Attorneys representing a 75-year-old protester who was pushed to the ground by upstate New York police during protests that broke out in the days after George Floyd’s death filed a widely anticipated lawsuit in federal court on Monday, less than two weeks after the criminal charges against the agents involved were dropped.
The lawsuit filed in the 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 the rights of activist Martin Gugino by enacting an “unconstitutional” law and “draconian” curfew of one week at 8 pm that “was selectively enforced against peaceful protesters.”
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It also accuses Buffalo Police Officers Robert McCabe, Aaron Torgalski and John Losi of using “illegal and unnecessary force” against Gugino by the City Council “by pushing him without notice in violation of his clearly established constitutional rights guaranteed by the First Amendments , Fourth and Fourteenth. To the Constitution of the United States “. Gugino was left unconscious and left on the sidewalk with “blood draining from his fractured skull,” according to court documents.
The 55-page lawsuit seeks financial, non-financial and punitive damages after a grand jury refused to indict McCabe and Torgalski for felony assault crimes. Erie County District Attorney John Flynn said he did not necessarily feel the altercation captured by the camera rose to the level of a felony, but state law required prosecutors to file such a charge when the victim is at least 65 years and the alleged perpetrators are at least 10. years younger.
On June 4, 2020, the Buffalo Police Department deployed a 57-member militarized force called an “emergency response team” to disperse three people, one of whom was Gugino, sitting on the steps of City Hall.
Video recorded by a local news crew went viral at the height of the George Floyd protests across the country and showed the team marching forward in formation toward three people sitting in the stress of Buffalo City Hall, shouting, “Move Forward March “.
Minutes after the 8 pm curfew, Gugino rose from the steps and walked over to the officers, when the tactical gear team shouted in chorus, “Push it, push it,” according to the lawsuit. Losi pushed McCabe and Torgalski towards Gugino.
Gugino was forcibly pushed to the ground, according to the lawsuit. Then he stumbled and fell backward. Members of the emergency response team passed Gugino as he lay unconscious on the ground, according to the lawsuit.
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“Gugino became a victim of police brutality at the same time that he was peacefully and constitutionally protesting against police brutality,” one of his lawyers, Richard Weisbeck, said in a statement. “If the roles had been reversed and Gugino pushed a BPD officer who later fractured his skull, he would have been charged immediately, and for good reason.”
Gugino was transported to Erie County Medical Center after suffering a concussion and skull fracture. He was initially treated in the intensive care unit and was discharged four weeks later, on June 30.
The lawsuit cited a statement issued by the Buffalo Police Department immediately after the incident that claims someone “tripped and fell” outside of City Hall. The mayor issued a statement saying that someone who was involved in a “physical altercation” was “shot 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.
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The Buffalo Police Benevolent Association has repeatedly argued that officers did nothing wrong other than enforcing the curfew. The 57 members of the emergency response team resigned their positions, which the police union president, John Evans, publicly stated was “in support of the two suspended officers and disgusted with how the administration is handling the whole incident” says the lawsuit.
Associated Press contributed to this report.