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Why Marty Walsh vetoed an ordinance to limit police use of tear gas and rubber bullets

The mayor said there are "considerable questions as to the practicality and potential consequences of many of the proposals contained in the ordinance."

Mayor Marty Walsh Lane Turner/Globe Staff

January 5, 2021

Mayor Marty Walsh vetoed an ordinance last week that would have restricted when Boston police could deploy crowd control agents such as tear gas, pepper spray, and rubber bullets.

The ordinance, passed by the City Council last month, seeks to limit when and how law enforcement could use chemical crowd control projectiles and kinetic impact projectiles, particularly against people who are participating in protests and demonstrations.

Such projectiles could only be used when a police supervisor witnesses violence or property destruction and has determined that “no reasonable methods of de-escalation will be successful,” officials said. Police would be required to give at least two separate warnings, two minutes apart over a loudspeaker before launching the projectiles.

“We strongly believe [chemical crowd control agents, or CCCAs] and [kinetic impact projectiles, KIPs] are only to be used when absolutely necessary to prevent violence or riots so people can safely and peacefully exercise their First Amendment rights. This community policing principle is something our Boston Police Department is committed to ensuring, along with the appropriate conduct by officers,” Walsh said in a statement on Tuesday.

“I am supportive of provisions contained in the statewide police reform bill that create a thoughtful and balanced framework for police crowd control practices, including the use of CCCAs and KIPs,” he continued. “I have asked Boston Police Commissioner [William] Gross to meet with the City Council to discuss how the new state regulations will be implemented and what impact they will have on our existing practices.”

The measure, filed by councilors Andrea Campbell and Ricardo Arroyo, was criticized by Gross, who wrote to councilors one day before the council voted to approve the ordinance on Dec. 16.

In his letter, Gross expressed concerns about the regulation’s practicality, writing that it “sets an impossibly high burden to operationalize in real time.”

Both Campbell and Arroyo said however police did not offer specific amendments to the proposal, even after months in committee.

Arroyo told WBUR on Tuesday the mayor’s Dec. 31 veto does not meet this moment in Boston. Councilors filed the measure in June in response to when police used tear gas against crowds in May.

“I think that’s the bare minimum we can do, as far as giving a warning [that gives] time to disperse before using weaponry that can take a life, and the fact that it was vetoed is disappointing,” he said.

Campbell, who is running for mayor alongside fellow Councilor Michelle Wu, noted on Twitter Tuesday that “tear gas is deadly and banned by international law.”

Tear gas use is prohibited in warfare under the 1925 Geneva Protocol, although the United States has legally maintained its use in certain instances, including situations where prisoners of war are rioting, during rescue missions, situations “where civilian casualties can be reduced or avoided,” and to protect convoys outside combat zones, according to the U.S. Department of State.

“Tear gas is deadly and banned by international law, and just weeks ago we saw body camera footage of Boston police indiscriminately pepper-spraying peaceful protestors,” Campbell wrote, referencing recently released footage of the May demonstrations. “I’ll keep pushing to pass this ordinance b/c this is the kind of action and leadership this moment requires.”

Tear gas is deadly and banned by international law, and just weeks ago we saw body camera footage of Boston police indiscriminately pepper-spraying peaceful protestors. I’ll keep pushing to pass this ordinance b/c this is the kind of action and leadership this moment requires. https://t.co/dth6FkGrww

— Andrea J. Campbell (@andreaforboston) January 5, 2021

The city council approved the ordinance in an 8-5 vote, which means supporters would need to convince one of those opposition votes to switch positions in order to override Walsh’s veto.

In a letter to councilors, Walsh outlined his three primary legal concerns, and wrote that there are “considerable questions as to the practicality and potential consequences of many of the proposals contained in the ordinance.”

The measure as written would apply to all law enforcement officers within the city, although it does not distinguish Boston police from state and federal agents who “would be subject to the ordinance, even when the scope of ‘law enforcement activity’ is not clear,” Walsh wrote.

The regulation “interferes” with the commissioner’s “authority to effectively manage the Police Department and its officers” under the statute and violates state law that gives the commissioner discretion over how officers will be disciplined for breaking rules and protocol, Walsh wrote.

“As was previously stated, the Boston Police Department and my administration are committed to ensuring that the use of non-lethal force is appropriate and ensures the safety of those participating in public gatherings, bystanders, area businesses, and the officers themselves,” Walsh wrote. “The Police Department is also committed to ensuring that officers conduct themselves appropriately, in keeping with existing law and department policies.”

Walsh also pointed to and expressed support for a sweeping state police reform bill signed into law last week by Gov. Charlie Baker, which he said was “crafted by dozens of stakeholders from across the commonwealth in order to make a meaningful and lasting impact in our communities.”

The new law primarily creates a certification system for officers but also “generally precludes” police from using canine units, rubber bullets, or chemical weapons against a crowd, according to Baker’s office. Officers who break the rules may have their state certification suspended or revoked.

On Monday, Walsh signed into law an ordinance to create the Office of Police Accountability and Transparency, an independent agency with subpoena power that will investigate allegations of misconduct against city police.

The ordinance, approved by the City Council last month, will form a Civilian Review Board and the Internal Affairs Oversight Panel to probe complaints.

“These historic changes … will be felt for generations to come and show my steadfast commitment to working with you to make Boston a national model for breaking down systemic racism and building a more equitable, just city,” Walsh wrote to councilors.