RECONSIDERATION
1. Task Force Transparency. RECONSIDERATION FILED BY COUNCILLOR ZONDERVAN ON MAR 9, 2021
Reconsideration Fails 4-5 (DC,PN,JSW,QZ - YES; AM,MM,DS,TT,SS - NO)

O-1     Mar 1, 2021
Charter Right #2 of Mar 8, 2021
Adopted 9-0
COUNCILLOR ZONDERVAN (amended per Councillor Simmons)

WHEREAS: The City Manager has recently appointed a task force to determine the feasibility of establishing an unarmed, alternative Public Safety Crisis Response System for the City of Cambridge; and

WHEREAS: The focus of the task force, as called for in a June 29, 2020 City Council Order, is something of tremendous interest to people throughout the Cambridge community;

WHEREAS: While the City Manager’s task force must be allowed to conduct their work to the best of their ability, it would be prudent for the City Manager to convene one or more public meetings in order for people to learn of the working group’s thinking, its working process, and the recommendations this task force plans to present to the City Manager before any such recommendations have been set in stone; and

WHEREAS: Holding one or more of these public meetings would also allow members of the public to weigh in regarding the potential recommendations as part of the official record; now therefore be it

ORDERED: That the City Manager be and hereby is requested to commit to holding one or more public meetings – prior to the conclusion of the Task Force concerned with establishing recommendations for an unarmed, alternative Public Safety Crisis Response System – in order for the public to learn more about the task force’s thinking and recommendations prior to their being formally considered; and be it further

ORDERED: That the City Manager be and hereby is requested to direct the Task Force Co-Chairs to issue monthly updates to the City Council (as part of the “Communications from Other City Officers”) and to the public about the work of this task force; and be it further

ORDERED: That the City Manager be and hereby is requested to report back to the City Council on this matter in a timely manner; and be it further

RESOLVED: That the City Council go on record renewing its commitment to transparency and public engagement as the Future of Public Safety conversation develops.

2. A communication was received from Mayor Siddiqui, transmitting questions for the City Manager's COVID-19 update.
Placed on File 9-0

TO: LOUIS A. DEPASQUALE, CITY MANAGER
FROM: SUMBUL SIDDIQUI, MAYOR
SUBJECT: COVID-19 UPDATE: QUESTIONS
DATE: 3.11.2021
CC: CAMBRIDGE CITY COUNCIL

A communication from Mayor Sumbul Siddiqui, transmitting questions from City Councillors regarding the COVID-19 Public Health Update for Mar 15, 2021.

COVID-19 UPDATE QUESTIONS

COUNCILLOR NOLAN:
1. Some city staff have been working throughout the pandemic, and some have had some additional work, and some have had curtailed work due to office restrictions and quarantines. Now that the City and Commonwealth are able to see the light at the end of the tunnel, what can we expect for restoration of city services? As an example, the City extended resident parking permits, but the delay hasn’t been explained. Some paid for permits 8 weeks ago and have yet to receive them - hopefully that will be resolved soon. What city services have a backlog and when can we expect operations to be relatively normal?

2. As people return to work, and more commuting, we need people to feel safe using public transit, since the pandemic has led to increased single occupancy vehicle trips, which is detrimental from a number of perspectives. How is the city communicating with the MBTA about the best way to handle the migration of folks back to work? Besides requiring masks, have they been working to gear up their schedules to have more frequent service to avoid crowding? Will they use their T ambassadors to help ensure mask wearing and distancing? Will local companies do anything focused on safe, distanced transportation once they start calling folks back into the office?

MAYOR SIDDIQUI:
1. What is the status of CPH reaching homebound individuals with vaccines?

2. As more vaccine supply becomes available with the hope that local municipalities regain more access, how and where would CPH host community vaccination sites?

COUNCILLOR TOOMEY:
1. With recent approval and increased production of the Johnson & Johnson COVID-19 vaccine, when will we start to see it available in the Cambridge community, and is the lower efficacy rate a concern?

