Occupy Wall Street: Was the NYPD Authorized to Pepper Spray Peaceful Observers?

Posted by in New York, Occupy Wall Street, Police Brutality

On Saturday, the New York Police Department arrested approximately 80 people — many participating as part of Occupy Wall Street, a peaceful protest against Wall Street and the economy.

But one incident suggests very strongly that the NYPD exceeded its authority and failed to follow appropriate procedure. In videos that have been making the rounds in the past 24 hours, three bystanders — all occupying the street and captured inside orange netting erected by the police — shout “What are you doing?” and “Oh my God!” in response to unseen arrests in the distance. The women, who offer no resistance or violent behavior, are seen and heard shrieking in pain as police officers pepper spray them without any apparent warning. On the main video, the young woman on the right clutches her hand over her mouth in shock, looking around and doing nothing, just standing there. She is clearly unaware that she is about to be maced. (The Daily Kos’s MinistryOfTruth talked with one of the women. She confessed in the report that she had no idea what prompted the attack.)

Two police officers clad in white shirts approach the women. One of them is equipped with pepper spray. He has been busy off-screen. He points fiercely at the three penned women, barking, “You guys are all going to be going” — presumably in response to the legitimate question “What are you doing?” The young woman on the right, still stunned, stretches out her hand. And he responds by spraying her in the face with pepper spray. He moves his arm to the right and sprays the others.

As the three women scream in pain and flail their arms, the netted orange perimeter is broadened. But not a single police officer steps inside to aid the women, much less arrest them. Other people scream for someone to bring water to the three women.

Here is the original video:

Here is the original video slowed down:

Here is the incident from another angle:

The NYPD would not confirm with The Gothamist whether or not it used pepper spray in any of the arrests. Yet the videos clearly indicate that it did. According to CBS News, the NYPD called every arrest justified. But an equally important question is this: Why did these officers consider the use of OC justifiable against these peaceful observers?

These three videos contain enough information about the macing incident to reconstruct a substantial portion of it. Reluctant Habits has also obtained a 2005 edition of the New York Police Department Patrol Guide, which outlines the specific use of pepper spray in Section 212-95. By the 2005 standards and based on the available evidence, it is clear that the NYPD did not follow appropriate measures.

In most cases, pepper spray is used to effect the arrest of a resisting subject. And the Patrol Guide specifies five uses for OC pepper spray:

  • Protect self, or another from unlawful use of force (e.g., assault)
  • Effect an arrest, or establish physical control of a subject resisting arrest
  • Establish physical control of a subject attempting to flee from arrest or custody
  • Establish physical control of an emotionally disturbed person (EDP)
  • Control a dangerous animal, by deterring an attack, to prevent injury to persons
    or animals present.

We see in the above videos that the women were not assaulting the police officers (unless stretching out one’s hand to get one’s bearings is considered “assault”). There was no need to establish physical control. They were not fleeing from arrest. (Indeed, how could they when they were trapped in orange police netting?) They were not emotionally disturbed persons. They were not dangerous animals who were going to injure anybody.

In looking at the Patrol Guide, we learn that the police are obligated to arrest the person who is pepper sprayed and charge them with a crime. Yet we see that the police do not make any moves towards the three women. They are left to scream, kneeled in the streets and in pain. They are not criminals. But they are clearly examples of what befalls “bad” citizens.

The Patrol Guide specifically orders the uniformed officer not to use pepper spray on “subjects who passively resist (e.g., going limp, offering no active physical resistance).” But the white shirted policeman has clearly ignored this procedure. In the same note, the uniformed officer is instructed to “avoid using O.C. spray in small contained areas such as automobiles and closets.” It is hard to determine with all the pandemonium going on in the video, but the orange netting erected by the police may very well fall into the scope of “small contained area.”

Patrol Guide procedures also request Emergency Medical Services “once the situation is under control.” But we see these women screaming and no apparent EMS members in the frame. Did the NYPD fulfill this option? Probably not. Because the women were left in the contaminated area to scream. They were not relocated to fresh air, contrary to another Patrol Guide mandate: “Remove the subject from the contaminated area and expose to fresh air while awaiting the arrival of EMS, or transportation to hospital/stationhouse if tactically feasible.”

