Lawyers representing a 75-year-old protester who was shoved to the ground by upstate New York police during demonstrations that broke out in the days after George Floyd’s death filed a widely anticipated lawsuit in federal court Monday, less than two weeks after criminal charges against the officers involved were dropped.
The lawsuit filed in U.S. District Court for the Western District of New York alleges that the City of Buffalo, Mayor Byron Brown, Police Commissioner Byron C. Lockwood and Deputy Police Commissioner Joseph Gramaglia violated longtime activist Martin Gugino’s rights by enacting an "unconstitutional" and "draconian" weeklong 8 p.m. curfew that "was selectively enforced against peaceful protesters."
It also accuses Buffalo police officers Robert McCabe, Aaron Torgalski and John Losi of using "unlawful and unnecessary force" against Gugino by City Hall "by shoving him without warning in violation of his clearly established constitutional rights guaranteed under the First, Fourth and Fourteenth Amendments to the United States Constitution." Gugino was knocked unconscious and laid on the sidewalk with "blood pouring from his fractured skull," according to the court documents.
The 55-page lawsuit seeks economic, non-economic and punitive damages after a grand jury declined to indict McCabe and Torgalski on felony assault charges. Erie County District Attorney John Flynn said he didn't necessarily feel that altercation caught on camera rose to the level of a felony but state law required prosecutors to bring such a charge when a victim is at least 65 and the suspected perpetrators are at least 10 years younger.
On June 4, 2020, the Buffalo Police Department deployed a 57-member militarized force called the "emergency response team" to disperse three people, one of which was Gugino, sitting on the steps of City Hall.
Video recorded by a local news crew went viral in the height of the George Floyd protests around the nation showed the team march forward in formation toward three people sitting on the stress of Buffalo City Hall, yelling, "Move Forward March."
Minutes after the 8 p.m. curfew, Gugino stood up from the steps and walked toward the officers, when the team in tactical gear then yelled out in chorus, "Push him, push him," according to the lawsuit. Losi shoved McCabe and Torgalski toward Gugino.
They forcibly pushed Gugino to the ground, according to the lawsuit. He then stumbled and fell backward. Members of the emergency response team walked by Gugino as he lay unconscious on the ground, according to the lawsuit.
"Gugino became the victim of police brutality at the very moment he was peaceably and constitutionally protesting against police brutality," one of his attorneys, Richard Weisbeck, said in a statement. "If the roles were reversed, and Gugino pushed a BPD officer who then fractured his skull, he would have been immediately indicted, and for good reason."
Gugino was transported to Erie County Medical Center having suffered a concussion and fractured skull. He was initially treated in the intensive care unit and released four weeks later on June 30.
The lawsuit cited a statement released by the Buffalo Police Department immediately after the incident that claims someone "tripped & fell" outside City Hall. The mayor issued a statement saying that someone who was involved in a "physical altercation" was "knocked down."
McCabe and Torgalski were suspended without pay and arrested within days of the incident. They pleaded not guilty and were released without bail pending further developments.
The Buffalo Police Benevolent Association has repeatedly argued that the officers did nothing wrong other than enforce the curfew. All 57 members of the emergency response team resigned from their positions, which the police union’s president John Evans publicly stated was "to support the two suspended officers, and in disgust of how the administration is handling the entire incident," the lawsuit says.
The Associated Press contributed to this report.