Philadelphia police officer Richard Nicoletti, 35, has been charged with three counts of simple assault after a video showed him spraying peaceful, kneeling protesters with pepper spray during recent protests. The case could present some challenging elements for prosecutors, but I was particularly appalled to see Nicoletti pull down the goggles of one protester to spray her in the face. Such a close saturation of pepper spray is in my view excessive and unwarranted, particularly when none of these protesters were threatening officers.
Here is the video:
The challenging element for the prosecution will be the fact that the order was given for the deployment of pepper spray, which is allowed to clear areas following the issuance of proper warnings. I do not see why the use of the pepper spray was needed rather than arresting the nonviolent individuals. What was particularly concerning was that one of the suspects appears blinded and was walking near opposing traffic.
Most police departments, like the department in Baltimore, do not approve the use of pepper spray on those “who are compliant or who are exhibiting only passive resistance.” These three protesters are clearly not compliant but only showing passive resistance.
That however leads back to the decision to give the order for pepper spray. Nicoletti’s supervisors are not charged in ordering what Philadelphia District Attorney Larry Krasner is now charging as a criminal assault.
That will present a defense for trial. However, an order to use pepper spray does not give license to use it indiscriminately or excessively, particularly on those showing passive resistance. That brings me back to the young woman who had her googles pulled down. Nicoletti was spraying oleoresin capsicum directly into her eyes and nose from a few inches away. That was as unnecessary as it was dangerous.
Philadelphia Mayor Jim Kenney and Police Commissioner Danielle Outlaw have publicly apologized for the deployment of tear gas during the protest and declared to end the use of pepper spray to disperse crowds in these circumstances. However, that will not prevent Nicoletti from raising the order as a defense point. While Krasner hyperbolically called this the “Nuremberg” defense, it is a valid issue for the jury to consider. Police officers rely on superiors to green light the use of nonlethal force. They are often unaware of what is unfolding on a scene beyond their vision (particularly when wearing protective gears). While the rules have now changed on the use of the such spray, he was following the orders and guidelines at the time in the authority to use the spray.
Where I agree with the prosecutors in the inappropriate way that the spray was used. Just as officers can use their batons to push back a crowd, they can still use such force excessively. Indeed, I recently testified in Congress on the controversy surrounding the clearing of the area around Lafayette Park. While I concluded that the order to clear the area was lawful and that the Park Police complied with the guidelines on warnings, I still believed that the charging of the line appeared excessive and certainly the attack on an Australian news team was unlawful.
According to The Philadelphia Inquirer, Nicoletti was suspended from the department for 30 days with intent to dismiss.