Given the distance of the officers from the victims, it’s likely that none of the officers asked the women if they were wearing contact lenses. Nor were the women placed in a sitting position to promote free breathing. They were left to fall to the ground and suffer. The Patrol Guide also specifies that officers should provide a source of water and flush the contaminated skin of those who are pepper-spayed. Even if we give the NYPD the benefit of the doubt, and accept that the situation was an anarchic one and that it was hard to enforce these guidelines, one would think that this flushing proviso would be followed to the letter — if not as an enforced code, then at least as a basic quality of humanism that requires no explanation. But for a good twenty seconds, the women are left to scream and to experience pain, with one woman stretching her arms in an effort to find some relief for her anguish. The women who are not sprayed appear to want to help her, but, trapped inside the orange netting, they cannot offer water.

The NYPD’s conduct does not fall into the five general categories of pepper spray use. It fails to adhere to the NYPD’s own guidelines. And since the NYPD cannot own up to its inhumane behavior, despite repeat inquiries, it suggests very highly that the police are not especially committed to Fidelis ad Mortem — especially that vital faith in innocent bystanders whose only crime was to ask what was happening to fellow human beings.

Here is P.G. 212-95 reproduced in its entirety:

P.G. 212-95 Use Of Pepper Spray Devices

Date Effective: 01-01-00

PURPOSE

To inform uniformed members of the service of circumstances under which pepper spray
may be intentionally discharged and to record instances where pepper spray has been
discharged, intentionally or accidentally.

SCOPE

Use of Oleoresin Capsicum (O.C.) pepper spray constitutes physical force under the New
York State Penal Law. Use of pepper spray is proper when used in accordance with
Article 35 of the Penal Law and Department procedures. O.C. pepper spray may be used
when a member reasonably believes it is necessary to effect an arrest of a resisting
suspect, for self-defense or defense of another from unlawful force, or to take a
resisting emotionally disturbed person into custody. In many cases, pepper spray will
reduce or eliminate the need for substantial physical force to effect an arrest or
gain custody. It will often reduce the potential for injuries to members and suspects
that may result from physical restraint and it should be regarded as a possible
alternative to such force and restraint, where practical. Pepper spray shall not be
used in situations that do not require the use of physical force. O.C. pepper spray
may be used in arrest or custodial restraint situations where physical presence and/or
verbal commands have not been, or would not be, effective in overcoming physical
resistance.

PROCEDURE

When necessary to use pepper spray device:

UNIFORMED MEMBER OF THE SERVICE

1. Hold pepper spray in an upright position, aim and discharge pepper spray into a
subject’s eyes for maximum effectiveness, using two (2) one second bursts, at a
minimum distance of three (3) feet, and only in situations when the uniformed member
of the service reasonably believes that it is necessary to:

a. Protect self, or another from unlawful use of force (e.g., assault)

b. Effect an arrest, or establish physical control of a subject resisting arrest

c. Establish physical control of a subject attempting to flee from arrest or custody

d. Establish physical control of an emotionally disturbed person (EDP)

e. Control a dangerous animal, by deterring an attack, to prevent injury to persons
or animals present.

2. Effect arrest of criminal suspect against who pepper spray was used and charge with
crime which initiated use of the pepper spray.

a. Add resisting arrest charge, when appropriate

b. P.G. 210-13, “Release Of Prisoners – General Procedure” will be complied with if
it is determined that arrested person did not commit the crime or that no crime was
committed.

c. P.G. 216-05, “Mentally Ill Or Emotionally Disturbed Persons,” will be complied
with, when appropriate.

NOTE: Do not use pepper spray on subjects who passively resist (e.g., going limp,
offering no active physical resistance). If possible, avoid using pepper spray on
persons who appear to be in frail health, young children, women believed to be
pregnant, or persons with known respiratory conditions. Avoid discharging pepper
spray indiscriminately over a large area for disorder control. (Members who are
specifically trained in the use of pepper spray for disorder control may use pepper
spray in accordance with their training, and within Department guidelines, and as
authorized by supervisors.). In addition, avoid using O.C. spray in small contained
areas such as automobiles and closets.

3. Request response of Emergency Medical Service (EMS) once the situation is under
control.

a. Advise person sprayed that EMS is responding.

4. Remove the subject from the contaminated area and expose to fresh air while
awaiting the arrival of EMS, or transportation to hospital/stationhouse if tactically
feasible.

a. Determine whether the person sprayed is wearing contact lenses. (It is strongly
recommended that contact lenses be removed as soon as possible after exposure to O.C.
spray.)

5. Position subject on his/her side or in a sitting position to promote free
breathing.

a. The subject should never be maintained or transported in a face down position.

b. Do not sit, stand, or kneel on subject’s chest or back.

