Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Government code section 65852.2, subdivision (e) requires local agencies to ministerially approve building permit applications for the creation of ADUs within a residential or mixed-use zone.
Regarding Section 12.99.030 – Total Number of Units Permitted, HCD asserts that the City’s decision to limit the number of units allowed per lot in the Hillside Overlay to one ADU or one Junior ADU conflicts with Government Code Section 65852.2, subdivisions (e)(1)(A), (B), (C), and (D), which requires a local agency to ministerially approve an application for a building permit within a residential or mixed-use zone to create one ADU and one Junior ADU per lot.
DISCUSSION
To conform to State ADU law and respond to HCD’s letter, staff recommend amendments to Title 23 of the BMC that achieve the following purposes:
1. Remove standards that provide a distinction between parcels within and outside of the Hillside Overlay, and apply non-Hillside Overlay ADU standards citywide where residential uses are permitted
9;
2. Bring the City’s zoning code into compliance with current State ADU law and guidance, including SB 897, AB 2221, and AB 2097; and
3. Clarify and/or correct minor technical edits associated with the related ordinance sections, and edit for consistency with existing BMC style guidelines.
23.106 Rules of Measurement
Consistent with the State Exemption ADU provisions of Subdivision (c) in Government Code 65852.2, staff propose amending 23.106.020(B) and 23.106.030(D) to exclude up to 800 square feet of area associated with an existing or proposed ADU or Junior ADU from lot coverage and gross floor area calculations. Presently, once an ADU is built, it counts towards lot coverage, which can mean that even minor future additions would require a Use Permit. By amending 23.106.020(B) and 23.106.030(D) to exclude up to 800 square feet of area, the regulation is consistent with State law, removes a barrier to development, and aligns with the State’s goal of incentivizing the development of ADUs.
23.306 Accessory Dwelling Units (Organization)
The proposed ordinance simplifies the ADU Chapter by consolidating seven sections into four, maintaining consistency with other Chapters of Title 23 (see Table 1).
9 Staff will also recommend to City Council to repeal BMC Section 12.99. However, as this public hearing is only pertaining to Title 23 of the BMC, this action is not up for discussion this evening.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Table 1: Chapter 23.306 - Existing and Proposed Sections Existing Sections Proposed Sections
23.306.010– Purposes 23.306.010– Purpose
23.306.020– Applicability and Definitions 23.306.020– Applicability
23.306.030– Permit Procedures 23.306.030– Development Standards
23.306.040– Development Standards 23.306.040– Permit Procedures
23.306.050– Deed Restrictions
23.306.060– Neighbor Noticing
23.306.070– Rooftop Decks and Balconies
23.306.
010 Accessory Dwelling Units (Purpose)
The proposed ordinance adds a reference to the latest California Government Code Section 65852.1 and removes subsection (f) which states that the purpose of the chapter is to reduce potential impacts of new development in the Very High Fire Hazard Severity Zones (VHFHSZ), Wildland-Urban Interface Fire Areas, and Hillside Overlay.
This allows for compliance with HCD’s finding that the current ordinances do not meet the exceptions included in State law that allow for the creation of a separate set of regulations in the Hillside Overlay.
23.306.020 Accessory Dwelling Units (Applicability)
The proposed ordinance removes subsection (b), which defines the Hillside Overlay for the purposes of this chapter, and removes the reference to Chapter 12.99, to comply with HCD’s finding that the City does not sufficiently justify the creation of a separate set of regulations in the Hillside Overlay.
The proposed amendment includes a new subsection clarifying that ADUs and Junior ADUs do not count towards density calculations established by the underlying zoning districts. This is consistent with HCD guidance in the HCD ADU Handbook Update. 10 Staff also propose amending the maximum number of units permitted on a lot with a duplex or multi-family dwelling to allow for two detached ADUs and at least one interior ADU (see Table 2). In 2022 HCD changed its interpretation regarding the total number of ADUs that "must" be allowed by local governments on any given parcel. Whereas in the 2020 ADU Handbook, HCD wrote that "local governments are not required to allow (a) and (b) together or (c) and (d) together," in the 2022 ADU Handbook HCD rewrote that "local governments must allow (a) and (b) together or (c) and (d) together." Although this change in HCD's interpretation is not supported by any corresponding change in state law, the proposed ordinance is drafted to be consistent with HCD's new interpretation.
10 HCD Accessory Dwelling Unit Handbook, https://www.hcd.ca.gov/sites/default/files/2022-07/ADUHandbookUpdate.pdf.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Table 2: Existing and Proposed Maximum Density Standards on a Lot with a Duplex or Multi-Family Dwelling
Existing Maximum Density Proposed Maximum Density
Either:
a. Up to two detached ADUs; or
b. At least one ADU converted from non-
habitable portions of the existing Main
Building that are not within the living space of
a Dwelling Unit (e.g. basement, attic, garages
storage room). The maximum number of
ADUs converted from portions of the existing
Main Building that are not within the living
space of a Dwelling Unit shall not exceed
25% of the total number of existing Dwelling
Units on the lot.
Two detached ADUs and at least one interior
ADU up to 25% of the total number of existing
duplex or multi-family dwelling units on the lot
23.306.030 Accessory Dwelling Units (Development Standards) In response to HCD’s letter and to bring the development standards section into compliance with State law, staff propose removing standards that are specific to parcels located in the Hillside Overlay. Instead, the development standards apply to ADUs and Junior ADUs citywide.
Staff also recommend a number of technical revisions to the development standards section, including: removing Junior ADU standards from the development standards table and including all relevant information in subsection (B), as well as replacing footnotes from the development table with a subsection for supplemental standards.
Within subsection (C), staff propose technical edits to amend the provisions related to projections to align with other sections of the code, including permitting bay windows and balconies on attached ADUs outside of the Hillside Overlay as long as there remains at least a two-foot setback from property lines, as the code allows for non- ADUs of the same placement and size to have both. However, because detached ADUs are permitted to be built much closer to the property line than primary dwelling units (and attached ADUs), staff propose continuing to prohibit the projections of bay windows and balconies into setbacks for those types of ADUs citywide.
In addition to these technical revisions, a number of the standards have been changed to match State law. Table 3 provides the proposed development standards and the rationale informing the recommended changes. This table does not include all ADU development standards; it only includes the standards that are proposed to be amended.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Table 3: Proposed Revisions to ADU Development Standards & Rationale Basic Standard Proposed Standards Rationale/Intent
Building Height,
Maximum
Detached, New Construction – 20 ft.
The maximum building height for
Attached, New Construction has
been increased from 20 ft. to 25 ft.
to match State law (SB 897). The
current maximum building height for
Detached New Construction already
exceeds the 18 ft. required by State
law.
Attached, New Construction – 25 ft.
Lot Line
Setbacks,
Minimum
Front of Interior Lot – Same as underlying
district
Staff propose adding a standard for
front setbacks on through lots to
ensure that there are standards for
such parcels, consistent with existing
regulations for Accessory Buildings.
Front of Through Lot - Same as
underlying district or 10 ft. on the
secondary frontage as determined by the
Zoning Officer
Building
Separation for
Detached ADU,
Minimum
3 ft.
To conform with Building Code’s
definition of attached versus
detached buildings, staff propose
adding a minimum building
separation standard (in addition to a
Detached ADU supplemental
standard – see below).
Required Off-
Street Parking
Spaces
See 23.322.030 – Required Parking
Spaces
Move to BMC 23.322 – Parking and
Loading to be consistent with other
parking standards.
Supplemental
Standard
State Exemption
ADU
No lot coverage, floor area ratio, open
space, front setback, or minimum lot size
standard in the underlying district shall
preclude at least an 800 square foot
accessory dwelling unit.
To match the State Law.
Junior ADU
Shared
Sanitation
Facility
If a Junior ADU shares a sanitary facility
with a single family dwelling, an internal
connection between the Junior ADU and
the main living area of the single family
dwelling is required.
To match the State Law.
Junior ADU
Floor Area
The Junior ADU gross floor area
calculation excludes any shared
sanitation facility with the single family
dwelling.
To clarify the rules of measurement
for gross floor area if a sanitation
facility is shared.
Detached or
Attached ADU
If an ADU is located within 3 feet of an
exterior wall of a main building, it is
considered attached.
See the rationale/intent for
establishing a Building Separation,
Minimum (above).
AUP for Addition over 14 feet. While this section does not regulate residential additions, staff note that attached ADUs proposed as residential additions over 14 feet would be required to receive AUP approval in order to reach their maximum allowable height (they can now go up to 25 feet – see Table 3).11 Removing the AUP process would be in keeping with the State’s intent to streamline the ADU development process and further remove barriers to
11 Residential additions can go up to 14 ft., but require an AUP to go up to 28 ft.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
development. The Planning Commission is asked to consider removing the AUP requirement for residential additions for attached ADUs.
23.306.040 Accessory Dwelling Units (Perm
it Procedures)
Under the current procedure, it is required that notice of an ADU application shall be mailed to owners and tenants of the subject, adjacent, confronting and abutting properties within ten working days of submission of a building permit to the Planning Department, and shall include the project address, allowable hours of construction, a link to the City’s ADU webpage, and information for tenants of the subject property on how to contact a Rent Board Housing Counselor. The cost of materials, postage, and staff time is paid for by the applicant – currently a fixed fee of $460.
The requirement for neighbor noticing presents a number of challenges for staff, applicants, and members of the public. ADU permits are building permits, and cannot be printed out or shared online with members of the public (unlike zoning permits). For neighbors interested in seeing proposed ADU plans, this means that they must visit the Permit Service Center in-person and look at the plans accompanied by a staff member.
Additionally, ADU permits are non-discretionary permits, so members of the public ultimately do not have a means of providing feedback on or appealing a proposed ADU.
Staff have found there is often an expectation from public posting or receiving notice of a proposed ADU that there is a public review process involved, and there is not.
Neighbor Noticing. While staff made no changes to Neighbor Noticing, with the exception of moving it to the Permit Procedures section, staff are asking Planning Commission to consider removing the Neighbor Noticing requirement.
23.322.020 Parking and Loading (Applicability)
Per AB 2097, no off-street parking may be required for an ADU or a Junior ADU if the lot is located within a 0.5 mile of public transit, as defined in PRC Section 21155. The City of Berkeley’s existing ADU ordinance already has provisions for reduced parking requirements within a 0.5 mile walking distance of public transit. To comply with AB 2097, staff recommend adding a location exemption for parking, which would state that “Off-street parking spaces are not required for new uses or buildings, or an enlargement or intensification of an existing use or structure, that is located within 0.5 miles of a major transit stop, as defined by Section 21155 of the California Public Resources Code, unless otherwise authorized by Government Code Section 65863.2.” This change will also be brought as a part of the State Law Technical Edits ordinance amendments package, which is why it is shown in blue in Attachment 1.
Staff propose amending BMC Tables 23.322-1, 23.322-2, and 23.322-4 to specify off- street parking standards for ADUs in Residential, Commercial, and Manufacturing Districts (previously specified in Chapter 23.306). Staff also propose amending Table
23.322-1 to bring the residential off-street parking standards into compliance with State law by allowing for one parking space per ADU unless it is located within 0.5 miles of
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
public transit as defined in Section 21155 of the Public Resources Code or it satisfies the criteria defined in subdivision (d) of Government Code Section 65852.2.
BMC 23.322.080(E)(2) Other Setback Areas
This section, formerly referred as BMC 23.322.080(D)(2), is recommended to be amended to include the following standards:
a. On a lot with an existing or proposed ADU, replacement of off-street parking for the main building or required off-street parking for an ADU, is allowed in any configuration on the lot, including within the front yard setback; or b. Within the Hillside Overlay on a lot with an existing or proposed ADU, where no legal off-street parking exists for the main building, required parking provided for the main building is allowed in any configuration on the lot, including within the front yard setback.
Currently, parking flexibility only applies to replacement parking for main dwelling units and new parking provided for an ADU. To account for ADU projects seeking to provide new parking spaces for both the main dwelling and the ADU, staff propose allowing for the same flexibility in lot configuration for the main dwelling unit’s proposed new parking space as is allowed for the ADU’s parking space. Encouraging off-street parking in the Hillside Overlay can mitigate safety and evacuation access concerns.
23.324.060 Exemptions to Nonconforming Uses, Structures, and Buildings
Notably, in the current ADU ordinance, minor alterations in nonconforming setbacks, such as for windows and doors, as well as minor excavations, require an AUP. To reduce the amount of process, time, and money for staff and applicants seeking to make minor alterations to their ADUs, staff propose allowing “by-right” alterations to nonconforming existing structures or buildings that are proposed to be converted to an ADU. Staff proposes to add BMC 23.324.060(C) to include the following standards:
C. Accessory Dwelling Units. The following additions or enlargements of a lawful nonconforming existing structure or building that is an existing ADU or proposed to be converted to an ADU are permitted with a Zoning Certificate:
1. Alterations of a portion of a building or structure (including windows and other openings) within a minimum required setback.
2. Alterations of a portion of a building or structure (including windows and other openings) exceeding the height limit.
23.502.020 Defined Terms
Junior ADU. Staff proposes relocating the definition for “Junior Accessory Dwelling Unit” within the definition of “Accessory Dwelling Unit” and striking out the reference to a working refrigerator in response to HCD’s findings.
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
Addition, Major Residential. The definition for “Addition, Major Residential” is recommended to be amended to add a subsection that exempts the floor area associated with an existing or proposed accessory dwelling unit or junior accessory dwelling unit, up to 800 square feet, from qualifying. This would eliminate the requirement for an AUP to add an ADU or Junior ADU to a house, thus matching the State’s intent of streamlining the processing of ADU development locally.
Efficiency Kitchen. The proposed ordinance amends the definition of an “Efficiency Kitchen” by removing the requirement for a sink in response to HCD’s findings.
ENVIRONMENTAL REVIEW
The project is statutorily exempt from the California Environmental Quality Act by Guidelines Section 15282(h).
NEXT STEPS
Staff recommend that Planning Commission adopt the proposed revisions. The next step will be to advance these proposed revisions – as well as repeal of Chapter 12.99 – to City Council.
Public safety remains a significant concern regarding increasing density in the Hillside Overlay. As stated in California Government Code Section 51175, the Legislature has found that wildfires pose a serious threat to the preservation of the public peace, health and safety. The legislature has determined that it is necessary that all levels of government work to implement preventive measures to ensure the preservation of the public peace, health, and safety.
Due to these state- and locally-recognized safety concerns, staff are working with the Fire Department to collect additional data on the health and safety impacts of increased development in the Hillside Overlay. On March 14, 2022, the Fire Department was authorized by the City Manager to execute a contract with KLD Engineering, P.C., for Evacuation and Response Time Modeling from April 1, 2023 through June 30, 2024 as part of an effort to collect data and forecast the number of vehicles and people that may need to be evacuated during a wildfire or other emergency. 12 The study will also be
analyzing how major evacuation routes will operate under emergency conditions, and whether there would be any public safety impacts resulting from projected development of new ADUs, Junior ADUs, and their associated extra vehicles in the Very High Fire Hazard Severity Zone.
In addition to this study, the City is in the process of updating the Disaster and Safety Plan, which will similarly provide an opportunity to collect data and engage community
12 Revised Agenda, Berkeley City Council Meeting, March 14, 2023. Item 4: Contract: KLD Engineering, P.C. for Evacuation and Response Time Modeling From: City Manager. https://berkeleyca.gov/sites/default/files/city-council-meetings/2023-03- 14%20REVISED%20Agenda%20Packet%20-%20Council%20%28WEB%29.pdf
Accessory Dwelling Units (ADUs) - Amendments to Conform to State Law Planning Commission Staff Report May 3, 2023
members, which could inform the making of findings to support the reinstitution of provisions or other controls on ADU production in the hills.
Staff plan to bring the Fire Department’s study findings, as well as other potential research and community engagement findings, back to Planning Commission and City Council by summer 2024.
ATTACHMENTS
1. Draft Amended Ordinance
2. Ordinance No. 7,797-N.S. (Chapter 23.306), dated January 18, 2022.
3. Ordinance No. 7,799-N.S. (Chapter 12.99), dated January 25, 2022.
4. Letter from HCD - Review of Berkeley’s Accessory Dwelling Unit (ADU) Ordinance under State ADU Law (Gov. Code, § 65852.2), dated October 17, 2022.
5. Public Hearing Notice
Attachment 4
NOTICE OF PUBLIC HEARING – BERKELEY CITY COUNCIL
Adoption of Zoning Ordinance Amendments to Title 23 and Repeal of Chapter
12.99 of the Berkeley Municipal Code to bring the Accessory Dwelling Unit (ADU) Ordinance into Compliance with State Law & Guidance
The Department of Planning and Development is proposing Zoning Ordinance Amendments to Title 23 and the repeal of Chapter 12.99 of the Berkeley Municipal Code to respond to recent changes in Accessory Dwelling Unit (ADU) and Junior Accessory Dwelling Unit (Junior ADU) State laws that took effect on January 1, 2023 and a letter from the California Department of Housing and Community Development (HCD) requiring the City of Berkeley take action to bring its Ordinance into compliance with State ADU Law. The amendments would modify the following sections: BMC Chapter 12.99 and Sections 23.106 (Rules of Measurement), 23.306 (Accessory Dwelling Unit (ADU) Ordinance), 23.322 (Parking and Loading), 23.324.060 (Exemptions to Nonconforming Uses, Structures, and Buildings), and 23.502.020 (Defined Terms) relating to ADUs. The proposed amendments also include conforming technical edits to the BMC (for example, renumbering of tables and figures).
The project is statutorily exempt from the California Environmental Quality Act by Guidelines Section 15282(h), the adoption of an ordinance regarding second units in a single-family or multifamily residential zone by a city or county to implement the provisions of Sections 65852.1 and 65852.2 of the Government Code as set forth in Section 21080.17 of the Public Resources Code.
The hearing will be held on Tuesday, July 25, 2023 at 6:00 PM. in the Berkeley Unified School District Board Room located at 1231 Addison Street, Berkeley CA 94702.
A copy of the agenda material for this hearing will be available on the City’s website at www.berkeleyca.gov as of July 13, 2023. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology, as well as any health and safety requirements for in-person attendance.
For further information, please contact Zoe Covello, Assistant Planner, at 510-981- 7418.
Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or e-mailed to
[email protected] in order to ensure
delivery to all Councilmembers and inclusion in the agenda packet.
Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service
or in person to the City Clerk. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at 981-6900 or [email protected] for further information.
Published: July 14, 2023 – The Berkeley Voice
Public Hearing required by BMC 23.412.050 and Govt Code 65853; notice provided according to Govt Code 65090 and BMC 23.404.040.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on July 13, 2023.
__________________________________
Mark Numainville, City Clerk
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
ACTION ITEM
July 25, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Lisa Warhuus, Director, Health, Housing, and Community Services Subject: Adopting the Affordable Housing Framework for Development at the North Berkeley BART Station Area
RECOMMENDATION
Adopt a Resolution:
1. Adopting the framework for City subsidy of affordable housing at the North Berkeley BART station area.
2. Authorizing the City Manager or her designee to execute all original or amended documents or agreements to effectuate this action.
FISCAL IMPACTS OF RECOMMENDATION
City Council reserved $53M in funding for the BART sites at their April 27, 2021 meeting through Resolution 69,833-N.S.
The actions in the above recommendations under consideration by the City Council do not result in direct fiscal impacts, since future funding commitments will return to Council for action. Staff will provide more detail about these potential fiscal impacts in advance of possible future actions.
CURRENT SITUATION AND ITS EFFECTS
The City has engaged Street Level Advisors, a housing economics firm, to develop the general framework that the City of Berkeley will use to evaluate affordable housing project proposals at the North Berkeley BART station (Attachment 2). The framework outlines expectations regarding the share of affordable units and their income requirements, the phasing of various components of the project, the conditions for award of City subsidy funds, and expectations regarding the contribution to affordable housing from market rate components of the projects.
Spurred by the requirements of Assembly Bill 2923 and the opportunity to achieve mutual objectives of creating housing, including substantial amounts of deed-restricted affordable housing adjacent to transit to help reduce greenhouse gas emissions, the City and BART have embarked on a process to redevelop the Ashby and North Berkeley BART station areas. The City and BART entered into a Memorandum of
Adopting the Affordable Housing Framework for Development ACTION ITEM at the North Berkeley BART Station Area July 25, 2023
Agreement (MOA) in June 2022 to address additional aspects of the collaboration, and both agencies adopted the Joint Vision and Priorities for Transit-Oriented Development for Ashby and North Berkeley Stations (JVP) in June 2022. The JVP articulates the shared goals of the City and BART, including the goal of achieving at least 35% affordability at each site.
On December 1, 2022, the San Francisco Bay Area Rapid Transit District (“BART”) Board approved the selection of a development team to build housing at the North Berkeley BART station site. The team is comprised of lead nonprofit developer BRIDGE, nonprofit development partners East Bay Asian Local Development Corporation (EBALDC) and Insight Housing (formerly Berkeley Food and Housing Project), and market-rate developer Avalon Bay Communities. The BRIDGE team proposes to provide 50% of the units as affordable to households earning up to 60% of Area Median Income (AMI), which exceeds the requirement that at least 35% of new housing be affordable to households earning an average of 60% of AMI. The preliminary design concept includes three affordable housing buildings for low-income families (up to 60% AMI) and one permanent supportive housing project. The BRIDGE team is currently engaged in community outreach and planning activities that will inform the project design.
The proposed framework is not intended to address all potentially relevant questions or provide detailed guidelines. Unless otherwise indicated in the framework or approved by the City Manager, BART projects requesting City funding will be expected to comply with the requirements of the City’s Housing Trust Fund (HTF) Guidelines.
Advancing affordable housing development at the North Berkeley BART station supports the Strategic Plan Priority to create affordable housing and housing support service for our most vulnerable community members.
BACKGROUND
The Berkeley City Council and BART Board of Directors approved a Memorandum of Understanding (MOU) to plan for TOD at the stations in December 2019 and January 2020, respectively
Since then, the City has been working closely with BART on the development of the North Berkeley and Ashby BART sites. The City created a BART Community Advisory Group (CAG), made up of 15 members of the public to develop a vision for affordable housing, land use, station access, building form, and new public spaces. The CAG met throughout 2020 and 2021 at public meetings and community workshops, and provided feedback on the new zoning regulations impacting the North Berkeley BART site.
The CAG was instrumental in shaping the City - BART Joint Vision and Priorities for Transit-Oriented Development for Ashby and North Berkeley Stations (JVP). The JVP establishes baseline requirements and aspirational goals for housing development, including the total number of housing units, affordability levels, 10-year time horizon to
Adopting the Affordable Housing Framework for Development ACTION ITEM at the North Berkeley BART Station Area July 25, 2023
deliver units, sequencing of affordable housing units, unit-type, and type of developers desired. This section was informed by financial feasibility analyses conducted by Street Level Advisors that estimated the City subsidy required to achieve varying levels of affordable housing.
Street Level Advisors’ analysis also estimated the amounts of City subsidy that would be required to achieve higher levels of affordability at each site. As the share of affordable housing increases and the number of market rate units decreases, the amount of developer contribution from market rate buildings will decline. This means that the required level of City subsidy per unit will increase at the same time that the number of funded units rises, resulting in increases in the amount of funding needed from the City.
To support the shared affordable housing goal at the BART sites, City Council set aside $53M through Resolution 69,833-N.S. on April 27, 2021. At their respective March 2021 meetings, the Measure O Bond Oversight Committee (MOBOC) and the Housing Advisory Commission (HAC) unanimously recommended the funding reservation for affordable housing at the Ashby and North Berkeley BART stations.
BART issued a Request for Qualifications (RFQ) in July 2022 to select a team to develop housing at the North Berkeley BART station site. Through the RFQ, the City offered up to $2M in predevelopment funding authorized by Resolution 69,833-N.S. A selection panel with equal representation of City and BART staff reviewed the qualifications of all teams, interviewed the team leads, and attended the public presentations on November 10, 2022. Based on their cumulative score, the panel recommended the selection of the BRIDGE team to the BART Board of Supervisors.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Creating new affordable housing in Berkeley that allows lower-income individuals and families to live closer to transit will advance the goal of making the City more economically and racially equitable, and reduces greenhouse gas emissions by reducing vehicle-miles-traveled and decreasing reliance on personal vehicles. New affordable housing developments are typically built to third-party green building standards (either GreenPoint or LEED Gold).
