A Philadelphia judge on Tuesday reinstated all assault charges against former city SWAT Officer Richard P. Nicoletti, who pepper-sprayed protesters last year on I-676 during the George Floyd protests.
Charges including simple assault had been thrown out earlier this year by a different judge who ruled that Nicoletti’s actions on the highway were not criminal because he’d been authorized by his commanders to use the spray.
But, acting on a request by prosecutors, Common Pleas Court Judge Crystal Bryant-Powell reversed that decision. Without explaining her ruling, she ordered that Nicoletti be held for trial on charges of simple assault, official oppression, reckless endangerment, and possessing an instrument of crime.
District Attorney Larry Krasner said in a statement that the decision will help “ensure that my office is able to apply evenhanded and equal accountability to people who unlawfully inflict harm on others — regardless of their title, status, or official position with the City of Philadelphia.”
Nicoletti left the courthouse without commenting. His attorney, Fortunato Perri Jr., declined to comment after the hearing.
During the proceeding, however, Perri said Nicoletti had become a “scapegoat” for the highway scene because officials — including Mayor Jim Kenney and Commissioner Danielle Outlaw — had approved the use of pepper spray and other nonlethal munitions to clear the highway.
He said Nicoletti had acted within his training and police protocols in deploying the spray, and he equated Kenney and Outlaw to uncharged “co-conspirators” who had avoided accountability in the fallout.
“He did what he was directed to do,” Perri said of Nicoletti. “He deployed [pepper spray] exactly the way he’s been trained.”
The June 1, 2020, incident began when city and state police fired tear gas at demonstrators who had made their way onto the expressway. One of the canisters landed near a protester, Diamonik Hough, who picked it up and threw it back in the direction of police.
Videos later shared on social media showed Nicoletti, wearing a gas mask, approaching Hough and two women who remained seated in the middle of the road after many other protesters had fled the scene. Nicoletti pulled down one woman’s goggles and pepper-sprayed her in the face, doused a second woman at point-blank range, then sprayed Hough several times while also shoving him to the ground.
Outlaw said she was “disgusted” by the video. She fired Nicoletti several weeks later.
After the New York Times published a video report recounting the day’s events, Kenney and Outlaw apologized for the entire situation on the highway, calling the use of force that day “unjustifiable.” Deputy Commissioner Dennis Wilson also took the unusual step of announcing his own demotion, saying he had acted unilaterally in approving the gassing of protesters without first asking Outlaw.
The commissioner placed a moratorium on the use of tear gas, and the city later moved to ban its use, along with prohibiting the deployment of rubber bullets or pepper spray against demonstrators exercising their First Amendment rights.
Last July, District Attorney Larry Krasner filed criminal charges against Nicoletti.
But at a March preliminary hearing, Municipal Court Judge William Austin Meehan dismissed the charges, ruling that Nicoletti had been authorized by his commanders to clear people from the highway, and given pepper spray as a tool to do so.
Nicoletti, Meehan told prosecutors at the time, was “authorized to use the force. You don’t like when he used it. That doesn’t make him a criminal.”
Krasner’s office quickly sought to refile the case.
On Tuesday, without mentioning Meehan by name, Krasner said in his statement: “Speaking broadly, public confidence in institutions is eroded when people are told by powerful, largely unaccountable figures that something they’ve seen with their own eyes did not actually occur, or is only a problem when just certain people are the [perpetrators].”
Perri sought during the hearing to bolster his argument that Nicoletti was following orders by calling two of his commanders. Each testified that Nicoletti acted within his training as he deployed the pepper spray, which had been approved for use by officials including Outlaw and Kenney.
But Assistant District Attorney Brian Collins said Nicoletti had intentionally and unnecessarily sought to hurt the protesters by using a painful spray against them as they sat on the ground. “There was absolutely no reason whatsoever that [he] had to do that,” Collins said.
John McNesby, president of the police officers’ union, criticized Krasner in a statement for prosecuting Nicoletti instead of “dozens of unlawful protesters,” and those he said who “set fire and looted our great city.” The union is continuing to represent Nicoletti in court.
Nicoletti is due back in court next month for a possible trial.