Buffalo cops cleared of wrongdoing in incident where protester fell to the ground

The officers' use of force was "absolutely legitimate," wrote arbitrator Jeffrey Selchick, who added that the protester was "definitely not an innocent bystander"

By Dan Herbeck
The Buffalo News, N.Y.

BUFFALO, N.Y. — Two Buffalo Police officers who knocked a 75-year-old protester to the ground, causing him to suffer a head injury during a 2020 protest and drawing national criticism, were cleared Friday of wrongdoing by an arbitrator.

Arbitrator Jeffrey M. Selchick said he found that Officers Aaron Torgalski and Robert McCabe did not violate Police Department regulations and did not intend to injure Martin Gugino during the protest outside City Hall on June 4, 2020.

Torgalski and McCabe testified before the arbitrator that they were trying to protect themselves and denied that they were trying to hurt Gugino during the protest.

The officers' use of physical force was "absolutely legitimate," wrote Selchick, who added that, in his analysis, Gugino was "definitely not an innocent bystander."

The arbitrator said the officers testified that they were only trying to move Gugino out of their "personal space" and physically keep Gugino away from their weapons.

Selchick said he based his findings on evidence presented during a three-day hearing in November, including a frame-by-frame analysis of a video taken by Buffalo radio reporter Michael Desmond, which went viral after the incident.

"There is no persuasive evidence, particularly when the Desmond video is reviewed in its various frames, that the Respondents sought to push or drive Gugino to the ground," Selchick wrote.

He concluded Gugino appears to have lost his balance because he was holding objects in both hands, his advanced age or because he was surprised the officers used force to push him away.

He noted that Torgalski testified that he was concerned that Gugino was getting close to his police firearm. The officer said he was also worried that he might catch the Covid-19 virus from Gugino.

"Something wasn't right and I don't know what this gentlemen is capable of, but something (was) off about the situation that makes you feel uneasy," the arbitrator quoted Torgalski as testifying. "I steadied my right arm and attempted to get him out of my space and push him away."

Any force on his part, Torgalski testified, was "minimal," and he said did not know what caused Gugino to fall backwards.

Selchick cleared the officers of departmental charges that accused them of improper use of force and acting in a manner that brought discredit to their department.

The officers have been suspended since the confrontation with Gugino, but were put back on the city payroll 30 days after the incident.

"This is the right decision and an across-the-board victory for Buffalo Police officers," said Thomas H. Burton, attorney for the Buffalo Police Benevolent Association. "This has been a long, arduous 22 months for two officers who were castigated by everyone from their governor to their county executive and district attorney. I spoke to them both and they are anxious to return to work."

Aside from releasing a brief statement saying that Police Commissioner Joseph Gramaglia will reinstate the two officers to duty on Monday, city officials declined to comment on the ruling.

A lawyer representing Gugino said the arbitrator's decision was not a surprise.

"We are not aware of any case where this arbitrator has ruled against on-duty police officers, so his ruling here on behalf of the police was not only expected by us, but was certainly expected by the union and city who selected and paid him. His decision has absolutely no bearing on the pending lawsuit," said attorney Melissa D. Wischerath, referring to Gugino's lawsuit against the city.

Burton said he believes the arbitrator was persuaded to clear the officers by his "close analysis of video evidence" and also by " Mr. Gugino's refusal to testify at the hearing."

"Evidence from the hearing showed that they simply were trying to back him off," Burton said. "If Mr. Gugino had simply moved away and left, none of this would have happened."

Desmond's video, showing Gugino getting pushed to the ground, hitting his head on the pavement and bleeding profusely from his ear, drew millions of social media viewers and ignited criticism of the Buffalo Police from around the world.

Gugino suffered a fractured skull in the incident that occurred as the Buffalo Police Department's Emergency Response Team cleared protesters from in front of City Hall after an 8 p.m. curfew. The curfew was imposed amid nightly protests against police violence in the wake of George Floyd's death in Minneapolis.

The two officers were suspended from duty that night, and city officials later charged them with departmental violations that could have cost them their jobs.

Two days after the incident, the officers were also charged with a crime, felony second-degree assault.

But a grand jury decided eight months later not to indict them on any charges.

Gugino filed a lawsuit against Buffalo Police, which is still pending.

Selchick's 41-page arbitration ruling affected only the departmental charges against the two officers.

The Gugino incident created hard feelings between city police officers and city officials who sought to terminate the two officers. Fifty-seven officers resigned from the Emergency Response Team — the city's riot control unit — because they were upset over how McCabe and Torgalski were treated.

In his ruling, Selchick said that Gugino had several verbal confrontations with other officers before he was knocked off his feet by McCabe and Torgalski.

The two officers "could have reasonably viewed Gugino as a suspect by virtue of his presence in Niagara Square past the announcement of the curfew, his failure to comply with the directive to move back, and his behavior as he deliberately walked in front of and stood close to McCabe and Torgalski," Selchick wrote.

"While Gugino might well have believed that he was engaged in some type of civil disobedience or, perhaps, acting out a role in some type of political theater, Gugino was definitely not an innocent bystander."

In a Buffalo News interview one year after he was hurt, Gugino denied that he intended to spark any violent confrontation with police.

He said he had gone downtown that night to protest what he considered to be an illegal curfew imposed by Mayor Byron Brown during Black Lives Matter protests.

"The point was suppressing dissent ... a peaceful protest ... and you can't do that. So I went there to talk to the policemen," Gugino said.

Gugino said he spent a month in the hospital being treated for a fractured skull.

(c)2022 The Buffalo News (Buffalo, N.Y.)

McClatchy-Tribune News Service

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