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Two Buffalo police officers caught on camera shoving an elderly protester to the ground — fracturing his skull — have been cleared of wrongdoing in the incident.
A state arbitrator ruled Friday that Officers Aaron Torgalski and Robert McCabe didn’t violate department use-of-force guidelines when they pushed longtime activist Martin Gugino, 75, to the ground during a George Floyd protest outside City Hall in June 2020, the Buffalo News reported.
Torgalski and McCabe were suspended without pay and faced felony second-degree assault charges, but a grand jury declined to indict them in February.
Video of the encounter showed the officers yell at Gugino to move away from City Hall after a curfew went into effect before one cop pushed him, causing him to fall backward and slam his head into the pavement. He spent about a month in the hospital recovering from a fractured skull and brain injury.
The officers testified before an arbitrator that they were trying to protect themselves at the time and denied trying to hurt Gugino. Arbitrator Jeffrey Selchick ruled the use of force was “absolutely legitimate” and that Gugino was “definitely not an innocent bystander,” the Buffalo News reported.
“There is no persuasive evidence, particularly when the [footage] is reviewed in its various frames, that the [officers] sought to push or drive Gugino to the ground,” Selchick wrote.
Gugino likely lost his balance because he was carrying items in both hands, his age or shock that the cops tried to push him away, Selchick determined.
Torgalski also testified he was concerned Gugino was getting close to his service weapon and was worried about catching COVID-19 from the protester.
“Something wasn’t right and I don’t know what this gentleman is capable of, but something [was] off about the situation that makes you feel uneasy,” Torgalski reportedly testified. “I steadied my right arm and attempted to get him out of my space and push him away.”
The suspended cops were put back on the city payroll 30 days after the incident, which went viral on social media. They’ll be reinstated to full duty on Monday, the newspaper reported.
An attorney for Gugino, who has sued the city, said the arbitrator’s ruling did not come as 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,” attorney Melissa Wischerath said. “His decision has absolutely no bearing on the pending lawsuit.”
Gugino, for his part, has said he went to City Hall to voice his displeasure over a 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,” Gugino told the Buffalo News last year. “So I went there to talk to the policemen.”
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