Two Buffalo police officers who pushed a 75-year-old man to the ground during a protest in 2020 have been acquitted by an arbitrator, who said the use of force was “absolutely legitimate” because the man, who was hospitalized with a head injury was “not an innocent bystander.”
The 41-page ruling by arbitrator, Jeffrey Selchick, was issued Friday. It came nearly two years after a much-watched video made by WBFO, a local radio station, pushed the two officers, Robert McCabe and Aaron Torgalski, to the man, Martin Gugino, who attended a protest after George’s death in June 2020. . Floyd in Minneapolis.
The video, which sparked outrage during a summer of unrest over police brutality, shows Mr Gugino staggering backwards and landing hard on the sidewalk, with blood immediately leaking behind his right ear. His attorney, Melissa D. Wischerath, said he was in the hospital for about a month suffering a skull fracture, brain injury and hearing loss.
Last year, a grand jury declined to indict the two officers charged with assault.
Mr Selchick based his findings on a three-day hearing in November. Gugino, he wrote, did not respond to a subpoena to appear at the hearing and “basically refused to testify” on his own behalf.
The officers had not violated department guidelines, Mr. Selchick wrote, and there was no evidence that they had “other viable options than to get Gugino out of their way of forward movement.” Gugino, he added, had failed to comply with an order “to go back, and made strange physical gestures within a foot” from the officers.
Officers McCabe and Torgalski had not “attempted to push or drive Gugino to the ground,” Mr Selchick wrote.
Ms. Wischerath disagreed with that assessment, saying Monday the ruling was “a real labor dispute” that would not affect a lawsuit Mr Gugino filed against the officers and the city of Buffalo. The arbitration ruling was limited to the departmental charges filed by the city.
The Buffalo Police Benevolent Association confirmed that officers McCabe and Torgalski had recovered and were back at work Monday after an approximately 22-month absence. The officers were initially suspended for 30 days without pay before being put back on the payroll, a union lawyer said.
Ms. Wischerath said she had expected the arbitrator to rule in favor of the police union and the city, which she said had elected Mr Selchick and paid him.
“This is like a stamp of police misconduct,” she said.
Mr Selchick did not immediately respond to an email asking for comment on Monday.
John Evans, the president of the Buffalo Police Benevolent Association, said in a statement that Mr Selchick “sees through the political witch hunt” being waged against the officers.
“Real law enforcement and politics don’t mix,” he said. “That is obvious. It’s nice to have them back to work.”
Thomas H. Burton, an attorney for the Buffalo Police Benevolent Association, said Monday that “this has been a long and painful road for these two officers” and that the arbitrator had been fair to them.
Buffalo police and the mayor’s office did not immediately respond to an email asking for comment Monday.
Both officers testified at the arbitration hearing that they would have wanted Mr. Gugino out of their personal space.
Agent Torgalski testified that Mr Gugino had touched his “bare skin”, causing concern for his health as he had “absolutely no interest” in contracting the coronavirus at the time, according to the arbitrator’s ruling.
Agent McCabe told the arbitrator that Mr. Gugino brought his hand close to Agent Torgalski’s weapon, causing him concern.
“McCabe described the amount of force he used as ‘very little,’ contrasting the force he used with the force he could have used had he intended to ‘drive back’ Gugino,” wrote Mr. Selchick.