Elderly Man Pushed by Buffalo Officers Sues City After Grand Jury Dismisses Charges

A Buffalo police officer appears to shove a man who walked up to police, in Buffalo, N.Y., on June 4, 2020. Mike Desmond/WBFO via AP

An elderly man who was pushed by police officers in New York last year is suing the city after a grand jury dismissed charges against the law enforcement officials.

Martin Gugino, 75, is seeking a jury trial and damages, according to a lawsuit filed in federal court.

In the 55-page filing, Gugino’s attorneys argue Buffalo officials violated the man’s constitutional rights by imposing a week-long curfew and selectivity enforcing it against “peaceful protesters,” including him.

“Mere minutes after the 8 p.m. city-wide curfew, three of the Defendants, Police Officer Robert McCabe, Police Officer Aaron Torgalski and Police Officer John Losi, unlawfully, unreasonably and forcibly assaulted Plaintiff, Martin Gugino, 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,” the suit states.

“Following the unlawful assault, several members of the [emergency response team] walked by without care as Plaintiff, Martin Gugino, lay unconscious on the sidewalk, blood pouring from his fractured skull.”

Prosecutors charged McCabe and Torgalski on June 6, 2020, with second-degree assault after reviewing video footage and witness statements of their encounter with Gugino in Niagara Square two days prior.

But a former FBI agent who trained officers said Gugino, who was hospitalized with what his attorney described as traumatic brain injuries, “got away lightly” because of how he approached the officers. A grand jury earlier this month dropped the charges.

Erie County District Attorney John Flynn said he had done everything possible to bring a strong case against the officers but added that he did not believe their actions rose to the level of a felony.

Richard Weisbeck, who is helping represent Gugino in the new suit, said in a statement: “Gugino became the victim of police brutality at the very moment he was peaceably and constitutionally protesting against police brutality.”

“By assaulting Martin Gugino as he peacefully protested in Niagara Square, the City and BPD attacked Martin Gugino’s most fundamental rights as an American. If any one person’s rights are suppressed by the state, it harms all of us by eroding the foundation of our constitution,” added Melissa Wischerath, another lawyer.

An attorney for the city wasn’t listed on the court docket.

The city didn’t respond to an inquiry, nor did the Buffalo Police Department.