A Philly SWAT officer pepper-sprayed protesters on I-676. A jury will now decide if that was justified — or a crime

When Richard P. Nicoletti was a Philadelphia SWAT Officer responding to the city’s racial justice protests in 2020, he pepper-sprayed three demonstrators who had descended onto I-676 and sat in the middle of the highway.

Of that, there is no dispute.

But Tuesday, as Nicoletti sat through the first day of his criminal trial on charges including simple assault and reckless endangerment, prosecutors and Nicoletti’s defense lawyers offered divergent interpretations of whether his actions that day were legally justified — or a crime.

Assistant District Attorney Brian Collins told jurors during his opening statement that Nicoletti’s decision to spray the protesters was unnecessary, harmful, and beyond the scope of his duties as a police officer.

“The badge the defendant carried was a responsibility, not a license,” Collins said.

But one of Nicoletti’s lawyers, Fortunato Perri Jr., said Nicoletti had been authorized by his chain-of-command — including the police commissioner — to use tactics including pepper spray if demonstrations began to spin out of control.

“There will be no expert to come in and tell you he was not legally justified,” Perri told the panel. “That’s how he’s trained ... and for that, [prosecutors] want you to call him a criminal.”

The trial marks the latest chapter in a saga that attracted national attention and turned into a protracted legal battle in both civil and criminal courts. In March, the city agreed to pay $9.25 million to hundreds of plaintiffs who had sued over the Police Department’s use of force during the protests, which lasted several days.

On Tuesday, two of the people Nicoletti pepper-sprayed took the witness stand, along with a witness who watched it unfold. One of the women who was doused in the eyes, Katharine Walsh, choked up while recalling what happened. Prosecutors also played video of the episode and showed jurors a number of photos.

The episode occurred on June 1, 2020, when hundreds of protesters gathered in Center City to demonstrate over the police murder of George Floyd in Minneapolis. As marchers took different routes through the city, some ventured onto I-676 — even ascars traveled the highway.

Walsh and Diamonik Hough, who also testified, said the events were nonetheless peaceful, even “joyful,” until police began deploying tear gas toward people on the interstate. As the crowd began trying to disperse, Hough said, he decided to sit down in an attempt to show that the protesters were not seeking violence,

Walsh testified that she noticed Hough — whom she did not know — and decided to sit with him in an attempt to protect him and not let him face police alone.

“I was afraid that he was going to get hurt,” she said, noting that Hough is Black and she is white, and the demonstrations were centered on police brutality against people of color.

Videos showed what happened next: Nicoletti, wearing a gas mask and protective gear, approached Hough, Walsh, and another woman who was also seated in the middle of the road. Nicoletti pulled down that woman’s goggles and pepper-sprayed her in the face, doused Walsh at point-blank range, then sprayed Hough several times while shoving him to the ground.

Perri, while cross-examining the witnesses, sought to emphasize that they knew entering the highway was potentially dangerous. And he told jurors Nicoletti had been ordered to clear the highway — and was authorized to use pepper spray to do so.

“He did that, nothing more,” Perri said.

Police Commissioner Danielle Outlaw fired Nicoletti several weeks after, and District Attorney Larry Krasner charged him two weeks later.

But Nicoletti’s case has wound an unusual path since then: In 2021, Municipal Court Judge William Austin Meehan dismissed all charges against him, saying prosecutors did not prove that his actions were criminal: “You can’t put [officers] in charge of maintaining order, and then tie their hands on how they’re going to do it,” Meehan said.

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

Nicoletti has remained free on bail in the time since. Testimony is expected to resume Wednesday.