In a highly unusual move, the City of New York has decided not to defend and indemnify a police officer who is being sued in a civil lawsuit over an incident. Such a decision will pit an employee against his employer at trial.
The incident occurred on September 24, 2011, when 29-year police veteran Deputy Inspector Anthony Bologna was caught on video pepper spraying a group of Occupy Wall Street protesters in a clash with police officers last fall. Weeks after the incident, an internal police investigation found that officer Bologna violated New York City Police Department guidelines. He was disciplined and docked 10 vacation days.
A lawsuit was filed in February by two women who allege that officer Bologna pepper sprayed them “for no legal reason”. The City’s decision has left Mr. Bologna potentially personally liable for any damages awarded in the civil lawsuit. His legal defense is being paid for by his union, the Captains Endowment Association.
Currently, there are approximately 1,376 civil rights cases pending against the New York City Police Department. According to Muriel Goode-Trufant, chief of the Law Department’s Special Federal Litigation Division, over the past five years, in less than 5 percent of cases, the City has declined to defend and indemnify police officers.
The actions of the City will result at trial in the employee arguing that he was acting within the scope of his employment and under the color of the law, and the City claiming that its employee’s actions were unauthorized and violated the plaintiffs’ rights. The end result could be very favorably for the plaintiffs. A jury could disregard the claims of both defendants holding them liable in this matter.
Recently, an additional Federal lawsuit was filed by two more protesters regarding this incident.