An arbitrator has ruled that two Buffalo police officers did not violate use-of-force guidelines when they pushed a 75-year-old protester to the ground in June 2020, during racial injustice protests following the murder of George Floyd in Minneapolis.
The episode drew national attention when a news crew captured video of Martin Gugino being shoved by officers Robert McCabe and Aaron Torgalski in downtown Buffalo, as crowd control officers in riot gear cleared demonstrators for an 8pm curfew.
Gugino, pushed backward, started bleeding after hitting his head on the pavement. He spent about a month in the hospital with a fractured skull and brain injury.
In a decision on Friday, arbitrator Jeffrey Selchick wrote: “Upon review, there is no evidence to sustain any claim that respondents (police officers) had any other viable options other than to move Gugino out of the way of their forward movement.”
The level of force used was justified because Gugino refused to comply with orders to leave the scene and was acting erratically and walked directly in front of McCabe, according to Selchick.
“The use of force employed by respondents reflected no intent on their part to do more than to move Gugino away from them,” he wrote.
At the time, Matt Daloisio, a friend and fellow activist of Gugino and a public defense attorney, told the Guardian: “I know exactly what he was doing. I’ve seen him do it a hundred other times.
“What I think he was doing was trying to offer them something to read on his phone: about the law, about the right of people to assemble. Or asking why they were preventing people from exercising that right. ”
Donald Trump, then president, tweeted out a baseless conspiracy theory, apparently sourced from the cable news outlet OANN, that Gugino could have been “an antifa provocateur” and the entire incident “could be a set-up”.
Buffalo police suspended McCabe and Torgalski without pay, and they were arrested within days of the shove. But charges against them were dropped after a grand jury declined to indict them last year.
An attorney for Gugino told the Buffalo News the ruling has no bearing on a lawsuit that they are pursuing against the city.
“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 , ”Melissa Wischerath told the newspaper.
The Buffalo police commissioner, Joseph Gramaglia, said he would reinstate the two officers to duty on Monday, the newspaper reported.
Email messages seeking comment were left with an attorney representing the city, which argued for the disciplinary charges, and with the Buffalo police union.