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Grand jury declines to indict NY police officers seen pushing elderly protester

The officers were charged with felony second-degree assault after video of the incident went viral

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By Maki Becker
The Buffalo News, N.Y.

BUFFALO, N.Y. — It was the push seen around the world.

But eight months after two Buffalo police officers were suspended and charged with felonies for pushing a 75-year-old protester as they cleared the front of City Hall, a grand jury decided not to indict them.

A video of the June 4 incident, showing protester Martin Gugino getting pushed to the ground, hitting his head and blood pouring from his ear, was captured by a WBFO reporter and went viral on Twitter. The video drew millions of viewers overnight and swift condemnation of the Buffalo Police Department from around the world.

A grand jury voted not to indict the two Buffalo police officers for what happened in front of City Hall, Erie County District Attorney John J. Flynn Jr. said Thursday.

Officers Aaron Torgalski, who can be seen on the video pushing Gugino, and Robert McCabe, who can be seen about to kneel toward the injured Gugino before being moved along by a supervisor, were suspended without pay that night.

The incident occurred as the Buffalo Police Department’s Emergency Response Team — the Buffalo police riot team — joined by State Police, cleared protesters in front of City Hall after an 8 p.m. curfew that had been imposed amid nightly protests against police violence in the wake of George Floyd’s death in Minneapolis.

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

On Thursday, as he also did in June, Flynn said each of the officers was charged with a felony, and not misdemeanor assault, because Gugino is older than 65 and the two officers are more than 10 years younger.

“To this day, I’ll stand by the fact that charges should have been filed,” Flynn said Thursday.

The grand jury’s refusal to indict Torgalski and McCabe brought relief to the officers and their families and supporters.

“I’m pleased that two good cops can get their lives back now after being vilified with a hundred million tweets,” said attorney Thomas H. Burton, who represented McCabe. “The right thing happened here.”

The two officers have been suspended since the incident, but have been back on the payroll since 30 days after the incident. With the criminal investigation complete, the police department will now begin its own internal affairs investigation.

A day after the incident, but before the officers were charged, all 57 members of the Buffalo police riot squad quit from the unit after the police union announced it could no longer provide legal counsel to them. They resigned from the unit, but not the department.

On Thursday, Flynn said he anticipates criticism for the dismissal of the charges and the handling of the case.

“I apologize for nothing,” Flynn said.

He said he still believes that a crime occurred, but that whether the officers intended to cause harm to Gugino, or if their acts were reckless was “50/50 in my mind. That’s not beyond a reasonable doubt.”

“I am telling you that I sandbagged nothing,” Flynn said. “I went into that grand jury. I put all relevant evidence in the grand jury. I put multiple witnesses in that grand jury,” he said.

Flynn also said he’s been criticized for charging the police officers with a felony so quickly.

“There’s clearly probable cause that a crime occurred,” Flynn said.

Flynn placed some of the blame on what occurred on June 4 on Gugino himself.

” Mr. Gugino committed a crime. He had no business approaching those police officers. There was a curfew and he broke the law,” Flynn said.

But, Flynn said, the police officers shouldn’t have pushed him.

“They should have grabbed him, gently turned him around and walked him peacefully ... off the steps,” Flynn said.

Gugino in October told reporters he had residual effects from hitting his head and that he continued to walk with a cane. He said then that the police response that June night was “just not reasonable.”

Gugino was the only person who “challenged 30-some cops after three bullhorn-instructions to leave Niagara Square,” said Burton, the lawyer for McCabe.

“The force that was used against Mr. Gugino was minimal,” Burton said. “Nobody started out to hurt this man. “

“The unfortunate outcome with Mr. Gugino cracking his head is not the legal issue you have to look at,” Burton added. “The real issue is what is the intent and whether it was criminal with the minimal force both officers used. “

Neither officer appeared before the grand jury. But Burton assumes the grand jury saw body-cam video that most of the Twitter world did not.

“We tore the video apart frame by frame and picked up a number of things that you could not see as it was running,” he said of the video that went viral. “In addition, there was other video that was not available when these guys were charged. “

Former Assistant District Attorney Thomas M. Finnerty, who earned a reputation as a top prosecutor over his 23 years on the job, saw the video that went viral, but said neither he nor the public is privy to all of the evidence brought to the grand jury.

“But I thought from Day One the video by itself that I saw on TV failed to provide probable cause, let alone proof beyond a reasonable doubt, to prove criminal intent or criminal recklessness on the part of the officers,” Finnerty said.

The viral video just wasn’t enough, he said.

“People get so transfixed on the injury, but you have to have evidence that supports all of the elements,” he said. “It’s not enough to prove just injury.”

Finnerty added: “I have complete confidence that the case was presented to the grand jury in an ethical and professional manner and that the public should have faith that the grand jury rendered their decision based upon credible evidence and not upon any personal political view of law enforcement or of the summer protests.”

Victoria Ross, executive director of the Western New York Peace Center, said she was saddened and disappointed by the grand jury’s decision.

“He was there (at the protest) because he didn’t agree with the curfew, actually,” Ross said. “If they want to arrest him over it, then he would have been arrested. He would have considered it civil disobedience. “

Ross noted that Gugino did not approach police in a violent manner, and nothing in his behavior warranted what she called a violent shove from police.

“Martin is exceedingly gentle,” she said.

John Evans, president of the Buffalo Police Benevolent Association, said the officers had been “put through hell.” He added: “I look forward to seeing them back on the job.”

(c)2021 The Buffalo News (Buffalo, N.Y.)