The city has taken the unusual step of declining to defend a high ranking police official in a civil lawsuit over a pepper-spraying incident at Occupy Wall Street.
Deputy Inspector Anthony Bologna is being sued by two women who say Bologna used pepper spray on them for no reason during a march on September 2.
A video of the incident posted on YouTube then went viral.
If Bologna is found liable, he will have to pay any damages himself.
The city's Law Department says it represents employees acting in the official duties but not if they are in violation of any regulation.
Bologna did accept a departmental discipline for the incident and lost 10 vacation days.
Police Commissioner Ray Kelly said it was not the New York City Police Department's call not to defend the officer and he is worried about the effect the decision could have on other cases.
"I think it could have a chilling effect on police officers taking action. It's a discretionary decision by the Corporation Counsel and I'm concerned about an adverse effect on officer's willingness to engage," said Kelly.
Bologna's lawyer, Louis La Pietra, who is being paid by the police captain's union, finds the decision outrageous.
"Inspector Bologna was not there in his individual capacity that day. Clearly not. He was in a police uniform, he was taking police action," La Pietra said.
Chelsea Elliott, one of the women who brought the suit, says she is upset by the decision as well.
"I feel that it's unfortunate. I feel that the NYPD is evading accountability," said Elliott. "I was behaving completely peaceful and completely serene and I should not be assaulted."
The lawyer for protestors who are suing, Aymen Aboushi, said the city and NYPD should also be held accountable for what he sees as brutality.
"It is unfair to the extent that he was acting under police guidelines for the city, now to use him as a scapegoat and abdicate their responsibility for the policies that they perpetuated," said Aboushi.
The captain's union says some Occupy Wall Street protestors were being brutal that day and Bologna had to take appropriate action.
"Unfortunately these young ladies who were sprayed were not his target. And Inspector Bologna actually approached them and apologized to them," said La Pietra.
Protesters dispute La Pietra's account and say what really happened will be determined in federal court.