NYPD Now Has Two Pepper Spray Incidents to Investigate

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:

Daily Kos posted a slow-motion version of the video:

And one in real time:

The Atlantic Wire goes on to report:

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.