TEXT OF ORDERS
O-1     Mar 15, 2021
VICE MAYOR MALLON
MAYOR SIDDIQUI
COUNCILLOR TOOMEY
COUNCILLOR NOLAN
WHEREAS: Food waste presents a serious environmental problem when organic matter is thrown out, as decomposing food waste that ends up in landfills releases methane that is 25 times more efficient at trapping heat as a greenhouse gas than carbon dioxide; and
WHEREAS: Composting food waste is a greener alternative that could eliminate roughly 5,300 tons of carbon dioxide equivalent emissions per year if 100 mid-sized, sit-down restaurants participated in it; and
WHEREAS: Many other municipalities across the country, including San Francisco, Denver, and Portland, Oregon have created commercial food waste composting programs to divert all organic waste from trash waste streams, and Cambridge could develop a similar commercial composting program for small businesses with fewer than 50 employees, with the potential to expand to larger businesses if successful; and
WHEREAS: By helping restaurants save on trash fees, redirecting food waste from landfills, offering local farms in need of sustainable alternatives to industrial fertilizer, and allowing us to easily track the amount of diverted food waste, a Commercial Composting Pilot Program would simultaneously support our small business community and local farmers while reducing the City’s environmental footprint; and
WHEREAS: Implementing a Commercial Composting Pilot Program would align with the Envision Cambridge goals of “[minimizing] waste generation and [eliminating] landfill waste,” and “[ensuring] local businesses of different types, sizes, and growth stages are able to start, grow, and remain in Cambridge”; and
WHEREAS: This Commercial Composting Pilot Program should be designed and marketed with an eye towards creating equitable opportunities for small businesses, especially those owned by minorities, women, or other historically disadvantaged groups; and
WHEREAS: As this program will likely have budget implications similar to the 2018 Small Business Recycling Pilot, this possibility should be examined before the next fiscal year begins; now therefore be it
ORDERED: That the City Manager be and hereby is requested to confer with the Department of Public Works, the Economic Development Division of the Community Development Department, the Budget Department, Cambridge Table to Farm, the local Business Associations, the Massachusetts Department of Agricultural Resources, and other relevant groups to explore the feasibility of creating a Commercial Composting Pilot Program to serve at least 100 small businesses with fewer than fifty employees; and be it further
ORDERED: That the City Manager report back to the City Council as soon as possible.

O-2     Mar 15, 2021
COUNCILLOR SIMMONS
WHEREAS: Over the years, the City’s Historical Commission has engaged in numerous efforts to compile and publish oral histories of the people of Cambridge from a variety of different societal perspectives, including capturing the histories of different neighborhoods, different ethnicities, and of specific significant, historical events; and
WHEREAS: One important aspect of this vibrant history that the City should also be striving to capture is that of the Black people, personalities, and experiences who have so enriched our community over the generations, and the compiling of this history could and should be a first step towards compiling the local histories of the many and various under-documented histories among us; now therefore be it
ORDERED: That the City Manager be and hereby is requested to direct the Historical Commission to initiate a process to begin chronicling the rich and vibrant history of people of color in Cambridge, similar to other City-commissioned books such as “We Are the Port: Stories of Place, Perseverance, and Pride in the Port/Area 4 Cambridge, Massachusetts 1845-2005” and “All in the Same Boat” and “Crossroads: Stories of Central Square, Cambridge, Massachusetts 1912-2000”; and be it further
ORDERED: That the City Manager be and hereby is requested to report back on this matter to the City Council in a timely manner.

O-3     Mar 15, 2021  Amended
COUNCILLOR SIMMONS
WHEREAS: As the Covid-19 pandemic reaches the one-year mark, the negative impact upon our local businesses has been unmistakable; and
WHEREAS: In working to help local businesses weather this difficult period, the City has implemented a number of measures, including establishing small business grants and contracting with restaurants to provide meals to our local shelters; and
WHEREAS: The City may also wish to make a point of purchasing stationary as much as possible, as well as other goods and services from local retailers for all official City uses until such time as the economic crisis has passed; now therefore be it
ORDERED: That the City Manager be and hereby is requested to direct the Purchasing Department to provide a report detailing the City’s annual stationery expenditures, what percentage of that budget is spent at local retailers, and whether this percentage can be increased during the Covid-19 crisis and beyond; and be it further
ORDERED: That the City Manager be and hereby is requested to report back to the City Council on this matter within 30 days.

