A grand jury has declined to indict two police officers charged in the 2020 shoving of an elderly Black Lives Matter protester in front of Buffalo, New York’s city hall. Robert McCabe‘s and Aaron Torgalski‘s altercation with demonstrator Martin Gugino, 75, was caught on tape. Footage showed the protester falling back and cracking his head on the ground. Blood pooled under his head as he laid on the pavement.
[Warning: Video is disturbing.]
Just about an hour ago, police officers shove man in Niagara Square to the ground (WARNING: Graphic). Video from: @MikeDesmondWBFO pic.twitter.com/JBKQLvzfET
— WBFO (@WBFO) June 5, 2020
The grand jury’s decision ends the criminal prosecution of the pair.
“I am a little surprised,” Gugino told CNN affiliate Spectrum News on Thursday. “I think there was pressure on [Erie County District Attorney John Flynn] to get at least an indictment, an expectation that the justice system would do something to try to change the direction of the police department, change the reality of the police in the street. And I think people are, I think it will happen, that people are disappointed that this misfired.”
In a press conference on Thursday, Flynn defended his decision to bring charges, saying there was probable cause.
“The video speaks for itself,” he said.
The D.A. denied hypothetical criticism that he sandbagged the case.
Gugino attorney Kelly V. Zarcone told Law&Crime last June that her client’s brain was “injured.”
“Nobody wanted to see Mr. Gugino get hurt, but this did not happen because these two cops sought out to hurt anyone,” McCabe attorney Thomas Burton told ABC News in a Friday report. “The bottom line is, there’s nothing malevolent here.”
Torgalski lawyer Joseph M. LaTona told Law&Crime in a phone interview on Friday that the officers’ actions were protected by the law. Conduct that otherwise could and would be criminal are excused in certain situations, he said. In this case, the mayor called for a curfew, and under relevant law, police were allowed to use physical force to enforce it.
Gugino was trespassing at the time of the incident, he said. That syncs up with Flynn’s statement on the protester.
“Mr. Gugino committed a crime that day,” the District Attorney said in the press conference. “He violated the curfew. He had no business approaching these police officers.”
Accordingly, LaTona said that Torgalski’s and McCabe’s actions were protected under the law. From New York Penal Law 35.20:
2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.
The way LaTona summarizes the law: If an individual is committing a trespass, or if the officer perceives a trespass, then physical force is justified.
“It’s not an argument,” he said. “It’s the statute.”
It is unclear from D.A. Flynn’s statements whether the First Amendment rights of the protesters played into his decisions.
“The District Attorney saw the June 4th incident and concluded, we think correctly, that it deserved serious scrutiny,” Gugino attorney Kelly V. Zarcone wrote in a statement to Law&Crime. “We thank the Grand Jurors for their service. Our position remains that the government’s use of unnecessary physical force against peaceful protesters is patently wrong and unAmerican.”
Aaron Keller contributed to this report.
Update – February 12, 2021, 5:11 p.m.: Zarcone responded to a Law&Crime request for comment.
[Screengrab via WBFO]
Have a tip we should know? [email protected]