The Washington PostDemocracy Dies in Darkness

Buffalo police officers who shoved 75-year-old protester in viral video will not face charges

Police officers in Buffalo appeared to push a man onto the ground while clearing Niagara Square following a citywide curfew. (Video: WBFO / Spectrum News Buffalo via Storyful)

A grand jury has dismissed assault charges against two suspended Buffalo police officers who were filmed last summer pushing an elderly protester who fell to the ground and went to the hospital with a brain injury.

At a Thursday news conference, Erie County District Attorney John Flynn did not explain the jury’s decision-making, emphasizing that the proceedings are secret as he anticipated backlash to the outcome of the high-profile case. Graphic video of the incident quickly went viral in June amid protests and intense criticism of police use of force following the killing of George Floyd in Minneapolis. After he is pushed, 75-year-old Martin Gugino falls backward onto the pavement, motionless and bleeding.

Flynn repeatedly said that he did not “sandbag” the case that sparked both a public outcry against police violence and a rebellion within the Buffalo Police Department. Dozens of officers resigned from a special squad over the decision to suspend Officers Aaron Torgalski and Robert McCabe.

“All the evidence was presented at grand jury,” Flynn said Thursday. “And the grand jury did their job. And so I apologize for nothing. I would not make any changes in any of my decisions, going back to when this happened.”

The district attorney defended his decision last June to charge the officers with felony assault within days of the incident. He said he would not “tell you that, in my opinion, the right thing happened here.”

“Because I still believe that a crime was committed,” Flynn added.

Authorities pursued felony charges because of New York law on assaults in which the alleged victim is 65 or older while the alleged perpetrators are at least 10 years younger, Flynn said.

Flynn said he would not try to even hint at how the grand jury came to its decision but said the video was “the main piece of evidence on day one” and remains the primary evidence today.

“The video that was taken speaks for itself,” he said. He added that he put multiple witnesses before the grand jury and that “society made the decision, not me.”

A lawyer for Gugino, who eventually left the hospital, did not immediately respond to requests for comment, nor did the local police union and a lawyer for the two officers.

A spokesman for the Buffalo police, Capt. Jeff Rinaldo, said Thursday that both officers are still suspended pending the outcome of an internal affairs investigation.

Flynn said the grand jury decision was delayed by closures stemming from the coronavirus pandemic.

Video of Gugino’s fall, taken by local radio station WBFO, showed the elderly man approaching a line of police. Officers shoved him amid yells of “Push him back! Push him back!” and Gugino fell, making a loud noise. He began to bleed from the head, in graphic footage that drew national criticism.

A Buffalo police statement initially said that a man was injured when he “tripped and fell” during “a skirmish involving protesters.” Then the video emerged.

Gugino was violating curfew at the time, Flynn said Thursday, and “had no business approaching these police officers.” But the district attorney said he should not have been shoved.

“He should have been arrested, grabbed and peacefully walked off the steps of city hall,” Flynn said. “But again, that didn’t happen.”