O-4     Mar 15, 2021
COUNCILLOR NOLAN
MAYOR SIDDIQUI
COUNCILLOR SOBRINHO-WHEELER
COUNCILLOR ZONDERVAN
WHEREAS: The student loan crisis is impacting nearly 1 in 5 Americans; and
WHEREAS: Black, Latinx, Indigenous, Asian and Pacific Islander, and other communities of color, low-income residents, and young adults are most impacted by student debt; and
WHEREAS: Cancelling student loan debt and eliminating debt in higher education represents an enormous economic opportunity to increase spending in local communities including Cambridge, support individuals’ upward mobility, and provide a deeply needed stimulus during the pandemic; and
WHEREAS: In 2012, the Cambridge City Council unanimously supported a resolution calling on Congress to pass "Stop the Student Loan Interest Rate Hike Act of 2012," noting the many students in Cambridge and the extreme burden that a interest rate hike would have on residents; and
WHEREAS: Since 2012, the amount of student loan debt owed in America has grown by nearly $1 trillion; and
WHEREAS: Student debt cancellation is only one step toward the establishment of an equitable, accessible higher education system; now therefore be it
RESOLVED: That the City Council go on record supporting Senator Warren’s “Higher Education Act,” which outlines the President’s authority to cancel student loans, and directly ask President Biden to enact a plan by the end of President Biden’s first 100 days in office to cancel all student loan debt; and be it further
ORDERED: That a copy of this resolution be sent to members of Cambridge’s Congressional delegation.

O-5     Mar 15, 2021
COUNCILLOR NOLAN
MAYOR SIDDIQUI
COUNCILLOR SOBRINHO-WHEELER
COUNCILLOR ZONDERVAN
WHEREAS: Spending time outdoors has been proven to improve mental and physical health and has been deemed a lower-risk activity during the pandemic; and
WHEREAS: Riverbend Park was an extremely popular place for residents to get access to space last summer and fall when it was open on Saturdays and Sundays; and
WHEREAS: The Council has passed numerous orders asking for the City to work with DCR to open Riverbend Park; and
WHEREAS: Riverbend Park is scheduled to open on the second to last Sunday of April per state law and remain open on Sundays; and
WHEREAS: Riverbend Park was heavily used on Saturday’s last year as well; now therefore be it
ORDERED: That the City Manager be and is hereby requested to work with the Massachusetts Department of Conservation and Recreation (DCR) to open Riverbend Park before the end of March and on other days in addition to Sundays, and explore the feasibility of extending Riverbend Park to the BU Bridge and beyond.

O-6     Mar 15, 2021
COUNCILLOR NOLAN
COUNCILLOR SOBRINHO-WHEELER
COUNCILLOR CARLONE
COUNCILLOR ZONDERVAN
WHEREAS: Since Mar 14, 1958, the United States has maintained a trade embargo on Cuba; and
WHEREAS: On Dec 17, 2014, U.S. President Barack Obama and Cuban President Raul Castro executed an agreement to reestablish diplomatic relations and cooperation, but despite executive decisions by President Obama easing some restrictive regulations, the main portions of the embargo affecting trade and travel continue in force; and
WHEREAS: Full restoration of trade and travel between the two countries would be of benefit to both, particularly in the areas of food production, economic opportunity, education, health care, tourism, the arts, music, and sports, along with medical and biotechnological research; and
WHEREAS: The City Council in October of 2020 recognized that Cuba's response to Covid19 had lessons for the U.S. and asked the federal and state governments and pharmaceutical industries to work with Cuba; and
WHEREAS: The current United States policy toward Cuba is a special manifestation of harshness which is harmful to those with ties to Cuba, and especially hard on families in both Cuba and in the Cuban-American community in the U.S.; now therefore be it
RESOLVED: That City Council go on record calling for the immediate restoration of engagement with the Republic of Cuba as initiated by President Barack Obama; and be it further
RESOLVED: That the United States Congress is urged to promulgate and pass legislation that will finally end the unsuccessful and harmful 59-year old economic, financial and commercial embargo, as well as the travel restrictions on U.S. citizens and residents to Cuba, and Cuban citizens to the United States; and be it further
ORDERED: That suitable copies of this resolution be sent to Cambridge’s Congressional Delegation.