RATIONALE FOR RECOMMENDATION
Development at the North Berkeley BART station will consist of multiple phases and projects, which requires a defined framework beyond our standard Inclusionary and Housing Trust Fund regulations and guidelines. The proposed framework will ensure that the City and community goals for affordable housing at the North Berkeley BART site are met. The framework also ensures effective leveraging of the City’s resources to achieve the maximum number of affordable units.
Adopting the Affordable Housing Framework for Development ACTION ITEM at the North Berkeley BART Station Area July 25, 2023
ALTERNATIVE ACTIONS CONSIDERED
Staff did not identify alternative actions that are consistent with City priorities and past actions.
CONTACT PERSON
Margot Ernst, Housing and Community Services Manager, HHCS, 510-981-5427 Attachments:
1: Resolution
Exhibit A: North Berkeley BART Affordable Housing Framework
RESOLUTION NO. ##,###-N.S.
ADOPTING THE AFFORDABLE HOUSING FRAMEWORK FOR DEVELOPMENT AT
THE NORTH BERKELEY BART STATION AREA
WHEREAS, City Council established a Housing Trust Fund Program (HTF) to assist in the development and expansion of housing affordable to low- and moderate-income persons and authorized the City Manager to implement the Program; and WHEREAS, there is a great need for affordable and special needs housing in the City of Berkeley as stated in the General Plan Housing Element and the City of Berkeley’s Consolidated plan; and
WHEREAS, the City and BART are collaborating on the development of the North Berkeley BART site, and articulated shared goals in a Memorandum of Understanding, Memorandum of Agreement, and Joint Vision and Priorities for Transit-Oriented Development for Ashby and North Berkeley Stations; and
WHEREAS, the City and BART are committed to achieving a minimum of 35% affordable housing at each BART site; and
WHEREAS, on April 27, 2021, with Resolution 69,883-N.S., the City Council reserved $53 million, to be divided between the two BART sites, as the subsidy needed to achieve 35% affordability, and allowed for a portion of that funding to be considered for predevelopment costs associated with affordable housing; and WHEREAS, in July 2022, BART issued a Request for Qualifications (RFQ) to select a team to develop new housing at the North Berkeley BART site and created an RFQ selection panel with equal representation from the City and BART; and WHEREAS, on December 1, 2022, the BART Board of Supervisors approved the RFQ panel’s recommendation to select a development team made up of BRIDGE Housing Corporation (BRIDGE), East Bay Asian Local Development Corporation, Berkeley Food and Housing Project, and Avalon Bay Communities; and
WHEREAS, the BRIDGE lead development team proposed to develop 50% of the residential units at the North Berkeley BART as affordable to lower-income persons.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that it adopts the North Berkeley BART Affordable Housing Framework document (Exhibit A).
BE IT FURTHER RESOLVED that the City Manager, or her designee, is hereby authorized to execute all original or amended documents or agreements to effectuate this action; a signed copy of said documents, agreements, and any amendments will be kept on file in the Office of the City Clerk.
North Berkeley BART Project
Affordable Housing Framework
June 2023
This document is intended to outline the general framework that the City of Berkeley will use to evaluate affordable housing project proposals at the North Berkeley BART station. The framework outlines expectations regarding the share of affordable units and their income requirements, the phasing of various components of the project, the conditions for award of City subsidy funds and expectations regarding the contribution to affordable housing from market rate components of the projects.
The framework is not intended to address all potentially relevant questions or provide detailed guidelines. Unless otherwise indicated below or approved by the City Manager, BART projects requesting City Subsidy must comply with the requirements of the City’s Housing Trust Fund (“HTF”) Guidelines. The City Manager is authorized to provide additional requirements which expand on and modify the general principles outlined here in order to ensure a project that meets the City’s ambitious goals of this critical site.
I. Project Affordable Housing Requirements
A. Affordable Unit Mix
The City, BART and the project Master Developer will strive to maximize the number of permanently affordable, rent-restricted housing units on-site, within the funding that can be identified in a timely manner. Based on the selected project proposal for North Berkeley BART, the City expects the Master Developer to pursue a development concept that exceeds minimum affordability requirements and includes a goal of 50% restricted affordable housing units. This total will include units built to satisfy the City’s Affordable Housing Requirements Ordinance as well as any units that may be added as a result of a density bonus. Affordable units will be rent-restricted as affordable for the duration of the ground lease(s) with BART (at least 60 years), and any extensions thereon, in accordance with the income targets identified in the adopted Joint Vision and Priorities (“JVP”) as follows:
1. At least 35% of new on-site housing must be affordable to households earning an average of up to 60% of Area Median Income (“AMI”).
2. At least 20% of the required 35% on-site affordable units must be affordable to Extremely Low-Income (“ELI”) households, those earning up to 30% of AMI.
3. Additional affordable units aside from the ELI units should prioritize Very Low Income (up to 50% of AMI) households and Low Income (up to 80%) households but may include some housing rent-restricted to households with moderate incomes (up to 120% of AMI).
Attachment 2
2 B. Phasing
Affordable units should be built prior to, or along with, any market rate housing. No market rate housing will receive its notice to proceed until an affordable housing project receives its notice to proceed. In the event there are multiple phases of market rate or affordable housing, the City must approve a phasing plan to ensure consistency with the JVP goal of affordable housing being built on pace with market rate housing. The City must approve any changes to the phasing plan, including those caused by changing market conditions or availability of state and federal affordable housing funds.
As described below, under certain market conditions, it may make sense for the affordable components of the project to be constructed in advance of the market rate elements. If necessary, the City will make every effort to support this approach. The City expects the market rate projects to contribute proportionally to the shared costs (net of any sitewide infrastructure funding) related to master planning, site preparation and certain infrastructure. As a multi-phased development with multiple projects and partners, the City expects that each project will contribute its share of sitewide costs prior to receiving its notice to proceed, according to the schedule outlined in the Affordable Housing Compliance Plan. In addition, the City expects market rate projects to make significant financial contributions to support the development of affordable housing on the site. As a condition for any funding committed to an affordable project that proceeds in advance of the market rate development, the City will require a commitment that the future market rate developments contribute their share of sitewide costs prior to issuance of the market rate notice to proceed.
C. Clustering
Affordable units at the site may be integrated into mixed-income buildings or may be clustered into one or more 100% affordable housing buildings or any combination of the two. Stand-alone affordable buildings must be designed in a way that integrates with the larger project and shares the comparable design standards and quality.
The quality of exterior design and overall quality of construction of the Clustered Units must be consistent with the exterior design of the Market Rate Units. Clustered Units may have different interior finishes and features than the Market Rate Units in the Residential Development, provided the finishes and features are functionally equivalent to the Market Rate Units and are durable and of good quality.
D. Monitoring
The City will monitor all restricted affordable units at the site. Units that are included within mixed income buildings without City subsidy will be subject to a regulatory agreement which requires compliance with the City’s BMR Rental Program Guidelines even if the total number exceeds the number that would be required under the Inclusionary Housing Ordinance. The City will collect an annual monitoring fee for these units as it does for other BMR units.
Attachment 2
3 All affordable units in 100% affordable buildings will be subject to City loan and regulatory agreements and will be monitored according to the City’s Housing Trust Fund guidelines.
E. Occupancy Preferences
The Joint Vision and Priorities (JVP) adopted by the City and BART after extensive public engagement calls for affordable housing units at the Ashby and North Berkeley BART sites to provide a preference for residents who have been displaced or are at risk of displacement. The Berkeley City Council is currently considering a city-wide preference policy which would address this need for all projects, and the City has commenced a Fair Housing Analysis to determine how each preference can be applied to the maximum percentage of units permitted. The preference policy will apply to the maximum number of units at the site that the City finds consistent with fair housing goals.
F. Inclusionary Housing Requirements
Berkeley currently has local Inclusionary Housing Ordinance for housing development projects (Berkeley Municipal Code [BMC] Chapter 23.328) which require new residential projects to either dedicate 20% of the onsite units as Below Market Rate (BMR) affordable units, with half affordable to households earning 50% or less of Area Median Income and half to households earning 80% or less, or to pay a fee in lieu of some or all of the unit provision. The City expects the North Berkeley BART project to exceed these citywide requirements and provide a total of 35-50% affordable housing units inclusive of units which would satisfy the Affordable Housing Requirements Ordinance requirements. It is the City’s expectation that the North Berkeley BART project will request Council approval of an alternative means of compliance under the Inclusionary Housing Ordinance in order to cluster some or all of the required affordable units into 100% affordable housing projects. This clustering would not normally be allowed under the Inclusionary Housing Ordinance.
G. Outside Financing Sources
The Master Developer is expected to utilize all standard sources of debt and equity commonly available for similar projects including the potential use of Low-Income Housing Tax credits for eligible affordable units as well as other funding sources offered by the State of California. The City will work with the selected developers to seek public financing resources not obtainable without City support.
H. City Subsidy Funds
The City has provisionally reserved $53 million of City-controlled funds to facilitate a higher share of affordable housing units at the North Berkeley Project and the Ashby Project than would be financially feasible without local public support. The funds will be used to support the development of on-site affordable units in excess of the current
Attachment 2
4 requirement under the City’s Affordable Housing Requirements of 20%. Up to $26.5 million of this total is available to be invested in the North Berkeley Project. These City Subsidy Funds may be used for funding affordable housing units that exceed the City’s inclusionary requirements. Any commitment of City funds to the project shall comply with the City’s Housing Trust Fund Guidelines and the maximum per unit subsidy included below.
The City subsidy will be available to buildings which are 100% affordable housing and to affordable units dispersed amongst mixed-income housing buildings which meet the Housing Trust Fund Guidelines. The Developers may include additional moderate- income units in their overall affordable housing mix but may not request City subsidy for those units.
1. Development Funding
Developers meeting the threshold requirements in the HTF Guidelines for experience may apply for development funding for HTF affordable units following the predevelopment period. Staff anticipates Measure O funds will be available after the third and fourth bond issuances, currently projected for 2025 and 2027.
In addition to the HTF guidelines, the operation of the HTF program must comply with City procurement and contracting requirements as well as state or federal requirements when state or federal funds are used. In case of a conflict, City, State, and Federal requirements will prevail over the HTF Guidelines and the Project Guidelines.
2. Predevelopment Funding
a) Phase I Predevelopment Loan Funding Awarded through the Request for Qualifications (RFQ)
Up to $500,000 in City predevelopment loan funds were awarded to the Master Developer at the time of RFQ selection. The selected developer executed an Exclusive Negotiating Agreement (ENA) with BART effective June 23, 2023, meeting the City’s requirement that it do so prior to drawing upon predevelopment loan funds. Eligible predevelopment costs include: ENA deposit, fees related to the station access study, and other costs related to the development of the Property, to be approved by the City.
City funds may only pay a prorated share of reasonable Property soft costs, in proportion to the percentage of the proposed residential square footage dedicated to stand alone affordable housing.
b) Phase II Predevelopment Loan Funding
The Master Developer may apply to the City for Phase II predevelopment loan funding of up to $1.5 million, for a total of $2 million in predevelopment funding. In addition to the nonprofit development team members’ collective share of the early costs to the station access study and other master planning and predevelopment activities, the
Attachment 2
5 funds may be used to pay for architectural and engineering costs related to the design of the affordable buildings.
Predevelopment loans will have a five-year term and will accrue interest at a rate of 3% per year. If development funding is provided through the Housing Trust Fund, the predevelopment loan will be added to the permanent loan, extending the term.
In the event the developer team does not proceed with development of the Project, the City shall have the option to cause borrower to assign, transfer and deliver to the City, all third party written reports which borrower has commissioned with Phase I or Phase II loan proceeds with respect to the development and entitlement, including any architect or consulting agreements with any third parties providing design or development services with respect to the North Berkeley affordable units and all work product produced under any such agreements.
3. Maximum Per Unit City Subsidy
The City will limit its subsidy to no more than an average of $200,000 per rent-restricted lower income unit, counting only units provided beyond the 20% which would be required by the City’s Affordable Housing Requirements.
The City subsidy will be available to buildings which are 100% affordable housing or HTF affordable units dispersed amongst mixed income housing buildings, which meet the Housing Trust Fund Guidelines. Projects may include additional moderate-income units in their overall affordable housing mix but may not request City subsidy for those units.
I. Minimum Developer Contribution for Affordable Housing To ensure that City subsidy is increasing the commensurate level of on-site affordability that would otherwise be provided, any developer applying for City Affordable Housing Subsidy shall demonstrate a developer capital contribution equal to the greater of:
a. The then-current City housing mitigation and/or inclusionary in-lieu housing fee amount per unrestricted market rate unit (or aggregate square footage of the market rate units) to be developed on the Property (including any bonus units available as a result of the density bonus), or
b. $200,000 per on-site affordable unit required by the City’s affordable housing regulations (inclusionary unit).
The project’s Affordable Housing Compliance Plan must include a schedule for the timing of payment of these contributions and an indication of how they will be allocated among multiple affordable housing buildings within the project. The City’s expectation is that Developer Contributions will be paid to affordable projects prior to the close of construction financing for each affordable project, but the City may approve alternative timelines provided that there is adequate assurance that the payments will be made
Attachment 2
6 prior to the issuance of a notice to proceed for market rate units. The City will regulate and secure all developer funded units in the same way that it would affordable units funded directly through the City’s Housing Trust Fund.
The developer capital contribution may be provided by the market rate developer of record towards the affordable housing units or in the form of one or more cash contributions to nonprofit sponsors developing affordable housing at North Berkeley or through documented in-kind expenditures approved by the City on behalf of the affordable housing projects. The value of any land discount (e.g., ground rent) provided by BART may not be counted toward the developer in-kind contribution.
The City’s expectation is that market rate developer contribution funds will be allocated between affordable buildings roughly in proportion to the share of low and very low- income units in each building. However, in the event that one or more of the affordable housing projects receive building permits prior to the issuance of building permits for the corresponding market rate projects, the City may approve a plan which allocates a higher share of City Subsidy and a lower share of market rate Developer Contribution to the initial project provided that:
1. The project is able to provide security satisfactory to the City Attorney’s Office to ensure that future phases of the market portion of the project will contribute the required amounts to remaining affordable projects, and
2. At least 1/3 of the allocated City Subsidy amount (or another amount approved by the City) is reserved and not committed until 100% of the required Developer Contribution has been paid to either the City or the Affordable Housing Sponsors or approved by the City as in-kind expenditures on behalf of the affordable housing projects.
J. Process for Award of Development Subsidy
Each affordable housing project’s sponsor may apply for City development subsidy in compliance with the City’s maximum per unit subsidy limits included below. The City has reserved $26.5 million for affordable housing at the North Berkeley BART site, including both development and predevelopment funding.
To access development funding, the developer must submit an application for each affordable housing project through the City’s HTF program. The application must include the items listed below if not already provided through a predevelopment application:
An Affordable Housing Compliance Plan, as described below, covering the entire development site (including all market and affordable buildings), and describing the specific strategy that will be used to meet BART and the City’s Affordable Housing Requirements
Attachment 2
7 Evidence that that the market rate portions of the Project are contributing financially to the provision of Affordable Housing in an amount at least equal to the Developer Minimum Contribution Standard (defined above) Evidence that the request for City Affordable Housing Subsidy complies with the City’s existing Housing Trust Fund Guidelines which may be found at Housing- Trust-Fund-Guidelines.pdf (berkeleyca.gov)
Evidence that the request for City Affordable Housing Subsidy does not exceed the Maximum Per Unit City Subsidy (defined above)
Development subsidy funds will not be disbursed prior to complete project entitlement and execution of BART ground lease. Staff will fully underwrite each development funding application using HTF Guidelines and any supplemental guidance for affordable housing development at North Berkeley BART as approved by the City Manager.
Any commitment for City funding beyond the predevelopment stage will require an Affordable Housing Compliance Plan (“AHCP”) approved by the Berkeley City Council.
The developer will be required to submit a revised plan for approval if project plans change after the AHCP is approved.
Attachment 2
8 II. Appendix: Affordable Housing Compliance Plan
The Affordable Housing Compliance Plan must provide a comprehensive overview of the proposed affordable housing strategy with enough detail to enable the City to evaluate requests for funding for individual components within the context of the whole project. An initial outline of the requirements of the AHCP is included below. HHCS staff may make additions and modifications to this outline before finalizing the list of required elements.
Affordable Housing Compliance plan – Required Elements:
a. A description of the proposed means of compliance with the City’s Inclusionary Housing Ordinance, including any request for alternative means of compliance such as clustering of the inclusionary units
b. Site Plan identifying the location of the market rate and affordable housing units/developments
c. Unit and bedroom count for the market rate units and the affordable units, including the specific affordability restrictions (depth of affordability) for each set of units
d. Phasing Plan covering the entire site and demonstrating that affordable units will be constructed in advance of or concurrent with the market rate units e. A description of any site amenities including open space or exterior amenities f. A description of the proposed developer contribution to affordable housing. This description will identify specific in- kind and cash contributions as well at their likely timing. The land discount granted by BART cannot be included as an in- kind contribution for the purposes of the developer contribution g. A report completed by a third-party economic analysis firm approved by the City of Berkeley which:
i. Compares the proposed level of affordability (number of units and depth of AMI affordability) to the level that would be provided by a hypothetical development project on the Property that complied with the City’s Inclusionary Housing Requirements through the on-site compliance option; ii. Provides a financial analysis estimating the developer capital contribution that would be required to provide the City’s inclusionary units on-site and comparing that to the developer’s proposed affordable housing capital contribution as part of their finance plan; and
iii. Reviews individual and combined project return metrics, economics, and annual cash flow to validate project feasibility and to ensure a customary market rate return.
Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager
ACTION CALENDAR
July 25, 2023
To: Honorable Mayor and Members of the City Council
From: Dee Williams-Ridley, City Manager
Submitted by: Jennifer Louis, Chief of Police
Subject: Surveillance Ordinance items related to Fixed Automated License Plate Readers (ALPRs)
RECOMMENDATION
Adopt a Resolution accepting the proposed policies and acquisition report for the use of fixed automated license plate readers (ALPRs).
FISCAL IMPACTS OF RECOMMENDATION
BPD expects the individual camera costs to range from $2500-$5000 each, with the installation to vary. BPD believes that for the proposed 52-camera deployment the cost to purchase and install to not exceed an initial cost of $250,000. The yearly subscription cost may fluctuate but is expected to range from $125,000 to $175,000 a year.
INTRODUCTION
The City of Berkeley enacted the Surveillance Ordinance in 2018 to establish a thoughtful process regarding the procurement and use of Surveillance Technology that carefully balances the City’s interest in protecting public safety with its interest in protecting the privacy and civil rights of its community members. To ensure that our general policies maintained consistent format with other department policies the Department developed parallel ‘use’ policies where appropriate so that the ‘Surveillance Use Policy’ could directly follow all the requirements explicitly set forth in BMC
2.99.020(4). Both policies are equally important, and all members are required to abide by the legal parameter of both policies. Thereby in nearly every piece of equipment that the Department has that is reportable under BMC 2.99, there are generally two nearly identical policies, a Use Policy, and a Surveillance Use Policy. Recognizing the importance of the Surveillance Use Policies, the Department has a chapter in our Departmental Policies dedicated to the Surveillance Use Policies.
SURVEILLANCE ORDINANCE ITEMS ACTION CALENDAR
CURRENT SITUATION AND ITS EFFECTS
There is existing automated license plate reader (ALPR) technology at use in the City, however, Council approved that technology for a different use and effective purpose than is proposed in this item. This new use of ALPR technology is fixed automated license plate readers (ALPRs). As part of the Surveillance Ordinance process, the department must complete acquisition and use policies which must undergo review by the Police Accountability Board and ultimately receive Council approval. These items were also presented to the Public Safety Policy Committee for review and guidance.
The Department is bringing this item forward in response to the Council’s approved budget referral on ALPRs for community safety improvement on November 30th, 2021.
The Department was tasked with the creation of policies and identifying costs associated with such a program.
The Department has identified and provided several examples in the Acquisition Report wherein this technology could have potentially benefited the Department in its efforts of precision-based policing, and potentially aided the community in the mutual efforts to keep the City of Berkeley safe.
The City of Berkeley currently has ALPR technology with the Department’s Parking Enforcement. However, this technology is intentionally focused on the mission as it relates to parking enforcement operations. The proposed fixed ALPR policies are intended to aid investigations, improve community safety and aid the Department in its efforts of precision-based policing.
Crime trends regionally and in the City of Berkeley indicate there has been a steady increase in shootings in the City over the last five years and Part 1 Crimes reached their highest level in ten years in 2022. The Department believes that fixed ALPRs support our mission to safeguard our diverse community through proactive law enforcement and problem-solving, treating all people with dignity and respect. This law enforcement tool enhances policing practices and creates greater safeguards toward fair and impartial policing and safer outcomes during law enforcement interactions.
The Fixed Automated License Plate Reader Policies are covered by three policies:
1. Policy 422 – The policy that will establish guidelines for the Police Department on the use of Fixed Automated License Plate Readers
2. Policy 1305 - The Surveillance Use Policy related to Fixed Automated License Plate Readers
3. Surveillance Acquisition Report – Citywide Report regarding Fixed Automated License Plate Readers
These policies are attached to this report.
SURVEILLANCE ORDINANCE ITEMS ACTION CALENDAR
On May 12th, 2023, the above policies are currently undergoing review by the City Attorney’s Office.
Pursuant to the Surveillance Ordinance, BMC Section 2.99.030.2, upon receipt of acquisition and use policies from the Police Department, the Police Accountability Board (PAB) has a 30-day deadline “to recommend approval of the policy, object to the proposal, recommend modifications, or take no action.” BPD shared the policies with DPA on May 11th, 2023.
The Police Accountability Board held a Special Meeting on June 16th, 2023 wherein they objected to the proposed policies and outlined concerns. These concerns and correspondence are attached to this item.
The Public Safety Policy Committee held a Special Meeting on June 20th, 2023. Both the Police Department and Police Accountability Board/ODPA presented the proposed policies. In conclusion, the Public Safety Policy Committee made a qualified positive recommendation to the City Council with the understanding that the Berkeley Police Department (BPD) and the Police Accountability Board (PAB) will be submitting supplemental materials for consideration; requesting that BPD provide a line-by-line response to the amendments and revisions proposed by the PAB clarifying why they are being accepted or rejected. It was also requested that the Department provide an Informational Item to Council upon the final recommendation of placement of the ALPR cameras after consulting with the vendor.
The Department is bringing before the Council a revised red-line version of the policies that address concerns identified by PAB. These updates are explained in greater detail (“line by line”) in the attached memorandum.
ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects, climate impacts, or sustainability opportunities associated with the subject of this report.
CONTACT PERSON
Captain Mike Durbin, Police, Professional Standards Division (510) 981-5760
ATTACHMENTS:
1. Resolution
2. Police Accountability Board’s June 16 th, 2023 Objection to the BPD Acquisition and Proposed Policies.
3. BPD Policy 422
4. BPD Policy 1305
5. BPD Acquisition Report
6. BPD response to Police Accountability Board
RESOLUTION NO. ##,###-N.S.
SURVEILLANCE ORDINANCE ITEMS: FIXED AUTOMATED LICENSE PLATE
READERS (ALPRS)
WHEREAS, the Berkeley City Council adopted Ordinance NO. 7,592-N.S., the Surveillance Technology Use and Community Safety Ordinance on March 13, 2018; and WHEREAS, BMC section 2.99.020 (4) mandates a Surveillance Use Policy for use of Surveillance Technology; and
WHEREAS, Fixed Automated License Plate Readers (ALPRs) are considered Surveillance Technology per BMC section 2.99.020 (1); and WHEREAS, per BMC section 2.99.030 (1)(b), requires the City Manager to obtain City Council approval for the acquisition of new Surveillance Technology, Fixed Automated License Plate Readers (ALPRs), by placing an item on the Action Calendar.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that it approves the acquisition and Use Policies for the Fixed Automated License Plate Readers (ALPRs).
