was seen on a YouTube video (above), spraying at least two girls, who had been kettled at the Occupy Protest on September 24, 2011. The girls fell to the ground, screaming and crying in pain, and Bologna purportedly turned and walked away.
A month after the incident, a police investigation found that, in his actions, the police officer had violated New York Police Department guidelines.
NYPD Patrol Guide 212-95 lists situations in which an officer may legally use pepper spray. These include situations where an officer must protest himself or another from harm, prevent an attack from a dangerous animal, or to establish control of someone resisting arrest or trying to flee from custody.
In email correspondence with the Wall Street Journal
, Muriel Goode-Trufant, chief of the Law Department's Special Federal Litigation Division, stated that although Bologna claims that he did not intend to spray the women, the city is only 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.”
, Bologna's lawyer, Louis La Pietra, told the Wall Street Journal, "He wasn't doing this as Anthony Bologna, mister. He was doing this as Anthony Bologna, deputy inspector, NYPD." Bologna's union, the Captains Endowment Association, is now covering the cost of his defense.
An attorney representing the pepper spray victims said she believes that the YouTube video of the incident affected the city’s decision not to defend the officer. “If it wasn’t on video, I think it would be another he said-she said case,” the attorney said.
However, the scene caught on video, which clearly shows Bologna bringing two harmless protesters to their knees, created a powerful image that may have embarrassed both the NYPD and the city of New York, leading to their refusal to assist the defendant with legal costs.
The immediate punishment for Bologna's actions was a command discipline, that docked his vacation by 10 days. However, in February his two victims filed a lawsuit against Bologna for illegally spraying them with pepper spray.
29-year veteran of the NYPD, and deputy inspector, will have to pay his own legal fees, with the help of his union, the Captains Endowment Association. Along with paying for his own defense, Bologna may also be held personally liable for financial damages that could arise out of the suit.
The change of stance on the part of the NYPD has been noted by ProPublica's
Justin Elliot, speaking of NYPD spokesman Paul Browne's initial remarks on the incident.
At the time Browne defended Bologna when video of the pepper-spraying incident started to go viral, saying police officers had used the spray
"Pepper spray was used once,” Browne said, “after individuals confronted officers and tried to prevent them from deploying a mesh barrier - something that was edited out or otherwise not captured in the video.”
But now, it seems, the NYPD is viewing the incident in a different light.
The video below shows the incident in slow motion, clearly showing Officer Bologna spraying the girls: