Buffalo, NY – Two officers were reinstated to the Buffalo police on Monday after an arbitrator cleared them of wrongdoing for pushing a 75-year-old protester who wouldn’t get out of the way when police were clearing the sidewalk.
Arbitrator Jeffrey Selchick determined that Buffalo Police Officers Aaron Torgalski and Robert McCabe had not violated the department’s use-of-force policy when they pushed 75-year-old Martin Gugino out of the way in June of 2020, NBC News reported.
“Upon review, there is no evidence to sustain any claim that Respondents (police officers) had any other viable options other than to move Gugino out of the way of their forward movement,” Selchick ruled.
Selchick said that level of force used against Gugino was justified because he had been ordered to leave the scene and was behaving erratically, NBC News reported.
He said the videos of the incident showed Gugino walked directly in front of Officer McCabe.
“The use of force employed by Respondents reflected no intent on their part to do more than to move Gugino away from them,” Selchick wrote.
Buffalo Police Commissioner Joseph Gramaglia told the Buffalo News in a statement that he would reinstate Officers McCabe and Torgalski to full duty on April 11.
The incident occurred shortly after 8 p.m. on June 4, 2020 when the city’s curfew went into effect in response to the violent protests surrounding the death of 46-year-old George Floyd in the custody of Minneapolis police, WBFO reported.
Cell phone video captured the moment that Martin Gugino, an elderly protester, walked directly into the line of oncoming Buffalo Police Department Emergency Response Team (ERT) officers who were clearing a demonstration from in front of City Hall.
The video showed Gugino was carrying a device as he approached the group of riot gear-clad officers walking toward him, The Sun reported.
In the video, he approached the officers and reached out to hold a device in front of one of them.
One of the officer reached out and gave Gugino a shove, and the elderly man stumbled backwards and then fell, hitting his head on the sidewalk.
In the video, the elderly man appeared unconscious as a pool of blood formed around his head.
The officer whom Gugino had approached first tried to bend down and check on the man but the officer behind him yanked him back up by the vest and pushed him past the elderly man on the sidewalk.
It appeared that the officers were simply ignoring the man on the ground, but there was a medic behind the police line who was able to tend to the man as soon as the line moved forward.
Officers Torgalski and McCabe were both suspended without pay immediately following the incident, The Washington Post reported.
The next day, all 57 members of the Buffalo PD’s ERT resigned from the specialized, voluntary unit.
Two days after the incident, Officer Torgalski and McCabe were charged with assault, The Washington Post reported.
But in February of 2021, an Erie County grand jury dismissed the charges against both officers.
Eric County District Attorney John Flynn told reporters afterwards that he had played fair and given everything to the grand jury to review.
“The reality here is that no one is ever going to know, I’ll be honest the grand jury proceedings are secret, they’re sealed and no one is ever going to know what happened in that grand jury,” the prosecutor said afterwards. “So, you really only have my word that I didn’t sandbag anything. I put all relevant information and evidence into that grand jury and I presented it all to that grand jury and they made a decision.”
Lawyers for Gugino, who has filed a lawsuit against the city and the police department, said that Selchick’s ruling would have no impact on their case, NBC News reported.
“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 told the Buffalo News.