1947 Center Street, 5th Floor, Berkeley, CA 94704 TEL: 510-981-4950 TDD: 510-981-6903 FAX: 510-981-4955 Website: www.cityofberkeley.info/dpa/ Email: [email protected]
John “Chip” Moore, Chair
Police Accountability Board
[email protected]
June 16, 2023
VIA ELECTRONIC MAIL
Chief Jennifer Louis
Berkeley Police Department
2100 Martin Luther King Jr. Way
Berkeley, CA 94704
Re: Objection to the Berkeley Police Department Surveillance Acquisition Report – Fixed Automated License Plate Readers (ALPR) and Proposed Policies 422 and 1305
Dear Chief Jennifer Louis,
I am writing to you as the Chair of the Police Accountability Board (PAB) regarding the recent proposal for the acquisition of fixed automated license plate readers (ALPRs) and the corresponding proposed policies (422 and 1305). Pursuant to our authority under BMC 2.99.030, the PAB has conducted a thorough review of the Berkeley Police Department Surveillance Acquisition Report – Fixed Automated License Plate Readers and the proposed policies (422 and 1305). On June 16, 2023, at a Special Meeting, the Board voted to object to the proposal of the acquisition and the policies as written.
We acknowledge the importance of maintaining public safety and recognize the Berkeley Police Department's dedication to serving and protecting our community. Our aim is to balance public safety and the protection of civil liberties and privacy without compromising one for the other. By addressing and clarifying the concerns we raise in this letter, we can work together to create a safe and secure environment for all members of the Berkeley community while upholding their rights and privacy.
Our decision to object to the proposal was based on careful consideration of various factors.
We considered the comments and observations from indi vidual Board members, an independent report authored by the Office of the Director of Police Accountability (ODPA) expressing concerns about the technology and lack of clarity in the drafted policies, input from community members
who participated in the pu blic forum of the Board, and insights from subject matter experts who cautioned us about approving the acquisition and corresponding policies without a careful analysis of the community implications.
In the analysis, the PAB identified four specific areas where the acquisition report and proposed policies lack clarity and may run contrary to the values of our community and the work underway to reimagine public safety in the City of Berkeley:
1) Civil Liberties Protections1: The proposed acquisition report and policies need to provide stronger safeguards and assurances for protecting civil liberties and privacy rights. It is essential to ensure that the acquisition and use of ALPRs do not infringe upon the rights of individuals in our community. For example:
a. One of our Board members expressed concerns that the acquisition report or the policies don’t provide safeguards for this surveillance technology or its data being used in a way that could run afoul of reproductive rights by recording m ovements or location patterns of individuals seeking medical attention or health services for reproductive rights.
b. We are concerned that the Department indicates “Reasonable suspicion or probable cause is not required before using an ALPR ”, but provides no clear examples of a scenario where the technology may be required to be used without reaching these important legal thresholds.
c. There appears to be unclear language about retention periods. In one section the Department indicates, “The ALPR vendor will purge their data at the end of the 30 days of storage.” Then, the Department includes seemingly contradictory language in its policy : “However, this will not preclude Berkeley Police Department from maintaining any relevant vehicle data obtained from the system after that period pursuant to the established City of Berkeley retention schedule mentioned above or outlined elsewhere.” (see Section 1305.4 of the proposed policy)
1 As indicated by BPD Sergeant LeDoux at the June 16, 2023 Special Meeting of the Board, the Department is considering acquiring cameras from a specific vendor. Watchdogs like the ACLU have raised civil liberties concerns about the potential vendor. For your consideration please consider this article from the ACLU regarding Flock’s surveillance systems:
Chad Marlow, J. S. (2023, June 13). How to pump the brakes on your police department’s use of Flock’s mass surveillance license plate readers: ACLU. American Civil Liberties Union. https://www.aclu.org/news/privacy- technology/how-to-pump-the-brakes-on-your-police-departments-use-of-flocks-mass-surveillance-license-plate- readers
2) Lack of Empirical Support or Data justifying the need or its intended use : We have noted a lack of empirical evidence or data demonstrating the effectiveness of the technology in achieving its intended goals here in the City of Berkeley. While the PAB is aware the BPD has reported 2 an increase in crime in specific categories over the years, comparable jurisdictions with or without this technology have not been analyzed to determine potential effectiveness for those crime categories. Before moving forward with the acquisition, it is crucial to have solid evidence that ALPRs will significantly contribute to solving criminal investigations and enhancing public safety beyond the highlighted cases the Department cites in the Acquisition Report.
a. The ODPA’s report cited the IACP (2022) surv ey3 which indicated, “ Although research is sparse, there is some evidence that suggests LPR use is effective at preventing crime.” However, the Acquisition Report fails to adequately provide a data-based justification for why the City of Berkeley needs to adopt this technology.
b. As noted in the ODPA report, as currently written, the Purpose section of the BPD’s Acquisition Report does not explicitly mention a data-based justification for the use of ALPRs (beyond the highlighted cases of interest). To strengthen the justification for the acquisition , the BPD needs to provide statistical analyses (or other data analyses) demonstrating the effectiveness of ALPRs in reducing the specific crime problems the City would like to resolve.
3) Concerns about True Financial Costs: The PAB has concerns about the true costs associated with the technology, including potential hidden costs, maintenance expenses, and long -term financial commitments. It is essential to have a comprehensive understanding of the financial implications and ensure that the benefits outweigh the costs.
4) Lack of Completeness of the Acquisition Report and Proposed Policies: The proposed policies require further clarity , elaboration, and editing. P articularly, the Department should clearly outline the intended uses of the data, retention periods, access controls, and measures to protect against potential misuse or unauthorized access (to include more information about minimum training requirements for the users of the technology) . For example:
2 Gecan, A. N. (2023, March 20). Berkeley crime on the rise following pandemic “anomalies.” Berkeleysid e. https://www.berkeleyside.org/2023/03/17/crime-reports-berkeley-police 3 "IACP LPR Survey Results." International Association of Chiefs of Police (IACP). Accessed June 15, 2023. https://www.theiacp.org/sites/default/files/IACP_LPR_Survey_Results_5.16.22.pdf
a. In the proposed policies, the Department uses language to emphasize the importance of data privacy, protection of civil liberties, and accountability but has a weak approach to misuse in Section 422.5 of the proposed policy, “ Anyone who engages in an impermissible use of the ALPR system or associated scan files or hot lists may be subject to administrative sanctions , up to and including termination, pursuant to and consistent with the relevant collective bargaining agreements and departmental policies.” (emphasis added). Adherence to the policy needs to be non- negotiable, therefore the Department needs to modify the language to indicate that impermissible uses SHALL be subject to administrative sanctions.
b. Section 422.10 of the proposed policy mentions the requirement for training but does not specify what that will look like. As noted in the ODPA report, t he BPD should outline the minimum training requirements provided to officers on the proper use of ALPRs and adherence to privacy and civil rights standards.
c. Without clear articulation of the minimum training requirements, the Board has concerns regarding Sections 422.5 and 1305.3 of the proposed policies which encapsulate conditions for use, standards to be observed for various circumstances (stop of car vs. stop of person for example), and required verification before certain activities can be taken.
We sincerely appreciate your attentiveness to this matter. We eagerly anticipate continued dialogue and collaboration on this significant issue. We firmly believe that addressing complex and intricate problems requires consideration of multiple, and at times conflicting, perspectives, which may yield various potential solutions.
Sincerely,
John “Chip” Moore, Chair
Police Accountability Board
cc: Via Email Only
Terry Taplin, City Councilor (Chair of Public Safety Committee) Police Accountability Board
Dee Williams-Ridley, City Manager
Mark Numainville, City Clerk
Farimah Brown, Berkeley City Attorney
Attachments:
• JUNE 16, 2023 - POLICE ACCOUNTABILITY BOARD SPECIAL MEETING _PACKET
• JUNE 16, 2023 - POLICE ACCOUNTABILITY BOARD SPECIAL MEETING _SUPPLEMENTAL PACKET
POLICE ACCOUNTABILITY BOARD
SPECIAL MEETING PACKET
Friday, June 16, 2023
10:00 A.M.
Board Members:
JOHN MOORE III. (CHAIR) REGINA HARRIS (VICE-CHAIR)
KITTY CALAVITA JULIE LEFTWICH LEAH WILSON
MEETING LOCATION
Mult
ipurpose Room
1947 Center Street,
Berkeley, CA 94704
Item Page
Health and Safety Protocols for In-Person Meetings of Berkeley Boards and Commissions
1 June 16, 2023 Special Meeting Agenda
3 November 30, 2021 Budget Referral Re Automatic License Plate Readers For Community Safety Improvements As Submitted By
Councilmember Taplin, Vice Mayor Droste (Former), And
Councilmember Wengraf.
4 Draft of BPD Policy 422 “Fixed Automated License Plate Readers (ALPRs)
46 Draft of BPD Policy 1305 “Surveillance Use Policy – Fixed ALPRs”
53 Draft of BPD Policy 1305 Appendix A “Berkeley Police Department Surveillance Acquisition Report – Fixed Automated License Plate Readers”
61
Health and Safety Protocols for In-Person Meetings of
Berkeley Boards and Commissions
February 2023
The policy below applies to in-person meetings of Berkeley Boards and Commissioners held in accordance with the Government Code (Brown Act) after the end of the State- declared emergency on February 28, 2023.
Issued By: City Manager’s Office
Date: February 14, 2023
I. Vaccination Status
All attendees are encouraged to be fully up to date on their vaccinations, including any boosters for which they are eligible.
II. Health Status Precautions
For members of the public who are feeling sick, including but not limited to cough, shortness of breath or difficulty breathing, fever or chills, muscle or body aches, vomiting or diarrhea, or new loss of taste or smell, it is recommended that they do not attend the meeting in-person as a public health precaution. In these cases, the public may submit comments in writing in lieu of attending in-person.
If an in-person attendee has been in close contact, as defined below, with a person who has tested positive for COVID-19 in the past five days, they are advised to wear a well-fitting mask (N95s, KN95s, KF94s are best), test for COVID-19 3-5 days from last exposure, and consider submitting comments in writing in lieu of attending in-person.
Close contact is defined as someone sharing the same indoor airspace, e.g., home, clinic waiting room, airplane, etc., for a cumulative total of 15 minutes or more over a 24-hour period within 2 days before symptoms of the infected person appear (or before a positive test for asymptomatic individuals); or having contact with COVID-19 droplets (e.g., being coughed on while not wearing recommended personal protective equipment).
A voluntary sign-in sheet will be available at the meeting entry for in-person attendees. This will assist with contact tracing in case of COVID-19 contact resulting from the meeting.
Members of City Commissions are encouraged to take a rapid COVID-19 test on the day of the meeting.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Health and Safety Protocols for In-Person Meetings of
Berkeley Boards and Commissions
February 2023
III. Face Coverings/Mask
Face coverings or masks that cover both the nose and mouth are encouraged for all commissioners, staff, and attendees at an in-person City Commission meeting. Face coverings will be provided by the City and available for attendees to use at the meeting. Members of Commissions, city staff, and the public are encouraged to wear a mask at all times, except when speaking publicly from the dais or at the public comment podium, although masking is encouraged even when speaking.
IV. Physical Distancing
Currently, there are no physical distancing requirements in place by the State of California or the Local Health Officer for an indoor event similar to a Commission meeting.
Audience seating capacity will be at regular allowable levels per the Fire Code.
Capacity limits will be posted at the meeting location. However, all attendees are requested to be respectful of the personal space of other attendees. An area of the public seating area will be designated as “distanced seating” to accommodate persons that need to distance for personal health reasons.
Distancing will be implemented for the dais as space allows.
V. Protocols for Teleconference Participation by Commissioners Upon the repeal of the state-declared emergency, all standard Brown Act requirements will be in effect for Commissioners participating remotely due to an approved ADA accommodation. For Commissioners participating remotely, the agenda must be posted at the remote location, the remote location must be accessible to the public, and the public must be able to participate and give public comment from the remote location.
• A Commissioner at a remote location will follow the same health and safety protocols as in-person meetings.
• A Commissioner at a remote location may impose reasonable capacity limits at their location.
VI. Hand Washing/Sanitizing
Hand sanitizing stations are available at the meeting locations. The bathrooms have soap and water for handwashing.
VII. Air Flow/Circulation/Sanitizing
Air filtration devices are used at all meeting locations. Window ventilation may be used if weather conditions allow.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
POLICE ACCOUNTABILITY BOARD
SPECIAL MEETING AGENDA
Friday, June 16, 2023
10:00 A.M.
Board Members:
JOHN MOORE III. (CHAIR) REGINA HARRIS (VICE-CHAIR)
KITTY CALAVITA JULIE LEFTWICH LEAH WILSON
MEETING LOCATION
Multipurpose Room
1947 Center Street,
Berkeley, CA 94704
PUBLIC NOTICE
The PAB has resumed in -person meetings and encourages community members to attend in person. Community members attending in person should observe the “Health and Safety Protocols for In -person Meetings of Berkeley Boards and Commissions” as outlined by the City of Berkeley.
***The PAB acknowledges that physical attendance may not be feasible for all community members. To this end, the Office of the Director of Police Accountability (ODPA) has been exploring the option of allowing for remote participation at the PAB meetings. Please note that the ODPA and PAB are in the early stages of implementing this hybrid meeting format so there is a possibility for technical glitches and errors. Your patience and understanding are greatly appreciated. ***
To access the meeting remotely: join from a PC, Mac, iPad, iPhone, or Android device using this URL: https://us02web.zoom.us/j/82136328053. If you do not wish for your name to appear on the screen, use the drop-down menu and click on “rename” to rename yourself to be anonymous. To request to speak, use the “raise hand” icon on the screen.
To join by phone: Dial 1 669 900 6833 and enter Meeting ID 821 3632 8053. If you wish to comment during the public comment portion of the agenda, press *9 and wait to be recognized.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
PAB Special Meeting Agenda
June 16, 2023
LAND ACKNOWLEDGEMENT
The City of Berkeley recognizes that the community we live in was built on the territory of xučyun (Huchiun (Hooch -yoon)), the ancestral and unceded land of the Chochenyo (Chochen-yo)-speaking Ohlone (Oh-low-nee) people, the ancestors and descendants of the sovereign Verona Band of Alameda County. This land was and continues to be of great importance to all of the Ohlone Tribes and descendants of the Verona Band. As we begin our meeting tonight, we acknowledge and honor the original inhabitants of Berkeley, the documented 5,000-year history of a vibrant community at the West Berkeley Shellmound, and the Ohlone people who continue to reside in the East Bay. We recognize that Berkeley’s residents have and continue to benefit from the use and occupation of this unceded stolen land since the City of Berkeley’s incorporation in 1878. As stewards of the laws regulating the City of Berkeley, it is not only vital that we recognize the history of this land, but also recognize that the Ohlone people are present members of Berkeley and other East Bay communities today.
AGENDA
1. CALL TO ORDER & ROLL CALL (2 MINUTES)
2. APPROVAL OF AGENDA (2 MINUTES)
3. PUBLIC COMMENT (15 MINUTES)
(Public comment at special meetings is limited to the items on the agenda. Speakers are generally allotted up to three minutes, but may be allotted less time if there are many speakers.)
4. POLICY REVIEW OF BERKELEY POLICE DEPARTMENT’S PROPOSED POLICIES: POLICY 422 “FIXED AUTOMATED LICENSE PLATE READERS (ALPRs)” AND POLICY 1305 “SURVEILLANCE USE POLICY – FIXED ALPRs” (90 MINUTES)
(The objective of this agenda item is to conduct a comprehensive policy review of the Berkeley Police Department’s proposed policies regarding the use of ALPRs. The PAB may vote to recommend approval of the policies, object to the proposal, recommend modifications, or take no action.)
5. PUBLIC COMMENT (10 MINUTES)
(Public comment at special meetings is limited to the items on the agenda. Speakers are generally allotted up to three minutes, but may be allotted less time if there are many speakers.)
6. ADJOURNMENT (1 MINUTE)
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
PAB Special Meeting Agenda
June 16, 2023
Communications Disclaimer
Communications to the Police Accountability Board, like all communications to Berkeley boards, commissions, or committees, are public records and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e -mail addresses, names, addresses, and other contact information are not required, but if included in any communication to a City board, commission, or committee, will becom e part of the public record. If you do not want your e -mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the Board Secretary. If you do not want your contact information included in the public record, do not include that information in your communication. Please contact the Board Secretary for further information.
Communication Access Information (A.R. 1.12)
To request a disability -related accommodation(s) to participate in the meeting, including auxiliary aids or services, please contact the Disability Services specialist at 981-6418 (V) or 981-6347 (TDD) at least three business days before the meeting date.
SB 343 Disclaimer
Any writings or documents provided to a majority of the Board regarding any item on this agenda will be made available for public inspection at the Office of the Director of Police Accountability, located at 1947 Center Street, 5th Floor, Berkeley, CA.
Contact the Director of Police Accountability (Board Secretary) at:
1947 Center Street, 5th Floor, Berkeley, CA 94704
TEL: 510-981-4950 TDD: 510-981-6903 FAX: 510-981-4955 Website: www.cityofberkeley.info/dpa/ Email: [email protected]
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Internal
November 30, 2021 Budget Referral
Re Automatic License Plate Readers
for Community Safety Improvements
as Submitted by Councilmember
Taplin, Vice Mayor Droste (Former),
And Councilmember Wengraf.
Action CALENDAR
DATE: November 30, 2021
To: Honorable Mayor and Members of the City Council
From: Councilmember Taplin, Vice Mayor Droste (co-sponsor), Councilmember Wengraf (co-sponsor)
Subject: Budget referral: Automated license plate readers for community safety improvement
RECOMMENDATION
That the Berkeley City Council take the following actions to enable and deploy tactical technologies in strategic public spaces and the public ROW for the improvement of community safety and determent, intervention, prevention of illegal dumping and/or investigation of violent crime and traffic violations:
● Authorize the City Manager to install Automatic License Plate Readers (ALPRs) at strategic locations including public facilities, entrances to the city and the public right-of-way in areas impacted by violent crime, traffic violations including infractions pertaining to bicycle and pedestrian safety, illegal dumping, Schedule II drug offenses, and other criminal activity; and refer to th e FY 23-24 budget
process cost of ALPRs.
● Refer to the City Manager the development of a policy pursuant and subject to City of Berkeley Surveillance Ordinance and Sanctuary City Contracting Ordinance enabling the use of ALPRs in fixed locations, mobile trailers, and vehicles by the Berkeley Police Department; consider a data retention period of no greater than one year, no less than sixty days to account for reporting lag, and study the feasibility of shorter data retention periods for non-hit scans with final discretion resting with the City Manager; consider comparable and applicable standards in the ALPRs policies of local governments including: the City of Alameda, The city of Emeryville, The City of Hayward,The City of Oakland,The City of Piedmont, The City of Richmond, The City of San Leandro, and The City of Vallejo; and consider provisions to safeguard efficacy against plate counterfitting, plate switching, and other methods of detection evasions.
POLICY COMMITTEE RECOMMENDATION
On November 1, 2021, the Public safety Policy Committee took the following action: M/S/C (Kesarwani/Bartlett) to refer the item to Council with a qualified positive recommendation of the item to reflect the Policy Committee’s desire for consideration of the costs and benefits of this proposed expenditure against other public safety investments in the two-year FY 2022-23 &
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JUNE 16, 2023 SPECIAL MEETING
2023-24 budget and the need to first develop a policy related to addressing data retention and other issues in accordance with the City of Berkeley Surveillance Ordinance and Sanctuary City Contracting Ordinance.
CURRENT SITUATION AND ITS EFFECTS
According to the Berkeley Police Department’s 2019/2020 Crime Report, Berkeley has seen marked increases in aggravated assault, homicides, auto theft and larceny over the past two years.1 While the overall crime rate remained relatively flat, specific categories of property crimes increased sharply—especially vehicle thefts, which increased by 66% in 2020.
Homicides decreased to zero in 2021, but reports of gunfire and auto theft increased.
Currently, the police department’s Parking Enforcement Bureau uses Automated License Plate Readers (ALPRs)2 for time zone parking and scofflaw enforcement, replacing the practice of physically “chalking” car tires, but ALPR technology has not been implemented in the city for other law enforcement purposes. According to the City Manager’s 2020 Surveillance Technology Report, there were an average of 12,059 successful license plate “reads” per day in the month of September, 2020. From October 2019 to October 2020, there were 44,068 “hits” detecting a positive violation, roughly 25% (14,945) of which resulted in enforcement by citation issuance.3
Pursuant to Berkeley Municipal Code Chapter 2.99 Section 2.99.070, the City Manager’s office is required to report on surveillance technology on an annual basis.
BACKGROUND
According to a 2018 study4 by the Center for Policing Equity, Black people comprise only 8% of Berkeley’s population, but a disproportionate 46% of people subject to police uses of force. In light of this evidence, and in the wake of the national outcry over the death of George Floyd, the City Council adopted a resolution5 on July 14, 2020 directing the City Manager in part to “identify elements of police work that could be achieved through alternative programs, policies, systems, and community investments.”
Some research has found that ALPRs contribute to marginal improvements in public safety outcomes with respect to vehicle thefts and traffic safety. The use of LPR technology has 1 https://www.cityofberkeley.info/Clerk/City_Council/2020/10_Oct/Documents/2020-10- 13_Presentations_Item_19__Pres_Police_pdf.aspx
2 3 https://www.cityofberkeley.info/Clerk/City_Council/2020/11_Nov/Documents/2020-11- 10_Item_19_Resolution_Accepting_the_Surveillance.aspx
4 Buchanan, K.S., Pouget, E., Goff, P.A. (2018). The Science of Justice: Berkeley Police Department.
Center for Policing Equity. Retrieved from https://www.berkel eyside.org/wp-
content/uploads/2018/05/Berkeley-Report-May-2018.pdf
5 https://www.cityofberkeley.info/Clerk/City_Council/2020/07_Jul/Documents/2020-07- 14_Item_18d_Transform_Community_Safety_pdf.aspx
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increased significantly in law enforcement agencies across the US in the past decade, but outcomes have been inconsistently tracked, which limits available research.6 One qualitative case study found that criminal investigators adapted LPR technology to a broader range of investigative work, such as rapid responses and corroborating suspect alibis.7 An analysis of a randomized control trial in the City of Vallejo found that ALPRs attached to police vehicles enabled a 140% increase in detection of stolen vehicles, while arrests were more efficient with stationary ALPRs in fixed locations.8 A study on LPR technology in Mesa, AZ found that LPRs resulted in an eightfold increase in the number of plates scanned, more positive scans, arrests and recovery of stolen vehicles, and a reduction in calls for drug offenses. However, the study did not find a statistically significant reduction in vehicle thefts in hot spots compared to manual checks, possibly because the presence of law enforcement officers performing manual checks had a more preventative effect.9 Another study of the Charlotte-Mecklenburg Police Department found that “LPR use may have contributed to modest improvements in case closures for auto theft and robbery”—the former in the long term, and the latter both short- and long term.10
According to recent analysis by the National Highway Traffic Safety Administration, one law enforcement agency found that drivers with suspended, revoked, or restricted licenses were 2.2 times more likely to be involved in serious or fatal crashes than other drivers, and that identifying these drivers with ALPRs “could affect traffic safety positively by targeting violator vehicles that are more prone to crash risk.”11 A quasi-experimental survey of data from Buffalo, NY found a reduction in violent crime and traffic accidents associated with roadblocks using LPRs.12
RATIONALE FOR RECOMMENDATION
Reimagining public safety necessitates significant improvements in public safety outcomes, including practical solutions to traffic safety and property crime. California law currently 6 Lum, C., Koper, C.S., Willis, J., Happeny, S., Vovak, H. and Nichols, J. (2019). The rapid diffusion of license plate readers in US law enforcement agencies. Policing: An International Journal, (42)3, pp. 376- 393. https://doi.org/10.1108/PIJPSM-04-2018-0054
7 James J. Willis, Christopher Koper & Cynthia Lum (2018). The Adaptation of License-plate Readers for Investigative Purposes: Police Technology and Innovation Re-invention, Justice Quarterly, 35:4, 614-638, DOI:
10.1080/07418825.2017.1329936
8 Potts, J. (2018). Research in brief: assessing the effectiveness of automatic license plate readers.
POLICE CHIEF. Retrieved from http://www.theiacp.org/sites/default/files/2018- 08/March%202018%20RIB.pdf
9 Taylor, B., Koper, C. S., & Woods, D. J. (2012). Combatting auto theft in Arizona: A randomized experiment with license plate recognition technology. Criminal Justice Review, 37, 24-50.
