The police officers testified they were trying to move Martin Gugino out of their ‘personal space’ during the George Floyd protest
Photo: Martin Gugino bleeds on the sidewalk after being shoved by two Buffalo police officers June 4, 2020, in Buffalo, New York. Video screengrab via WBFO
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.
‘Martin has a passion for social justice,’ said the head of a Catholic Worker house in Connecticut. ‘When he sees wrong he wants to be involved in making it right.’
(RNS) — Is Martin Gugino an Antifa provocateur?
Or a beloved Catholic peace activist who was the victim of police brutality in Buffalo, New York?
A Tuesday morning (June 9) tweet from President Donald Trump suggested the former, drawing a wave of shock and outrage from friends of the 75-year-old activist who was shoved to the ground by Buffalo police during a protest last Thursday outside City Hall.
The incident, captured on video, went viral and has become symbolic of the kind of police brutality that has sparked calls for fundamental reforms to American policing. In the video, an officer is seen shoving Gugino, who falls to the sidewalk, hitting his head. As Gugino lies unmoving and bleeding, the officer who pushed him is seen hurrying away.
Gugino remains in the Erie County Medical Center in serious condition, though he is no longer in intensive care, a friend said.
Buffalo protester shoved by Police could be an ANTIFA provocateur. 75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment. @OANN I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?
— Donald J. Trump (@realDonaldTrump) June 9, 2020
Buffalo’s police commissioner suspended two Buffalo police officers involved in the incident without pay, prompting dozens of other officers to step down from the department’s crowd control unit in protest. On Saturday two of the officers were charged with felony assault.
The president referred to the conservative news site One America News Network in making his unfounded claim.
“Buffalo protester shoved by Police could be an ANTIFA provocateur,” Trump wrote. “75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment. @OANN I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?”
Friends of the retired computer programmer described Gugino as a devout Catholic and a graduate of Canisius High School, a private Jesuit school in Buffalo, who is a passionate advocate for multiple causes on behalf of the poor and disenfranchised. Gugino spent his retirement lending a hand to multiple causes, among them Black Lives Matter.
“Martin has a passion for social justice,” said Mark Colville, who runs Amistad Catholic Worker in New Haven, Connecticut, and has known Gugino for years. “When he sees wrong he wants to be involved in making it right.”
Colville said Gugino made multiple trips from his home in the Buffalo suburb of Amherst to New Haven — a six-and-a-half-hour drive — to help prepare and serve meals at Amistad, a house of hospitality that describes its mission as “follow(ing) Jesus in seeking justice for the poor.”
Gugino never wanted to draw attention to his work, Colville said. He’s a private person who lived alone. He cared for his mother until she died, and he recently lost his sister, too.
On Saturday, Colville drove up to Buffalo to see if he could visit his friend in the hospital. He was not allowed past the reception desk but instead did the next best thing. He went downtown to take Gugino’s place at a protest on the street where videos had captured police knocking Gugino to the ground while clearing protesters away from City Hall.
“Martin is shy and reserved,” Colville said. “He likes his privacy. He doesn’t make a spectacle of himself. He likes to show up and be present. He likes to be involved in these movements for justice. But he doesn’t do it in a self-promoting kind of way.”
The two have worked for years to advocate for the closing of Guantanamo Bay, the U.S. detention camp in Cuba where terrorism suspects could be detained without process.
Gugino is active in Witness Against Torture, an organization formed in 2005 to protest the treatment of detainees on the base. Each January, group members travel to Washington, D.C., to fast and hold vigil outside the Department of Justice.
Much of the work was done on behalf of Muslim prisoners, many of whom were picked up by the CIA and taken to Guantanamo after the 9/11 terrorist strikes.
“People, including Martin, made connections between their own faith and the faith of people detained because of their own faith,” said Matt Daloisio, a New York state public defender and one of the organizers of Witness Against Torture.
Daloisio and several others say they’ve been texting Gugino in the hospital and he’s been responding with emoji hearts rather than texts.
Guigino’s Twitter account and YouTube videos have been deactivated. He is represented by lawyer Kelly Zarcone, who said Tuesday: “We are at a loss to understand why the President of the United States would make such dark, dangerous, and untrue accusations against him.”
Democratic presidential candidate Joe Biden tweeted in response to Trump that “there’s no greater sin than the abuse of power,” and Biden mentioned that he, like Gugino, is a Catholic.
Tom Casey, a retired civil engineer from Buffalo and a local coordinator for Pax Christi, an international Catholic peace movement, said the idea that Gugino is a provocateur is ludicrous. Gugino was certainly opinionated, Casey said, but always respectful of others.
“I have never heard him use a vile or angry word against anybody and I spent a lot of time talking to him,” Casey said.
Gugino was also active on behalf of Black Lives Matter. After the 2014 killing of Tamir Rice, a 12-year-old African American boy who was shot by a police officer, Gugino traveled to Cleveland to meet with Rice’s parents. In 2016, Gugino participated in a protest in front of the Justice Department in which demonstrators called for murder charges against the officer who shot Rice.
Gugino’s presence at the Black Lives Matter protest last week was typical of his activism. He is also active with the Western New York Peace Center and PUSH Buffalo, a coalition working on affordable housing.
This fall, Jericho Road, a community health clinic in Buffalo, featured Gugino in its newsletter’s “donor spotlight.” Asked why he gives, Gugino wrote: “In the Sermon on the Mount, Jesus said to clothe the naked, shelter the homeless, feed the hungry, and give drink to the thirsty.”
“Martin is consistent,” said Mary Anne Grady Flores, an Ithaca New York Catholic Worker who participated with Gugino in multiple protests against Hancock Field Air Force Base’s use of remotely piloted drones to kill insurgents in Afghanistan and elsewhere. “He’s a gentle giant, who is so articulate, so thoughtful.”