O-7     Mar 15, 2021
MAYOR SIDDIQUI
WHEREAS: The Cambridge City Council is proud to highlight organizations who display exemplary leadership and those who represent the spirit of the Cambridge community; and
WHEREAS: On Sun, Mar 7, 2021, My Brother’s Keeper Task Force Cambridge worked with the Tufts School of Medicine and the Cambridge Health Alliance to hold the first of a series of COVID-19 vaccine clinics at the Cambridge Community Center; and
WHEREAS: Over 100 Cambridge residents received their first dose of the Moderna COVID-19 vaccine and are scheduled to receive their second dose on Apr 3, 2021; and
WHEREAS: Through the leadership of My Brother’s Keeper Cambridge, many residents lacking access to vaccination appointments were able to receive their first dose; now therefore be it
RESOLVED: That the City Council go on record thanking My Brother’s Keeper Task Force Cambridge for going above and beyond in their service to the Cambridge community; and be it further
RESOLVED: That the City Clerk be and is hereby requested to forward a suitably engrossed copy of this resolution to My Brother’s Keeper Task Force Cambridge on behalf of the entire City Council.

O-8     Mar 15, 2021
COUNCILLOR SOBRINHO-WHEELER
COUNCILLOR CARLONE
COUNCILLOR NOLAN
COUNCILLOR ZONDERVAN
WHEREAS: The use of tear gas and other chemical weapons in warfare has been prohibited by international law since the 1925 Geneva Protocol banned its use along with other chemical weapons; and
WHEREAS: Tear gas continues to be used against civilians in the United States, including as recently as this year against protesters in Boston, Philadelphia, and Washington D.C.; and
WHEREAS: Exposure to tear gas can and other crowd control weapons can cause harmful effects immediate chemical burns, allergic reactions, and respiratory failure in people with preexisting respiratory conditions like as asthma and chronic obstructive pulmonary disease (COPD) according to the American Lung Association; and
WHEREAS: According to the Centers for Disease Control, long-term effects of tear gas can include glaucoma, cataracts, and breathing problems such as asthma; and
WHEREAS: Tear gas is not included in the Cambridge Police Department’s list of Approved Less-Than-Lethal weapons in its current Policy & Procedures document; and
WHEREAS: The Cambridge Police Department has not utilized tear gas in any capacity over the past 30 years, the Cambridge Police Department’s administration specifically prohibits the use of tear gas, Police Commissioner Branville Bard worked to ensure that all tear gas in the department was disposed of upon his taking the role as Police Commissioner, and the City Council wishes to do everything in its power to ensure that tear gas is never utilized by the Police Department in the future; and
WHEREAS: There was discussion in Council on codifying the police department actions to strengthen the existing policy on tear gas use through ordinance; and
WHEREAS: As civilians continue to be tear gassed at protests for racial justice around the country, the Cambridge City Council should seek to codify in law the City’s prohibition on the use of this chemical weapon to ensure the permanency of current policy in Cambridge and to demonstrate a model for other municipalities; now therefore be it
WHEREAS: As civilians continue to be tear gassed at protests for racial justice around the country, the Cambridge City Council should seek to codify in law the City’s prohibition on the use of this chemical weapon to ensure the permanency of current policy in Cambridge and to demonstrate a model for other municipalities; now therefore be it
ORDERED: That the Municipal Code of the City of Cambridge be amended to insert the following new section:

XXXX: RESTRICTING THE USE OF CHEMICAL CROWD CONTROL AGENTS AND KINETIC IMPACT PROJECTILES

(a) PURPOSE
The purpose of this Ordinance is to restrict the use of chemical crowd agents and kinetic impact projectiles in order to protect residents of Cambridge from the indiscriminate, dangerous, and even fatal impacts of such devices, especially during lawful protests and/or demonstrations. These devices can have significant impacts on both the physical and mental well-being of residents that choose to exercise their First Amendment rights by participating in demonstrations, as well as innocent bystanders.