10 Koper, C. S., & Lum, C. (2019). The Impacts of Large-Scale License Plate Reader Deployment on Criminal Investigations. Police Quarterly, 22(3), 305–329. https://doi.org/10.1177/1098611119828039 11 Zmud, J., Walden, T., Ettelman, B., Higgins, L. L., Graber, J., Gilbert, R., & Hodges, D. (2021). State of Knowledge and Practice for Using Automated License Plate Readers for Traffic Safety Purposes.
Retrieved from https://rosap.ntl.bts.gov/view/dot/55586/dot_55586_DS1.pdf 12 Wheeler, A.P., Phillips, S.W. (2018). A quasi-experimental evaluation using roadblocks and automatic license plate readers to reduce crime in Buffalo, NY. Secur J 31, 190–207. https://doi.org/10.1057/s41284-017-0094-1
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preempts municipalities from transferring traffic enforcement to civilian duties or automated speed cameras.
While auto thefts in Berkeley increased by 64% from 2019 to 2020, and increased 54% year- over-year in the first half of 202113, a 2021 City Auditor analysis14 of the Berkeley Police Department found that Officer-Initiated Stops disproportionately target Black and Latino drivers relative to their share of the city’s population.
ALPRs therefore present an opportunity to reduce property crimes and improve traffic safety while also reducing civilian encounters with police officers conducting ad hoc traffic enforcement, which the 2021 audit found to have a significant racial bias against Black and Latino drivers. ALPRs could make enforcement more fair, impartial, and effective.
In 2015, the Berkeley Police Department used ALPR technology on a mobile trailer to investigate five attempted kidnappings by Willard Middle School.15
However, ALPR data storage gives rise to several privacy concerns. In Carpenter v. Un ited
States, the U.S. Supreme Court ruled that accessing location data tracking an individual’s 13 https://www.cityofberkeley.info/Clerk/City_Council/2021/10_Oct/Documents/2021-10- 19_Item_01_BPD_Annual_Report_pdf.aspx
14 Berkeley City Auditor. (2021, Apr. 22). Data Analysis of the City of Berkeley’s Police Response.
Retrieved from https://www.cityofberkeley.info/uploadedFiles/Auditor/Level_3_- _General/Data%20Analysis%20of%20the%20City%20of%20Berkeley's%20Police%20Response.pdf 15 Raguso, E. (2015, Oct. 30). Berkeley police use license plate reader in kidnapping attempt investigations. Berkeleyside. Retrieved from https://www.berkeleyside.org/2015/10/30/berkeley-police- use-license-plate-reader-in-kidnapping-attempt-investigation
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movements from their cell phone constitutes a search under the Fourth Amendment and requires a search warrant.16 While ALPR scans are subject to reasonableness standards for searches under Fourth Amendment jurisprudence, state courts have found that ALPR alerts are sufficient to establish a reasonable suspicion, though there are situations that require further intervention to establish reasonableness or avoid error.17
In Neal v. Fairfax County Poli
ce Department, the Virginia Supreme Court ruled that GPS data and images associated with license plate numbers were private personal information (PPI), but license plate numbers themselves stored in ALPR databases were not.18 The California Supreme Court has also underscored such a distinction between “bulk data collection” of license plate numbers that did not “produce records of investigations” for particular crimes.19 By contrast, U.S. Supreme Court Justice Sotomayor argued in United States v. Jones that government agencies collecting “private aspects of identity” could be “susceptible to abuse.”20 This calls into question the so-called third party doctrine of the Fourth Amendment—the longstanding precedent that individuals may be reasonably considered to waive their right to privacy and assume any information provided to third parties may eventually be accessed by the government—given the vast array of information government agencies can now access through surveillance technology. To carefully balance privacy and policing efficacy under this new paradigm, Newell (2013) recommends strictly limiting data retention for non-“hit” scans, and maintaining anonymized ALPR data subject to public disclosure laws.21 California Vehicle Code Section 2413(b) restricts the California Highway Patrol (CHP)’s retention LPR data for 60 days unless it is being used as evidence in a felony investigation.
Subsection (c) restricts the distribution of this data strictly to law enforcement agencies or officers and “only for purposes of locating vehicles or persons when either are reasonably suspected of being involved in the commission of a public offense.” In 2015, Senate Bill 34 imposed additional security and privacy requirements on the use of ALPR data.22 Unfortunately, a State Auditor report in 2020 surveying four local law enforcement agencies in California found that ALPR policies were out of compliance with SB34, retained images for far longer than needed or allowed, and had no processes in place to safeguard local compliance. For example, the State Auditor “did not find evidence that the agencies had always 16 Carpenter v. United States, 138 S. Ct. 2206 (2018).
17 Fash, L. (2018). Automated License Plate Readers: The Difficult Balance of Solving Crime and Protecting Individual Privacy. Md. L. Rev. Endnotes, 78, 63. 18 Neal v. Fairfax County Police Dept., 812 S
.E.2d 444, 295 Va. 334 (2018).
19 Am. Civil Liberties Union Found. of S. Cal. v. Super. Ct. of L.A. Cty., 400 P.3d 432 (Cal. 2017).
20 United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring); 21 Newell, B. C. (2013). Local law enforcement jumps on the big data bandwagon: Automated license plate recognition systems, information privacy, and access to government information. Me. L. Rev., 66, 397.
22 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB34
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determined whether an entity receiving shared images had a right and a need to access the images or even that the entity was a public agency.”23
In 2018, a lawsuit by the American Civil Liberties Union of Northern California revealed that Immigration and Customs Enforcement (ICE) had purchased access to private databases containing ALPR data with 5 billion individual data points for civil immigration enforcement, and had obtained ALPR data from over 80 local law enforcement agencies.24 However, in 2017, Senate Bill 54 greatly restricted the ability of California law enforcement agencies to share information with ICE.25
Berkeley Parking Enforcement uses PCS Mobile ALPR units using Genentech ALPR technology regulated by BPD Administrative Order #001-2016, which limits storage of reads to 30 days and hits to 365 days. Images of reads are not stored on the server, and data may only be used for legitimate law enforcement purposes. Police Departments in the cities of Vallejo and Piedmont utilize the Flock Safety Operating System, which comes with a transparency portal listing permitted and prohibited uses, data storage, access provided to outside agencies, numbers of hits and scans, and other relevant metadata.2627
ALTERNATIVES CONSIDERED
1. Gun buyback programs have not demonstrated significant efficacy except in limited circumstances within more holistic community-based violence prevention programs.28
2. With the stalling of Assembly Bill 55029 in this year’s legislative session, automated speeding cameras are not currently permitted in the state of California.
3. On October 27, 2020, the City Council referred to the Community Engagement Process for Reimagining Public Safety the creation of a Group Violence Intervention Program (GVI), or “Operation Ceasefire,” that will assemble a Berkeley-centered interjurisdictional working group of community members, law enforcement personnel, and supportive services providers to address gun violence. Current staffing capacity in the City Manager’s office is insufficient to develop such a program before the process is complete.
23 Howle, E.M. (2020). Automated License Plate Readers: To Better Protect Individuals’ Privacy, Law Enforcement Must Increase Its Safeguards for the Data It Collects. Auditor of the State of California .
Retrieved from https://www.auditor.ca.gov/reports/2019-118/index.html 24 Talla, V. (2019). Documents Reveal ICE Using Driver Location Data From Local Police for Deportations. ACLU Northern Ca
lifornia. Retrieved from https://www.aclunc.org/blog/documents-reveal- ice-using-driver-location-data-local-police-deportations 25 https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB54 26 https://transparency.flocksafety.com/vallejo-ca-pd
27 https://transparency.flocksafety.com/vallejo-ca-pd
28 Makarios, M. D., & Pratt, T. C. (2012). The Effectiveness of Polici es and Programs That Attempt to
Reduce Firearm Violence: A Meta-Analysis. Crime & Delinquency, 58(2), 222–244. https://doi.org/10.1177/0011128708321321.
29 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB550
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ENVIRONMENTAL IMPACTS
None.
FISCAL IMPACTS
In 2017, an amendment to Contract No. 997730 from the City Manager’s Office itemized a unit cost of $78,363 for each ALPR system. Costs for this referral may be different because this contract was only for mobile ALPRs used for parking enforcement, not in fixed locations or mobile trailers.
CONTACT
Councilmember Terry Taplin, District 2, (510) 981-7120, [email protected]
ATTACHMENTS
1. C ity of Vallejo ALPR Policy,
2. City of Alameda,
3. City of Emeryville,
4. City of Hayward,
5. City of Oakland,
6. City of Piedmont,
7. City of Richmond,
8. City of San Leandro.
30https://ci.berkeley.ca.us/Clerk/City_Council/2017/07_Jul/Documents/2017-07- 11_Item_13_Contract_No_9977_Amendment.aspx
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Policy
426
Automated License Plate Readers (ALPRs)
426.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidance for the capture, storage, and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology.
426.2 DEFINITIONS
(a) Automated License Plate Reader (ALPR): A device that uses cameras and computer technology to compare digital images to lists of known information of interest.
(b) ALPR Operator: Trained Department members who may utilize ALPR system/equipment. ALPR operators may be assigned to any position within the Department, and the ALPR Administrator may order the deployment of the ALPR systems for use in various efforts.
(c) ALPR Administrator: The Investigations Bureau Captain or the Chief’s designee , serves as the ALPR Administrator for the Department.
(d) Hot List: A list of license plates associated with vehicles of interest compiled from one or more databases including, but not limited to, NCIC, CA DMV, Local BOLO's, etc.
(e) Vehicles of Interest: Including, but not limited to vehicles which are reported as stolen; display stolen license plates or tags; vehicles linked to missing and/or wanted persons and vehicles flagged by the Department of Motor Vehicle Administration or law enforcement agencies.
(f) Detection: Data obtained by an ALPR of an image (such as a license plate) within public view that was read by the device, including potential images (such as the plate and description of vehicle on which it was displayed), and information regarding the location of the ALPR system at the time of the ALPR's read.
(g) Hit: Alert from the ALPR system that a scanned license plate number may be in the National Crime Information Center (NCIC) or other law enforcement database for a specific reason including, but not limited to, being related to a stolen car, wanted person, missing person, domestic violation protective order or terrorist-related activity.
426.3 ADMINISTRATION
The ALPR technology, also known as License Plate Recognition (LPR), allows for the automated detection of license plates along with the vehicle make, model, color and unique identifiers through the Vallejo Police Department’s ALPR’s system and the vendor’s vehicle identification technology. The technology is used by the Vallejo Police Department to convert data associated with vehicle license plates and vehicle descriptions for official law enforcement purposes, including identifying stolen or wanted vehicles, stolen license plates and missing persons. It may also be used to gather information related to act ive warrants, homeland security, electronic surveillance, suspect interdiction and stolen property recovery.
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All installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Department Information Tec hnology Manager. The Department Information Technology Manager will assign members under his/her command to administer the day-to-day operation of the ALPR equipment and data.
426.3.1 ALPR ADMINISTRATOR
The Investigations Bureau Captain shall be responsible for compliance with the requirements of Civil Code § 1798.90.5 et seq. This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) Only properly trained sworn officers, crime analysts, and police assistants are allowed access to the ALPR system or to collect ALPR information.
(b) Ensuring that training requirements are completed for authorized users.
(c) ALPR system monitoring to ensure the security of the information and compliance with applicable privacy laws.
(d) Ensuring that procedures are followed for system operators and to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title and name of the c urrent designee in overseeing the ALPR operation is maintained. Continually working with the Custodian of Records on the retention and destruction of ALPR data.
(f) Ensuring this policy and related procedures are conspicuously posted on the department’s website.
426.4 OPERATIONS
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
(a) An ALPR shall only be used for official law enforcement business.
(b) An ALPR may be used in conjunction with any routine patrol operation or criminal investigation; r easonable suspicion or probable cause is not required before using an ALPR.
(c) Partial license plates and unique vehicle descriptions reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles.
(d) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(e) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert. Once an alert is received, the operator should confirm
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JUNE 16, 2023 SPECIAL MEETING
that the observed license plate from the system matches the license plate of the observed vehicle. Before any law enforcement action is taken because of an ALPR alert, the alert will be verified through a CLETS inquiry via MDC or through Dispatch. Members will not take any police action that restricts the freedom of any individual based solely on an ALPR alert unless it has been validated. Because the ALPR alert may relate to a vehicle and may not relate to the person operating the vehicle, officers are reminded that they need to have reasonable suspicion and/or probable cause to make an enforcement stop of any vehicle. (For example, if a vehicle is entered into the system because of its associat ion with a wanted individual, Officers should attempt to visually match the driver to the description of the wanted subject prior to making the stop or should have another legal basis for making the stop.)
(f) Hot Lists. Designation of hot lists to be utilized by the ALPR system shall be made by the ALPR Administrator or his/her designee. Hot lists shall be obtained or compiled from sources as may be consistent with the purposes of the ALPR system set forth in this Policy. Hot lists utilized by the Department's LPR system may be updated by agency sources more frequently than the Department may be uploading them and thus the Department's LPR system will not have access to real time data. Occasionally, there may be errors in the LPR system’s read of a license plate. Therefore, an alert alone shall not be a basis for police action (other than following the vehicle of interest). Prior to initiation of a stop of a vehicle or other intervention based on an alert, Department members shall undertake the following:
(1) Verification of status on a Hot List. An officer must receive confirmation, from a V allejo Police Department Communications Dispatcher or other department computer device, that the license plate is still stole n, w anted, or otherwise of interest before proceeding (absent exigent circumstances).
(2) Visual verification of license plate number. Officers shall visually verify that the license plate of interest matches identically with the image of the license plate number captured (read) by the LPR, including both the alphanumeric characters of the license plate , state of issue, and vehicle descriptors before proceeding.
Department members alerted to the fact that an observed motor vehicle's license plate is entered as a Hot Plate (hit) in a specific BOLO (be on the lookout) list are required to make a reasonable effort to confirm that a wanted person is actually in the vehicle and/or that a reasonable basis exists before a Department member would have a lawful basis to stop the vehicle.
(3) Department members will clear all stops from hot list alerts by indicating the positive ALPR Hit, i.e., with an arrest or other enforcement action. If it is not obvious in the text of the call as to the correlation of the ALPR Hit and the arrest, then the Department member shall update with the Communications Dispatcher and original person and/or a crime analyst inputting the vehicle in the hot list (hit).
(4) General Hot Lists (SVS, SFR, and SLR) will be automatically downloaded into the ALPR system a minimum of once a day with the most current data overwriting the old data.
(5) All entries and updates of specific Hot Lists within the ALPR system will be documented by the requesting Department member within the appropriate general offense report. As such, specific Hot Lists shall be approved by the ALPR
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Administrator (or his/her designee) before initial entry within the ALPR system. The updating of such a list within the ALPR system shall thereafter be accomplish ed pursuant to the approval of the Department member's immediate supervisor. The hits from these data sources should be viewed as informational; created solely to bring the officers attention to specific vehicles that have been associated with criminal activity.
All Hot Plates and suspect information entered into the ALPR system will contain the following information as a minimum:
Entering Department member's name
Related case number.
Short synopsis describing the nature of the originating call
(g) Training. No member of this Department shall operate ALPR equipment or access ALPR data without first completing Department-approved training.
(h) Login/Log-Out Procedure. To ensure proper operation and facilitate oversight of the ALPR system, all users will be required to have individual credentials for access and use of the systems and/or data, which has the ability to be fully audited.
Permitted/Impermissible Uses. The ALPR system, and all data collected, is the property of the Vallejo Police Department. Department personnel may only access and use the ALPR system for official and legitimate law enforcement purposes consistent with this Policy. The following uses of the ALPR system are specifically prohibited:
(1) Invasion of Privacy: Except when done pursuant to a court order such as a search warrant, is a violation of this Policy to utilize the ALPR to record license plates except those of vehicles that are exposed to public view (e.g., vehicles on a public road or street, or that are on private property but whose license plate(s) are visible from a public road, street, or a place to which members of the public have access, such as the parking lot of a shop or other business establishment).
(2) Harassment or Intimidation: It is a violation of this Policy to use the ALPR system to harass and/or intimidate any individual or group.
(3) Use Based on a Protected Characteristic. It is a violation of this policy to use the LPR system or associated scan files or hot lists solely because of a person's, or group's race, gender, religion, political affiliation, nationality, ethnicity, sexual orientation, disability, or other classification protected by law.
(4) Personal Use: It is a violation of this Policy to use the ALPR system or associated scan files or hot lists for any personal purpose.
(5) First Amendment Rights. It is a violation of this policy to use the LPR system or associated scan files or hot lists for the purpose or known effect of infringing upon First Amendment rights.
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Anyone who engages in an impermissible use of the ALPR system or associated scan files or hot lists may be subject to:
criminal prosecution,
civil liability, and/or
administrative sanctions, up to and including termination, pursuant to and consistent with the relevant collective bargaining agreements and Department policies.
426.4 DATA COLLECTION AND RETENTION
The Investigations Bureau Captain is responsible for ensuring systems and processes are in place for the proper collection and retention of ALPR data. Data will be transferred from vehicles to the designated storage in accordance with department procedures.
All ALPR data downloaded to th e server should be stored for no longer than one year , and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data should be downloaded from the server onto portable media and booked into evidence.
ALPR vendor, Flock Safety will store the data (data hosting) and ensure proper maintenance and security of data stored in their data towers. Flock Safety will purge their data at the end of the 30 days of storage. However, this will not preclude VPD from maintaining any relevant vehicle data obtained from the system after that period pursuant to the established City of Vallejo retention schedule mentioned above or outlined elsewhere.
Restrictions on use of ALPR Data: Information gathered or collected, and records retained by Flock Safety cameras or any other VPD ALPR system will not be sold, accessed, or used for any purpose other than legitimate law enforcement or public safety purposes.
426.5 ACCOUNTABILITY and SAFEGUARDS
All data will be closely safeguarded and protected by both procedural and technological means.
The Vallejo Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) All non-law enforcement requests for access to stored ALPR data shall be processed in accordance with applicable law.
(b) All ALPR data downloaded to the mobile workstation shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date, and time.
(c) Persons approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action.
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(d) Such ALPR data may be released to other authorized and verified law enforcement officials and agencies for legitimate law enforcement purposes.
(e) Every ALPR Detection Browsing Inquiry must be documented by either the associated Vallejo Police case number or incident number, and/or a reason for the inquiry.
For security or data breaches, see the Records Release and Maintenance Policy.
426.6 POLICY
The policy of the Vallejo Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review.
The Vallejo Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for purpose of federal immigration enforcement, pursuant to the California Values Act (Government Code § 7282.5; Government Code § 7284.2 et seq) – these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CPB).
462.7 ALPR DATA DETECTION BROWSING AUDITS
It is the responsibility of the Professional Standards Division (PSD) Lieutenant or the Chief’s designee to ensure that an audit is conducted of ALPR detection browsing inquiries at least once during each calendar year. The Department will audit a sampling of the ALPR system utilization from the prior 12 -month period to verify proper use in accordance with the above - authorized uses. The audit shall randomly select at least 10 detection browsing inquiries conducted by department employees during the preceding six -month period and determine if each inquiry meets the requirements established in policy section 462.5(e).
The audit shall be documented in the form of an internal department memorandum to the Chief of Police. The memorandum shall include any data errors found so that such errors can be corrected. After review by the Chief of Police, the memorandum and any associated documentation shall be filed and retained by PSD.
426.8 RELEASING ALPR DATA
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law.
(a) The agency makes a written request for the ALPR data that includes:
(1) The name of the agency.
(2) The name of the person requesting.
(3) The intended purpose of obtaining the information.
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(b) The request is reviewed by the Chief of Police or the authorized designee and approved before the request is fulfilled.
(c) The Chief of Police or the authorized designee will consider the California Values Act (Government Code § 7282.5; Government Code § 7284.2 et seq), before approving the release of ALPR data. The Vallejo Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for purpose of federal immigration enforcement, these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CPB).
(d) The approved request is retained on file. Requests for ALPR data by non -law enforcement or non -prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).
426.9 TRAINING
The Training Sergeant should ensure that members receive department-approved training for those authorized to use or access the ALPR system (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
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Policy
462
Alameda Police Department
Alameda Police Department Policy Manual
Copyright Lexipol, LLC 2017/05/10, All Rights Reserved.
Published with permission by Alameda Police Department
Automated License Plate Readers (ALPRs) - 1
Automated License Plate Readers (ALPRs)
462.1 PURPOSE AND SCOPE
The purpose of this policy is to establish guidelines for officers utilizing the Automated License Plate Reader (ALPR) system. This policy will further establish guidelines for the deployment and actions permissible when using the system. The policy shall remain in effect until it is superseded, amended, or withdrawn.
(a) An ALPR system is a computer-based system that utilizes special cameras to capture license plate information. The ALPR system captures an infrared image of a license plate and converts it to a text file using Optical Character Recognition ("OCR") technology. The text is compared to various hot lists generated by local, state, and federal law enforcement agencies, including the National Crime Information Center ("NCIC"), and generates an alert when there is a hit. The ALPR system identifies license plates and will not identify the person operating the motor vehicle. The Department may, as a separate step and for legitimate law enforcement purposes per the Federal Driver’s Privacy Protection Act, and as set forth in this Policy, undertake to identify the owner of a vehicle in the event the ALPR system generates an alert, such as by running the license plate number through the State of California Department of Motor Vehicle (DMV) database. (b) It shall be the policy of this Agency that all Department members abide by the policy and its procedures set forth when using the ALPR system, thereby increasing the efficiency and effectiveness of its public safety efforts in a manner that safeguards the privacy concerns of law abiding citizens.
(c) The ALPR system shall be restricted to legitimate law enforcement uses for the purpose of furthering legitimate law enforcement goals and enhancing public safety. Such uses and goals include, but are not limited to, providing information to officers that will assist in on-going criminal investigations, crime prevention, crime detection, the apprehension of wanted persons, ensuring the safety of vulnerable individuals through the recovery of missing and endangered persons, and improving the quality of life in our community through the identification and removal of stolen or unregistered motor vehicles.
(d) The Department shall utilize hot lists which further the above specified goals of the ALPR system, where there is a legitimate and specific law enforcement reason for identifying a vehicle associated with an outstanding arrest warrant, vehicles related to missing persons investigations, vehicles associated with AMBER Alerts, stolen vehicles, vehicles that are reasonably believed to be involved in the commission of a crime, vehicles which are registered to or are reasonably believed to be operated by persons who do not have a valid operator's license or who are on the
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Alameda Police Department
Alameda Police Department Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2017/05/10, All Rights Reserved.
Published with permission by Alameda Police Department
Automated License Plate Readers (ALPRs) - 2
revoked or suspended list, vehicles with expired registrations, vehicles registered to persons who are subject to a restraining order issued by a court or by the Parole Board, or who are subject to any other duly issued order restricting their movements, vehicles registered to persons wanted by a law enforcement agency who are of interest in a specific investigation, or vehicles registered to persons who are on any watch list issued by a State or Federal agency responsible for homeland security when information has been received concerning a specific individual. 462.2 DEFINITIONS
ALPR
– Automated License Plate Recognition System, or Automated License Plate Reader ALPR System – The system in its entirety, including all ALPR cameras, software, and collected data
Alert – An audible and/or visual signal activated upon the read of a license plate by the ALPR system that has NOT BEEN VISUALLY VERIFIED by the officer against the photo in the ALPR system.
Tentative Hit – An alert by the ALPR system that HAS BEEN VISUALLY VERIFIED by the officer against the ALPR hotlist and photo but HAS NOT BEEN VALIDATED by the officer or dispatch as a live query transaction OR CONFIRMED AS VALID with the original entering agency.
Live Query Transaction – A hit by the ALPR system that HAS BEEN VALIDATED as active but HAS NOT BEEN CONFIRMED as valid by the entering agency.
Confirmation (Confirmed Hit)
– A hit by the ALPR system that HAS BEEN CONFIRMED as valid and active by the original entering agency through secondary check.
