Judge rules retrial of ex-Philadelphia officer in 2020 protest actions should be held outside city

A judge has ruled that the retrial of a former Philadelphia police officer charged with assault and endangerment in his actions during protests in the summer of 2020 should be held outside of the city.

The Philadelphia Inquirer reports that the ruling came Wednesday in Common Pleas Court in the case of ex-SWAT officer Richard Paul Nicoletti, whose previous trial ended in a mistrial earlier this year after jurors were unable to reach a unanimous verdict.

Nicoletti has faced charges including simple assault and reckless endangerment after he was seen on video lowering the face covering of at least one protester before dousing a group with pepper spray as they knelt on a city interstate during the June 1, 2020, protest following the death of George Floyd.

Judge Roxanne Covington said extensive news coverage of the case and an inaccurate statement from prosecutors could compromise the ability of jurors from the city to fairly decide whether Nicoletti’s actions were criminal.

After demonstrators made their way onto Interstate 676 on June 1, 2020, video circulated widely on social media that showed Nicoletti in riot gear approach three protesters kneeling on the highway and pull down at least one protester’s mask or goggles before pepper-spraying them. He was fired several weeks later.

After the city and state police use of tear gas gained national attention, Mayor Jim Kenney and police commissioner Danielle Outlaw apologized, calling the use of force that day unjustifiable. In March, the city agreed to pay $9.25 million to hundreds of plaintiffs who sued over police use of force during several days of protests.

Prosecutors argued that Nicoletti’s actions were unnecessary, harmful and beyond the scope of his duties as a police officer. Defense attorneys said he broke no law and acted on the orders of his superiors who told him to clear the highway and authorized him to use pepper spray to do so. A municipal court judge in 2021 dismissed all charges, saying prosecutors had failed to show that the actions were criminal. A Common Pleas court judge later reversed that decision.

Attorney Charles Gibbs said nearly a third of the prospective jury pool in the first trial in May had acknowledged bias on the issue of police conduct. He argued that Nicoletti “should not be a referendum on policing, he should not be a referendum on protests.”

“Pretrial publicity has hampered Mr. Nicoletti from having a fair trial,” Gibbs said.

The judge agreed and also cited an incorrect statement from a spokesperson for a prosecutors’ office that Nicoletti was responsible for “teargassing protesters” on I-676. The Philadelphia district attorney’s office declined comment Wednesday on the judge’s decision and comments.

Assistant District Attorney Joshua Barnett argued that knowledge of the incident didn’t mean jurors couldn’t be objective, and he said some prospective jurors in the previous trial had expressed bias for the defendant rather than against him.

A venue for the trial, scheduled to begin Oct. 16, hasn’t been set.