Mistrial declared in the case of a Philly SWAT officer who pepper-sprayed protesters on I-676

A Philadelphia judge declared a mistrial Monday in the case of former city SWAT Officer Richard P. Nicoletti, who is facing criminal charges for pepper-spraying three demonstrators who sat in the middle of I-676 during the city’s racial justice protests in 2020.

After deliberating for nearly three days, jurors told Common Pleas Court Judge Roxanne E. Covington on Monday afternoon that they were deadlocked — the second time they reported an impasse to the judge as they weighed whether to convict Nicoletti of charges including simple assault and official oppression.

The first instance was Friday afternoon, at which point Covington asked the panel to continue deliberating, which they did — even after two jurors and two alternates had been dismissed for personal reasons, trimming the size of the panel from 12 people to 11.

The additional time did not solve the apparent rift.

“This matter is now declared a mistrial by this court,” Covington said before dismissing the panel. Each of the jurors declined to comment when leaving the courthouse.

Prosecutors have the ability to try Nicoletti again, and Jane Roh, a spokesperson for the District Attorney’s Office, said they intend to do so. Still, it could be months before the case is put before another jury; a status listing in the case is not scheduled until July. In the meantime, Nicoletti remains free on bail.

The case was notable for its connection to the demonstrations that took place after the police murder of George Floyd in Minneapolis. The Police Department drew national attention for its heavy-handed response, and just a few weeks ago, the city paid nearly $10 million to settle claims of brutality and unnecessary use of force including tear gas and rubber bullets.

Still, Nicoletti, 37, was one of just two officers to face criminal charges over his behavior. Prosecutors contended his use of the use of pepper spray — at point-blank range and into three demonstrators’ faces — was unnecessary and beyond the scope of his duties as an officer.

“This was not immediately necessary — the defendant did not have to do it,” Assistant District Attorney Brian Collins told the panel last week. “He made a choice, and a decision, to do it.”

Nicoletti’s lawyers argued that his use of the spray was pre-approved by his superiors — including Police Commissioner Danielle Outlaw — making it a tool he was allowed to use while seeking to defuse a dangerous situation and get protesters off a highway.

“He was justified in what he did,” Fortunato Perri Jr. told jurors during his closing argument Thursday. “There is zero evidence that he did anything other than his job.”

Perri reiterated Monday that the charges against Nicoletti were without merit. And John McNesby, president of the Fraternal Order of Police Lodge 5, said in a statement that District Attorney Larry Krasner’s office had worked “overtime to demonize a decorated police officer for doing his job under very difficult conditions.”

The episode for which Nicoletti was charged occurred on June 1, 2020, when hundreds of protesters gathered for a third consecutive day to demonstrate in Center City against police brutality. As marchers took different routes around City Hall and toward the Art Museum, some ventured onto I-676 — even as cars were still traveling on the highway.

SWAT officers were among those called to help get people off the interstate, according to testimony at the trial, which began last week. And commanders including Outlaw had pre-approved officers to carry so-called “less than lethal munitions,” including tear gas and pepper spray. After demonstrators gained access to the highway, a SWAT commander testified, a supervisor said over police radio that officers could deploy those munitions.

SWAT officers then fired tear gas, causing most protesters to begin retreating and scrambling for exits. But three people — Christina Sorenson, Katharine Walsh, and Diamonik Hough, who all testified at the trial — decided to take a seat in the middle of the eastbound lanes. Hough said he sat first to show that protesters were not intent on violence; Sorenson and Walsh said they then sat near Hough as a show of solidarity, even though they did not know him or one another.

What happened next was captured on video: Nicoletti, wearing a gas mask and protective gear, approached the trio and began using his pepper spray. He pulled down Sorenson’s goggles and sprayed her in the face, doused Walsh at point-blank range, and sprayed Hough several times while shoving him to the ground.

Perri said that officers are trained to aim the spray toward people’s eyes and face, and that Nicoletti was simply following that training — and his orders to clear the highway — when he used it.

Collins said Nicoletti went too far. There were other officers nearby who could have arrested the demonstrators if they continued refusing to move, he said. And Nicoletti’s decision to spray peaceful protesters and then walk away effectively left them blinded and on their own to figure out how to leave the highway as cars were beginning to drive again.

Nicoletti’s actions were part of a larger scene of chaos on the highway that attracted widespread scrutiny for weeks. Though Mayor Jim Kenney and Outlaw initially defended the Police Department’s use of tear gas, rubber bullets, and pepper spray to clear the interstate, they abruptly apologized after a New York Times video recounted the disarray.

Outlaw, while apologizing, also said she was “disgusted” by video of Nicoletti pepper-spraying the demonstrators. She then fired him, and District Attorney Larry Krasner charged him two weeks later.

Nicoletti’s case wound an unusual path through court: In 2021, Municipal Court Judge William Austin Meehan dismissed all charges, saying Nicoletti was “authorized to use the force. [Prosecutors] don’t like when he used it. That doesn’t make him a criminal.”

Common Pleas Court Judge Crystal Bryant-Powell later reversed that decision, reinstating all charges and putting Nicoletti on the path to trial.

Besides Nicoletti, only one other prosecution remains pending connected to the protests. Former Inspector Joseph Bologna faces counts including assault and possessing an instrument of crime for striking a demonstrator with his police baton on the Benjamin Franklin Parkway.

A trial date in that case has not been set because prosecutors have appealed a judge’s ruling that they haven’t presented enough evidence to support a count of aggravated assault. Bologna — who has insisted his actions were justified — is due back in court for a status listing next month, court records show.

Staff writer Rodrigo Torrejón contributed to this article.