A new video showing Deputy Inspector Anthony Bologna in a second pepper-spraying incident during the weekend's Occupy Wall Street protest came out overnight, a few hours before the New York Police Department announced it would investigate Bologna's use of the spray, which it had previously defended. The original video of Bologna spraying four women detained behind netting has been pretty well parsed by folks who say it goes against the department's guidelines. The new one also seems to show a violation of the department guidelines as Bologna sprays what appears to be a photographer who wasn't being detained.
Daily Kos posted a slow-motion version of the video:
And one in real time:
The video clearly shows Bologna spraying the side of the face of someone wearing an identification tag and holding a camera. It's unclear whether he's got a police-issued press pass, but he doesn't seem to be participating in the main demonstration. That would appear to contradict the department's guidelines, summarized in this department report on pepper spray that quotes the NYPD Patrol Guide (the report is from 2000, but the language it quotes jibes with snippets reported in this New York Times story, and refers to a Guide appendix, P.G. 212-95, confirmed in this truncated version of the 2010 guide):
Patrol Guide 212-95 lists five situations in which an officer may use pepper spray. Pepper spray may be used when a police officer “reasonably believes” that it is necessary to: 1) protect himself, or another from unlawful use of force (e.g., assault); 2) effect an arrest, or establish physical control of a subject resisting arrest; 3) establish physical control of a subject attempting to flee from arrest or custody; 4) establish physical control of an emotionally disturbed person (EDP); and 5) control a dangerous animal by deterring an attack, to prevent injury to persons or animals present. The Patrol Guide states that officers should aim and discharge pepper spray into a subject’s eyes, nose, and/or mouth in two short one-second bursts at a minimum of three feet for maximum effectiveness.
The Patrol Guide prohibits the use of pepper spray against subjects who passively resist (e.g., going limp, offering no active physical resistance). It further cautions that if possible, pepper spray should not be used against persons who appear to be in frail health, young children, women believed to be pregnant, or persons with known respiratory conditions.
New York Police Commissioner Ray Kelly, who had previously called the initial spraying incident "appropriate," told reporters on Wednesday that the department would investigate the incident. The New York Times quoted him speaking about the first incident with the four women.
“I don’t know what precipitated that specific incident,” he said, but added that demonstrators as a group were engaged in “tumultuous conduct” and were “intent on blocking traffic” as they marched down University Place on their return from Union Square to the financial district, where the protesters have been encamped for more than a week.
After the initial incident, the blog U.S. Law published a rebuttal to NYPD spokesman Paul Brown's claims about the incident on Sunday. "Pepper spray was used once," Brown told The New York Times, "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." Amid its lengthy rebuttal, U.S. Law points out:
While other women were loudly reacting to the violent nearby arrests they were witnessing take place in the street, there was no physical impediment to the police work on the sidewalk in the immediate vicinity for at least 18 seconds prior to the release of spray. Were there any confrontation, it had been quelled long before the pepper spray was deployed.
The Civilian Complaint Review Board has is now reviewing the incident in addition to the police department's Internal Affairs Bureau.