Photo by Tony Webster
The ordinance was a topic of contention at a Legislative Matters Committee meeting.
(Somerville Wire) – The City is moving forward with the draft of an ordinance that was created to ban the use of tear gas by the Somerville Police Department and regulate the use of chemical crowd control agents and kinetic impact projectiles. Introduced by Councilor Ben Ewen-Campen at a Legislative Matters Committee meeting on March 18, the ordinance, which was met with some resistance, will be further discussed this week, with the hope of being passed. It was developed as a response to the unwarranted use of tear gas by police officers across the country to quell rallies, particularly those aligned with the racial justice movement.
“This started as a ban on tear gas,” said Ewen-Campen. “This was a response to the protests over the summer, where there was tear gas used by local police departments in over a hundred cities across the country, including in Boston. We just saw really egregious misuse of tear gas. The more I learned about it, the more I learned how dangerous tear gas is. It’s something that’s actually banned in war by the Geneva Conventions. But for some reason, it is allowed to be used by local law enforcement. Especially in a respiratory pandemic, it is completely irresponsible, especially in the context of the First Amendment protected protests. It is an indiscriminate weapon.” He added that while working on the ordinance, he learned that other communities in Massachusetts, such as Cambridge and Boston, have taken a comprehensive look at other less than lethal crowd control methods, like rubber bullets and bean bag rounds.
At the meeting, Ewen-Campen spoke to a few key points. He said that for kinetic impact projectiles or chemical crowd control agents to be deployed, an “on-scene supervisor at the rank of captain or higher” must authorize their use. He stressed that the position of captain was language added to the ordinance in order to set “a very high bar” for who could make this decision. One section that is likely to be reworked is a new paragraph outlining the terms under which pepper spray can be used, and Ewen-Campen says that he thinks it is highly reasonable for there to be “explicit conditions for when pepper spray can be used.” Another part of the ordinance that will probably be under discussion is the removal of a paragraph that had granted a victim, injured or harmed as a result of a violation of the ordinance, the right to seek damages. While Ewen-Campen said that he believed the private right to action is “incredibly important and basic,” after consulting with the administration and others, he did not think it would be enforceable. Finally, the ordinance would make it difficult for an officer to seek qualified immunity, if he or she violated the ordinance.
Assistant City Solicitor Shannon Phillips responded with several concerns about the language in the ordinance, finding a number of situations where it could be challenged. When it comes to banning and restricting weaponry, she said, this process could be said to be found in the domain and province of the chief of police, who should decide how to run his department and train his officers. She also explained that Somerville has mandatory indemnification, which means “a city must indemnify a public employee [a police officer]… from any personal loss or expense, including legal fees arising out of any claim involving their act or omission within the scope of their official duties.”
“If you are creating enforcement provisions you’re essentially doing so against the City,” said Phillips. “The City would be the one on the hook for paying these, despite an officer maybe not following the ordinance or not administering it well, despite the City’s best efforts in trying to train them on it.” When asked for a statement or interview, the Law Department declined the request, stating that they had no further comment.
Somerville Chief of Police Charles Femino also brought up concerns with the ordinance, mostly relating to the use of pepper spray. He explained that he sees pepper spray as being “a less lethal control method. It’s a compliance technique, used by an officer to try to control the situation or person involved, who is actively resisting, or to prevent destruction of property, self harm, or harm to somebody else.” Femino said that he wonders if its use is restricted, a situation could become more dangerous.
“My main concern is that if by the use of this ordinance, you remove the level to enforce in that model policy, it will cause not only confusion on an officer’s part–it could lead to injury–but it also may cause the person that’s involved in the incident’s behavior to escalate and require the officer to proceed to the next level of force, which includes the use of a baton. There’s no level in between,” said Femino. “…It creates a barrier between the person, the officer, and other individuals who may be there lawfully. It gives the officer more time, and time and space allows for the de-escalation of the situation, before hands on us to be used.” He also added that there are circumstances or unpredictable situations that are not covered by the ordinance.
The committee chair Councilor Lance Davis pointed to situations where police training in the past has not been successful, thus emphasizing the importance of having legislation that regulates the use of pepper spray and other devices. He referenced videos where police officers have walked into peaceful crowds, using chemical crowd control agents without restriction. A similar instance of excessive use of force Davis mentioned was when Somerville police turned aggressive, shoved people to the ground, and used pepper spray, while assisting the Boston Police Department at the 2019 counterprotest to the hard right-wing “Straight Pride Parade” in Boston.
“I am not in any way interested in concerning myself with losing defenses against police violence,” said Davis. “That misses the mark so far, in terms of what we’re trying to accomplish here, that it colors the entire rest of the input. …If there is a sustainable claim that a Somerville police officer used a chemical agent or tools that are regulated here in a way that is inappropriate, I’m not interested in making sure that we’ve buttoned up every hole and minimized our liability to the nth degree. That’s the exact opposite of what we’re trying to do. My intent is to push forward with what I believe, based on the input of the various councils that have advised this body, with what I feel is appropriate.”
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Shira Laucharoen is assistant director of the Boston Institute for Nonprofit Journalism and assistant editor and staff reporter of the Somerville Wire.