6. Provide assistance to subject as follows:

a. When consistent with member’s safety, and provided a source of water is readily
available, the uniformed member should flush the contaminated skin area of a subject
with profuse amounts of water.

b. Repeat flushing at short intervals, if necessary, until symptoms of distress
subside.

c. Continue flushing the contaminated skin of the subject in custody, at the
stationhouse as needed.

d. Commence the flushing of a subject’s contaminated skin upon arrival at the
stationhouse, if this has not already been done.

NOTE: Do not rub or touch skin of contaminated person, as the initial effect of
pepper spray does not dissipate for 15 – 20 minutes. Also, do not use salves, creams,
ointments, commercial eye washes or bandages. The desk officer will ensure that all
prisoners who have been sprayed with pepper spray receive appropriate first aid, if
needed, upon arrival at the stationhouse. Desk officers are also responsible for
ensuring that prisoners who have been sprayed with pepper spray are properly observed
throughout the arrest process, and that they receive prompt medical attention if they
need or request it. A Command Log entry will be made stating whether the prisoner has
had his/her skin flushed with water, been examined by EMS, or been transported to the
hospital.

7. Transport prisoner immediately to the emergency room of the nearest hospital if
he/she is demonstrating difficulty breathing, or exhibiting signs of severe stress,
hyperventilation etc.

a. Windows of transport vehicle should be kept open

b. Members who come in contact with persons who have been exposed to pepper spray
must thoroughly wash their hands afterward and avoid having any contaminated clothing
make contact with their face

c. Advise hospital staff that pepper spray has been used on prisoner.

8. Prepare ON LINE BOOKING SYSTEM ARREST WORKSHEET (PD 244-159) and MEDICAL TREATMENT
OF PRISONER (PD 244-150) in arrest situations.

9. Complete the AIDED REPORT WORKSHEET (PD 304-152b) in non-arrest situations, e.g.
EDP, and:

a. Check box “O.C. Spray Used”

b. Enter rank, name, and tax registry number, of each MOS who discharged spray in
the “Details” caption

c. List the time, doctor’s name, and diagnosis under “Details” caption, when
applicable.

COMMANDING OFFICER, M.I.S.D.

10. Provide a quarterly printout of all arrest and aided incidents where pepper spray
was discharged to the commanding officer, Firearms and Tactics Section.

COMMANDING OFFICER, FIREARMS AND TACTICS SECTION

11. Analyze situations where O.C. spray was employed to evaluate its effectiveness.
a. As appropriate, modify existing training/tactics relative to the use of pepper
spray.

ADDITIONAL DATA

The only pepper spray authorized for use is the type issued to all uniformed members
through the Firearms and Tactics Section.

In order to maintain the effectiveness of the spray, it is recommended that the device
be shaken at the start of each tour. Carrying the pepper spray device during normal
patrol duty should be sufficient to keep the solution thoroughly mixed.

Pepper spray will not automatically stop all subjects, and even when it does
incapacitate, the effects are temporary. Members should therefore be ready to use
other appropriate force options and tactics.

When performing duty in uniform, the pepper spray shall be carried in its holster
attached to the non-shooting side of the gun belt. When performing enforcement duty
in civilian clothes the pepper spray must be carried, in the holster attached either
to a belt or in another appropriate manner. Undercover members may opt not to carry
the pepper spray. Members of the service may carry the pepper spray device during off
duty hours.

UPDATE: The Village Voice talks with Chelsea Elliott, one of the protesters: “We lay on the ground like little worms. One of the other girls was a medic, and was able to pour milk in her eyes. The cops left. They moved the net. All I know from what happened afterward, I watched on YouTube. For like 15 minutes, I couldn’t see; I couldn’t breathe at first. It was so out of the ordinary and unprovoked. Our medical group poured milk into my eyes for like 10 minutes, and apple cider vinegar on my face.”

UPDATE 2: The NYPD officer who pepper sprayed the protesters has been identified as Anthony Bologna. A Downtown Express profile of Bologna reveals that he became a police officer late in life and there is this telling quote: “You read in the papers about cops doing things that you can’t believe because you think everybody’s like you. But a department this large can’t really be completely free of it. If you don’t find anything wrong, you’re in real trouble because you’re not looking.” I am also investigating this article from 2001, which suggests the possibility that Anthony Bolgona attacked another protester at a Mayday NYC protest in 2001.

UPDATE 3: Jeanne Mansfield, “Why I Was Maced at the Wall Street Protests.”

UPDATE 4: The Guardian reports that Anthony Bologna may have committed civil rights abuses during the 2004 demonstrations at the Republican National Convention.

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