On June 4, 2020, two Buffalo police officers pushed a 75-year-old human rights demonstrator, causing him to fall backward, hit his head on the sidewalk and lie motionless while bleeding from his head. Graphic video of the incident circulated widely, and the two officers were suspended from the department.
Now, the officers — Robert McCabe and Aaron Torgalski — will be allowed to start working again, after an arbitrator concluded the two used “absolutely legitimate” force and did not violate department policies. Arbitrator Jeffrey M. Selchick wrote in a 41-page ruling issued Friday that McCabe and Torgalski were carrying out their duties and did not intend to cause Martin Gugino to fall to the ground.
“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,” Selchick wrote, noting the protester was in the square past an 8 p.m. curfew and did not comply with the officers’ orders to move back.
✱Arbitrator Selchick said the two cops were justified in using that level of force because Gugino refused to comply with the officers’s orders.
✱Officers Torgalski and McCabe testified before the arbitrator that they were trying to protect themselves.
✱Officers testified that they were only trying to move Gugino out of their “personal space”
✱The Arbitrator said 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.
✱Officer 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.
✱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.
✱✱Gugino spent a month in the hospital being treated for a fractured skull.