(b) DEFINITIONS
1. Cambridge Police Officers shall mean all cadets, patrolmen, officers, detectives, and superintendents of the Cambridge Police Department.

2. CPD shall mean the Cambridge Police Department.

3. Other Law Enforcement Officers shall mean any law enforcement officers who are not Cambridge Police Officers but who are under the control, authority, or direction of Cambridge Police Officers.

4. Kinetic Impact Projectile shall mean an item or instrument fired from a gun or launcher intended to disorient and/or incapacitate and inflict pain without penetrating the skin, including, but not limited to, rubber bullets, sponge grenades, stun grenades, concussion grenades, flash grenades or flash-bangs, beanbag rounds, Super-Sock rounds, wax bullets, and plastic bullets.

5. Chemical Crowd Control Agent shall mean chemical compounds in any form that cause irritation to the eyes, mouth, throat, lungs, or skin, including, but not limited to, tear gas, pepper spray, mace, inert smoke, pepper pellets, and pepper balls. These chemical compounds may include, but are not limited to, chloroacetophenone (CN), chlorobenzylidenemalononitrile (CS), chloropicrin (PS), bromobenzylcyanide (CA), dibenzoxazepine (CR), oleoresin capsicum (OC), and combinations thereof.

(c) RESTRICTION ON THE USE OF CHEMICAL CROWD CONTROL AGENTS AND KINETIC IMPACT PROJECTILES
1. Cambridge Police Officers and Other Law Enforcement Officers working in the City of Cambridge shall not use a Chemical Crowd Control Agent against any person or persons engaged in a protest, demonstration, or other gathering of more than ten persons of any kind.

2. Cambridge Police Officers and Other Law Enforcement Officers working in the City of Cambridge shall not use a Kinetic Impact Projectile against any person or persons engaged in a protest, demonstration, or other gathering of any kind involving more than ten persons, subject to the exceptions set forth in Paragraph 3 below.

3. Exceptions and Exemptions on use of a Kinetic Impact Projectile:

a. Kinetic Impact Projectiles may be deployed if:

i. an on-scene supervisor at the rank of Captain or higher specifically authorizes such use in response to specific ongoing acts of violence that the on-scene supervisor has personally witnessed, and has determined that such acts cannot be controlled or quelled through any other methods, and has determined that no other reasonable methods of de-escalation will be successful in preventing or controlling such acts.

ii. the on-scene supervisor witness who authorizes such use, or an officer of equal or higher rank, has given at least two separate verbal warnings over a loudspeaker system, including, but not limited to, a vehicle P.A. system or an amplified bullhorn, (a) directing the persons involved in the gathering to disperse, after ensuring that people have a way to exit after a warning is issued, (b) notifying all who could be affected that a failure to disperse will result in the use of a specific Kinetic Impact Projectile that must be announced, and c) notifying all who could be affected that the specific Kinetic Impact Projectile will be deployed within a clearly defined period of time.

(d) ENFORCEMENT
1. The Cambridge Police Department shall take appropriate steps to implement this Ordinance forthwith, including, but not limited to, (1) by posting a copy of this Ordinance in a prominent and visible location in all police stations within the city of Cambridge, (2) notifying all other law enforcement agencies that may operate within the City of Cambridge about this Ordinance and supplying a copy of the Ordinance to each of said agencies, and (3) by incorporating the limitations on the use of force set forth in Section (c) of this Ordinance into officer training regarding the use of less lethal and non-lethal force in policing.

2. Any violation of this Ordinance constitutes an injury and any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce this Ordinance. An action instituted under this paragraph shall be brought against the City of Cambridge and, if necessary to effectuate compliance with this Ordinance, any other governmental agency subject to this Ordinance.

3. In any civil or criminal action brought under any state or federal statute or constitutional provision arising out of the use of force by any law enforcement officer within the City of Cambridge, the prohibition contained in Section (c) of this Ordinance shall be deemed to be the clearly established law of the City of Cambridge, and any violation of that prohibition shall be considered unlawful.

