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Elderly Protester Whose Skull Was Fractured on Video Seen Nationwide Sues Buffalo Police Officers, City Officials


Buffalo Protester Martin Gugino Bleeding

Martin Gugino, the elderly protester who was pushed to the ground and injured by Buffalo cops only to be attacked online by the then-president of the United States, filed a lawsuit on Monday against Buffalo police officers, police leadership, and the city.

The civil rights lawsuit was filed against Officers Robert McCabeAaron Torgalski and John Losi, the city, Buffalo Mayor Byron Brown, Police Commissioner Byron Lockwood and Deputy Police Commissioner Joseph Gramaglia. The suit comes just over a week after a grand jury declined to indict McCabe and Torgalski for felony assault.

The incident in question was seen millions of times by people all around the world.

Then-President Donald Trump tweeted on his then-Twitter account in June 2020—just two weeks after Minneapolis police officers killed George Floyd—that Gugino was an “ANTIFA provocateur.”

“Buffalo protester shoved by Police could be an ANTIFA provocateur,” Trump tweeted. “75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment.”

“I watched, he fell harder than was pushed,” Trump said of Gugino—who, as you can see in the photo at the top of this story, was bleeding from his head. “Was aiming scanner. Could be a set up?”

Gugino recently said he was “a little surprised” to see that the police officers weren’t indicted.

“I think there was pressure on [Erie County District Attorney John Flynn] to get at least an indictment, an expectation that the justice system would do something to try to change the direction of the police department, change the reality of the police in the street,” Gugino told CNN affiliate Spectrum News Buffalo in response to that news. “And I think people are, I think it will happen, that people are disappointed that this misfired.”

The federal lawsuit filed in the Western District of New York alleges that the police officers’ use of force violated Gugino’s constitutional rights under the First, Fourth, and Fourteenth Amendment.

“On June 4, 2020, Defendants violated the constitutional rights of Plaintiff, Martin Gugino, specifically, his rights to freedom of speech, peaceful assembly, petition the government for redress of grievance, movement, unreasonable seizures, and freedom from the unlawful use of force by government agents, and to due process of law,” the lawsuit began.

The lawsuit, spelling out the injuries Gugino sustained, alleged negligence an attempt by the defendants to hide “unlawful conduct”:

Mere minutes after the 8 p.m. city-wide curfew, three of the Defendants, Police Officer Robert McCabe, Police Officer Aaron Torgalski and Police Officer John Losi, unlawfully, unreasonably and forcibly assaulted Plaintiff, Martin Gugino, by shoving him without warning in violation of his clearly established constitutional rights guaranteed under the First, Fourth and Fourteenth Amendments to the United States Constitution.

Following the unlawful assault, several members of the ERT walked by without care as Plaintiff, Martin Gugino, lay unconscious on the sidewalk, blood pouring from his fractured skull.

Shortly thereafter, Defendants took action to conceal the unlawful conduct by the police officers.

The plaintiff, seeking a jury trial, alleged 10 causes of action. In addition to alleged constitutional violations, Gugino accuses the defendants of negligence, battery, failure to intervene and assault.

In a press release, Gugino’s personal injury lawyers at Lipsitz Green Scime Cambria LLP called out the Buffalo Police Department for the statement it initially released which claimed Gugino “tripped & fell”—a statement that was immediately contradicted by video evidence.

“Gugino became the victim of police brutality at the very moment he was peaceably and constitutionally protesting against police brutality,” attorney Richard Weisbeck said. “Any statements to the contrary only serve to perpetuate and justify state violence against citizens.’

Melissa Wischerath, another Gugino lawyer, referred to a statement Republican Sen. Ben Sasse (R-Neb.) made on the “five freedoms enshrined in the first amendment.”

“Let us not forget Sen. Ben Sasse (R-Neb.) recent words that the five freedoms enshrined in the first amendment – speech, religion, press, assembly, and protest – are clustered together because they are interconnecting. You do not have freedom of speech unless you have freedom of protest,” the lawyer said. “By assaulting Martin Gugino as he peacefully protested in Niagara Square, the City and BPD attacked Martin Gugino’s most fundamental rights as an American. If any one person’s rights are suppressed by the state, it harms all of us by eroding the foundation of our constitution.”

You can expect defendants to argue they are shielded from the lawsuit due to qualified immunity. The plaintiff anticipates as much:

Defendants violated rights held by Plaintiff, Martin Gugino, which were clearly established, and no reasonable person similarly situated to Defendants could have believed that such conduct was lawful or within the bounds of reasonable discretion. Defendants thus lack qualified or statutory immunity from suit or liability.

Read the lawsuit below:

[Image via screen capture from WFBO/YouTube]

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Matt Naham is the Senior A.M. Editor of Law&Crime.