Hotlist
– Data files extracted from law enforcement databases which contain listings of stolen license plates, stolen vehicles, wanted persons, and other vehicles/persons actively being sought by a law enforcement agency such as Amber/Silver Alert vehicles/persons. These data extracts are generally facilitated numerous times per day in an effort to provide current data. 462.3 PROCEDURES
(a) Management
The Alameda Police Department, by and through the Chief of Police, is solely responsible for the day-to-day operation and management of the ALPR system and for all tasks ancillary to its operation and management. The Chief of Police shall assign Department personnel to operate and manage the ALPR system on a day-to-day basis.
The Chief of Police, through his or her designee, shall ensure that the ALPR system is operated in conformity with this Policy and other Department policies, procedures, rules and regulations. The Chief shall enforce this Policy and shall act as the Department Head for all disciplinary and enforcement actions for any violations by Department personnel. (b) Operations
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Alameda Police Department
Alameda Police Department Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2017/05/10, All Rights Reserved.
Published with permission by Alameda Police Department
Automated License Plate Readers (ALPRs) - 3
1. Installation and Functioning. ALPR cameras may be mounted on a marked cruiser or unmarked vehicle. ALPR equipment will passively read the license plates of moving or parked motor vehicles using ALPR optical character recognition technology and compare them against various hot lists uploaded or created by the Alameda Police Department. Scanned data files collected by the system will, on an ongoing basis, be automatically uploaded from the ALPR camera to the Department's ALPR database.
2. Hot Lists.
Designation of hot lists to be utilized by the ALPR system shall be made by the Chief or his/her designee. Hot lists shall be obtained or compiled from sources as may be consistent with the purposes of the ALPR system set forth in this Policy. These sources may include:
· NCIC Stolen Vehicle files, as available;
· NCIC Stolen plates and Stolen Canadian plates, as available; · NCIC Wanted persons, as available;
· NCIC Missing or Endangered person files, as available; · NCIC Supervised Release (Federal Probationers), as available; · NCIC Nationwide Domestic Violence Protection Orders, as available; · NCIC Violent Gang and Terrorist Organization File, as available; · NCIC Sexual Offender;
· DMV Records of Suspended/Revoked Registrations.
3. Training
. No member of this Department shall operate ALPR equipment or access ALPR data without first completing Department-approved training.
4. Login/Log-Out
Procedure . To ensure proper operation and facilitate oversight of the ALPR system, all users will be required to have individual credentials for access and use of the systems and/or data. A routine check to ensure the equipment is working properly should be done at the beginning of each shift by the user logging into the system.
5. Auditing and Oversight
. To ensure proper oversight into the use of the system and adherence to this policy, all activities (plate detections, queries, reports, etc.) are automatically recorded by the system for auditing purposes. System audits shall be conducted by the Inspectional Services Section supervisor at least every six months during the first two years subsequent to implementation and no less than annually thereafter. The audit report shall include an explanation regarding any data retained longer than six months (e.g. data retained as evidence in a criminal case).
6. Permitted/Impermissible Uses
. The ALPR system, and all data collected, is the property of the Alameda Police Department. Department personnel may only access and use the ALPR system for official and legitimate law enforcement purposes consistent with this Policy.
The following uses of the ALPR system are specifically prohibited:
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Alameda Police Department
Alameda Police Department Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2017/05/10, All Rights Reserved.
Published with permission by Alameda Police Department
Automated License Plate Readers (ALPRs) - 4
a. Invasion of Privacy: Except when done pursuant to a court order such as a search warrant, it is a violation of this Policy to utilize the ALPR to record license plates except those of vehicles that are exposed to public view (e.g., vehicles on a public road or street, or that are on private property but whose license plate(s) are visible from a public road, street, or a place to which members of the public have access, such as the parking lot of a shop or other business establishment). b. Harassment or Intimidation: It is a violation of this Policy to use the ALPR system to harass and/or intimidate any individual or group.
c. Personal Use: It is a violation of this Policy to use the ALPR system or associated scan files or hot lists for any personal purpose.
Anyone who engages in an impermissible use of the ALPR system or associated scan files or hot lists may be subject to:
· criminal prosecution,
· civil liability, and/or
· administrative sanctions, up to and including termination, pursuant to and consistent with the relevant collective bargaining agreements and Department policies.
7. Required Steps Preliminary to Police Action.
Hot lists utilized by the Department's ALPR
system may be updated by agency sources more frequently than the Department may be uploading them, and the Department's ALPR system will not have access to real time data. Further, there may be errors in the ALPR's read of a license plate. Therefore, an alert alone shall not be a basis for police action (other than following the vehicle of interest). Prior to initiation of a stop of a vehicle or other intervention based on an alert, an officer shall undertake the following:
a. Verification of current status on hot list. An officer must receive confirmation, from someone or some system within the Department that the license plate is still stolen, wanted, or otherwise of interest before proceeding.
b. Visual verification of license plate number. Officers shall visually verify that the license plate on the vehicle of interest matches identically with the image of the license plate number captured (read) by the ALPR, including both the alphanumeric characters of the license plate and the state of issue, before proceeding with a traffic stop.
8. Use in Connection With Serious Crimes/Incidents.
Use of the ALPR should be considered
to conduct license plate canvasses in the immediate wake of any homicide, shooting, robbery, kidnapping, sexual assault or AMBER ALERT, or other major crime or incident. (c) Database Access and Privacy Concerns
1. The ALPR system database and software resides in a data center featuring full redundancy and access controls. The data remains property of the Alameda Police Department, and is managed according to this Policy.
2. The ALPR system is governed by the Permitted/Impermissible Uses as outlined in this Policy.
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Alameda Police Department
Alameda Police Department Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2017/05/10, All Rights Reserved.
Published with permission by Alameda Police Department
Automated License Plate Readers (ALPRs) - 5
3. The ALPR data contains no Personally Identifiable Information (PII) that may be used to connect license plate detection to an individual. It is only with permissible purpose that an investigator may make this connection (using other systems) and this access is already governed by the Federal Driver’s Privacy Protection Act (DPPA).
4. All investigative queries into collected ALPR data are logged by user and available for auditing and review by the Department as outlined in this Policy. (d) Data Retention
All data and images gathered by an ALPR are for the official use of the Alameda Police Department and because such data may contain confidential CLETS information, it is not open to public review. ALPR information gathered and retained by this Department may be used and shared with prosecutors or others only as permitted by law. All ALPR data downloaded to the server will be stored for a period of six months, and thereafter shall be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a lawful action to produce records. In those circumstances, the applicable data should be downloaded from the server onto portable media and booked into evidence.
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Policy
429
Emeryville Police Department
Emeryville PD Policy Manual
Copyright Lexipol, LLC 2018/10/02, All Rights Reserved.
Published with permission by Emeryville Police Department Automated License Plate Readers (ALPRs) - 1
Automated License Plate Readers (ALPRs)
429.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology. 429.2 ADMINISTRATION
The ALPR technology, also known as License Plate Recognition (LPR), allows for the automated detection of license plates. It is used by the Emeryville Police Department to convert data associated with vehicle license plates for official law enforcement purposes, including identifying stolen or wanted vehicles, stolen license plates and missing persons. It may also be used to gather information related to active warrants, homeland security, electronic surveillance, suspect interdiction and stolen property recovery.
All installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Professional Services and Standards Division Captain. The Professional Services and Standards Division Captain will assign members under his/her command to administer the day-to-day operation of the ALPR equipment and data. 429.2.1 ALPR ADMINISTRATOR
The Professional Services and Standards Captain shall be responsible for developing guidelines and procedures to comply with the requirements of Civil Code § 1798.90.5 et seq.This includes, but is not limited to Civil Code §1798.90.51; Civil Code §1798.90.53:
(a) A description of the job title or other designation of the members and independent contractors who are authorized to use or access the ALPR system or to collect ALPR information.
(b) Training requirements for authorized users.
(c) A description of how ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws. (d) Procedures for system operators to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title and name of the current designee in overseeing the ALPR operation. (f) Working with the Custodian of Records on the retention and destruction of ALPR data. (g) Ensuring this policy and related procedures are conspicuously posted on the departments website.
429.3 OPERATIONS
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
(a) An ALPR shall only be used for official law enforcement business.
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Emeryville Police Department
Emeryville PD Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2018/10/02, All Rights Reserved.
Published with permission by Emeryville Police Department Automated License Plate Readers (ALPRs) - 2
(b) An ALPR may be used in conjunction with any routine patrol operation or criminal investigation. Reasonable suspicion or probable cause is not required before using an ALPR.
(c) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR-equipped cars to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles.
(d) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(e) No ALPR operator may access department, state or federal data unless otherwise authorized to do so.
(f) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
429.4 DATA COLLECTION AND RETENTION
The Professional Services and Standards Division Captain is responsible for ensuring systems and processes are in place for the proper collection and retention of ALPR data. Data will be transferred from vehicles to the designated storage in accordance with department procedures.
All ALPR data downloaded to the server should be stored for a minimum of one year (Government Code § 34090.6) and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data should be downloaded from the server onto portable media and booked into evidence. 429.5 ACCOUNTABILITY
All data will be closely safeguarded and protected by both procedural and technological means.
The Emeryville Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) All ALPR data downloaded to the mobile workstation and in storage shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time (Civil Code § 1798.90.52). (b) Members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action.
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Emeryville Police Department
Emeryville PD Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2018/10/02, All Rights Reserved.
Published with permission by Emeryville Police Department Automated License Plate Readers (ALPRs) - 3
(c) ALPR system audits should be conducted on a regular basis.
For security or data breaches, see the Records Release and Maintenance Policy. 429.6 POLICY
The policy of the Emeryville Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review. 429.7 RELEASING ALPR DATA
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law, using the following procedures:
(a) The agency makes a written request for the ALPR data that includes:
1. The name of the agency.
2. The name of the person requesting.
3. The intended purpose of obtaining the information.
(b) The request is reviewed by the Professional Services and Standards Division Captain or the authorized designee and approved before the request is fulfilled. (c) The approved request is retained on file.
Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55). 429.8 TRAINING
The Professional Services Officer should ensure that members receive department-approved training for those authorized to use or access the ALPR system (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
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Policy Hayward Police Department
429
Policy Manual
Automated License Plate Readers (ALPRs) - 1
Printed Date: 2016/03/23
© 1995-2016 Lexipol, LLC
***DRAFT***
Automated License Plate Readers (ALPRs)
429.1 PURPOSE AND SCOPE
Automated License Plate Reader (ALPR) technology, also known as License Plate Recognition, provides automated detection of license plates. ALPRs are used by the Hayward Police Department to convert data associated with vehicle license plates for official law enforcement purposes, including identifying stolen or wanted vehicles, stolen license plates and missing persons. ALPRs may also be used to gather information related to active warrants, homeland security, electronic surveillance, suspect interdiction and stolen property recovery. 429.1.1 ACCREDITATION STANDARDS
This section pertains to the following CALEA Standards: 41.3.9 429.2 ADMINISTRATION OF ALPR DATA
All installation and maintenance of ALPR equipment, as well as ALPR data retention and access shall be managed by the Support Services Division Commander. The Support Services Division Commander will assign personnel under his/her command to administer the day-to-day operation of the ALPR equipment and data.
429.3 ALPR OPERATION
Use of an ALPR is restricted to the purposes outlined below. Department personnel shall not use, or allow others to use the equipment or database records for any unauthorized purpose. (a) An ALPR shall only be used for official and legitimate law enforcement business. (b) An ALPR may be used in conjunction with any routine patrol operation or criminal investigation. Reasonable suspicion or probable cause is not required before using an ALPR.
Examples of authorized purposes include but are not limited to:
1. Locating stolen, wanted and subject of investigation vehicles;
2. Locating and apprehending individuals subject to arrest warrants or otherwise lawfully sought by law enforcement;
3. Locating witnesses and victims of violent crime;
4. Locating missing children and elderly individuals, including responding to Amber and Silver Alerts;
5. Supporting local, state, federal, and tribal public safety departments in the identification of vehicles associated with targets of criminal investigations, including investigations of serial crimes;
6. Protecting participants at special events; and
7. Protecting critical infrastructure sites.
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Hayward Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
Automated License Plate Readers (ALPRs) - 2
Printed Date: 2016/03/23
© 1995-2016 Lexipol, LLC
***DRAFT***
(c) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR-equipped cars to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles. (d) No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so.
(e) If practicable, the officer should verify an ALPR response through CLETS before taking enforcement action that is based solely on an ALPR alert. 429.4 ALPR AUTHORIZED USERS AND TRAINING
(a) No member of this department sall operate ALPR equipment or access ALPR data without first completing department-approved training.
(b) The following classifications are authorized to be trained in the use of the ALPR system:
1. Duly sworn peace officers
2. Professional staff whose duties require or call for the use of the system or data; examples: Community Service Officers (assigned to investigative positions) or Crime Analysts
(c) Training in the use of the system shall consist of:
1. Privacy and civil liberties protections;
2. Legal authorities, developments and issues involving the use of ALPR Data and technology;
3. Current HPD Policy regarding appropriate use of ALPR Systems;
4. Technical, physical, administrative and procedural measures to protect the security of ALPR Data against unauthorized access or use; and
5. Practical excercises in the use of the ALPR system.
429.5 ALPR DATA COLLECTION, RETENTION AND DISSEMINATION Information collected by ALPR is categorized as one of two types. (a) DETECTIONS: Detections are the records including images and data (date, time and location) gathered by ALPR field units.
(b) HITS: Are the notices from the system alerting the operator of a match between the license plate captured and a listing on one of the hot lists.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Hayward Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
Automated License Plate Readers (ALPRs) - 3
Printed Date: 2016/03/23
© 1995-2016 Lexipol, LLC
***DRAFT***
(c) RETENTION OF DATA: All data and images gathered by an ALPR are for the official use of the Hayward Police Department and because such data may contain confidential CLETS information, it is not open to public review. ALPR information gathered and retained by this department may be used and shared with prosecutors or others only as permitted by law.
The Support Services supervisor is responsible to ensure proper collection and retention of ALPR data, and for transferring ALPR data stored in department vehicles to the department server on a regular basis, not to exceed 30 days between transfers.
All ALPR data downloaded to the server should be stored for a minimum of one year (Government Code § 34090.6), and thereafter may be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a lawful action to produce records. In those circumstances the applicable data should be downloaded from the server onto portable media and booked into evidence.
All ALPR HIT records are maintained indefinitely.
(d) DISSEMINATION: The Hayward Police Department may disseminate ALPR data to any government entity with an authorized law enforcement or public safety purpose for access to such data. The Hayward Police Department assumes no responsibility or liability for the acts or omissions of other agencies in making use of the ALPR data properly disseminated. Though the Hayward Police Department will make every reasonable effort to ensure the quality of shared ALPR Data and hotlists, it cannon make absolute guarantees of the accuracy of information provided.
429.6 ACCOUNTABILITY AND SAFEGUARDS
All saved data will be closely safeguarded and protected by both procedural and technological means. The Hayward Police Department will observe the following safeguards regarding access to and use of stored data:
(a) All non-law enforcement requests for access to stored ALPR data shall be referred to the Records Administrator and processed in accordance with applicable law. (b) All ALPR data downloaded to the mobile workstation and server shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Hayward Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
Automated License Plate Readers (ALPRs) - 4
Printed Date: 2016/03/23
© 1995-2016 Lexipol, LLC
***DRAFT***
(c) Persons approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action. (d) Such ALPR data may be released to other authorized and verified law enforcement officials and agencies at any time for legitimate law enforcement purposes. (e) ALPR system audits should be conducted on a regular basis. 429.7 REVISONS
Enacted: March 31, 2015
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Policy Oakland Police Department
430
Policy Manual
Automated License Plate Readers (ALPRs)
430.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology.
430.2 POLICY
The policy of the Oakland Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and im
ages gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review.
430.3 ADMINISTRATION
The ALPR technology, also known as License Plate Recognition (LPR), allows for the automated detection of license plates. It is used by the Oakland Police Department to convert data associated with vehicle license plates for official law enforcement purposes, including identifying stolen or wanted vehicles, stolen license plates and missing persons. It may also be used to gather information related to active warrants, suspect interdiction and stolen property recovery.
All installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Bureau of Services Deputy Chief. The Deputy Chief will assign members under his/her command to administer the day-to-day operation of the ALPR equipment and data.
430.3.1 ALPR ADMINISTRATOR
The Bureau of Services Deputy Chief shall be the administrator of ALPR program, and shall be responsible for developing guidelines and procedures to comply with the requirements of Civil Code § 1798.90.5 et seq. This includes, but is not limited to Civil Code § § 1798.90.51 through 1798.90.53:
(a) A description of the job title or other designation of the members and independent contractors who are authorized to use or access the ALPR system or to collect ALPR information.
(b) Training requirements for authorized users.
(c) A description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws.
(d) Procedures for system operators to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title of the current designee overseeing the ALPR operation.
(f) Working with the Custodian of Records on the retention and destruction of ALPR data.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Oakland Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
(g) Ensuring this policy and related procedures are conspicuously posted on the department’s website.
430.4 ALPR USERS
Personnel authorized to use ALPR equipment or access information collected through the use of such equipment shall be specifically trained in such technology and authorized by the Chief of Police or designee. Such personnel shall be limited to designated sergeants, officers, police service technicians, and parking enforcement personnel unless otherwise authorized.
430.5 PURPOSES FOR ACCESSING AND USING ALPR INFORMATION Use of an ALP
R is restricted to the purposes outlined below. The title of the official custodian of the ALPR system, responsible for implementing this section, is the ALPR Coordinator.
Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
(a) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(b) No ALPR operator may access department, state or federal data unless otherwise authorized to do so.
(c) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR-equipped cars to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles.
(d) An ALPR shall only be used for official law enforcement business.
(e) An ALPR may be used in conjunction with any routine patrol operation or criminal investigation. Reasonable suspicion or probable cause is not required before using an ALPR.
(f) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
430.6 DATA COLLECTION AND RETENTION
The Bureau of Services Deputy Chief is responsible for ensuring systems and processes are in place for the proper collection, accuracy and retention of ALPR data. Data will be transferred from vehicles to the designated storage in accordance with department procedures.
All ALPR data downloaded to the server shall be stored for six months. Thereafter, ALPR data shall be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data shall be downloaded from the server onto portable media and booked into evidence.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Oakland Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
430.7 SYSTEM MONITORING AND SECURITY
All data will be closely safeguarded and protected by both procedural and technological means.
The Oakland Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) All ALPR data downloaded to the mobile workstation and in st orage shall be accessible
only through a login/password-protected system capable of documenting all access of information by username, license number or other data elements used in the search, name, date, time and purpose (Civil Code § 1798.90.52).
(b) Members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action.
(c) ALPR system audits shall be conducted on a regular basis by the Bureau of Services. The purpose of these audits is to ensure the accuracy of ALPR Information and correct data errors.
For security or data breaches, see the Records Release and Maintenance Policy.
430.8 RELEASING OR SHARING ALPR DATA
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law, using the following procedures:
(a) The agency makes a written request for the ALPR data that includes:
1. The name of the agency.
2. The name of the person requesting.
3. The intended purpose of obtaining the information.
(b) The request is reviewed by the Bureau of Services Deputy Chief or the authorized designee and approved before the request is fulfilled.
(c) The approved request is retained on file.
Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).
430.9 TRAINING
The Training Section shall ensure that members receive department-approved training for those authorized to use or access the ALPR system and shall maintain a record of all completed trainings. (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
Training requirements for employees authorized in ALPR Users Section include completion of training by the ALPR Coordinator or appropriate subject matter experts as designated by the Oakland Police Department. Such training shall include:
Applicable federal and state law
Applicable policy
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Oakland Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
Memoranda of understanding
Functionality of equipment
Accessing data
Safeguarding password information and data
Sharing of data
Reporting breaches
Implementing post-breach procedures
Training updates are required annually.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Policy
438
Piedmont Police Department
Piedmont PD Policy Manual
Copyright Lexipol, LLC 2019/05/17, All Rights Reserved.
Published with permission by Piedmont Police Department Automated License Plate Readers (ALPRs) - 1
Automated License Plate Readers (ALPRs)
438.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology. 438.2 ADMINISTRATION
The ALPR technology, also known as License Plate Recognition (LPR), allows for the automated detection of license plates. It is used by the Piedmont Police Department to convert data associated with vehicle license plates for official law enforcement purposes, including identifying stolen or wanted vehicles, stolen license plates and missing persons. It may also be used to gather information related to active warrants, homeland security, electronic surveillance, suspect interdiction and stolen property recovery.
All installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Administration Operations Commander. The Administration Operations Commander will assign members under his/her command to administer the day-to-day operation of the ALPR equipment and data.
438.2.1 ALPR ADMINISTRATOR
The Administration Operations Commander shall be responsible for developing guidelines and procedures to comply with the requirements of Civil Code § 1798.90.5 et seq. This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) A description of the job title or other designation of the members and independent contractors who are authorized to use or access the ALPR system or to collect ALPR information.
(b) Training requirements for authorized users.
(c) A description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws. (d) Procedures for system operators to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title and name of the current designee in overseeing the ALPR operation. (f) Working with the Custodian of Records on the retention and destruction of ALPR data. (g) Ensuring this policy and related procedures are conspicuously posted on the department’s website.
438.3 OPERATIONS
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
(a) An ALPR shall only be used for official law enforcement business.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Piedmont Police Department
Piedmont PD Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2019/05/17, All Rights Reserved.
Published with permission by Piedmont Police Department Automated License Plate Readers (ALPRs) - 2
(b) An ALPR may be used in conjunction with any routine patrol operation or criminal investigation. Reasonable suspicion or probable cause is not required before using an ALPR.
(c) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR-equipped cars to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles.
(d) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(e) No ALPR operator may access department, state or federal data unless otherwise authorized to do so.
(f) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
438.4 DATA COLLECTION AND RETENTION
The Administration Operations Commander is responsible for ensuring systems and processes are in place for the proper collection and retention of ALPR data. Data will be transferred from vehicles to the designated storage in accordance with department procedures.
All ALPR data downloaded to the server should be stored for a minimum of one year (Government Code § 34090.6) and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or there is a reason to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data should be downloaded from the server onto portable media and booked into evidence. 438.5 ACCOUNTABILITY
All data will be closely safeguarded and protected by both procedural and technological means.
The Piedmont Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) All ALPR data downloaded to the mobile workstation and in storage shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time (Civil Code § 1798.90.52). (b) Members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Piedmont Police Department
Piedmont PD Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2019/05/17, All Rights Reserved.
Published with permission by Piedmont Police Department Automated License Plate Readers (ALPRs) - 3
(c) The Support Services Division Commander will be responsible for directing and ensuring that ALPR system audits are conducted on a regular basis.
For security or data breaches, see the Records Release and Maintenance Policy. 438.6 AUTHORIZED DESIGNEE FOR CERTAIN ALPR SERVICES
The Chief of Police may enter into an agreement with another law enforcement agency or authority, through contract or memorandum of understanding, to receive, provide, or share ALPR services that meet the minimum standards of this policy.
438.7 TRAINING
Only persons trained in the use of the ALPR system, including its privacy and civil liberties protections, shall be allowed access to the ALPR data. Training shall consist of:
• Legal authorities, developments, and issues involving the use of ALPR data and technology
• Current policy regarding appropriate use of ALPR systems • Evolution of ALPR and related technologies, including new capabilities and associated risks
• Technical, physical, administrative, and procedural measures to protect the security of ALPR data against unauthorized access or use
• Practical exercises in the use of the current ALPR system Training shall be updated as technological, legal, and other changes that affect the use of the ALPR system occur. In no case shall a person utilitze the ALPR system if he/she has not completed training in more than a year.
438.8 POLICY
The policy of the Piedmont Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review. 438.9 RELEASING ALPR DATA
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law.
Any requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).
Department personnel who receive requests for ALPR data will accept the request in accordance with our Records Maintenance and Release Policy and forward the request to the Support Services Division Commander.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Piedmont Police Department
Piedmont PD Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2019/05/17, All Rights Reserved.
Published with permission by Piedmont Police Department Automated License Plate Readers (ALPRs) - 4
438.10 TRAINING
The Training Sergeant should ensure that members receive department-approved training for those authorized to use or access the ALPR system (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Policy
418
San Leandro Police Department
Policy Manual
Copyright Lexipol, LLC 2017/01/18, All Rights Reserved.
Published with permission by San Leandro Police Department Automated License Plate Readers (ALPRs) - 1
Automated License Plate Readers (ALPRs)
418.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology. 418.2 POLICY
The policy of the San Leandro Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review.
