Philly SWAT officer seen pepper spraying kneeling protesters on I-676 turns himself in and will be charged

The Philadelphia SWAT officer captured on video last month pulling down protesters’ masks and pepper spraying them as they knelt on the Vine Street Expressway turned himself in Wednesday to face criminal charges — the second officer to be arrested for alleged misconduct during days-long protests over police brutality that coursed through the city in May and June.

Richard P. Nicoletti, 35, will face charges of simple assault, reckless endangerment, official oppression, and possession of an instrument of crime, District Attorney Larry Krasner said.

Krasner, who before he took office as the city’s top prosecutor had a long career suing over police misconduct, cast the case as another example of his office’s willingness to hold police accountable for wrongdoing. Last month, he charged Staff Inspector Joseph Bologna Jr. with aggravated assault after videos showed Bologna beating a Temple University student with a baton during the demonstrations over George Floyd’s killing by Minneapolis police.

“The larger message is that we are restoring trust between communities and the officers who are there to serve them, by making sure everyone understands that this is a city, that this is a country, that still believes in equality,” Krasner said during a news conference at his Center City office. “There’s going to be justice that is even-handed and no longer at the service of politics.”

The decision was immediately criticized by Nicoletti’s attorney and the police officers’ union.

Fortunato Perri Jr., Nicoletti’s lawyer, said the 12-year veteran of the force and former Army Ranger was “being charged with crimes for simply following orders.” Last month, he was also suspended from the Police Department for 30 days with intent to dismiss.

“His unit was ordered by commanders to clear the highway with the approved use of tear gas and pepper spray,” Perri said. “The city’s leadership was given the opportunity to apologize for approving the use of force, but Nicoletti finds himself fired and charged with crimes.”

John McNesby, president of Fraternal Order of Police Lodge 5, the city’s police union, said Krasner — a frequent foe — was “failing to hold protesters accountable” while simultaneously seeking to prosecute cops.

“His top priority is to push his anti-police agenda,” McNesby said. “This double standard of justice is unacceptable to our brave police officers who work tirelessly to keep our city safe.”

Perri said Nicoletti “looks forward to being exonerated so that he can continue to protect and serve the law-abiding members of our city.”

The charges stem from actions Nicoletti took June 1 as demonstrators gathered on I-676 during the ongoing unrest over Floyd’s death.

As city and state police began to deploy tear gas on demonstrators who had made their way onto the highway, some canisters landed near three protesters who were kneeling in the middle of the roadway, Krasner said in a statement.

“Each time, a protester picked up the canister or object to throw it away from the group,” Krasner said. “There is no indication that a thrown canister hit an officer or state trooper.”

Videos shared on social media showed what happened next.

Nicoletti, wearing a gas mask, could be seen approaching the three kneeling protesters and unleashing clouds of pepper spray. He pulled down the mask of the first woman he sprayed in the face, doused a second woman at point blank range, then sprayed a man in the face several times while also shoving him to the ground.

The man got up and unsuccessfully swung at Nicoletti, who then turned from the protesters and walked away.

Police Commissioner Danielle Outlaw and Mayor Jim Kenney described Nicoletti’s actions as unacceptable, and Outlaw said she was “disgusted.”

Krasner said Nicoletti acted “without provocation,” and compared the explanation that he was simply following orders to the defense some Nazis used when seeking to absolve themselves of having committed war crimes.

“‘I was following orders’ is not a defense to commit a crime,” he said. “That’s, what, the Nuremberg defense? That doesn’t work.”

McNesby has contended that protesters created a dangerous situation by entering the highway, and said Krasner has not sufficiently addressed wrongdoing by demonstrators who broke the law, including by damaging property and looting stores.

Krasner called that assertion “another example of the FOP leadership’s complete disinterest in the truth,” saying more than 500 people had been charged with burglary and trespassing stemming from the days of unrest. Speaking earlier Wednesday on WHYY, Krasner said damaging property and stealing merchandise is “serious,” but added, “It’s not stepping all over sacred constitutional rights,” including the right to protest.

Nicoletti was expected to be arraigned later Wednesday. Assistant District Attorney Tracy Tripp said he would be released from jail as his case proceeds through court.

An online fund-raiser for him had raised almost $7,000 as of Wednesday afternoon.

In 2011, Nicoletti was grazed by a bullet as he scuffled with a man over his gun. His partner fired two shots and killed the man, Carmelo Winans, whose family later filed a lawsuit alleging excessive force. The suit was settled by the city for $405,000.

Nicoletti’s father, also named Richard, is also a longtime city police officer who in 2018 fatally shot 36-year-old Jeffrey Dennis during a narcotics investigation in Tacony. The Attorney General’s Office cleared the elder Nicoletti of any wrongdoing.

Kevin Mincey, an attorney representing the three people who were pepper-sprayed on I-676 by Nicoletti, said he and his clients are grateful that the misconduct was taken seriously.

Mincey said he was disappointed that Nicoletti was only charged with simple assault, and not aggravated assault.

“I don’t think that simple assault accurately reflects the behavior of Nicoletti against my clients on the expressway,” said Mincey, whose firm is representing over 100 protesters in a lawsuit against the city. “The malicious way that he attacked all three of them and the amount of pepper spray he used ... indicated that he’s trying to injure them seriously.”

Krasner said he filed only charges he believed were supported by the evidence.