4. Any person injured or harmed as a result of a violation of this Ordinance may bring an action in any court of competent jurisdiction seeking damages, reasonable attorneys’ fees, court costs, and any other relief that the court may deem appropriate. A prevailing plaintiff injured or harmed by a violation of this Ordinance shall be entitled to recover damages in the amount of three times their actual damages. Nothing in this section shall be construed to limit any individual's rights under State or Federal law.

5. Any violation of this Ordinance by any Cambridge Police Officer shall constitute just cause for such discipline, up to and including discharge, as the Police Commissioner of the City of Cambridge may deem appropriate.

6. All violations of this Ordinance by any Cambridge Police Officer shall be reported in writing, including the names of the offending Cambridge Police Officers or other law enforcement officer, to all City of Cambridge government agencies and departments which have any oversight responsibilities for the Cambridge Police Department, and to all state agencies which have any oversight responsibilities for law enforcement agencies or departments. Such reports shall be a matter of public record to be to be published at least yearly by the City of Cambridge and all such reports shall be made freely available upon request by any member of the public.

(e) SEVERABILITY
1. If any portion or provision of this ordinance is declared invalid or unenforceable by a court of competent jurisdiction or by the Office of the Attorney General, the remaining provisions shall continue in full force and effect.

(f) EFFECTIVE DATE
The provisions of this ordinance, being necessary for the preservation of the safety, health, and security of the public, shall be effective immediately upon passage.

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Memorandum Regarding Proposed Ordinance Restricting Use Of Chemical Riot Control Agents and Kinetic Impact Projectiles

I. Authority of the Cambridge City Council to Pass the Ordinance

A. General

The main authority for the City of Cambridge to pass ordinances regulating its police force is found in G.L. c. 41, § 97, which plainly states that “selectmen may make suitable regulations governing the police department and the officers thereof.” Under G.L. c. 40, § 21, “[t]owns may … make such ordinances and by-laws, … as they may judge most conducive to their welfare” which may include ordinances “(1) For directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.” (emphasis added). See Thibeault v. Chief of Police of Fitchburg, 5 Mass. App. Ct. 360, 364 (1977) (it is to the city council that the legislature has committed the decision as to the proper operation of police department); Chief of Police of Westford v. Westford, 365 Mass. 526, 532 (1974) (same).

In addition, “Towns [and cities] may . . . make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits. . . (1) For directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.” See G.L. c. 40, § 21 (emphasis added). This gives the City of Cambridge the authority to pass an ordinance curtailing action by any actor so long as the act occurs within city limits. This ordinance can be likened to the town of Amherst’s ban on certain firearms in 1981, which was upheld by the Supreme Judicial Court in Town of Amherst v. Attorney General, 398 Mass. 793, 796 (1986) (“It is fundamental that every presumption is to be made in favor of the validity of municipal by-laws”) (“towns have the power to pass by-laws for the purpose of preserving peace and order”).

Further, “[a]ny city or town may, by the adoption, amendment or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court . . . and which is not denied, either expressly or by clear implication, to the city or town by its charter.” G.L. c. 43A, § 13. This suggests that, with limited exceptions not applicable to this situation, the Cambridge City Council may pass ordinances that are not “inconsistent” with state law or the Massachusetts constitution.

An ordinance will be valid unless there is a state or local law with clear legislative intent to preclude local action. Id. While there is one state law that comes close to the issue of whether Cambridge could ban other police entities from using certain tactics, that law is distinguishable. Specifically, G.L. c. 41, § 98 provides “[t]he chief and other police officers of all cities and towns . . . may carry within the commonwealth such weapons as the chief of police or the board or officer having control of the police in a city or town shall determine; provided, that any law enforcement officer of another state or territory of the United States may, while on official business within the Commonwealth, carry such weapons as are authorized by his appointing authority.” There is a distinction between carrying and using such weapons.