In accordance with a Memorandum of Understanding (MOU) between the San Leandro Police Department and the Northern California Regional Intelligence Center (NCRIC), the Department shall work in cooperation and coordination with NCRIC in providing a standardized approach and method of collecting and sharing ALPR systems' data.
418.3 ADMINISTRATION
The ALPR technology, also known as License Plate Recognition (LPR), allows for the automated detection of license plates. It is used by the San Leandro Police Department to convert data associated with vehicle license plates for official law enforcement purposes, including identifying stolen or wanted vehicles, stolen license plates and missing persons. It may also be used to gather information related to active warrants, homeland security, electronic surveillance, suspect interdiction and stolen property recovery.
All installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Bureau of Services Captain, or his/her designee. The Bureau of Services Captain, or his/her designee, will assign members under their command to administer the day-to- day operation of the ALPR equipment and data.
418.3.1 ALPR ADMINISTRATOR
The Bureau of Services Captain, or his/her designee, shall be responsible for developing guidelines and procedures to comply with the requirements of Civil Code § 1798.90.5 et seq. This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) A description of the job title or other designation of the members and independent contractors who are authorized to use or access the ALPR system or to collect ALPR information.
(b) Training requirements for authorized users.
(c) A description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
San Leandro Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2017/01/18, All Rights Reserved.
Published with permission by San Leandro Police Department Automated License Plate Readers (ALPRs) - 2
(d) Procedures for system operators to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title and name of the current designee in overseeing the ALPR operation. (f) Working with the Custodian of Records on the retention and destruction of ALPR data. (g) Ensuring this policy and related procedures are conspicuously posted on the department’s website.
418.4 OPERATIONS
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
(a) An ALPR shall only be used for official law enforcement business. (b) An ALPR may be used in conjunction with any routine patrol operation or criminal investigation. Reasonable suspicion or probable cause is not required before using an ALPR.
(c) While an ALPR may be used to canvass license plates around any crime scene, particular consideration should be given to using ALPR-equipped cars to canvass areas around homicides, shootings and other major incidents. Partial license plates reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles. (d) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(e) No ALPR operator may access department, state or federal data unless otherwise authorized to do so.
(f) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
418.4.1 AUTHORIZED PURPOSES, COLLECTION, AND USE OF ALPR DATA Sworn peace officers with a need and right to know may utilize ALPR technology for the following reasons, but are not limited to:
(a) Locate stolen, wanted, and subject of investigation vehicles. (b) Locate and apprehend individuals subject to arrest warrants or otherwise lawfully sought by law enforcement.
(c) Locate witnesses and victims of violent crime.
(d) Locate missing children and elderly individuals, including responding to Amber and Silver Alerts.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
San Leandro Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2017/01/18, All Rights Reserved.
Published with permission by San Leandro Police Department Automated License Plate Readers (ALPRs) - 3
(e) Support local, state, federal and tribal public safety departments in the identification of vehicles associated with targets of criminal investigations, including investigations of serial crimes.
(f) Protect participants at local events.
(g) Protect critical infrastructure sites.
418.5 ALPR DATA COLLECTION AND RETENTION
The City of San Leandro Information Technology division is responsible for ensuring the collection of ALPR data is transferred from department vehicles to the Northern California Regional Intelligence Center (NCRIC) server on an automatic basis, transferring immediately upon utilization of the system.
All data and images gathered by an ALPR are for the official use only, and because such data may contain confidential CLETS information, it is not open to public review. ALPR information gathered and retained by this NCRIC may be used and shared with prosecutors or others only as permitted by law.
All ALPR data downloaded to the NCRIC server shall be stored for one year (Government Code § 34090.6) and thereafter will be purged on the 366th day unless it has become, or it is reasonable to believe it will become evidence in a criminal or civil action or is subject to a lawful action to produce records. In those circumstances the applicable data should be downloaded from the NCRIC server onto portable media and booked into evidence. 418.6 ACCOUNTABILITY
All data will be closely safeguarded and protected by both procedural and technological means by NCRIC. The San Leandro Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) All ALPR data downloaded to the mobile workstation and in storage shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time (Civil Code § 1798.90.52). (b) Members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action. (c) ALPR system audits should be conducted by the ALPR Administrator on a quarterly basis. (d) The ALPR Administrator shall report any errors to NCRIC for correction. 418.7 RELEASING ALPR DATA
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law, using the following procedures:
(a) The agency makes a written request for the ALPR data that includes:
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
San Leandro Police Department
Policy Manual
Automated License Plate Readers (ALPRs)
Copyright Lexipol, LLC 2017/01/18, All Rights Reserved.
Published with permission by San Leandro Police Department Automated License Plate Readers (ALPRs) - 4
1. The name of the agency.
2. The name of the person requesting.
3. The intended purpose of obtaining the information.
(b) The request is reviewed by the Bureau of Services Captain or the authorized designee and approved before the request is fulfilled.
(c) The approved request is retained on file.
Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55). 418.8 TRAINING
The Professional Standards and Training Unit should ensure that members receive department- approved training for those authorized to use or access the ALPR system (Civil Code § 1798.90.51; Civil Code § 1798.90.53). This training shall be consistent with the training outlined in the NCRIC ALPR Policy.
418.9 NCRIC ALPR POLICY
NCRIC ALPR Policy
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Internal
Draft of BPD Policy 422 “Fixed
Automated License Plate Readers
(ALPRs)
Berkeley Police Department
Policy Manual
2. 422 Automated License Plate Readers Patrol Operations (ALPRs) (5-11-23).docx | 1
Policy
422
Fixed Automated License Plate Readers (ALPRs)-
422.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology. Department Personnel shall adhere to the requirements of Fixed ALPRs in this policy as well as the corresponding Surveillance Use-Fixed ALPRs policy-1305.
422.2 POLICY
The policy of the Berkeley Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review.
The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for federal immigration enforcement, pursuant to the California Values Act (Government Code § 7282.5; Government Code § 7284.2 et seq) – these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CBP).
422.3 DEFINITIONS
(a) Automated License Plate Reader (ALPR): A device that uses cameras and computer technology to compare digital images to lists of known information of interest. (b) ALPR Operator: Trained Department members who may utilize ALPR system/equipment.
ALPR operators may be assigned to any position within the Department, and the ALPR Administrator may order the deployment of the ALPR systems for use in various efforts. (c) ALPR Administrator: The Investigations Bureau Captain or the Chief’s designee, serves as the ALPR Administrator for the Department.
(d) Hot List: A list of license plates associated with vehicles of interest compiled from one or more databases including, but not limited to, NCIC, CA DMV, Local BOLO's, etc. (e) Vehicles of Interest: Including, but not limited to vehicles which are reported as stolen, display stolen license plates or tags; vehicles linked to missing and/or wanted persons and vehicles flagged by the Department of Motor Vehicle Administration or law enforcement agencies.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
2. 422 Automated License Plate Readers Patrol Operations (ALPRs) (5-11-23).docx | 2
(f) Detection: Data obtained by an ALPR of an image (such as a license plate) within public view that was read by the device, including potential images (such as the plate and description of vehicle on which it was displayed), and information regarding the location of the ALPR system at the time of the ALPR's read.
(g) Hit Alert from the ALPR system that a scanned license plate number may be in the National Crime Information Center (NCIC) or other law enforcement database for a specific reason including, but not limited to, being related to a stolen car, wanted person, missing person, domestic violation protective order or terrorist-related activity. 422.4 ADMINISTRATION
The ALPR technology, also known as License Plate Recognition (LPR), allows for the automated detection of license plates. It is used by the Berkeley Police D epartment to convert data associated with vehicle license plates for official law enforcement purposes, including identifying stolen or wanted vehicles, stolen license plates and missing persons. It may also be used to gather information related to active warrants, suspect apprehension and stolen property recovery.
Any installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Investigations Division Captain. The Investigations Division Captain will assign members under his/her command to administer the day -to-day operation of the ALPR equipment and data.
422.4.1 ALPR ADMINISTRATOR
The Investigations Division Captain, or his/her designee, shall be responsible for compliance with the requirements of Civil Code § 1798.90.5 et seq. This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) Only properly trained sworn officers, crime analysts, communication operators, records clerks, parking enforcement officers, and police assistants are allowed access to the ALPR system or to collect ALPR information.
(b) Ensuring that training requirements are completed for authorized users. (c) ALPR system monitor ing to ensure the security of the information and compliance with applicable privacy laws.
(d) Ensuring procedures are followed for system operators to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title and name of the current designee in overseeing the ALPR operation. (f) Working with the Custodian of Records, or vendor on the retention and destruction of ALPR data.ensuring this policy and related procedures are conspicuously posted on the City’s website.
422.5 OPERATIONS
An ALPR shall only be used for official law enforcement business.
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil
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Code § 1798.90.51; Civil Code § 1798.90.53).
(a) An ALPR shall only be used for official law enforcement business. (b) An ALPR may be used in conjunction with any routine patrol operation or to support criminal investigations. Reasonable suspicion or probable cause is not required before using an ALPR.
(c) Partial license plates and unique vehicle descriptions reported during crimes may be entered into the ALPR system in an attempt to identify suspect vehicles. (d) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(e) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert. Once an alert is received, the operator should confirm that the observed license plate from the system matches the license plate of the observed vehicle.
Before any law enforcement action is taken because of an ALPR alert, the alert will be verified through a CLETS inquiry via MD T or through Dispatch. Members will not take any police action that restricts the freedom of any individual based solely on an ALPR alert unless it has been validated. Because the ALPR alert may relate to a vehicle and may not relate to the person operating the vehicle, officers are reminded that they need to have reasonable suspicion and/or probable cause to make an enforcement stop of any vehicle. (For example, if a vehicle is entered into the system because of its association with a wanted individual, Officers should attempt to visually match the driver to the description of the wanted subject prior to making the stop or should have another legal basis for making the stop.) (f) Hot Lists. Designation of hot lists to be utilized by the ALPR system shall be made by the ALPR Administrator or his/her designee. Hot lists shall be obtained or compiled from sources as may be consistent with the purposes of the ALPR system set forth in this Policy. Hot lists utilized by the Department's LPR system may be updated by agency sources more frequently than the Department may be uploading them and thus the Department's LPR system will not have access to real time data. Occasionally, there may be errors in the LPR system’s read of a license plate. Therefore, an alert alone shall not be a basis for police action (other than following the vehicle of interest). Prior to initiation of a stop of a vehicle or other intervention based on an alert, Department members shall undertake the following:
(1) Verification of status on a Hot List. An officer must receive confirmation, from a Berkeley Police Department Communications Dispatcher or other department computer device, that the license plate is still stolen, wanted, or otherwise of interest before proceeding (absent exigent circumstances).
(2) Visual verification of license plate number. Officers shall visually verify that the license plate of interest matches identically with the image of the license plate number captured (read) by the LPR, including both the alphanumeric characters of the license
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plate, state of issue, and vehicle descriptors before proceeding. Department members alerted to the fact that an observed motor vehicle's license plate is entered as a Hot Plate (hit) in a specific BOLO (be on the lookout) list are required to make a reasonable effort to confirm that a wanted person is actually in the vehicle and/or that a reasonable basis exists before a Department member would have a lawful basis to stop the vehicle. (3) Department members will clear all stops from hot list alerts by indicating the positive ALPR Hit, i.e., with an arrest or other enforcement action. If it is not obvious in the text of the call as to the correlation of the ALPR Hit and the arrest, then the Department member shall update with the Communications Dispatcher and original person and/or a crime analyst inputting the vehicle in the hot list (hit).
(4) General Hot Lists (SVS, SFR, and SLR) will be automatically downloaded into the ALPR system a minimum of once a day with the most current data overwriting the old data.
(5) All entries and updates of specific Hot Lists within the ALPR system will be documented by the requesting Department member within the appropriate general offense report. As such, specific Hot Lists shall be approved by the ALPR Administrator. (6) Administrator (or his/her designee) before initial entry within the ALPR system. The updating of such a list within the ALPR system shall thereafter be accomplished pursuant to the approval of the Department member's immediate super visor. The hits from these data sources should be viewed as informational; created solely to bring the officers attention to specific vehicles that have been associated with criminal activity.
All Hot Plates and suspect information entered into the ALPR system will contain the following information as a minimum:
• Entering Department member's name
• Related case number.
• Short synopsis describing the nature of the originating call (g) Login/Log-Out Procedure. To ensure proper operation and facilitate oversight of the ALPR system, all users will be required to have individual credentials for access and use of the systems and/or data, which has the ability to be fully audited.
Permitted/Impermissible Uses. The ALPR system, and all data collected, is the property of the Berkeley Police Department. Department personnel may only access and use the ALPR system for official and legitimate law enforcement purposes consistent with this Policy. The following uses of the ALPR system are specifically prohibited:
1. Invasion of Privacy: Except when done pursuant to a court order such as a search warrant, is a violation of this Policy to utilize the ALPR to record license plates except those of vehicles that are exposed to public view (e.g., vehicles on a public road or street, or that are on private property but whose license plate(s) are visible from a public road, street, or a place to which members of the public have access, such as the parking lot of a shop or other business establishment).
2. Harassment or Intimidation: It is a violation of this Policy to use the ALPR system to harass and/or intimidate any individual or group.
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3. Use Based on a Protected Characteristic. It is a violation of this policy to use the LPR system or associated scan files or hot lists solely because of a person's, or group's race, gender, religion, political affiliation, nationality, ethnicity, sexual orientation, disability, or other classification protected by law.
4. Personal Use: It is a violation of this Policy to use the ALPR system or associated scan files or hot lists for any personal purpose.
5. First Amendment Rights. It is a violation of this policy to use the LPR system or associated scan files or hot lists for the purpose or known effect of infringing upon First Amendment rights.
(h) Anyone who engages in an impermissible use of the ALPR system or associated scan files or hot lists may be subject to administrative sanctions, up to and including termination, pursuant to and consistent with the relevant collective bargaining agreements and departmental policies. Partial license plates reported during crimes may be entered into the ALPR system in an attempt to identify suspect vehicles.
No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so. If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert. 422.6 DATA COLLECTION AND RETENTION
The Investigations Division Captain is responsible for ensuring systems and processes are in place for the proper collection and retention of ALPR data. Data will be transferred from vehicles to the designated storage in accordance with department procedures. The Department should if feasible find a solution to transfer evidentiary hit data into it’s digital evidence repository through secure integration.
All ALPR data downloaded to the ALPR server should be stored for no longer than 30 days, and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data should be downloaded from the server and uploaded into BPD’s digital evidence repository.
ALPR vendor, will store the data (data hosting) and ensure proper maintenance and security of data stored in their data towers. The ALPR vendor will purge their data at the end of the 30 days of storage. However, this will not preclude Berkeley Police Department from maintaining any relevant vehicle data obtained from the system after that period pursuant to the established City of Berkeley retention schedule mentioned above or outlined elsewhere. Relevant vehicle data are scans corresponding to the vehicle of interest on a hot list. The ALPR vendor and Department shall ensure that the necessary data is captured and stored to accurately report the relevant data required in the Annual Surveillance Technology report. Once the City Council approves the Annual Surveillance Technology report all said data may be purged so long as it doesn’t violate the Retention guidelines.
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Restrictions on use of vendor Data: Information gathered or collected, and records retained by the vendor’s cameras or any other Berkeley Police Department ALPR system will not be sold, accessed, or used for any purpose other than legitimate law enforcement or public safety purposes.
422.7 ACCOUNTABILITY
All saved data will be safeguarded and protected by both procedural and technological means.
The Berkeley Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) Non-law enforcement requests for access to stored ALPR data shall be processed according to the Records Maintenance and Release Policy in accordance with applicable law.
(b) All ALPR data downloaded to any workstation or server shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time (Civil Code § 1798.90.52).
(c) Berkeley Police Department members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action.
(d) Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the consent of the Chief of Police or City Manager (i.e. I f transportation department requested volume of vehicular traffic associated with specific events, it could conceivably be provided with the count of vehicles, but not the specific license plates with appropriate permissions). (e) Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question.
(f) ALPR system audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biennial. (g) Such ALPR data may be released to other authorized and verified law enforcement officials and agencies for legitimate law enforcement purposes.
(h) Every ALPR Detection Browsing Inquiry must be documented by either the associated Berkeley Police case number or incident number, and/or a reason for the inquiry For security or data breaches, see the Records Release and Maintenance Policy. 422.8 ALPR DATA DETECTION BROWSING AUDITS
It is the responsibility of the Sergeant of Audit and Inspections or the Chief’s designee to ensure that an audit is conducted of ALPR detection browsing inquiries at least biennial. The Department
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will audit a sampling of the ALPR system utilization from the prior 24-month period to verify proper use in accordance with the above- authorized uses. The audit shall randomly select at least 10 detection browsing inquiries conducted by department employees during the preceding 24-month period and determine if each inquiry meets the requirements established in policy section 462.6(e).
The audit shall be documented in the form of an internal department memorandum to the Chief of Police. The memorandum shall include any data errors found so that such errors can be corrected. After review by the Chief of Police, the memorandum and any associated documentation shall be filed and retained by the Professional Standards Bureau Captain. This audit should be shared in the Surveillance Ordinance reporting.
422.9 RELEASING ALPR DATA
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law.
(a) A supervisor at the requesting agency will sign an acknowledgement letter stating that the shared data will only be used for the purposes that are aligned with the Berkeley Police Department’s policy. The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for purpose of federal immigration enforcement, these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CBP). See attached letter.
(b) The signed letter is retained on file. Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).
(c) All signed letters shall be routed to the Audit and Inspection Sergeant for compliance and reporting.
ALPR data is subject to the provisions of the Berkeley Police Department’s Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials. 422.10 TRAINING
The Personnel and Training Sergeant shall ensure that members receive department-approved training in order to be authorized to use or access the ALPR system (Civil Code § 1798.90.51; Civil Code § 1798.90.53
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Draft of BPD Policy 1305 “Surveillance
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Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-Fixed ALPRs
1305.1 PURPOSE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology.
Department Personnel shall adhere to the requirements of the Surveillance Use-Fixed ALPRs in this policy as well as the corresponding Use Policy -422.
The policy of the Berkeley Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review.
The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for federal immigration enforcement, pursuant to the California Values Act (Government Code § 7282.5; Government Code § 7284.2 et seq) – these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CBP).
1305.2 DEFINITIONS
(a) Automated License Plate Reader (ALPR): A device that uses cameras and computer technology to compare digital images to lists of known information of interest. (b) ALPR Operator: Trained Department members who may utilize A LPR system/equipment. ALPR operators may be assigned to any position within the Department, and the ALPR Administrator may order the deployment of the ALPR systems for use in various efforts.
(c) ALPR Administrator: The Investigations Bureau Captain or the Chief’s designee, serves as the ALPR Administrator for the Department.
(d) Hot List: A list of license plates associated with vehicles of interest compiled from one or more databases including, but not limited to, NCIC, CA DMV, Local BOLO's, etc. (e) Vehicles of Interest: Including, but not limited to vehicles which are reported as stolen, display stolen license plates or tags; vehicles linked to missing and/or wanted persons and vehicles flagged by the Department of Motor Vehicle Administration or law enforcement agencies.
(f) Detection: Data obtained by an ALPR of an image (such as a license plate) within public view that was read by the device, including potential images (such as the plate and description of vehicle on which it was displayed), and information regarding the location of the ALPR system at the time of the ALPR's read.
Policy
1305
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(g) Hit Alert from the ALPR system that a scanned license plate number may be in the National Crime Information Center (NCIC) or other law enforcement database for a specific reason including, but not limited to, being related to a stolen car, wanted person, missing person, domestic violation protective order or terrorist-related activity.
1305.3 AUTHORIZED AND PROHIBITED USES
An ALPR shall only be used for official law enforcement business.
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53). (a) An ALPR shall only be used for official law enforcement business. (b) An ALPR may be used in conjunction with any routine patrol operation or to support criminal investigations. Reasonable suspicion or probable cause is not required before using an ALPR.
(c) Partial license plates and unique vehicle descriptions reported during crimes may be entered into the ALPR system in an attempt to identify suspect vehicles. (d) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(e) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert. Once an alert is received, the operator should confirm that the observed license plate from the system matches the license plate of the observed vehicle. Before any law enforcement action is taken because of an ALPR alert, the alert will be verified through a CLETS inquiry via MDT or through Dispatch. Members will not take any police action that restricts the freedom of any individual based solely on an ALPR alert unless it has been validated. Because the ALPR alert may relate to a vehicle and may not relate to the person operating the vehicle, officers are reminded that they need to have reasonable suspicion and/or probable cause to make an enforcement stop of any vehicle. (For example, if a vehicle is entered into the system because of its association with a wanted individual, Officers should attempt to visually match the driver to the description of the wanted subject prior to making the stop or should have another legal basis for making the stop.)
(f) Hot Lists. Designation of hot lists to be utilized by the ALPR system shall be made by the ALPR Administrator or his/her designee. Hot lists shall be obtained or compiled from sources as may be consistent with the purposes of the ALPR system set forth in this Policy. Hot lists utilized by the Department's LPR system may be updated by agency sources more frequently than the Department may be uploading them and thus the Department's LPR system will not have access to real time data. Occasionally, there may be errors in the LPR system’s read of a license plate. Therefore, an alert alone shall not be a basis for police action (other than following the vehicle of interest). Prior to initiation of a stop of a vehicle or other intervention based on an alert, Department members shall undertake the following:
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(1) Verification of status on a Hot List. An officer must receive confirmation, from a Berkeley Police Department Communications Dispatcher or other department computer device, that the license plate is still stolen, wanted, or otherwise of interest before proceeding (absent exigent circumstances).
(2) Visual verification of license plate number. Officers shall visually verify that the license plate of interest matches identically with the image of the license plate number captured (read) by the LPR, including both the alphanumeric characters of the license plate, state of issue, and vehicle descriptors before proceeding. Department members alerted to the fact that an observed motor vehicle's license plate is entered as a Hot Plate (hit) in a specific BOLO (be on the lookout) list are required to make a reasonable effort to confirm that a wanted person is actually in the vehicle and/or that a reasonable basis exists before a Department member would have a lawful basis to stop the vehicle.
(3) Department members will clear all stops from hot list alerts by indicating the positive ALPR Hit, i.e., with an arrest or other enforcement action. If it is not obvious in the text of the call as to the correlation of the ALPR Hit and the arrest, then the Department member shall update with the Communications Dispatcher and original person and/or a crime analyst inputting the vehicle in the hot list (hit). (4) General Hot Lists (SVS, SFR, and SLR) will be automatically downloaded into the ALPR system a minimum of once a day with the most current data overwriting the old data.
(5) All entries and updates of specific Hot Lists within the ALPR system will be documented by the requesting Department member within the appropriate general offense report. As such, specific Hot Lists shall be approved by the ALPR Administrator.
(6) Administrator (or his/her designee) before initial entry within the ALPR system.
The updating of such a list within the ALPR system shall thereafter be accomplished pursuant to the approval of the Department member's immediate supervisor. The hits from these data sources should be viewed as informational; created solely to bring the officers attention to specific vehicles that have been associated with criminal activity.
All Hot Plates and suspect information entered into the ALPR system will contain the following information as a minimum:
• Entering Department member's name
• Related case number.
• Short synopsis describing the nature of the originating call (g) Login/Log-Out Procedure. To ensure proper operation and facilitate oversight of the ALPR system, all users will be required to have individual credentials for access and use of the systems and/or data, which has the ability to be fully audited.
Permitted/Impermissible Uses. The ALPR system, and all data collected, is the property of the Berkeley Police Department. Department personnel may only access and use the ALPR system for official and legitimate law enforcement purposes consistent with this Policy. The following uses of the ALPR system are specifically prohibited:
1. Invasion of Privacy: Except when done pursuant to a court order such as a search warrant, is a violation of this Policy to utilize the ALPR to record license plates except those of vehicles that are exposed to public view (e.g., vehicles on a public road or street, or that are on private property but whose license plate(s) are visible
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from a public road, street, or a place to which members of the public have access, such as the parking lot of a shop or other business establishment).
2. Harassment or Intimidation: It is a violation of this Policy to use the ALPR system to harass and/or intimidate any individual or group.
