An Erie County Grand Jury has voted not to indict Buffalo Police officers Robert McCabe and Aaron Torgalski on charges stemming from a June protest where they were seen on video shoving protestor 75-year-old protester Martin Gugino to the ground in front of Buffalo City Hall.
The pair were initially charged with felony assault after the incident — caught on video by WBFO’s Mike Desmond — left Gugino unconscious on the pavement, bleeding from the head at the end of a Black Lives Matter protest in Niagara Square.
Erie County District Attorney John Flynn said he knows he will get criticism for even charging the officers now not that a grand jury has declined to indict them — but he stands by his decision.
From Twitter, June 4, 2020:
— WBFO (@WBFO) June 5, 2020
-Erie County District Attorney John Flynn.
"I wanted to treat the police officers the same as to civilians on Chippewa," Flynn said. "So I'm saying if they were two civilians on Chippewa who knocked down a 75-year-old man, they would have been arrested on the spot and no one would have ... said boo about rushing to judgment."
The grand jury proceedings were held in secret and Flynn said he was unable to offer any insight into what evidence he presented or why the charges were dismissed. He did say the WBFO video played a role.
The aftermath of the incident spread wide with WBFO’s video used on national newscasts and viewed over 85 million times, eventually inspiring a tweet by President Trump.
Days after the incident, the president re-tweeted a conspiracy theory that accused Gugino of rigging fake blood under his mask to flow upon his fall. Flynn dismissed such claims during a news conference shortly after Torgalski and McCabe were arraigned.
On the day of their arraignment, all 57 members of the Buffalo Police Department’s Emergency Response Team resigned from the unit, protesting a union move to not support officers financially in similar future cases.
Torgalski and McCabe remain on suspension pending an internal investigation. In a statement after Thursday's grand jury action, the Police Benevolant Association issued a statement from union President John Evans saying they were pleased with the result.
"As we have stated all along, Officers McCabe and Torgalski were simply following departmental procedures and the directives of their superiors to clear Niagara Square despite working under extremely challenging circumstances. The Buffalo PBA remains in staunch support of Officers McCabe and Torgalski.”
Gugino was hospitalized for several weeks with a fractured skull, after the incident left him on the pavement with blood coming from his ear. In October, while attending another BLM rally, he was seen using a cane and said he was doing better.
“I’m fine,” he said. “I have residual things like this [pointing to his ear] will probably never come back all the way. But I’m out, I’m good. I have a cane, I’m good. The city is not good.”
In his remarks Thursday, Flynn did acknowledge that Gugino broke the law.
"He violated the curfew and he had no business approaching those officers or being there, but he should not have been shoved that day," Flynn said. "He should have been arrested peacefully."
Western New York Peace Center Executive Director Vicki Ross, who has known Gugino for over a decade through their organization, is saddened by the grand jury's decision.
"Martin is an exceedingly gentle person and that is perhaps his overriding characteristic," Ross said.
"So if the officer said, 'I'm sorry sir, I'd like to address you, I'm sorry, you're going to have to be arrested, unless you leave immediately,' or even if they were arresting you right now... they could have arrested him, he would have happily gone ahead. There was no need to push him over like that, " Ross said.
Ross believes the law does not hold police officers accountable for using unnecessary violence.
"State sponsored violence is not considered violence," Ross said. "So we just excuse it when it is coming from somebody wearing a uniform. That's what I see."
Gugino spoke with WBFO Thursday night and shared his thoughts on the court's decision.
Nick Lippa: The video of you being pushed over has been viewed millions of times around the world. With so much attention around you and the incident, how are you feeling about the charges being dismissed?
Martin Gugino: I don't really feel I'm a mover or shaker or participant. I'm just kind of observing what's going on. There's really nothing I did or intended to do. I mean, I stood there. Yeah. Okay, maybe for like 10 or 15 seconds. I thought, hey, what's going on here? You know, an idea crossed my mind. But you know, it's been six months. I haven't talked to anybody or done anything or, you know… everybody else has been dealing with it, which is fine. I think the DA charging the police is great, fine. It could do something, if that's what you want to do, fine. I'm all for it. And if the jury wants to say no, that's good. That's their job and that's what they think. Great. But I don't criticize them. I just think something was wrong there. Something happened and everybody knows it. It was bad. And we don't seem to know what to do about it.
Do you think this decision from the grand jury will hurt the relationship between the public and the police?
MG: Oh, yeah, of course, it hurts, it hurts. I mean, it's important that the community be able to call 911. It's important for anyone, but it's important for the black community to trust that 911 will be helpful when they need help. When they call for help, they'll get help. And I don't think that this decision demonstrates that even white lives matter.
We are already seeing reactions to the news of charges being dismissed. Some from high ranking officials. What do you say to people who are frustrated by the outcome after seeing the video?
MG: What I say to people is just what they said on Democracy Now. Martin Luther King said, the moral arc of the universe is long, but it bends toward justice. Because everyday people go out and try to do something that's right. Even though you're met with opposition, people that don't want them to do that, but eventually it will, you will prevail. And it's a long road. We don't have that much time left, but it's a long road. Every day, you should be as good as you can be. I mean, that's just obvious. Be as good as you can be no matter what the situation is, but it's especially important now.