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New York City has distanced itself from a high-ranking police official accused of firing pepper spray at Occupy Wall Street protesters, taking the unusual step of declining to defend him in a civil lawsuit over the incident.
Deputy Inspector Anthony Bologna in Union Square on Sept. 24.
The decision means Deputy Inspector Anthony Bologna also could be personally liable for financial damages that may arise out of the suit, said lawyers familiar with similar civil-rights claims.
The 29-year veteran has asked a judge to reverse the city. "He wasn't doing this as Anthony Bologna, mister. He was doing this as Anthony Bologna, deputy inspector, NYPD," said his lawyer, Louis La Pietra. Mr. Bologna's union, the Captains Endowment Association, is now covering the cost of his defense.
Mr. Bologna was one of the most contentious public figures to emerge out of frequent clashes between Occupy Wall Street protesters and police officers last fall. A video that purported to show him aiming pepper spray at a group of demonstrators who were being held behind orange netting was widely viewed on the Internet.
Four weeks after the Sept. 24 incident, which allegedly occurred during an unpermitted march that ended in dozens of arrests, an internal investigation found Mr. Bologna in violation of New York Police Department guidelines. He was given a departmental punishment called a command discipline and docked 10 vacation days.
More
Earlier: Police Probe Pepper Spray Use
From the Archives: Camera Wars at 'Occupy' Protest
Roy Richter, the president of the Captains Endowment Association, said Mr. Bologna accepted the relatively minor disciplinary action rather than undergo what could be a drawn-out process of a departmental trial. "He agreed to it, basically, just in order to move on with his career," Mr. Richter said.
"Inspector Bologna was acting within the scope of his employment, and he was doing what he was trained to do," Mr. Richter said.
Still, a command discipline wouldn't necessarily prompt the city to abandon a police officer's legal defense in a civil lawsuit, said attorney Richard Emery, who has sued the NYPD over police-abuse allegations but isn't involved in this case. "It depends whether he was acting under the color of the law and whether he was acting within some arguable scope of his duties," Mr. Emery said. "Those are very tricky questions."
The lawsuit was filed in February in U.S. District Court in Manhattan by two women who accused Mr. Bologna of pepper-spraying them "for no legal reason." In May, the city indicated in court papers that it wouldn't indemnify Mr. Bologna. Another federal lawsuit from two additional protesters was filed on Tuesday in Manhattan.
Mr. La Pietra said Mr. Bologna didn't intend to spray the women and he expects to argue that the video doesn't show the "context" in which the deputy inspector's actions unfolded.
Muriel Goode-Trufant, chief of the Law Department's Special Federal Litigation Division, wouldn't comment on the specifics of the case beyond saying the city is required to provide "representation and indemnification if the employee was acting in the discharge of his or her duties and was not in violation of any rules or regulations of his/her agency at the time in question."
There are 1,376 federal civil-rights cases pending against the NYPD, according to the city Law Department. Ms. Goode-Trufant couldn't say in how many of those cases the city has declined to defend and indemnify police officers named as defendants.
However, the decision is unusual. Over the past five years, "that figure has generally been less than five percent," Ms. Goode-Trufant wrote.
An NYPD spokesman declined to comment.
Mr. Emery said the move could pit the city and the officer against each other at a trial. "Obviously, [Mr. Bologna's] best position is to claim the city and his superiors authorized him to behave this way, and the city's best position is to say he was unpredictably violative of people's constitutional rights in this situation," Mr. Emery said.
Aymen Aboushi, an attorney representing the two women who filed the February lawsuit, said he believes the videos of the incident affected the city's decision not to defend Mr. Bologna.
"If it wasn't on video, I think it would be another he said-she said case," Mr. Aboushi said.
Mr. La Pietra said Mr. Bologna was essential in reining in a dangerously chaotic situation. He said the crowd was growing unruly as police arrested a man who was violently resisting. Some protesters were charging officers, leading police to corral many of them behind plastic netting, Mr. La Pietra said. The lawyer said Mr. Bologna believed he saw men trying to sneak under the netting and sprayed twice "in the vicinity" of where he thought those men were.
