Protesters face off with police during a demonstration on I-676 in Philadelphia on June 1, 2020. (Courtesy of Pilar Goñalons Pons)

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Read the news of the day in less than 10 minutes — not that we’re counting.

The trial of Richard Nicoletti Jr., a former Philadelphia SWAT officer fired after pepper spraying protesters on I-676 in 2020, has come to a close, with a mistrial being declared due to a hung jury. 

Both the prosecution and the defense had agreed to proceed with 11 jurors after one was dismissed, but a decision proved elusive. Double jeopardy, the principle that prevents someone from being tried twice for the same crime, doesn’t apply to hung jury mistrials.  

Nicoletti is the first Philly law enforcement officer to be tried on criminal charges resulting from that summer. The case of Joseph Bologna, a former police inspector seen assaulting protesters with a baton, is still pending.

On the back of March’s civil rights suit settlement between the city and hundreds of protestors, this is another event in the ongoing legal fallout of riotous protests that hit parts of Philly in reaction to the deaths of George Floyd, Breonna Taylor, Ahmad Aubery, Tony McDade, and others. 

The mistrial follows a three-year saga that started with Nicoletti’s firing in June 2020 and continued with the filing of criminal charges against him, their dismissal by one judge and then their subsequent reinstatement by another. 

Need a refresher on how we got here? Read on for more.

Who is Nicoletti?

Richard Nicoletti Jr. is a 37-year-old native Philadelphian who grew up in the Far Northeast. His father is a PPD officer who’s worked within the department for over three decades, and Nicoletti Jr. joined the force in 2008. 

What did he do on I-676?

The incident that led to Nicoletti’s firing and prosecution can be found at the 4:28 mark of this New York Times video with clips from June 1, 2020 (note that the video contains instances of police violence). 

Nicoletti was responding to three protestors in particular, including Diamonik Hough, who chose to remain seated on the highway in an act of civil disobedience as many other protestors were leaving the scene. 

Two other protestors — one being Christina Sorenson of the Juvenile Law Center — joined in, sitting a few feet in front of him, when a tear gas canister was shot in their direction.

“I couldn’t let them get hurt for something I chose to do,” Hough told the Times. He threw the canister in the opposite direction and returned to the spot, sitting legs crossed.  

Nicoletti approached the trio of seated protestors and pepper sprayed each one at point blank range, and the video shows him pulling down the mask of one protester to ensure the spray landed flush on their face. He also pushes Hough, who was hiding his face in his hands. 

Nicoletti can then be seen walking away.  

How did his actions go against PPD policy?

Directive 10.2 of official Philadelphia Police Department policy details guidelines for “Use of Moderate/Limited Force,” and contains a section on the use of pepper spray.

The critical portion notes that pepper spray — officially called oleoresin capsicum spray due to the name of its active ingredients, oils extracted from pepper plants — cannot be used in the following cases: 

  • To disperse non-violent persons or “disorderly crowds”
  • When “people are peacefully exercising their Constitutional Rights of free speech or assembly.”
  • At random
  • As a way to coerce compliance with police requests

When is the use of pepper spray justified? Generally when dealing with someone being violent towards police, others, or themselves, and in situations where someone is evading/resisting arrest. 

How did officials initially react?

Police Commissioner Danielle Outlaw and Mayor Jim Kenney initially responded to the events of June 1 by claiming that the crowd on I-676 had trapped a state trooper in his vehicle and that SWAT officers on the scene told the crowd to disperse multiple times.

Those and other claims had to be walked back once more information was available that proved otherwise. 

“In the weeks [after June 1], I have learned those statements were … substantively inaccurate,” Outlaw said at the time.

The commissioner made clear that Nicoletti’s actions were under internal investigation from the outset, and when Kenney and Outlaw apologized for what took place she also announced that Nicoletti would be fired shortly thereafter. 

Nicoletti was handed a 30 day suspension before being dismissed in late July, days after he turned himself in to be charged

What was he charged with?

Nicoletti faced 10 separate charges, include :

In 2021, the District Attorney’s Office noted that the assault, endangerment, and official oppression charges would be prosecuted as second degree misdemeanors, while the possession charge would be dealt with as a first degree misdemeanor.

The charges were dismissed and then reinstated?

At a preliminary hearing in May 2021, nearly a year after the incident, Municipal Court Judge William Austin Meehan dismissed the charges on grounds that Nicolleti had been following proper protocol for pepper spray use, as instructed by his commanders at the time.

Nicoletti’s defense attorney had brought police supervisors to the hearing to make that point, but the case was dismissed before they were asked to testify. 

At the request of DAO prosecutors, however, Common Pleas Court Judge Crystal Bryant-Powell in October reversed that decision, and all charges were reinstated. 

Nicoletti’s attorney argued that his client had been made a “scapegoat” for what took place on I-676, and represented Kenney and Outlaw as “co-conspirators,” The Inquirer reported.  

But the prosecution refused to back down, saying he needed to be held accountable for the actions that were seen by so many.

“We will continue to proceed with criminal prosecution of former PPD officer Richard Nicoletti, whose actions … were captured on video and widely shared and viewed by Americans and people around the world,” said Krasner, after the charges were reinstated. 

“I am grateful today that a Common Pleas judge watched the same video millions of us watched last summer and agreed that this matter should be pursued and resolved in a court of law.”

Two years later, the case went to trial

From October 2021 through this May, Nicoletti was out on bail.

The trial last week, in front of Judge Zachary C. Shaffer, lasted just three days. Court documents don’t yet show full details, but opening arguments reflected points first raised in 2021, per The Inquirer.

Fortunato Perri Jr., Nicolleti’s lawyer, made the point that the former officer was following orders and training when he pepper sprayed the protestors. 

Assistant District Attorney Brian Collins called Nicoletti’s actions clearly unjustified, a repeat of his 2021 argument when he said there was “absolutely no reason whatsoever” for Nicoletti to deal with protestors in the manner he did. 

Hough — the protestor who first sat down on I-676 — also testified, saying he did so to demonstrate how peaceful the protest officials called “violent” really was.

Jordan Levy is a general assignment reporter at Billy Penn, always aiming to help Philadelphians share their stories. Formerly, he has worked at Document Journal, n+1 Magazine, and The New Republic. He...