press releases will conform to DOJ Guidelines regarding press releases. No
press release concerning JTTF investigation or matter 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 negligent 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
defined at 28 U.S.C. § 2671. See 5 U.S.C. § 3374(c)(2).
Under the Federal Employee Liability Reform and Tort Compensation Act of 1998
(commonly known as the Westfall Act), 28 U.S.C. § 2679(b)(1), 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 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 JTTF members undertaken outside the
terms of this MOU will be the sole responsibility of the respective employee and
agency involved.
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B. CONSTITUTIONAL CLAIMS
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).
If a Participating Agency JTTF 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 JTTF, the officer may request representation
by DOJ. 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 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 JTTF 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 JTTF. 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
forward 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 JTTF 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(x).
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 JTTF,
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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.
FOR OFFICIAL USE ONLY
and nothing in this Article shall be deemed to create any legal right on the part of
any JTTF personnel.
C. EXPRESS RESERVATIONS
Nothing in this Article shall be deemed to create an employment relationship
between, the FBI or the United States and any Participating Agency JTTF 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,
XXII. DURATION
A. The initial term of the MOU shall be five years, effective upon the final date of execution by
all parties, with an automatic renewal for the same term. The MOU may be terminated 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 no effect on the agreement between the FBI and all other
participating agencies.
B. Notwithstanding this provision, the provisions of Paragraph IX, entitled RECORDS,
REPORTS AND INFORMATION SHARING, 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.
C. Any notices contemplated under this agreement shall be effective when personally
delivered or delivered by registered or certified mail, postage prepaid, or when delivered by
a nationally recognized overnight courier services to the addresses below.
Corpus Christi Police D artment: Federal Bureau of Investigation:
Chief of Police
Corpus Christi Police Department
321 John Sartain
P.O. Box 9016
Corpus Christi, TX 78401
Special Agent in Charge
Federal Bureau of Investigation
1 Justice Park Drive
Houston, TX 77092
13
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.
FOR OFFICIAL USE ONLY
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.
CITY OF CORPUS CHRISTI:
Date:
TROY L. RIGGS
Date: 1�24-;? e �1
Interim Chief of Police
Corpus Christi Police Department
APPROVED AS TO FORM:
Date:.
T. Trisha bang
Assistant City Attorney
For City Attorney
FEDERAL BUREAU OF INVESTIGATION:
Date: Z / (I/
ST EN L. MORRIS
Special Agent In Charge
Federal Bureau of Investigation.
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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.