Nor is § 98 in “sharp conflict” with the proposed ordinance. In Town of Amherst v. Attorney Gen., the Supreme Judicial Court considered a by-law passed by the town of Amherst prohibiting the use of certain firearms. 502 N.E.2d at 130–31. The regulations were challenged as conflicting with state laws regulating hunting and the safe use of certain firearms. The court held that Amherst’s by-law did not conflict with the state law regulating firearms because no section of state law was “inconsistent with the by-law,” that the by-law did not “frustrate[]” any sections of state law, and concluding that ‘[t]he mere existence of [a] state provision for some matters within the purview of the by-law will not render [the by-law] invalid as repugnant to law.” Id.

B. Authority To Regulate State And Federal State Law Enforcement Officers

In general, a police officer lacks authority to act outside his or her jurisdiction, unless specifically authorized by statute. See Commonwealth v. Savage, 430 Mass. 341, 343–346 (1999). The clear implication of this principle is that police officers operating within the City of Cambridge, under the authority of the Cambridge Police Department, are therefore subject to the same statutory mandates as any Cambridge police officer would be. The Massachusetts State Police Rules of Conduct support the conclusion that state troopers are subject to ordinances governing the City of Cambridge. See State Police Rules of Conduct, Rule 5.4.1 (“Members shall obey all laws of the United States and of any country, state, or local jurisdiction in which the members are present.”).

The authority to regulate federal authorities is less clear. The United States District Court for the District of Colorado this past Spring issued a temporary restraining order enjoining “the City and County of Denver, and specifically the Denver Police Department and officers from other jurisdictions who are assisting Denver Officers, from employing chemical weapons or projectiles of any kind against persons engaging in peaceful protests or demonstrations.” Abay v. City of Denver, No. 12-cv-01616-RBJ, ECF No. 16 (D. Col. June 5, 2020) (emphasis added). The Court also specifically ordered that “Non-Denver officers shall not use any demonstration of force or weapon beyond what Denver itself authorizes for its own officers. Any non-Denver officer permitted to or directed to be deployed to the demonstrations shall be considered an agent of Denver such that Denver shall ensure such officer is limiting their use of force to that authorized by the Defendant.” Id.

II. Severability

The severability clause included in the ordinance will ensure that if a portion of the ordinance is successfully challenged, the remainder of the ordinance will remain in effect. When courts sustain a challenge to part of a piece of legislation, the invalid portion is severed, saving the remainder, “unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.” I.N.S. v. Chadha, 462 U.S. 919, 931-32 (1983). See also Peterson v. Commissioner of Revenue, 444 Mass. 128, 137-28 (2005) (“When a court is compelled to pass upon the constitutionality of a statute and is obliged to declare part of it unconstitutional, the court, as far as possible, will hold the remainder to be constitutional and valid, if the parts are capable of separation and are not so intertwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part.”). Where, as here, it is the intent of the drafters to ensure that the ordinance remain valid should any portion be invalidated, a severability clause unambiguously conveys that legislative intent to a reviewing court. I.N.S. v. Chadha, 462 U.S. at 932.

III. Private Right Of Action

Sections 6 and 7 of the Massachusetts Home Rule Amendment (“HRA”), Article 89 of the Amendments to the Constitution of the Commonwealth, allow a city or town to adopt local ordinances without prior approval of the state legislature as long as those ordinances are not inconsistent with the state constitution or laws passed by the state legislature. In particular, HRA § 7(5) states that a city may “enact private or civil law governing civil relationships [which is] an incident to an exercise of an independent municipal power ....” As our Supreme Judicial Court has often stated, “§ 6 of the HRA undoubtedly grants municipalities broad powers to adopt bylaws for the protection of the public health, morals, safety, and general welfare, of a type often referred to as the ‘police’ power.” CHR Gen., Inc. v. Newton, 387 Mass. 351, 355 (1982).

In Marshal House, Inc. v. Rent Review & Grievance Bd., 357 Mass. 709, 718 (1970), the court stated that the language of HRA § 7(5), required “viewing separately the various component powers making up the broad police power, with the consequence that a municipal civil law regulating a civil relationship is permissible (without prior legislative authorization) only as an incident to the exercise of some independent, individual component of the municipal police power.” That requirement is clearly met by the statutory grant of authority to city or town selectmen to make “suitable regulations governing the police department and the officers thereof” under G.L. c. 41, § 97.

