A judge dismissed charges against the Philly SWAT officer who pepper-sprayed protesters on I-676

A city judge on Monday dismissed all charges against former Philadelphia SWAT Officer Richard P. Nicoletti, ruling that Nicoletti did not commit a crime when he pepper-sprayed protesters on the Vine Street Expressway during demonstrations last summer over the police killing of George Floyd.

Following a preliminary hearing that featured testimony from the three people Nicoletti doused with the spray — an act that was captured on video — Municipal Court Judge William Austin Meehan said Nicoletti had been authorized by his commanders to clear people from the highway, and given pepper spray as a tool to do so.

“You may not like their methods, that doesn’t criminalize their methods,” Meehan said.

And although Assistant District Attorney Brian Collins pointed out that Nicoletti had been fired over his actions for violating department protocols, and argued that he should be held criminally responsible for assault and related charges, the judge remained unconvinced.

“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.

The decision represented another twist in an episode that had become a stark and visceral representation of the now-notorious scene on I-676, when city and state police deployed tear gas against demonstrators who had made their way onto the expressway. After the incident gained national attention, Mayor Jim Kenney and Police Commissioner Danielle Outlaw apologized, calling the use of force that day “unjustifiable.”

The ruling also marked the second time a city judge has dismissed charges against an officer charged with wrongdoing during last summer’s protests and unrest.

In January, another judge dismissed charges against former Staff Inspector Joseph Bologna Jr., whom District Attorney Larry Krasner’s office had charged with aggravated assault and related offenses after videos showed him striking a Temple University student with a baton on the Benjamin Franklin Parkway.

In that case, Municipal Court Judge Henry Lewandowski III ruled that Bologna’s actions did not amount to a crime. Krasner’s office refiled the charges, and the case is pending.

Before he became DA in 2018, Krasner specialized in suing police for misconduct. And as police reform became a national topic of discussion last summer, he cast the prosecutions of both Bologna and Nicoletti as long-overdue steps toward holding officers accountable for wrongdoing.

But the attorney for both former officers, Fortunato Perri Jr., was quick to characterize Monday’s outcome as “another example of the District Attorney’s Office charging a police officer with a crime that is not supported by the facts or the law.”

Krasner said in a statement that he intended to refile charges against Nicoletti, adding: “The people want and deserve justice and change, including police accountability, even though some institutional players are in denial. We will stay the course.”

Monday’s hearing was at times contentious, with Perri occasionally sparring with the three witnesses, and asking each if they believed they had violated the law by protesting on a highway.

Meehan was brusque in dismissing the charges. When the DA’s Office rested its case, Perri said he intended to call one of Nicoletti’s supervisors to testify about the orders officers were given on the expressway. But the judge abruptly ended the hearing without requiring the defense to do so.

“I’m trying to figure out what the [prosecution] is doing here,” he said, capping his decision by saying that Nicoletti was “authorized to use the force. You don’t like when he used it. That doesn’t make him a criminal.”

The June 1 incident on I-676 began when city and state police fired gas at demonstrators who made it 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 shared on social media then showed Nicoletti, wearing a gas mask, approaching Hough and two women seated in the middle of the road. Nicoletti pulled down a 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, and she fired Nicoletti several weeks later. She 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.

Krasner filed criminal charges against Nicoletti last July, and the case had lingered for months in court before Monday’s preliminary hearing.

Riley H. Ross III, an attorney for the three protesters, who have filed a civil lawsuit over the incident, said in a statement that the dismissal of the criminal case was a “travesty,” adding: “This is not the first time nor will it be the last that an initial court gets a decision wrong in a matter concerning civil rights.”

Nicoletti did not comment when leaving the courthouse. The police officers’ union said it would have no comment on the case or whether it would seek to help Nicoletti get his job back.