3. Use Based on a Protected Characteristic. It is a violation of this policy to use the LPR system or associated scan files or hot lists solely because of a person's, or group's race, gender, religion, politi cal affiliation, nationality, ethnicity, sexual orientation, disability, or other classification protected by law.
4. Personal Use: It is a violation of this Policy to use the ALPR system or associated scan files or hot lists for any personal purpose.
5. First Amendment Rights. It is a violation of this policy to use the LPR system or associated scan files or hot lists for the purpose or known effect of infringing upon First Amendment rights.
(h) Anyone who engages in an impermissible use of the ALPR system or associated scan files or hot lists may be subject to administrative sanctions, up to and including termination, pursuant to and consistent with the relevant collective bargaining agreements and departmental policies. Partial license plates reported during crimes may be entered into the ALPR system in an attempt to identify suspect vehicles.
No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so. If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
1305.4 DATA COLLECTION
The Investigations Division Captain is responsible for ensuring systems and processes are in place for the proper collection and retention of ALPR data. Data will be transferred from vehicles to the designated storage in accordance with department procedures. The Department should if feasible find a solution to transfer evidentiary hit data into it’s digital evidence repository through secure integration.
All ALPR data downloaded to the ALPR server should be stored for no longer than 30 days, and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data should be downloaded from the server and uploaded into BPD’s digital evidence repository.
ALPR vendor, will store the data (data hosting) and ensure proper maintenance and security of data stored in their data towers. The ALPR vendor will purge their data at the end of the 30 days of storage. However, this will not preclude Berkeley Police Department from maintaining any relevant vehicle data obtained from the system after that period pursuant to the established City of Berkeley retention schedule mentioned above or outlined elsewhere.
Relevant vehicle data are scans corresponding to the vehicle of interest on a hot list. The ALPR vendor and Department shall ensure that the necessary data is captured and stored to accurately report the relevant data required in the Annual Surveillance Technology report.
Once the City Council approves the Annual Surveillance Technology report all said data may be purged so long as it doesn’t violate the Retention guidelines.
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Restrictions on use of vendor Data: Information gathered or collected, and records retained by the vendor’s cameras or any other Berkeley Police Department ALPR system will not be sold, accessed, or used for any purpose other than legitimate law enforcement or public safety purposes.
1305.5 DATA ACCESS
(a) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(b) No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so. (c) If practical, an operator should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
1305.6 DATA PROTECTION
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All saved data will be safeguarded and protected by both procedural and technological means. The Berkeley Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) Non-law enforcement requests for access to stored ALPR data shall be processed according to the Records Maintenance and Release Policy in accordance with applicable law.
(b) All ALPR data downloaded to any workstation or server shall be accessible only through a login/password- protected system capable of documenting all access of information by name, date and time (Civil Code § 1798.90.52). (c) Berkeley Police Department members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department - related civil or administrative action.
(d) Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the consent of the Chief of Police or City Manager (i.e. If transportation department requested volume of vehicular traffic associated with specific events, it could conceivably be provided with the count of vehicles, but not the specific license plates with appropriate permissions). (e) Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question. (f) ALPR system audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biennial. (g) Such ALPR data may be released to other authorized and verified law enforcement officials and agencies for legitimate law enforcement purposes. (h) Every ALPR Detection Browsing Inquiry must be documented by either the associated Berkeley Police case number or incident number, and/or a reason for the inquiry For security or data breaches, see the Records Release and Maintenance Policy.
1305.7 CIVIL LIBERTIES AND RIGHTS PROTECTION
The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership and control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. The procedures described within this policy (Data Access, Data Protection, Data Retention, Public Access and Third-Party Data Sharing) protect against the unauthorized use of ALPR data. These policies ensure the data is not used in a way that would violate or infringe upon anyone’s civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups.
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1305.8 DATA RETENTION
All ALPR data belongs to the Department. All ALPR data downloaded to the ALPR server should be stored for no longer than 30 days, and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data should be downloaded from the server and uploaded into BPD’s digital evidence repository.
ALPR vendor, will store the data (data hosting) and ensure proper maintenance and security of data stored in their data towers. The ALPR vendor will purge their data at the end of the 30 days of storage. However, this will not preclude Berkeley Police Department from maintaining any relevant vehicle data obtained from the system after that period pursuant to the established City of Berkeley retention schedule mentioned above or outlined elsewhere.
Relevant vehicle data are scans corresponding to the vehicle of interest on a hot list. The ALPR vendor and Department shall ensure that the necessary data is captured and stored to accurately report the relevant data required in the Annual Surveillance Technology report.
Once the City Council approves the Annual Surveillance Technology report all said data may be purged so long as it doesn’t violate the Retention guidelines.
1305.9 PUBLIC ACCESS
All data and images gathered by the ALPR are for the official use of this department.
Because such data may contain confidential information, it is not open to public review.
The Department shall to the extent feasible aim to offer a transparency portal wherein the number of scans, hits, and queries is available to the public in real-time, or as near as real- time as feasible. All data shall be reported in the Annual Surveillance Technology Report.
1305.10 THIRD PARTY DATA-SHARING
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law.
(a) A supervisor at the requesting agency will sign an acknowledgement letter stating that the shared data will only be used for the purposes that are aligned with the Berkeley Police Department’s policy. The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for purpose of federal immigration enforcement, these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CBP). See attached letter.
(b) The signed letter is retained on file. Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).
(c) All signed letters shall be routed to the Audit and Inspection Sergeant for compliance and reporting.
ALPR data is subject to the provisions of the Berkeley Police Department’s Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials.
1305.11 TRAINING
Training for the operation of ALPR Technology shall be provided by BPD personnel. All BPD
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Copyright Lexipol, LLC 2023/04/14, All Rights Reserved.
Published with permission by Berkeley Police Department ***DRAFT*** Surveillance Use Policy-Fixed ALPRs - 8 Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-Fixed ALPRs
Internal
employees who utilize ALPR Technology shall be provided a copy of this Surveillance Use Policy.
1305.12 AUDITING AND OVERSIGHT
ALPR system audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biannually. The data from the fixed ALPRs shall be reported annually in the Surveillance Technology Report.
1305.13 MAINTENANCE
Any installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Investigations Division Captain or his or her designee. The Investigations Division Captain will assign members under his/her command to administer the day-to-day operation of the ALPR equipment and data. Equipment maintenance shall be provided by the vendor.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
Internal
Draft of BPD Policy 1305 Appendix A
“Berkeley Police Department
Surveillance Acquisition Report – Fixed
Automated License Plate Readers”
1305 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – FIXED AUTOMATED LICENSE PLATE READERS
1 FIXED AUTOMATED LICENSE PLATE READERS (ALPR)
A. DESCRIPTION
Fixed Automated License Plate Readers (ALPRs) are cameras systems with software designed for license plate recognition. The camera systems are typically mounted on street poles, street lights, and highway overpasses.
ALPRs are designed to capture license plate numbers which come into view, along with the location, date and time. The data, which includes an image of the front or the back of the car displaying the license plate, is then uploaded to a central server operated by the vendor. The license plate data is cross referenced with systems such as Stolen Vehicle Systems (SVS), and other lists like Amber alerts to notice police of vehicles with hits.
This technology does not have facial recognition, and is not tied to any personal identifying information or used for traffic enforcement.
B. PURPOSE
Berkeley Police Department will utilize a network of fixed automated license plate readers. The ALPRs will be affixed to street poles, street lights, or other similar objects that are either owned by the City of Berkeley or wherein a right-of-way agreement has been established.
The use of ALPRs to alert police of a wanted or vehicle of interest entering into their respective jurisdiction has become increasingly more commonplace. This technology is being utilized on our local freeways, bridges, and in some instances in private parking lots.
Berkeley Police Department investigators have identified the following instances wherein the use of an effective deployment of ALPRs could have aided the Berkeley Police Department in it’s efforts to focus on the wanted vehicle prior to a crime occurring in the City of Berkeley, and potentially avoided an instance of victimization from happening.
RECENT CASES OF INTEREST
1.) BPD had an armed robbery in which the victim was pistol-whipped. The suspects fled in a vehicle. BPD officers located the vehicle and a pursuit ensued. The license plate on the vehicle was reported as a wanted vehicle for an armed robbery in San Ramon. Had this vehicle entered the City of Berkeley, and the vehicle passed an ALPR- BPD Officers could have been focused on finding this offender in an advance of this violent robbery.
2.) Victim was carjacked of his Toyota Rav-4. The suspect vehicle two days later was used in a murder that occurred in a nearby East Bay City. This same vehicle was used in a robbery in Oakland. The stolen property in the Oakland robbery was tracked back into Berkeley. Then this same vehicle was used to commit a robbery in Berkeley at Woolsey
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
1305 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – FIXED AUTOMATED LICENSE PLATE READERS
2 and Telegraph. The vehicle was listed as a car-jacking vehicle from the initial crime, ALPRs could have alerted BPD prior to the property being discarded in Berkeley, as well as the final robbery listed in this synopsis.
3.) Home invasion robbery in Berkeley wherein the suspect came in a stolen vehicle, listed in SVS as a wanted vehicle. The suspect violently attacked the resident. The suspect was arrested shortly after in San Pablo due to an ALPR hit. Suspect was unknown but identified due to having the victims stolen property.
4.) An armed robbery occurred in Berkeley the suspects fled in a cold plated stolen vehicle, meaning the vehicle was listed as wanted in SVS. San Pablo PD stopped the suspect vehicle due to the want associated to the license plate. Suspect was arrested and was in possession of a firearm. Suspect was eventually also linked to a stranger sexual assault case.
5.) A robbery of Valero in Berkeley occurred. The suspect arrived in stolen vehicle. The suspect was subsequently arrested by San Mateo PD due to an ALPR hit.
6.) A Victim called BPD to report his carjacked/stolen vehicle (from Union City), was tracking in South Berkeley. The victim was originally carjacked via gun by a group of suspects in Union City a few days prior. Moreover, Officers responded to South Berkeley but were unable to locate the victim’s vehicle. The victim later tracked his carjacked/stolen vehicle to 1370 University Ave. Officers responded to this location and located the victim’s vehicle. Three juveniles and one adult fled from the vehicle but were captured by the Officers. A search of the vehicle yielded a concealed/loaded firearm.
CATALYTIC CONVERTER THEFTS WITH GUNFIRE
7.) A theft of a catalytic converter took place at 5
th and Hearst. The suspect vehicle’s
license plate was captured on video surveillance. BPD put a felony stop on the vehicle. San Pablo PD located the vehicle using their ALPR system and arrested the driver who was in possession of a loaded handgun.
8.) A catalytic converter theft occurred at 145 Hillcrest Road. The suspect vehicle’s license plate was captured on video surveillance. BPD put a felony stop on the vehicle. Pinole PD located the vehicle. During a search of the vehicle, BPD located an assault rifle (ghost gun) and arrested the suspect.
9.) A pickup truck, wanted in SVS due to it being reported as a stolen vehicle, entered Berkeley. The aforementioned was caught in the act of cutting a catalytic converter
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
1305 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – FIXED AUTOMATED LICENSE PLATE READERS
3 from a vehicle on the 1800 block of 4th Street. Witnesses and a Security guard confronted the suspects. The suspects fled, and then immediately returned to shoot at the witness and security guard.
PROPERTY CRIME
10.) An auto burglary occurred at 1316 San Pablo Avenue and the victim obtained a license plate. A felony entry was made on the license plate. Pittsburg PD located the suspect vehicle due to an ALPR hit. The vehicle failed to yield and crashed. The driver was arrested for the failure to yield and Pittsburg PD located a loaded handgun in her purse.
11.) A suspect drove into Berkeley in a stolen vehicle, listed in SVS. The suspect drove to the driveway of 1626 Berkeley Way and proceeded to steal that resident’s vehicle.
12.) Two suspects drove a reported stolen auto to Berkeley Bowl West. The suspects then burglarized a victim’s vehicle. The suspect then proceeded to Emeryville where they used the Victim’s identity to commit identity theft.
13.) A series of auto burglaries were committed in the area of San Pablo and Gilman.
The suspects were seen getting into a vehicle which was listed in SVS as a stolen vehicle.
Two days later a nearby city reported the same vehicle was used in a murder in that city.
ALPR system could have notified officers of that wanted vehicle and helped in the capture of the suspects, and potentially intervened before the subsequent murder.
HOMICIDE
14.) Another agency reported a vehicle used in a murder, with a known license plate was entered into SVS with a felony want (associated with a murder). On 08/02/22 the vehicle was located in Berkeley. The associated suspects were located after fleeing from officers.
15.) BPD officers responded to a report of a person casing a house. Upon their arrival the suspects fled in a white sedan. That sedan was determined to be a reported stolen auto. The sedan fled from officers after they activated their emergency lights and sirens.
The same vehicle was reported to be involved in a road rage incident in an adjacent city wherein the suspects shot and killed the victim on the freeway.
SEX/DV CRIMES
16.) This is a DV case in which the suspect fought with his adult girlfriend causing visible injury and then chased his girlfriend’s 12 year old daughter down the street and shot at
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
1305 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – FIXED AUTOMATED LICENSE PLATE READERS
4 her with a firearm. San Pablo PD had an ALPR hit from this Berkeley PD case. The suspect ran from San Pablo PD and a gun was recovered from him.
17.) This is a series of peeping and prowling incidents against female UC Berkeley students. The suspect was driving for a ride share service and was in and out of Berkeley for the several months. The suspect was homeless, and thereby conventional methods of locating the suspect weren’t fruitful.
C. LOCATION
BPD proposes to install 52 fixed ALPRs in the City of Berkeley. While the cameras are permanent installations, if found ineffective in the installed location, the Department can elect to move the camera to another location at nominal cost. It’s preferred to leave cameras installed in locations for periods of minimally a year. Locations will be determined using crime data, known locations of ingress or egress into the City of Berkeley, and commonly known direction of travel after criminal acts based on information provided from investigators. The Department will balance the need to deploy the camera systems equitably across the City of Berkeley with the need to deploy the cameras in an effective manner. BPD will solicit input from the vendor for an effective deployment.
D. IMPACT
The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership and control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. The procedures utilized with ALPR Units will help to ensure unauthorized use of its data. The procedures will ensure the data is not used in a way that would violate or infringe upon anyone’s civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups.
E. MITIGATION
All saved data will be safeguarded and protected by both procedural and technological means which are implemented to safeguard the public from any impacts identified in subsection (D). See subsection (G) for further.
F. DATA TYPES AND SOURCES
Images of license plates and location metadata may be obtained through the use of ALPR cameras.
The vendor’s system may have searching capabilities due to technology from machine learning
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
1305 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – FIXED AUTOMATED LICENSE PLATE READERS
5 that allow officers to search by vehicle type, make, color, license plate state, bumper sticker (the presence of a bumper sticker, not the image or content), decals (again the presence of a decal, not the image or content) and roof racks. All data stored in the vendor’s servers shall be securely protected with end-to-end encryption.
G. DATA SECURITY
BPD takes data security seriously. All saved data will be safeguarded and protected by both procedural and technological means. The Berkeley Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) Non-law enforcement requests for access to stored ALPR data shall be processed according to the Records Maintenance and Release Policy in accordance with applicable law.
(b) All ALPR data downloaded to any workstation or server shall be accessible only through a login/password-protected system capable of documenting all access of information by name, date and time (Civil Code § 1798.90.52).
(c) Berkeley Police Department members approved to access ALP R data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department-related civil or administrative action.
(d) Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the consent of the Chief of Police or City Manager.
(e) Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question.
(f) ALPR system audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biennial. (g) Such ALPR data may be released to other authorized and verified law enforcement officials and agencies for legitimate law enforcement purposes.
(h) Every ALPR Detection Browsing Inquiry must be documented by either the associated Berkeley Police case number or incident number, and/or a reason for the inquiry For security or data breaches, see the Records Release and Maintenance Policy.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
1305 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – FIXED AUTOMATED LICENSE PLATE READERS
6 H. FISCAL COST
Since the City of Berkeley has not acquired the specific cameras, the costs can only be estimated. BPD expects the individual camera costs to range from $2500-$5000 each, with the installation to vary. BPD believes that for the proposed 52 camera deployment the cost to purchase and install to not exceed an initial cost of $250,000. The yearly subscription cost may fluctuate but is expected to range from $125,000 to $175,000 a year.
I. THIRD-PARTY DEPENDENCE AND ACCESS
ALPR vendor would store the data (data hosting) and ensure proper maintenance and security of data stored in their data towers. The vendor will purge their data at the end of 30 days of storage. However, this will not preclude Berkeley Police Department from maintaining any relevant vehicle data obtained from the system after that period pursuant to the established City of Berkeley retention schedule (i.e. if detectives establish a hit results in evidentiary value it should be incorporated into the digital evidence of that specific case, and thereby would be kept longer than the aforementioned 30 days).
Restrictions on use of fixed ALPR Data: Information gathered or collected, and records retained by the Vendor will not be sold, accessed, or used for any purpose other than legitimate law enforcement or public safety purpose unless allowed by policy (i.e. metadata will be permissible use for annual surveillance reporting).
An ALPR shall only be used for official law enforcement business.
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53).
(a) An ALPR shall only be used for official law enforcement business. (b) An ALPR may be used in conjunction with any routine patrol operation or to support criminal investigations. Reasonable suspicion or probable cause is not required before using an ALPR.
(c) Partial license plates and unique vehicle descriptions reported during major crimes should be entered into the ALPR system in an attempt to identify suspect vehicles.
The ALPR system, and all data collected, is the property of the Berkeley Police Department.
Department personnel may only access and use the ALPR system for official and legitimate law enforcement purposes consistent with this Policy. The following uses of the ALPR system are specifically prohibited:
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
1305 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – FIXED AUTOMATED LICENSE PLATE READERS
7 (1) Invasion of Privacy: Except when done pursuant to a court order such as a search warrant, is a violation of this Policy to utilize the ALPR to record license plates except those of vehicles that are exposed to public view (e.g., vehicles on a public road or street, or that are on private property but whose license plate(s) are visible from a public road, street, or a place to which members of the public have access, such as the parking lot of a shop or other business establishment). (2) Harassment or Intimidation: It is a violation of this Policy to use the ALPR system to harass and/or intimidate any individual or group.
(3) Use Based on a Protected Characteristic. It is a violation of this policy to use the ALPR system or associated scan files or hot lists solely because of a person's, or group's race, gender, religion, political affiliation, nationality, ethnicity, sexual orientation, disability, or other classification protected by law.
(4) Personal Use: It is a violation of this Policy to use the ALPR system or associated scan files or hot lists for any personal purpose.
(5) First Amendment Rights. It is a violation of this policy to use the LPR system or associated scan files or hot lists for the purpose or known effect of infringing upon First Amendment rights.
Anyone who engages in an impermissible use of the ALPR system or associated scan files or hot lists may be subject to administrative sanctions, up to and including termination, pursuant to and consistent with the relevant collective bargaining agreements and departmental policies.
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law. (a) A supervisor at the requesting agency will sign an acknowledgement letter stating that the shared data will only be used for the purposes that are aligned with the Berkeley Police Department’s policy. The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for purpose of federal immigration enforcement, these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CBP).
(b) The signed letter is retained on file. Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
1305 APPENDIX A
BERKELEY POLICE DEPARTMENT SURVEILLANCE ACQUISITION REPORT – FIXED AUTOMATED LICENSE PLATE READERS
8 J. ALTERNATIVES
An alternative is the deployment of additional police resources. The inherent problems with this alternative is that it is difficult to hire and train additional police officers and the cost would be significantly higher than adding technology. Furthermore, this technology furthers the Department’s goal in protecting and safeguarding our community through precision based policing strategies.
K. EXPERIENCE OF OTHER ENTITIES
Currently, in Alameda County, the following cities have ALPR programs, The Alameda County Sheriff’s Office, Alameda PD, Emeryville PD, Fremont PD, Hayward PD, Livermore PD, Newark PD, Oakland PD, Piedmont PD, Pleasanton PD, San Leandro PD, Union City PD, and the California Highway Patrol. The only agency in Alameda County to not utilize ALPRs is Albany PD.
Representatives from Newark indicated success with their program. No notable issues have arisen as a result of this program. Additionally, no unexpected expenditures have come from this program that were unforeseen.
Representatives from indicated similar to the above, success with their program. No notable issues have arisen as a result of this program. Additionally, no unexpected expenditures have come from this program that were unforeseen.
POLICE ACCOUNTABILITY BOARD
JUNE 16, 2023 SPECIAL MEETING
POLICE ACCOUNTABILITY BOARD
SUPPLEMENTAL SPECIAL MEETING PACKET
Friday, June 16, 2023
10:00 A.M.
Board Members:
JOHN MOORE III. (CHAIR) REGINA HARRIS (VICE-CHAIR)
KITTY CALAVITA JULIE LEFTWICH LEAH WILSON
MEETING LOCATION
Multipurpose Room
1947 Center Street,
Berkeley, CA 94704
Item Page
Board Member Calavita’s Responses to 1305 Appendix A and Proposed Policy 1305.
1 Board Member Wilson’s Commentary on Proposed Policy 422 and 1305. 8
Automatic License Plate Readers (ALPR) in the City of Berkeley:
A Preliminary Review of proposed BPD Policies by the Office of the Director of Police Accountability (ODPA) submitted to the Police Accountability Board (PAB) Special Meeting: June 16, 2023.
23
Calavita Responses to 1305 Appendix A
A. Descrip�on. Does not capture facial recogni�on, but what does it capture besides license plate and make of car? Photos online suggest ALPRs can capture at least silhouetes of those in car.
B. Purpose. The cases men�oned here (for example, the armed robbery men�oned first) might have been prevented if the cameras allow for real- time alerts based on the license plates being immediately transferred into a machine-readable format. That requires Op�cal Character recogni�on (OCR) which is a feature of the expensive version of cameras (not the $2000-2500 garden-variety referred to in the cost es�mate).
C. Loca�on. Why 52? Based on what? Who is the vendor and why will they play the cri�cal role of where the cameras would go? How will effec�veness be determined? (Needs a detailed explana�on of performance review, given the fiscal costs involved).
D. Impact. If efficient u�liza�on of resources is the goal, it is important to provide more detail on cost/benefits (as above). Also, there is a sentence here that says ALPRs “will help to ensure unauthorized use of its data” (sic).
What procedures “will ensure the data is not used in a way that would violate or infringe on anyone’s civil rights and/or liber�es…” ? More is needed here. Explain exactly what procedures other than the “data security” men�oned in G below.
F.Data types and sources. In addi�on to providing images of plates and cars, is it possible that some images of people will be retrieved? Further, bumper s�ckers, decals and roof racks are men�oned. How does this impact civil liber�es? The text says only the fact of a bumper s�cker would be in the image— it is unclear why the content is not also revealed. Also, the roof rack suggests that the en�re car is in the image, and thus may include number of passengers and perhaps even their characteris�cs.
G. Data Security. (a). It notes there will be non-law enforcement requests for access. This is somewhat alarming. This report needs to clarify what is
meant by this and exactly how it will be dealt with (not just referencing a different policy/law).
(b) “All ALPR data downloadable to any worksta�on or server” (clarify)
(c,d, and G). All men�on “legi�mate law enforcement purposes” or “law enforcement officials and agencies”, but nowhere does this confine the sharing to California. Will these data be shared with, for example, Texas law enforcement officials, or federal officials? I am concerned about other state agencies acquiring CA ALPR data for the “legi�mate law enforcement purpose” of viola�ng reproduc�ve rights in their states. (see below)
H. Fiscal cost. This is probably an underes�mate of costs, given what I have researched. Low-end cameras with limited abili�es go for $2000 each but others (which allow real-�me alerts) cost in the $25,000 range. Also, Council Member Taplin’s proposal provides the CM es�mate for the ALPRs used for parking enforcement at $78,363 each. What is the low-ball es�mate here based on? What type or model of camera is being proposed?
I. Third-party dependence and access. Again, does “legi�mate law enforcement or public safety purpose” include across state lines? What about a “legi�mate” Texas law enforcement purpose?
(b). no reasonable suspicion or probable cause required? In other words, there is no need for a “hit”? What factors will determine if it is “used” if not suspicion? And, what does “used” mean in this context?
A�er #5 (p. 7), a #6 is necessary, making it clear that ALPRs can not be used in the viola�on of reproduc�ve rights (see University of Washington Center for Human Rights [Dec 2022], “Who’s Watching Washington: Dangers of Automated License Plate Readers to Immigra�on and Reproduc�ve Rights in Washington State”).
