This article appears in the June 2022 issue of our monthly newsletter, Public Safety Labor News.
Many in the United States have seen a five-second clip from a video taken by a journalist of Buffalo police officers Robert McCabe and Aaron Torgalski (“the Officers”) pushing 75-year-old Martin A. Gugino to the ground during a protest on June 4, 2020. Few, however, have seen the entire video, or bodycam videos taken of the same incident, or heard the testimony of several other Buffalo officers who encountered Gugino in the minutes before the incident occurred.
Arbitrator Jeffrey Selchick heard all this evidence, and more, in a multi-day hearing. In the end, Selchick ordered the termination charges against the Officers dismissed.
The Arbitrator began with a recitation of the general character of the City’s evidence that the Officers had used excessive force against Gugino: “Before analyzing the Officers’ conduct to determine if there was an unnecessary use of force relating to Gugino, the Arbitrator finds it useful to first identify what evidence is not found in the record. The record contains no testimony from Martin Gugino. Though lawfully subpoenaed, Mr. Gugino refused to appear and give testimony in this proceeding.
“The Arbitrator also observes that the City produced no testimony from any individual that set forth any detailed analysis of the Officers’ encounter with Gugino that supports the conclusion that the Officers’ use of force directed at Gugino was, in the language of the first two charges, ‘unnecessary force and/or violence.’ Further, the Arbitrator notes that the City produced no evidence to refute the testimony of Officers assigned to Traffic Control who were present in Niagara Square on June 4, 2020 who also encountered Gugino. Finally, the Arbitrator finds that there is no evidence in the record, other than the City’s interpretation of the journalist’s video, that refutes the testimony offered by the Officers in describing their interactions with Gugino, nor, the Arbitrator finds, did the cross-examination of the Officers impeach their credibility as measured either by the truthfulness or the accuracy of their testimony.
“The City’s rules raise a threshold question as to whether the Officers had ‘no other viable option’ than to use some type of physical force on Gugino. If the Officers had viable options to not use physical force, then they clearly would be in violation of the Departmental Rules and Policy regarding use of force. In answering this threshold question, the Arbitrator identifies a definition of ‘viable’ as ‘having a reasonable chance of succeeding.’ The Officers’ mission was to clear Niagara Square of protesters. The Officers, in turn, specifically had the duty of holding their place on the front line of the Emergency Response Team (ERT) and moving forward in a northerly direction in Niagara Square. Thus, the Officers did not have the option of stopping and debating with Gugino, who was clearly intent on confronting the line of officers. Indeed, the conduct of Detective Sergeant Losi in pushing McCabe in the back to keep the line moving forward reflects the Officers’ need to keep moving.
“Moreover, all credible evidence in the record shows that the Officers, independent of the order to clear Niagara Square, were confronted with an individual who walked directly in front of McCabe, having ignored McCabe’s directive to stop, and who then came into physical contact with Torgalski’s forearm with a cell phone some inches away from Torgalski’s holstered weapon. For their protection, in addition to their need to continue with the directive to clear the Square, the Officers did not have any ‘viable option’ to have some type of non-physical communication with Gugino.
“Gugino was acting in an erratic fashion, was preventing the forward movement of the ERT, after not complying with the directive to move back, and was making odd physical gestures within a foot of the Officers. Moreover, Gugino’s conduct in touching Torgalski’s ‘bare skin’ raised reasonable concerns on Togalski’s part in connection with a possible exposure to COVID, which constituted additional justification to move Gugino away from the position he occupied within inches of the Officers. Simply stated, there was no viable option for the Officers to hold up the ERT line and engage in some sort of discussion or debate with Gugino.
“A full understanding of the record evidence also discloses that the Officers did not seek out any confrontation with Gugino. Consistent with his statements and conduct witnessed by the three Traffic Control Officers immediately before the incident, Gugino made it his business not to be ignored as he walked right up into the face of the Officers and impeded their forward progress. As he had stated to the above Traffic Control Officers prior to the incident, he was intent on making his point regarding constitutional rights by getting arrested.
“Clearly, Gugino was a suspect within the meaning of the City’s Use of Force Continuum Policy when he walked up to and deliberately positioned himself in front of the Officers. At the time of his encounter with the Officers, Gugino had intentionally remained in Niagara Square after the curfew dispersal order was announced and took effect. Indeed, the Erie County District Attorney described Gugino’s conduct as criminal in a press conference. Gugino’s status as a suspect is also established by his encounters with the three other Officers shortly before the curfew took effect, which reflected a propensity on his part to engage in some type of confrontation with the police.
“Gugino’s conduct in intentionally placing himself in front of the moving line of the ERT and his refusal to comply with the directive to move back cannot reasonably be understood as any type of compliance. Where there has been constructive resistance, Officers are ‘authorized to physically restrain the suspect by grabbing, holding, knocking off balance, using pain compliance holds and pressure points, or using Department issued chemical agents.’ In the Arbitrator’s estimation, the Officers used a lesser amount of force than allowed in the Use of Force Continuum because they simply sought to push Gugino away from them, albeit the force used was inadvertently increased to some extent when Detective Sergeant Losi pushed McCabe in the back as McCabe was pushing Gugino away.
“In any event, the use of force employed by the Officers reflected no intent on their part to do more than to move Gugino away from them. There is no persuasive evidence, particularly when the journalist’s video is reviewed in its various frames, that the Officers sought to push or drive Gugino to the ground. Gugino, after the force was applied to him, appears to have not been able to keep his balance for reasons that might well have had as much to do with the fact that he was holding objects in each hand or his advanced age. Gugino may also have been surprised when the Officers used force to push him away because he may have entertained the unfounded belief that the Officers would let him interfere with the performance of their duties as part of the ERT and engage in some sort of debate or discussion with him.
“Thus, the Arbitrator finds that the Officers engaged in an absolutely legitimate use of physical force with Gugino. The City argues, however, that ‘it cannot be disputed that the actions of the Officer brought discredit and disrepute on the BPD and the City. And brought embarrassment on the City of Buffalo and left a black eye on the BPD.’ If accepted, the City’s position would result in officers, whose conduct was legal and in conformity with the Department’s rules on use of force, nevertheless being disciplined because of perceived and vocal public opinion.
“That is simply not the standard to be utilized in a due process proceeding, such as that herein. An employee cannot be disciplined based solely on the existence of perceived and vocal public sentiment. If there is no violation of any rule or regulation, this charge cannot be sustained.”
City of Buffalo, (Selchick, 2022), copies available from LRIS.
Also in the June 2022 issue:
- Repeated Viewing Of Private Intimate Video Is Sexual Harassment
- No Privacy Interests In Another’s Apple Watch
- Union Can Demand Mid-Term Bargaining On Topic Not Covered By Contract
- Sergeant Demoted For Intimate Relationship With Officer
- Garrity Warning Need Not Include Decertification Possibility
- Federal Court Halts Firefighter Shift Change On Free Speech Grounds
- Qualified Immunity Shields Employer From Liability For Illegal Dropbox Search
- No Basis To Overturn Arbitrator’s Decision Reinstating Corrections Officer
- Gang Ties Do Not Amount To National Origin Discrimination
- Q & A