Moreover, our courts have held that police officers, in accepting employment by the public, implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities and that they may face discipline and liability if they fail to do so by violating laws designed to regulate police conduct. See Police Com'r of Boston v. Civil Service Com'n, 22 Mass. App. Ct. 364, 371 (1986); McIsaac v. Civil Service Com'n, 38 Mass. App. Ct. 473 (1995) (Police officer discharged for violating department regulation prohibiting conduct unbecoming an officer by negligently handling firearm while intoxicated and verbally abusing other officers); City of Boston v. Boston Police Patrolmen's Association, 477 Mass. 434 (2017) (discussion of choke holds and protection of public from excessive use of force by police).

Further, there is “no case law of significance” that states that municipalities may not create private rights of action consistently with the Home Rule Amendment to the Massachusetts Constitution. See generally Paul A. Diller, The City and the Private Right of Action, 64 Stan. L. Rev. 1109, 1167 & n.319 (2012). In the absence of such law, the proposed ordinance can include a private right of action.

Prepared by
Jeffrey M. Feuer, Esq. of the National Lawyers Guild, Massachusetts Chapter
Goldstein and Feuer
52 Western Avenue
Cambridge, MA 02139
617-642-3111 (cell)

O-9     Mar 15, 2021
COUNCILLOR ZONDERVAN
COUNCILLOR CARLONE
COUNCILLOR SOBRINHO-WHEELER
WHEREAS: COVID-19 new cases per day have stabilized at dangerous levels and even slightly increased after declining from a peak in early January 2021; and
WHEREAS: There continues to be a significant disparity in both case and death rates between Black and white residents of Cambridge; and
WHEREAS: Cambridge followed Governor Baker’s lead in reopening to a modified version of Phase 3, Stage 2 of the statewide reopening plan as of Mar 1, 2021, with plans to further reopen on Mar 22, 2021 including large indoor performance venues; and
WHEREAS: At their Feb 17, 2021 meeting, the Expert Advisory Panel discussed how to communicate the “looming risk” of a variant surge associated with severe disease in higher risk groups by stating that in order to maintain the same risk level they have right now, people will need to take more precautions; and
WHEREAS: New COVID-19 variants that have emerged are more infectious and deadly than the original virus, and some are even able to reduce the efficacy of the new vaccines; and
WHEREAS: A study published by the CDC on Mar 5, 2021 concluded that “policies that require universal mask use and restrict any on-premises restaurant dining are important components of a comprehensive strategy to reduce exposure to and transmission of SARS-CoV-2”; and
WHEREAS: Both CDC Director Rochelle Walensky and Dr. Anthony Fauci have stressed to Governors and the public on numerous occasions that moving too fast to ease limits could undo progress in the effort to limit transmission; and
WHEREAS: Somerville remains in a limited version of Phase 3, Step 1 which includes 25% capacity restrictions for indoor dining and no plans to open large venues; and
WHEREAS: The state’s vaccine distribution rollout has been a disappointment and so far only about 10% of the state’s population has been fully vaccinated, with a lower vaccine uptake among vulnerable communities due to the same structural issues that drive up COVID19 rates in these communities in the first place; and
WHEREAS: Reopening large indoor performance venues at 50% capacity would allow for indoor gatherings of potentially hundreds of people in some spaces where alcohol consumption is permitted; now therefore be it
ORDERED: That the City Manager be and hereby is requested to reverse his decision to open large indoor performance venues on Mar 22, 2021 until widespread vaccination of the general public is achieved in the coming weeks and adequate safety guidance can be implemented to protect workers, performance goers, and Cambridge residents ; and be it further
ORDERED: That the City Manager be and hereby is requested to re-implement capacity restrictions on indoor dining to ensure the safety of restaurant workers, diners, and Cambridge residents until widespread vaccination of the general public is achieved in the coming weeks; and be it further
RESOLVED: That the City Council go on record renewing its desire for data and scientific research to drive pandemic decision making in Cambridge.