An arbitrator has cleared two Buffalo police officers who pushed a 75-year-old activist who got in their way during their deployment at a June 4, 2020, protest. The man's head hit the sidewalk and he was injured.

The officers — Robert McCabe and Aaron Torgalski — will be allowed to start working again, after the arbitrator concluded the two used “absolutely legitimate” force and did not violate department policies. Arbitrator Jeffrey M. Selchick wrote in a 41-page ruling issued Friday that McCabe and Torgalski were carrying out their duties and did not intend to cause Martin Gugino to fall to the ground.

“While Gugino might well have believed that he was engaged in some type of civil disobedience or, perhaps, acting out a role in some type of political theater, Gugino was definitely not an innocent bystander,” Selchick wrote, noting the protester was in the square past an 8 p.m. curfew and did not comply with the officers’ orders to move back, the Washington Post reports.

Within a day of the incident, McCabe and Torgalski were suspended, prompting 57 members of Buffalo Police Department to resign from a special squad in protest. Two days later, McCabe and Torgalski were charged with assault.

In February 2021, a grand jury dismissed the charges. And on Friday, Selchick ruled the officers’ actions did not violate the Buffalo Police Department’s policies.

“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,” Selchick wrote.

Gugino filed a federal civil rights lawsuit against the officers and the City of Buffalo in February 2021, alleging the officers used excessive force, among other claims.

 

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