Kelly Criticizes Law Dept. Decision in Pepper-Spray Suit

Police Commissioner Raymond W. Kelly criticized the city Law Department on Friday for its decision not to defend a police commander who is being sued in federal court for using pepper spray on Occupy Wall Street protesters last year.

The commander, Deputy Inspector Anthony Bologna, was found to have violated department guidelines on Sept. 24, when he squirted the chemical at penned-in protesters near Union Square, who appeared to be standing on the sidewalk. The uproar over the episode, which was captured on video, helped galvanize support for Occupy Wall Street in its early stages.

In February, two women who said they were sprayed by Inspector Bologna sued him, the Police Department and the city. The Law Department is declining to provide representation or indemnify Inspector Bologna.

“I think it can have a chilling effect on police officers taking action,” Mr. Kelly told reporters after a promotions ceremony at Police Headquarters. “It’s a discretionary decision on the part of corporation counsel” – referring to the head of the Law Department – “and I’m concerned about an adverse effect on officers’ willingness to engage.”

Inspector Bologna is being represented by a lawyer for his union, the Captains Endowment Association, but without the city’s indemnification, he could be liable for monetary damages. The lawyer, Louis La Pietra, said he had filed papers asking the judge in the case to order the city to represent Inspector Bologna.

The February suit, filed by Chelsea Elliot and Jeanne Mansfield, accuses Inspector Bologna of assault and battery and charges him with depriving them of their right to peacefully assemble, and charges the city with failing to train its officers appropriately. It seeks unspecified damages.

The city’s decision not to represent the inspector, indicated in court papers in May, was reported Friday by The Wall Street Journal.

The Law Department, in response to Mr. Kelly’s comments, said that it was simply obeying the law.

“State law prohibits the City from representing or indemnifying city employees who are found to have violated agency rules and regulations,” Michael A. Cardozo, the city’s corporation counsel, said in a statement. “Since an internal Police Department review found that Deputy Inspector Anthony Bologna had violated agency rules in connection with the Occupy Wall Street incident, we determined the city could not represent or indemnify him in the Elliot case.”

Inspector Bologna was sued by two other protesters last week. The Law Department said it had not yet determined whether it would defend him in that case.

The Police Department docked 10 of Inspector Bologna’s vacation days after it found that he had violated guidelines for the use of pepper spray. Police policy allows pepper spray to be used primarily for subduing a suspect resisting arrest or for protection. The spray may be used for “disorder control,” police policy states, but only by officers with special training.

Mr. La Pietra said he knew of cases in which the city had defended officers even when they violated guidelines, and that in any case, Inspector Bologna did not violate them and accepted the discipline only “in order to move on with his career.” Inspector Bologna, a 29-year veteran, was transferred to Staten Island after the infraction.

“Frankly, we’re baffled by the city’s position in this case,” Mr. La Pietra said. “What it tells our police officers is ‘You better not take action, because if you do, we’re not going to back you up.’ That’s the message, and I don’t see how that does the people of the city of New York any good.”

The Law Department said that it declines to defend officers in federal civil-rights suits less than 5 percent of the time, and that there are nearly 1,400 such suits pending.

A lawyer for the plaintiffs, Aymen Aboushi, said that the rift in what is usually a unified defense by the city and its officers could lead to a situation in which Inspector Bologna, to show that he was acting within guidelines, provides evidence supporting the plaintiffs’ claim that the use of excessive force is a matter of department policy.

“The officer is going to point a finger at the city,” Mr. Aboushi said.

Wendy Ruderman contributed reporting.

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