(b). (p. 7). Explain how those requests will be processed.
J. Alterna�ves. The only alterna�ve men�oned is addi�onal police resources. CM Taplin’s proposal men�ons other violence preven�on measures and Reimagining. There is some evidence across the country for the effec�veness of alterna�ves other than addi�onal police. These need to be acknowledged.
K. Experience of other en��es. What is the evidence for the effec�veness of ALPRs in these other jurisdic�ons? Is their crime rate lower than that of Berkeley, or their criminal inves�ga�ons improved by these cameras? Given the poten�al civil liberty threats of this technology, we need for them to at least be evidence-based.
Finally, the last paragraph in the Report is a duplicate.
Calavita Response to Proposed Policy 1305
1305.1. Purpose. First, there is no men�on of what the actual purpose is. Second, the 4th paragraph men�ons “contractors/subcontractors”. Who are they and exactly what role do they play? This is nowhere spelled out. Also, the only restric�on on sharing men�oned in this sec�on relates to the California Values Act and immigra�on enforcement. We need a statement that includes no sharing with states that violate a woman’s right to access reproduc�ve care. 1305.2. Defini�ons. (a) What does “known informa�on of interest” mean? (b) ALPR Operator. This sec�on and sec�on c conflate/confuse “operator” with “administrator”, which appear to be quite different things. Sec�on e contains wording/grammar problems. Sec�on (f on “detec�on”) does not fit in “defini�ons”. Neither does Sec�on g belong in “defini�ons”. 1305.3 Authorized and prohibited uses. The first sentence is repe��ous with Sec�on a here. (b) says no “reasonable suspicion” or “probable cause” is necessary for use. What does “use” mean in this context? And, elsewhere it talks about a “vehicle of interest”. How is this different from “reasonable suspicion”? What factors will determine a “vehicle of interest”? This is all vague and confusing.
Sec�on d is not about a “purpose”. Sec�ons e through g do not belong in a sec�on on “authorized and prohibited uses”. They belong in a sec�on possibly called “OPERATION”. Further, Sec�on e begins “If prac�cable…”. This seems unduly vague, especially when joined with the later word “should” (not “shall”).
Addi�onally, why is “LPR” some�mes used instead of “ALPR”? It’s a minor detail but if there is no difference, it’s beter to be consistent. #6 (p. 3). I have lost track of this enumera�on system but this #6 appears to be subsequent to the entry on “Hot lists”. The first sentence in #6 makes no sense: “Administrator (or his/her designee) before ini�al entry within the ALPR system”.???
In Sec�on g, there is the phrase “which has the ability to be fully audited”.
What does this mean? Later in sec�on g, there is a sec�on en�tled
“Permited/Impermissible Uses”, but this is the �tle of all of Sec�on 1305.3.
What is this doing here?
Similar problems exist throughout this policy dra�, and I will stop keeping track here.
Sec�on g on p. 4 needs a #6 a�er First Amendment Rights, ci�ng Reproduc�ve Rights for example: “It is a viola�on of this policy to provide the ALPR data to officials of any state that does not protect a woman’s reproduc�ve rights.
Also, since the cameras capture images of whole cars, not just license plates, I assume they also periodically capture images of individual pedestrians and cyclists. Is it permissible to use these images in law enforcement? If so, how are these 52 APLRs in any essen�al way different from the 10 fixed surveillance cameras recently provided for?
1305.4. Data Collec�on. The first paragraph does not explain what “systems and processes are in place for the proper collec�on and reten�on of ALPR data,” only that they will be developed by the Division Captain. And, again, “if feasible” is vague and provides substan�al discre�on. Is this adequate? In the second cri�cal paragraph about data reten�on, the word “should” is used throughout. Why not “shall”?
1305.6 Data Protec�on. For Sec�ons a through c, see my notes about the acquisi�on report— for example, what “non-law enforcement requests”? 1305.7. Civil liber�es. As always, Berkeley may want to have policies that are more restric�ve than state and federal law requires.
1305.8. Data Reten�on. This sec�on is largely verba�m with the second and third paragraphs of 1305.4 (Data Collec�on).
1305.10. Third Party data sharing. This sec�on is largely redundant with previous sec�ons, but if it is kept, add reproduc�ve rights.
1305.12. Audi�ng and Oversight. This sec�on needs to include a rigorous performance review. Has the camera reduced crime or helped solve crimes in the area? Does the evidence suggest that the cameras have had a posi�ve impact on public safety around the city? What has the effect been on civil liber�es? Have the cameras captured images of individual people in the roadway? Have these images been used by law enforcement?
Copyright Lexipol, LLC 2023/04/14, All Rights Reserved.
Published with permission by Berkeley Police Department ***DRAFT*** Surveillance Use Policy-Fixed ALPRs - 1
Berkeley Police Department
Law Enforcement Services Manual
Surveillance Use Policy-Fixed ALPRs
1305.1 PURPOSE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology.
Department Personnel shall adhere to the requirements of the Surveillance Use-Fixed ALPRs in this policy as well as the corresponding Use Policy -422.
The policy of the Berkeley Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review.
The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for federal immigration enforcement, pursuant to the California Values Act (Government Code § 7282.5; Government Code § 7284.2 et seq) – these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CBP).
1305.2 DEFINITIONS
(a) Automated License Plate Reader (ALPR): A device that uses cameras and computer technology to compare digital images to lists of known information of interest. (b) ALPR O perator: Trained Department members who may utilize ALPR system/equipment. ALPR operators may be assigned to any position within the Department, and the ALPR Administrator may order the deployment of the ALPR systems for use in various efforts.
(c) ALPR Administrator: The Investigations Bureau Captain or the Chief’s designee, serves as the ALPR Administrator for the Department.
(d) Hot List: A list of license plates associated with vehicles of interest compiled from one or more databases including, but not limited to, NCIC, CA DMV, Local BOLO's, etc. (e) Vehicles of Interest: Including, but not limited to vehicles which are reported as stolen, display stolen license plates or tags; vehicles linked to missing and/or wanted persons and vehicles flagged by the Department of Motor Vehicle Administration or law enforcement agencies.
(f) Detection: Data obtained by an ALPR of an image (such as a license plate) within public view that was read by the device, including potential images (such as the plate and description of vehicle on which it was displayed), and information regarding the location of the ALPR system at the time of the ALPR's read.
Policy
1305
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(g) Hit Alert from the ALPR system that a scanned license plate number may be in the National Crime Information Center (NCIC) or other law enforcement database for a specific reason including, but not limited to, being related to a stolen car, wanted person, missing person, domestic violation protective order or terrorist-related activity.
1305.3 AUTHORIZED AND PROHIBITED USES
An ALPR shall only be used for official law enforcement business.
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil Code § 1798.90.51; Civil Code § 1798.90.53). (a) An ALPR shall only be used for official law enforcement business. (b) An ALPR may be used in conjunction with any routine patrol operation or to support criminal investigations. Reasonable suspicion or probable cause is not required before using an ALPR.
(c) Partial license plates and unique vehicle descriptions reported during crimes may be entered into the ALPR system in an attempt to identify suspect vehicles. (d) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(e) If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert. Once an alert is received, the operator should confirm that the observed license plate from the system matches the license plate of the observed vehicle. Before any law enforcement action is taken because of an ALPR alert, the alert will be verified through a CLETS inquiry via MDT or through Dispatch. Members will not take any police action that restricts the freedom of any individual based solely on an ALPR alert unless it has been validated. Because the ALPR alert may relate to a vehicle and may not relate to the person operating the vehicle, officers are reminded that they need to have reasonable suspicion and/or probable cause to make an enforcement stop of any vehicle. (For example, if a vehicle is entered into the system becau se of its association with a wanted individual, Officers should attempt to visually match the driver to the description of the wanted subject prior to making the stop or should have another legal basis for making the stop.)
(f) Hot Lists. Designation of hot lists to be utilized by the ALPR system shall be made by the ALPR Administrator or his/her designee. Hot lists shall be obtained or compiled from sources as may be consistent with the purposes of the ALPR system set forth in t his Policy. Hot lists utilized by the Department's LPR system may be updated by agency sources more frequently than the Department may be uploading them and thus the Department's LPR system will not have access to real time data. Occasionally, there may be errors in the LPR system’s read of a license plate. Therefore, an alert alone shall not be a basis for police action (other than following the vehicle of interest). Prior to initiation of a stop of a vehicle or other intervention based on an alert, Department members shall undertake the following:
Commented [WL1]: This section is problematic and
needs more work. Specific comments noted below.
Commented [WL2]: What does this mean? Not an
easily defined or enforceable standard.
Commented [WL3]: This sentence contradicts the first
one – this doesn’t have an “if practicable” modifier
Commented [WL4]: Is police action the same as law
enforcement action?
Commented [WL5]: So no reasonable suspicion or pc
to use ALPR per (b) above, but you need one to make
an enforcement stop. So do you need BOTH to verify in
CLETS and have reasonable suspicion? This whole
section needs to be cleaned up.
Commented [WL6]: This kind of explanatory
information is not needed in a policy.
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(1) Verification of status on a Hot List. An officer must receive confirmation, from a Berkeley Police Department Communications Dispatcher or other department computer device, that the license plate is still stolen, wanted, or otherwise of interest before proceeding (absent exigent circumstances).
(2) Visual verification of license plate number. Officers shall visually verify that the license plate of interest matches identically with the image of the license plate number captured (read) by the LPR, including both the alphanumeric characters of the license plate, state of issue, and vehicle descriptors before proceeding. Department members alerted to the fact that an observed motor vehicle's license plate is entered as a Hot Plate (hit) in a specific BOLO (be on the lookout) list are required to make a reasonable effort to confirm that a wanted person is actually in the vehicle and/or that a reasonable basis exists before a Department member would have a lawful basis to stop the vehicle.
(3) Department members will clear all stops from hot list alerts by indicating the positive ALPR Hit, i.e., with an arrest or other enforcement action. If it is not obvious in the text of the call as to the correlation of the ALPR Hit and the arrest, then the Department member shall update with the Communications Dispatcher and original person and/or a crime analyst inputting the vehicle in the hot list (hit). (4) General Hot Lists (SVS, SFR, and SLR) will be automatically downloaded into the ALPR system a minimum of once a day with the most current data overwriting the old data.
(5) All entries and updates of specific Hot Lists within the ALPR system will be documented by the requesting Department member within the appropriate general offense report. As such, specific Hot Lists shall be approved by the ALPR Administrator.
(6) Administrator (or his/her designee) before initial entry within the ALPR system.
The updating of such a list within the ALPR system shall thereafter be accomplished pursuant to the approval of the Department member's immediate supervisor. The hits from these data sources should be viewed as informational; created solely to bring the officers attention to specific vehicles that have been associated with criminal activity.
All Hot Plates and suspect information entered into the ALPR system will contain the following information as a minimum:
• Entering Department member's name
• Related case number.
• Short synopsis describing the nature of the originating call (g) Login/Log-Out Procedure. To ensure proper operation and facilitate oversight of the ALPR system, all users will be required to have individual credentials for access and use of the systems and/or data, which has the ability to be fully audited.
Permitted/Impermissible Uses. The ALPR system, and all data collected, is the property of the Berkeley Police Department. Department personnel may only access and use the ALPR system for official and legitimate law enforcement purposes consistent with this Policy. The following uses of the ALPR system are specifically prohibited:
1. Invasion of Privacy: Except when done pursuant to a court order such as a search warrant, is a violation of this Policy to utilize the ALPR to record license plates except those of vehicles that are exposed to public view (e.g., vehicles on a public road or street, or that are on private property but whose license plate(s) are visible Commented [WL7]: #3 doesn’t go with the intro..Prior
to initiation of a stop…neither does number 4, 5, or 6
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from a public road, street, or a place to which members of the public have access, such as the parking lot of a shop or other business establishment).
2. Harassment or Intimidation: It is a violation of this Policy to use the ALPR system to harass and/or intimidate any individual or group.
3. Use Based on a Protected Characteristic. It is a violation of this policy to use the LPR system or associated scan files or hot lists solely because of a person's, or group's race, gender, religion, political affiliation, nationality, ethnicity, sexual orientation, disability, or other classification protected by law.
4. Personal Use: It is a violation of this Policy to use the ALPR system or associated scan files or hot lists for any personal purpose.
5. First Amendment Rights. It is a violation of this policy to use the LPR system or associated scan files or hot lists for the purpose or known effect of infringing upon First Amendment rights.
(h) Anyone who engages in an impermissible use of the ALPR system or associated scan files or hot lists may be subject to administrative sanctions, up to and including termination, pursuant to and consistent with the relevant collective bargaining agreements and departmental policies. Partial license plates reported during crimes may be entered into the ALPR system in an attempt to identify suspect vehicles.
No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so. If practicable, the officer should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
1305.4 DATA COLLECTION
The Investigations Division Captain is responsible for ensuring systems and processes are in place for the proper collection and retention of ALPR data. Data will be transferred from vehicles to the designated storage in accordance with department procedures. The Department should if feasible find a solution to transfer evidentiary hit data into it’s digital evidence repository through secure integration.
All ALPR data downloaded to the ALPR server should be stored for no longer than 30 day s, and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data should be downloaded from the server and uploaded into BPD’s digital evidence repository.
ALPR vendor, will store the data (data hosting) and ensure proper maintenance and security of data stored in their data towers. The ALPR vendor will purge their data at the end of the 30 days
of storage. However, this will not preclude Berkeley Police Department from maintaining any relevant vehicle data obtained from the system after that period pursuant to the established City of Berkeley retention schedule mentioned above or outlined elsewhere.
Relevant vehicle data are scans corresponding to the vehicle of interest on a hot list. The ALPR vendor and Department shall ensure that the necessary data is captured and stored to accurately report the relevant data required in the Annual Surveillance Technology report.
Once the City Council approves the Annual Surveillance Technology report all said data may be purged so long as it doesn’t violate the Retention guidelines.
Commented [WL8]: There should be a formal process
to document exceptions to retention scheduled.
Commented [WL9]: This makes no sense. The
retention schedule above is 30 days so what is the
variance referenced?
Commented [WL10]: Why is this capitalized? Is there
a separate document called Retention Guidelines?
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Restrictions on use of vendor Data: Information gathered or collected, and records retained by the vendor’s cameras or any other Berkeley Police Department ALPR system will not be sold, accessed, or used for any purpose other than legitimate law enforcement or public safety purposes.
1305.5 DATA ACCESS
(a) No member of this department shall operate ALPR equipment or access ALPR data without first completing department-approved training.
(b) No ALPR operator may access California Law Enforcement Telecommunications System (CLETS) data unless otherwise authorized to do so. (c) If practical, an operator should verify an ALPR response through the California Law Enforcement Telecommunications System (CLETS) before taking enforcement action that is based solely on an ALPR alert.
1305.6 DATA PROTECTION
Commented [WL11]: This doesn’t fit under Data
Access section.
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All saved data will be safeguarded and protected by both procedural and technological means. The Berkeley Police Department will observe the following safeguards regarding access to and use of stored data (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) Non-law enforcement requests for access to stored ALPR data shall be processed according to the Records Maintenance and Release Policy in accordance with applicable law.
(b) All ALPR data downloaded to any workstation or server shall be accessible only through a login/password- protected system capable of documenting all access of information by name, date and time (Civil Code § 1798.90.52). (c) Berkeley Police Department members approved to access ALPR data under these guidelines are permitted to access the data for legitimate law enforcement purposes only, such as when the data relate to a specific criminal investigation or department - related civil or administrative action.
(d) Aggregated ALPR data not related to specific criminal investigations shall not be released to any local, state or federal agency or entity without the consent of the Chief of Police or City Manager (i.e. If transportation department requested volume of vehicular traffic associated with specific events, it could conceivably be provided with the count of vehicles, but not the specific license plates with appropriate permissions). (e) Measures will be taken to ensure the accuracy of ALPR information. Errors discovered in ALPR data collected by ALPR units shall be marked, corrected or deleted in accordance with the type and severity of the error in question. (f) ALPR system audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biennial. (g) Such ALPR data may be released to other authorized and verified law enforcement officials and agencies for legitimate law enforcement purposes. (h) Every ALPR Detection Browsing Inquiry must be documented by either the associated Berkeley Police case number or incident number, and/or a reason for the inquiry For security or data breaches, see the Records Release and Maintenance Policy.
1305.7 CIVIL LIBERTIES AND RIGHTS PROTECTION
The Berkeley Police Department is dedicated to the most efficient utilization of its resources and services in its public safety endeavors. The Berkeley Police Department recognizes the need to protect its ownership and control over shared information and to protect the privacy and civil liberties of the public, in accordance with federal and state law. The procedures described within this policy (Data Access, Data Protection, Data Retention, Public Access and Third-Party Data Sharing) protect against the unauthorized use of ALPR data. These policies ensure the data is not used in a way that would violate or infringe upon anyone’s civil rights and/or liberties, including but not limited to potentially disparate or adverse impacts on any communities or groups.
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1305.8 DATA RETENTION
All ALPR data belongs to the Department. All ALPR data downloaded to the ALPR server should be stored for no longer than 30 days, and in accordance with the established records retention schedule. Thereafter, ALPR data should be purged unless it has become, or it is reasonable to believe it will become, evidence in a criminal or civil action or is subject to a discovery request or other lawful action to produce records. In those circumstances the applicable data should be downloaded from the server and uploaded into BPD’s digital evidence repository.
ALPR vendor, will store the data (data hosting) and ensure proper maintenance and secu rity
of data stored in their data towers. The ALPR vendor will purge their data at the end of the 30 days of storage. However, this will not preclude Berkeley Police Department from maintaining any relevant vehicle data obtained from the system after that period pursuant to the established City of Berkeley retention schedule mentioned above or outlined elsewhere.
Relevant vehicle data are scans corresponding to the vehicle of interest on a hot list. The ALPR vendor and Department shall ensure that the necessary data is captured and stored to accurately report the relevant data required in the Annual Surveillance Technology report.
Once the City Council approves the Annual Surveillance Technology report all said data may be purged so long as it doesn’t violate the Retention guidelines.
1305.9 PUBLIC ACCESS
All data and images gathered by the ALPR are for the official use of this department.
Because such data may contain confidential information, it is not open to public review.
The Department shall to the extent feasible aim to offer a transparency portal wherein the number of scans, hits, and queries is available to the public in real-time, or as near as real- time as feasible. All data shall be reported in the Annual Surveillance Technology Report.
1305.10 THIRD PARTY DATA-SHARING
The ALPR data may be shared only with other law enforcement or prosecutorial agencies for official law enforcement purposes or as otherwise permitted by law.
(a) A supervisor at the requesting agency will sign an acknowledgement letter stating that the shared data will only be used for the purposes that are aligned with the Berkeley Police Department’s policy. The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for purpose of federal immigration enforcement, these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CBP). See attached letter.
(b) The signed letter is retained on file. Requests for ALPR data by non-law enforcement or non-prosecutorial agencies will be processed as provided in the Records Maintenance and Release Policy (Civil Code § 1798.90.55).
(c) All signed letters shall be routed to the Audit and Inspection Sergeant for compliance and reporting.
ALPR data is subject to the provisions of the Berkeley Police Department’s Immigration Law Policy, and hence may not be shared with federal immigration enforcement officials.
1305.11 TRAINING
Training for the operation of ALPR Technology shall be provided by BPD personnel. All BPD Commented [WL12]: This section appears to be
repeated in its entirety.
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employees who utilize ALPR Technology shall be provided a copy of this Surveillance Use Policy.
1305.12 AUDITING AND OVERSIGHT
ALPR system audits will be conducted by the Professional Standards Bureau’s Audit and Inspections Sergeant on a regular basis, at least biannually. The data from the fixed ALPRs shall be reported annually in the Surveillance Technology Report.
1305.13 MAINTENANCE
Any installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Investigations Division Captain or his or her designee. The Investigations Division Captain will assign members under his/her command to administer the day-to-day operation of the ALPR equipment and data. Equipment maintenance shall be provided by the vendor.
Berkeley Police Department
Policy Manual
LWEdits_422 Automated License Plate Readers Patrol Operations (ALPRs) (5-11-23).docx | 1
Policy
422
Fixed Automated License Plate Readers (ALPRs)-
422.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidance for the capture, storage and use of digital data obtained through the use of Automated License Plate Reader (ALPR) technology. Department Personnel shall adhere to the requirements of Fixed ALPRs in this policy as well as the corresponding Surveillance Use-Fixed ALPRs policy-1305.
422.2 POLICY
The policy of the Berkeley Police Department is to utilize ALPR technology to capture and store digital license plate data and images while recognizing the established privacy rights of the public.
All data and images gathered by the ALPR are for the official use of this department. Because such data may contain confidential information, it is not open to public review.
The Berkeley Police Department does not permit the sharing of ALPR data gathered by the City or its contractors/subcontractors for federal immigration enforcement, pursuant to the California Values Act (Government Code § 7282.5; Government Code § 7284.2 et seq) – these federal immigration agencies include Immigrations and Customs Enforcement (ICE) and Customs and Border Patrol (CBP).
422.3 DEFINITIONS
(a) Automated License Plate Reader (ALPR): A device that uses cameras and computer technology to compare digital images to lists of known information of interest. (b) ALPR Operator: Trained Department members who may utilize ALPR system/equipment.
ALPR operators may be assigned to any po sition within the Department, and the ALPR Administrator may order the deployment of the ALPR systems for use in various efforts. (c) ALPR Administrator: The Investigations Bureau Captain or the Chief’s designee, serves as the ALPR Administrator for the Department.
(d) Hot List: A list of license plates associated with vehicles of interest compiled from one or more databases including, but not limited to, NCIC, CA DMV, Local BOLO's, etc. (e) Vehicles of Interest: Including, but not limited to vehicles which are reported as stolen, display stolen license plates or tags; vehicles linked to missing and/or wanted persons and vehicles flagged by the Department of Motor Vehicle Administration or law enforcement agencies.
LWEdits_422 Automated License Plate Readers Patrol Operations (ALPRs) (5-11-23).docx | 2
(f) Detection: Data obtained by an ALPR of an image (such as a license plate) within public view that was read by the device, including potential images (such as the plate and description of vehicle on which it was displayed), and information regarding the location of the ALPR system at the time of the ALPR's read.
(g) Hit Alert from the ALPR system that a scanned license plate number may be in the National Crime Information Center (NCIC) or other law enforcement database for a specific reason including, but not limited to, being related to a stolen car, wanted person, missing person, domestic violation protective order or terrorist-related activity. 422.4 ADMINISTRATION
The ALPR technology, also known as License Plate Recognition (LPR), allows for the automated detection of license plates. It is used by the Berkeley Police D epartment to convert data associated with vehicle license plates for official law enforcement purposes, including identifying stolen or wanted vehicles, stolen license plates and missing persons. It may also be used to gather information related to active warrants, suspect apprehension and stolen property recovery.
Any installation and maintenance of ALPR equipment, as well as ALPR data retention and access, shall be managed by the Investigations Division Captain. The Investigations Division Captain will assign members under his/her command to administer the day -to-day operation of the ALPR equipment and data.
422.4.1 ALPR ADMINISTRATOR
The Investigations Division Captain, or his/her designee, shall be responsible for compliance with the requirements of Civil Code § 1798.90.5 et seq. This includes, but is not limited to (Civil Code § 1798.90.51; Civil Code § 1798.90.53):
(a) Only properly trained sworn officers, crime analysts, communication operators, records clerks, parking enforcement officers, and police assistants are allowed access to the ALPR system or to collect ALPR information.
(b) Ensuring that training requirements are completed for authorized users. (c) ALPR system monitor ing to ensure the security of the information and compliance with applicable privacy laws.
(d) Ensuring procedures are followed for system operators to maintain records of access in compliance with Civil Code § 1798.90.52.
(e) The title and name of the current designee in overseeing the ALPR operation. (f) Working with the Custodian of Records, or vendor on the retention and destruction of ALPR data.ensuring this policy and related procedures are conspicuously posted on the City’s website.
422.5 OPERATIONS
An ALPR shall only be used for official law enforcement business.
Use of an ALPR is restricted to the purposes outlined below. Department members shall not use, or allow others to use the equipment or database records for any unauthorized purpose (Civil