The two Buffalo police officers accused of shoving an elderly protester to the ground on Thursday have been charged with second-degree assault, the Erie County District Attorney announced on Saturday. A video of the incident, filmed by an NPR member station, shows the two officers shoving 75-year-old Martin Gugino with their riot shields, causing him to fall backwards, and hit his head on the pavement.
Erie County District Attorney John Flynn said that the officers, 39-year-old Aaron Torgalski, and 32-year-old Robert McCabe, were virtually arraigned this morning. Both officers pleaded not guilty to the assault charge, according to CBS affiliate WIVB. They were released on their own recognizance and are scheduled for a felony hearing on July 20, according to the district attorney.
They now face up to seven years in prison.
Aaron Torgalski, 39, and Robert McCabe, 32, were both virtually arraigned this morning before Buffalo City Court Judge Hannah. They are scheduled to return on July 20 for a felony hearing. Both were released on their own recognizance.— Erie County DA (@DAErieCountyNY) June 6, 2020
Flynn said Gugino was taken to the hospital and was treated for a head injury, loss of consciousness and bleeding from his right ear. He remains in critical condition, he said.
"As are all persons accused of a crime, the defendant is presumed innocent until proven guilty in a court of law," the statement said.
During a press conference after the arraignment, Flynn said the reason for the felony charge is that in New York State "specific penal law subsection that says if the victim is 65 years or older, and the perpetrator is 10 years younger, that makes it a felony."
"I can't turn a blind eye to that," Flynn said.
He added that the officers should have not have handled the situation the manner in which they did.
"If he was violating curfew, if was being disorderly, then what you do is you grab him gently, you turn him around, you handcuff him, you take him away, and arrest him. Simple as that," Flynn said. "You don't take a baton, and shove him."
Video showed Gugino approaching officers, and It is unclear what the verbal exchange is before the officers pushed him with their riot shield. Gugino tripped backwards, hit his head on the pavement, and is seen to be bleeding out of his head. Officers are heard calling for an ambulance, which arrive soon after.
Warning: The video in the below tweet contains graphic language and content.
BREAKING: Buffalo’s police commissioner orders immediate Internal Affairs investigation into this incident: 2 officers shoving an elderly man, who walked up to them, to the ground. @news4buffalo reports the man suffered a laceration & possible concussion pic.twitter.com/qbTvXAAPLH— David Begnaud (@DavidBegnaud) June 5, 2020
The officers were immediately suspended without pay after the incident occurred. On Friday, the members of the Buffalo Emergency Response Team resigned from their positions in solidarity with the two suspended officers. WIVB reported the resigned officers will remain on the force.
On Friday, Buffalo Mayor Byron Brown told WIVB that the video was "incredibly distressing and very disappointing."
"You don't want to see anything like that," he said. "You never want to see anything like that."
The Buffalo Police Department originally released a statement saying the man had tripped and fell. Brown told WIVB that he was told the the police "were viewing the incident from a camera monitoring position."
"From the position they had, that was the appearance," he said. "As additional video came in it was quite clear that that was not the case."
Later Friday, Brown said that police had given protesters several warnings about curfew, according to AM radio station WBEN, and that Gugino was in the area after the allowed time.
"He was trying to spark up the crowd of people. Those people were there into the darkness. Our concern is when it gets dark, there is a potential for violence. There has been vandalism, there have been fires set, there have been stores broken into and looted. According to what was reported to me, that individual was a key and major instigator of people engaging in those activities," WBEN reported.
Erie County Comptroller Stefan Mychajliw said Saturday morning that "cops are under attack," and "in times like these, we need level headed, strong leaders who believe in the rule of the law."
"I stand strong behind these Buffalo Police officers and all members of law enforcement. Cops are under attack from agitating, extremist radicals that crave anarchy and chaos," he said. "Enough is enough. It's time for us to take back our neighborhoods. It's time to take back our way of life and our great nation."
"We can no longer sit back and let rioters attack police and destroy businesses. This must end," Mychajliw said. "...Weak, cowardly politicians that stay quiet when radicals pursue political prosecutions of the police trying to protect us should be ashamed and need to get out of the way."
New York Governor Andrew Cuomo said the video of the incident "disturbs your basic sense of decency and humanity," according to CBS New York.
"Why? Why was that necessary?" he said during a press conference on Friday. "Where was the threat – an older gentleman – where was the threat? Then you just walk by the person when you see blood coming from his head? Police officers walked by. It's just fundamentally offensive and frightening. It's just frightening."