RICHMOND, Va. (WRIC) – Two Richmond police officers charged with misdemeanor assault and battery used pepper spray on three females who were stopped in traffic at an intersection following a night of civil unrest in the city last May, according to a recent court filing written by the city’s prosecutors. 

Christopher Brown and Mark Janowski were indicted by a grand jury in October, the only two officers charged after the panel considered 18 counts against eight officers in the wake of last summer’s unrest when authorities and protesters clashed several times.

Their attorneys plan to argue in court that both officers are protected by immunity from prosecution and were within their right to use tools given to them, a type of pepper spray called O.C. fogger, to disperse those rioting or who were unlawfully assembled.

Colette McEachin, Richmond’s commonwealth’s attorney, and her deputy, Michael Hollomon, countered in their response stating that qualified immunity “is generally not available for government officials when they have engaged in wrongful conduct such as intentional torts or crimes.” 

They wrote in court documents that the victims, ranging in ages from 17 to 19, were not threatening the officers, didn’t display weapons or make an attempt to get out of the car. 

“Other than shouting names at the officers, the victims were simply sitting in stopped traffic,” they claimed.

The alleged incident in question, which prosecutors say there is body-worn camera footage of, happened in the early hours of May 31, 2020 on Belvidere Street. The females were stopped at a red light behind a few cars when the front passenger rolled down the window and “one or more of the victims began shouting obscenities at the officers,” prosecutors wrote in court documents filed May 27.

“As the victims were shouting at the police, one officer in the group of officers shouted to the victims, ‘Why don’t you get out of the car?’ Another officer in the group then said, ‘Spray ‘em, it doesn’t matter, f— it, spray ‘em.’ At that moment, Brown and Janowski left the sidewalk, walked across two travel lanes and approached the passenger side of the victims’ vehicle,” prosecutors continued. “As they approached the vehicle, officers can be heard yelling, ‘Get the f— out of here, get out of here,’ despite the fact that the victims were stopped in traffic with a stopped vehicle immediately in front of them.”

Janowski then allegedly sprayed O.C. fog into the open window “at the heads and faces of the victims,” despite being trained not to do so according to the prosecutor’s filing. Brown followed up and did the same as Janowski, court documents claim.

“The alleged conduct from the Commonwealth attributed to Officer Janowski consisted of a single spray into a vehicle, ordered by a senior officer, after the parties were told to leave the area,” Janowski’s lawyer wrote in a plea for immunity.

The city’s prosecutors argued that in order for Brown and Janowski to be granted immunity the defense would have to prove:

  • the defendants were authorized to disperse a riot or unlawful assembly
  • the victims were either rioting or unlawfully assembled
  • the victims were commanded to disperse and failed to
  • the actions of the defendants were “reasonably necessary under all of the circumstances to disperse the rioting or unlawfully assembled victims.”

Brown and Janowski face three counts of misdemeanor assault and battery. A hearing was expected this week but was put on hold until Monday because the “court and both parties agreed that further legal research needed to be conducted in a thorough manner” McEachin told 8News in an email Thursday.