Grand Jury Votes Not to Indict Buffalo Police Officers Accused of Shoving Protester

A grand jury has declined to indict two Buffalo police officers who were facing felony assault charges for shoving a 75-year-old protester who landed hard on the ground and seriously injured his head, prosecutors said on Thursday.

The episode outside Buffalo City Hall last June was captured on video and widely shared on social media, fueling outrage during a summer of unrest over police violence. The fury only intensified after the Police Department initially claimed that the protester, Martin Gugino, “tripped and fell,” a description at direct odds with the video.

In the video, taken by the local radio station WBFO, Officers Aaron Torgalski and Robert McCabe push Mr. Gugino, causing him to stagger backward and land hard on the sidewalk, prosecutors said. Blood was seen immediately pooling behind his head.

Mr. Gugino, a longtime peace activist, had been attending a protest stemming from the death of George Floyd in Minneapolis. He was hospitalized and treated for a head injury, loss of consciousness and bleeding from the right ear, prosecutors said.

The video joined a growing body of images that showed officers responding to protests against police violence with more police violence.

The Erie County district attorney, John J. Flynn, charged the officers with assault last June, saying they had “crossed the line” and “violated the law.” Under New York law, a person who attacks someone 65 or older and is more than 10 years younger than the victim can be charged with felony assault, Mr. Flynn said.

Both officers, members of the Emergency Response Team, pleaded not guilty and were released. They were also suspended without pay, outraging the rank and file. The president of the officers’ union, the Buffalo Police Benevolent Association, told The Buffalo News that the city’s actions had led all 57 officers on the team, a special squad formed to respond to riots, to quit the unit.

Supporters gathered outside the courthouse during the officers’ arraignment in June, some of them holding the American flag, and others wearing T-shirts that said “BPD Strong.” A handful of others showed up with megaphones, chanting, “Support good cops, not bad cops.”

Mr. Flynn said on Thursday that the case had been presented to a grand jury in recent weeks, after a series of court closings caused by the coronavirus pandemic.

“As with all cases, since that date of arrest, an investigation continued and was pursued,” Mr. Flynn said at a news conference. “There was a felony charge and, therefore, it was a matter that was going to go to the grand jury. Let’s be clear here, OK? This really wasn’t a complex case.”

“The video that was taken speaks for itself,” Mr. Flynn added.

But the grand jury voted to “‘no-bill’ the case, which means that they dismissed the case,” he said. Because grand jury proceedings are held in secret, Mr. Flynn said he could not reveal the witnesses who had spoken to the grand jury, the evidence that was presented or the questions that might have led to the decision.

“I want to tell you what occurred in the grand jury so this can be explained in more detail,” he said. “But, unfortunately, I can’t.”

Anticipating criticism that he had “sandbagged” the case, Mr. Flynn said: “You really only have my word that I didn’t sandbag anything — that I put all relevant information and evidence into that grand jury. I presented it all to the grand jury, and they made a decision.”

Kelly Zarcone, a lawyer for Mr. Gugino, did not immediately respond to emails and phone calls on Thursday. The Buffalo Police Department said the officers remained suspended pending the outcome of an internal affairs investigation.

John Evans, the president of the Buffalo Police Benevolent Association, said he welcomed the outcome.

“We are ecstatic that the grand jury, when shown the facts, determined no charges should be levied,” he said in an email. “We thank them for their time and service!”

Officer McCabe’s lawyer, Thomas H. Burton, the trial counsel for the Police Benevolent Association, said that he was pleased with the grand jury’s decision, but that it would be difficult for the officers to repair their reputations.

“It’s always a special experience to give a good police officer’s life back,” he said. “And the only problem with this case — while we got a good legal outcome and an appropriate one — our legal training doesn’t let us sponge away a reputation that was demolished worldwide. And I don’t know how you fix that.”

Victoria Ross, the executive director of Western New York Peace Center, said there was no reason for the officers to have shoved Mr. Gugino, a longtime member of the center whom she described as an “extremely generous, gentle, principled person.”

“The problem is state-sponsored violence is excused,” Ms. Ross said. “If somebody is wearing a uniform, it’s excused. And violence being excused at any level is a problem.”

The Erie County district attorney, John J. Flynn, charged the officers with assault last June, saying they had “crossed the line” and “violated the law.” Under New York law, a person who attacks someone 65 or older and is more than 10 years younger than the victim can be charged with felony assault, Mr. Flynn said.

Both officers, members of the Emergency Response Team, pleaded not guilty and were released. They were also suspended without pay, outraging the rank and file. The president of the officers’ union, the Buffalo Police Benevolent Association, told The Buffalo News that the city’s actions had led all 57 officers on the team, a special squad formed to respond to riots, to quit the unit.

Supporters gathered outside the courthouse during the officers’ arraignment in June, some of them holding the American flag, and others wearing T-shirts that said “BPD Strong.” A handful of others showed up with megaphones, chanting, “Support good cops, not bad cops.”

Mr. Flynn said on Thursday that the case had been presented to a grand jury in recent weeks, after a series of court closings caused by the coronavirus pandemic.

Kelly Zarcone, a lawyer for Mr. Gugino, did not immediately respond to emails and phone calls on Thursday. The Buffalo Police Department said the officers remained suspended pending the outcome of an internal affairs investigation.

John Evans, the president of the Buffalo Police Benevolent Association, said he welcomed the outcome.

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