Grand jury declines to indict officers seen shoving 75-year-old man to the ground last spring

Criminal charges have been dropped against two police officers seen on video last spring shoving a 75-year-old protester to the ground in Buffalo, New York, prosecutors said Thursday.

A grand jury declined to indict Buffalo Officers Robert McCabe and Aaron Torgalski on felony assault charges, Erie County District Attorney John Flynn said, ending a matter that drew national attention at the height of protests over the police killing of George Floyd.

Messages seeking comment were left with lawyers representing the officers. A message was also left for the man who was pushed to the ground, longtime activist Martin Gugino.

John Evans, president of the Buffalo Police Benevolent Association, told The Buffalo News that "we are ecstatic with their decision."

"These officers have been put through hell and I look forward to seeing them back on the job," he said. 

Flynn, echoing earlier statements, said he didn't necessarily feel that altercation rose to the level of a felony but that 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.

Addressing criticism that he slow-played or "sandbagged" the case, Flynn said prosecutors made a thorough presentation to the grand jury but, citing secrecy rules, said he couldn't discuss what witnesses were called or what evidence was presented. The grand jury heard the case on a delayed basis because of coronavirus-related court closures, he said.

Flynn said video of the shove remained the primary evidence throughout the investigation.

"This was not the J.F.K. assassination," Flynn said. "This was not that complex of a case. The video that was taken speaks for itself."

A news crew covering protests in downtown Buffalo last June over Floyd's death in Minneapolis captured video of the officers shoving Gugino to the ground in front of city hall as crowd control officers in riot gear cleared demonstrators from the area for an 8 p.m. curfew.

Gugino, pushed backward, started bleeding after hitting his head on the pavement and spent about a month in the hospital with a fractured skull and brain injury.

McCabe and Torgalski were suspended without pay and arrested within days. They pleaded not guilty and were released without bail pending further developments. Flynn said at a news conference Thursday that national attention on the case had no influence on his decision to charge the officers right away.

"All I need is probable cause for an arrest," Flynn said. "When I go to trial, though, I need beyond a reasonable doubt. At this point right now, it's 50/50 in my mind as to whether or not it was intentional or reckless. If it's 50/50, that's not beyond a reasonable doubt. That analysis factors into my mind, but I can't articulate to you what was going on in (grand jurors') minds."

In the wake of the officers' suspensions, nearly 60 other members of the department's crowd control unit said they would no longer serve on the unit, effectively shutting it down.

The city responded by replacing the Emergency Response Team with a Public Protection Unit designed to work with groups seeking to peacefully protest. Other reforms in the wake of the protests included halting arrests for low-level, non-violent offenses like marijuana possession and making it easier for the public to view police body camera video.

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• Buffalo
• Death of George Floyd
• New York