The arbitrator asserted that Martin Gugino was “definitely not an innocent bystander.”
Two Buffalo, New York police officers were cleared of any wrongdoing on Friday related to their actions knocking an elderly peace activist to the ground, causing him a fractured skull and weeks in the hospital, amid protests sparked by the police killing of George Floyd nearly two years ago.
The arbitrator’s decision stems from officers Aaron Torgalski and Robert McCabe’s actions toward then-75-year-old Martin Gugino at a June 4, 2020 Black Lives Matter protest outside City Hall.
“Upon review,” wrote arbitrator Jeffrey M. Selchick, “there is no evidence to sustain any claim that respondents had any other viable options other than to move Gugino out of the way of their forward movement.”
“While Gugino might well have believed that he was engaged in some type of civil disobedience or, perhaps, acting out a role in some type of political theater, Gugino was definitely not an innocent bystander but comfortably fell within the definition of ‘suspect’ under the Use of Force Continuum,” he wrote, suggesting blame for Gugino falling was due to the fact that he was holding objects in his hands or “his advanced age.”
Torgalski and McCabe are expected to return to duty; following a 30-day suspension without pay after the incident, they’ve been on paid leave since.
Video footage captured by a local reporter of the 2020 encounter, showing Gugino being shoved to the concrete and blood immediately gushing from his head, went viral and sparked outrage over the use of force.
— WBFO (@WBFO) June 5, 2020
Selchick’s decision, which followed a three-day hearing in November at which Gugino did not testify, came after a grand jury in February 2021 declined to indict the two officers on felony assault charges. Gugino filed suit against the city that same month.
Melissa D. Wischerath, an attorney for Gugino, said that the arbitrator’s decision was unsurprising and that it would not impact the lawsuit 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. His decision has absolutely no bearing on the pending lawsuit,” she told Buffalo News.