Martin Gugino, the elderly protester who was pushed by Buffalo police in an incident seen around the world last year, is now suing the City of Buffalo.
Gugino’s attorneys filed the federal lawsuit Monday in U.S. District Court. The 55-page complaint alleges Gugino’s civil rights were violated when officers pushed him to the ground and injured him outside City Hall following a racial justice protest last June.
“He's seeking compensation for severe injuries he suffered as a result of being a victim of police violence,” said Richard Weisbeck, one of Gugino’s attorneys from the Buffalo law firm Lipsitz Green Scime Cambria, “and he wants to continue to protect and reinforce his constitutional rights and the rights of his fellow citizens to be able to walk into public places and have their voices heard.”
The suit comes less than two weeks after charges were dismissed against the two officers who pushed Gugino, Robert McCabe and Aaron Torgalski. An Erie County grand jury decided not to indict them on felony assault charges.
In addition to McCabe and Torgalski, the lawsuit names the city, Buffalo Mayor Byron Brown, Buffalo Police Commissioner Byron Lockwood and Deputy Commissioner Joseph Gramaglia as defendants.
Mike DeGeorge, a city spokesperson, said in an email that the city does not comment on pending litigation.
Video captured by WBFO shows Gugino, now 76, approaching Buffalo police’s Emergency Response Team as they began to clear out Niagara Square for a 8 p.m. curfew on June 4. McCabe and Torgalski then push Gugino, causing him to fall backward and hit his head on the pavement.
Gugino, who lay motionless on the ground with blood coming out of his ear, suffered a fractured skull and concussion.
The video has been viewed over 80 million times on Twitter and received international attention. Even President Donald Trump tweeted about it, falsely accusing Gugino of being an Antifa provocateur, using fake blood and trying to scan officers’ equipment.
— WBFO (@WBFO) June 5, 2020
According to the newly filed lawsuit, Gugino approached officers to speak with them; he was alarmed by the Emergency Response Team’s riot gear and batons, and concerned about other protesters’ safety.
The suit alleges the city violated Gugino’s First Amendment rights by enforcing an illegal curfew meant to prevent peaceful protesting. Brown had implemented a week-long, city-wide curfew following unrest in Buffalo and across the country stemming from the death of George Floyd in Minneapolis.
The suit notes that Brown said in a June 2 press release that the purpose of the curfew was to “protect peaceful protesters,” so Gugino should have been exempt from the curfew anyway. Officers also violated Gugino’s Fourth Amendment rights against unlawful arrest, the suit claims.
“Anytime the government uses violence against a peaceful protester, that's unlawful,” Weisbeck said, “and that's a violation of the First Amendment and the Fourth Amendment.”
The suit also cites the 14th Amendment, saying Gugino’s equal protection rights were violated because the curfew was not enforced elsewhere in the city.
“People were out eating on Elmwood and Hertel Avenue after curfew. People were shopping,” said another one of Gugino’s attorneys, Melissa Wischerath. “This was selectively enforced in the downtown area around City Hall, and ultimately, selectively enforced against people exercising their First Amendment right.”
The suit also claims the city failed to properly train officers on how to police peaceful protests.
“They deployed a militarized unit against less than a handful of peaceful citizens,” Weisbeck said, “and they failed to train and supervise their officers as to how to handle those situations where there's no violence, no property destruction.”
The suit also alleges Buffalo police have a history of using excessive force, citing a 2017 study by the University at Buffalo and Cornell law schools. Buffalo police also condone the misconduct, the suit alleges, citing the fact over 200 off-duty and retired BPD officers gathered outside Buffalo City Court in support of McCabe and Torgalski during their arraignment. It also cites Police Benevolent Association President John Evans’ blog posts in which he expresses support for McCabe and Torgalski.
The city is also accused of trying to conceal officers’ shove of Gugino. The city released a statement shortly after the incident saying Gugino “tripped and fell” during a “skirmish involving protesters.” Twenty minutes later, WBFO posted video of the incident on Twitter, which “clearly showed” Gugino did not trip and fall during a skirmish involving protesters, according to the lawsuit.
Gugino, a long-time activist and Buffalo native, spent a month in Erie County Medical Center after the shove.
Gugino, walking with a cane, spoke publicly about the ordeal for the first time in October at a police brutality protest in downtown Buffalo, telling reporters, “I’m good … The city is not good.”
“The curfew was wrong,” Gugino added. “Mayor Brown has to be taught what the First Amendment means.”
Following the grand jury’s decision not to indict the officers who pushed him, Gugino told WBFO he had no problem with the jury, but that there are flaws in the criminal justice system.
“I just think something was wrong there. Something happened and everybody knows it. That was bad, and we don’t seem to know what to do about it,” he said.
However, Weisman expressed some displeasure with the grand jury’s decision.
“Martin Gugino has the same rights that any police officer has, and if the roles were reversed and Martin Gugino pushed a Buffalo police officer, who then fractured his skull, he would have been immediately indicted and for good reason,” he said. “What the grand jury was thinking, we really don't know.”
In addition to McCabe and Torgalski, the lawsuit also names detective John Losi as a defendant. It says Losi was the officer heard yelling "push him!" in the video, and that Losi shoved McCabe and Torgalski toward Gugino.
Gugino’s attorneys said most lawsuits such as this take a couple years to resolve, and that the pandemic may further complicate the timeline of the legal proceedings.