"Two shots of pepper spray essentially put the situation under control, and it was on the verge of being out of control," Mr. La Pietra said.
Deputy Inspector Anthony Bologna in Union Square on Sept. 24.
The decision means Deputy Inspector Anthony Bologna also could be personally liable for financial damages that may arise out of the suit, said lawyers familiar with similar civil-rights claims.
The 29-year veteran has asked a judge to reverse the city. "He wasn't doing this as Anthony Bologna, mister. He was doing this as Anthony Bologna, deputy inspector, NYPD," said his lawyer, Louis La Pietra. Mr. Bologna's union, the Captains Endowment Association, is now covering the cost of his defense.
Mr. Bologna was one of the most contentious public figures to emerge out of frequent clashes between Occupy Wall Street protesters and police officers last fall. A video that purported to show him aiming pepper spray at a group of demonstrators who were being held behind orange netting was widely viewed on the Internet.
Four weeks after the Sept. 24 incident, which allegedly occurred during an unpermitted march that ended in dozens of arrests, an internal investigation found Mr. Bologna in violation of New York Police Department guidelines. He was given a departmental punishment called a command discipline and docked 10 vacation days.
More
Earlier: Police Probe Pepper Spray Use
From the Archives: Camera Wars at 'Occupy' Protest
Roy Richter, the president of the Captains Endowment Association, said Mr. Bologna accepted the relatively minor disciplinary action rather than undergo what could be a drawn-out process of a departmental trial. "He agreed to it, basically, just in order to move on with his career," Mr. Richter said.
"Inspector Bologna was acting within the scope of his employment, and he was doing what he was trained to do," Mr. Richter said.
Still, a command discipline wouldn't necessarily prompt the city to abandon a police officer's legal defense in a civil lawsuit, said attorney Richard Emery, who has sued the NYPD over police-abuse allegations but isn't involved in this case. "It depends whether he was acting under the color of the law and whether he was acting within some arguable scope of his duties," Mr. Emery said. "Those are very tricky questions."
The lawsuit was filed in February in U.S. District Court in Manhattan by two women who accused Mr. Bologna of pepper-spraying them "for no legal reason." In May, the city indicated in court papers that it wouldn't indemnify Mr. Bologna. Another federal lawsuit from two additional protesters was filed on Tuesday in Manhattan.
Mr. La Pietra said Mr. Bologna didn't intend to spray the women and he expects to argue that the video doesn't show the "context" in which the deputy inspector's actions unfolded.
Muriel Goode-Trufant, chief of the Law Department's Special Federal Litigation Division, wouldn't comment on the specifics of the case beyond saying the city is required to provide "representation and indemnification if the employee was acting in the discharge of his or her duties and was not in violation of any rules or regulations of his/her agency at the time in question."
There are 1,376 federal civil-rights cases pending against the NYPD, according to the city Law Department. Ms. Goode-Trufant couldn't say in how many of those cases the city has declined to defend and indemnify police officers named as defendants.
However, the decision is unusual. Over the past five years, "that figure has generally been less than five percent," Ms. Goode-Trufant wrote.
An NYPD spokesman declined to comment.
Mr. Emery said the move could pit the city and the officer against each other at a trial. "Obviously, [Mr. Bologna's] best position is to claim the city and his superiors authorized him to behave this way, and the city's best position is to say he was unpredictably violative of people's constitutional rights in this situation," Mr. Emery said.
Aymen Aboushi, an attorney representing the two women who filed the February lawsuit, said he believes the videos of the incident affected the city's decision not to defend Mr. Bologna.
"If it wasn't on video, I think it would be another he said-she said case," Mr. Aboushi said.
Mr. La Pietra said Mr. Bologna was essential in reining in a dangerously chaotic situation. He said the crowd was growing unruly as police arrested a man who was violently resisting. Some protesters were charging officers, leading police to corral many of them behind plastic netting, Mr. La Pietra said. The lawyer said Mr. Bologna believed he saw men trying to sneak under the netting and sprayed twice "in the vicinity" of where he thought those men were.
"Two shots of pepper spray essentially put the situation under control, and it was on the verge of being out of control," Mr. La Pietra said.
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