Are The Criminal Charges Against The Buffalo Police Officers Excessive?


Buffalo police officers Robert McCabe and Aaron Torgalski has now been charged with second degree assault over an injury to a protester.  The criminal charges and the call from Gov. Andrew Cuomo for them to be fired has triggered a mass resignation of the Buffalo Emergency Response Team.  While Cuomo viewed the evidence as so clear to justify immediate termination, the two officers have a strong criminal defense under the statute.  The officers are shown pushing back activist Martin Gugino, 75, who fell back and hit his head, suffering a very serious injury.  The charge is second-degree assault.  The video that prompted Cuomo’s call for termination is likely to be the strongest evidence for the defense, which will argue that there was no excess force used in the incident.  A contrast can be drawn to the videotape of George Floyd were the excessive force is shockingly clear, as in this video. and this video as examples. There have been many other videos played at these protests that do strike me as excessive force against protesters, including the inexcusable attack on Australian journalists in Lafayette Park as well as others. There is no question that there is a serious injury in this case and there are allegations that the officers were not sufficiently responsive to the injury, the key to such prosecutions as the one in New York will be establishing the intent element.

Here is the videotape:


In the background, you can hear someone say “push him back” as the police seek to clear the area. It is standard for police to shove back individuals as a line moves forward. The question is whether this shove constitutes not just excessive force (subject to disciplinary action) but an actual crime of assault.  An eyewitness who was highly critical of the police action is also quoted as saying that he thought the fall after the shove was “an accident.”  He is likely to be called to any trial and that statement would be admissible in any examination.

On Sunday morning Rep. Karen Bass told CNN’s Jake Tapper that the incident showed police not stopping and not rendering aid. It is true that the officers involving in the shoving did not stop. However, this video shows the officers taking another person into custody and (around the 22 second marker) other officers rendering aid. The point is only that much more needs to be known in the case:

A Class D felony is punishable by up to seven years in prison.  It is defined at Section 120.05 as acting “intent to cause serious physical injury to another person, he causes such injury to such person or to a third person.”

The jury instruction for this charge includes the following provision:

“INTENT means conscious objective or purpose. Thus, a person acts with intent to cause serious physical injury to another when that person’s conscious objective or purpose is to cause serious physical injury to another.”

It also includes a proviso in a footnote: “See Penal Law § 15.05(1). If necessary, an expanded definition of “intent” is available in the section on Instructions of General Applicability under Culpable Mental States.”  That provision however also defines ““Intentionally” as a “person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” (Perhaps some of our New York attorneys could help out on clarifying this point because I could not find additional cases).

The choice between a charge of assault in the second as opposed to the third degree is significant. Conviction of assault in the third degree has a lower standard but it is a misdemeanor that often does not result in jail time as a class misdemeanor. Under Pen. Law § 129.00, person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person;  or

2. He recklessly causes physical injury to another person;  or

3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

If prosecutors were intent on a criminal charge, the third degree standard would fit the videotape more readily given the options of reckless action or the use of a deadly weapon through criminal negligence.

It is hard to see from this video a clear intent to cause serious physical injury in this videotape.  Gugino takes a number of steps backward as he tried to stay on his feet but then takes the hard fall.

In the news conference, District Attorney John Flynn said the officers “crossed a line.”  As someone who have both represented and sued law enforcement, that assertion is likely to be severely tested in court.

Cuomo insisted that the video was clear and warrants immediate termination: “Why? Why was that necessary? Where was the threat? It’s just fundamentally offensive and frightening. How did we get to this place?”

While this will hardly be popular in today’s environment, it is not clear from a criminal law perspective.  Pushing and shoving back protesters is a standard police practice, which is why officers are irate that any protest control tactics will involve a risk of protesters or officers falling.

Frankly, absent additional evidence, I would be surprised if Flynn could make this case stick before a jury given this videotape.

This may reflect my background as a criminal defense attorney, but my primary objection however is to Cuomo’s comments in calling for termination before any due process has been afforded. The mayor has refused to support Cuomo’s call and instead insisted that the officers should be given their day in court. I do not see how Cuomo can conclusively make this determination without more evidence and an opportunity for these officers to present a defense. Conversely, I do not see the basis for the mayor to call Gugino a “major instigator” because he had been told repeatedly to leave.  Even if he was refusing to comply, the video does not show that he was an instigator in terms of what followed in his serious injury.

223 thoughts on “Are The Criminal Charges Against The Buffalo Police Officers Excessive?”

  1. This morning, Trump tweeted:
    “Buffalo protester shoved by Police could be an ANTIFA provocateur. 75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment. @OANN I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?”

    A response from Jesuit priest James Martin:
    “#MartinGugino is a peace activist and volunteer with the Catholic Worker movement. Why spread rumors about someone who embodies the Beatitudes? In case you’ve forgotten what’s in the Bible you were carrying, Jesus said, ‘Blessed are the peacemakers,’ not the rumormongers.”

    I doubt that Trump has read the Bible. Certainly he hasn’t take it to heart.

    1. ““#MartinGugino is a peace activist and volunteer with the Catholic Worker movement”

      He was so peaceful that he didn’t think twice about placing the police and other protesters in danger.

      If you had integrity one might listen to what you say but you walk on a crooked path so nothing you say can be considered true.

    2. I wonder if Martin Gugino or James Martin have read the Bible. Their current comments and actions certainly don’t support it.

  2. Where’s the outrage over all white protestor’s attacking a Black State Trooper in Austin!! Talk about a racial attack, they harassed him, shoved him around, cornered him, there were about 50 attacking him!! I haven’t heard one thing about that anyplace!! Doesn’t fit the hate narrative that they are promoting does it!!

  3. Looks like a setup, fake blood from a tube under his mask leading to his ear

  4. Could anyone imagine New York City without the NYPD? What a disaster! God help us!

  5. All over the country, in every aspect of life, “Black Lives Matter” has become the new loyalty test, comrades.

    One by one, I have seen every social media group that I follow pledge their loyalty to Black Lives Matter. Among the choruses of hear, hear!, a few brave souls will venture to say that we all matter the same, or that they oppose rioting. Some say they don’t want to turn the group political or see people argue. Or they might shockingly list the FBI and CDC data, which shows that cops are not actually hunting black people like they’re the Klan in the 20s. Oh, Lord, those people are excoriated to within an inch of their lives. They are called racist, evil privileged white people who want blacks to die. To remain silent is to join the oppressors.

    It’s like the USSR, when neighbors are always ready to turn in their own family, friends, or strangers to the NKVD for subversive statements, to be sent to labor camps.

    What does equal rights mean? Are some people more equal than others? They must be, if saying everyone’s lives matter the same, regardless of race, is a punishable offense. Claiming that it ignores black lives lacks critical reasoning.

    Do black people want to be valued the same as everyone else, or more?

    African Americans have been the subject of intense focus of the Democrat party, to their detriment. Why are they now called “African-Americans?” No one else focuses on their ethnic ancestry prior to migrating to the US. We aren’t Scottish-German-Anglo-Americans. We’re Americans. Most black Americans have never even been to Africa. They have no connection with the people, the culture or the tribal warfare raging in some parts of the continent. African tribes sold their enemies to European slave traders, and now the hip thing is to emphasize their connection to those who sold them out???

    Since birth, the Democrat party has brainwashed the African American community that nothing they do is their fault. Having kids out of wedlock, not getting good grades or attending school regularly, not prioritizing education in the home, getting into trouble…it’s not their fault. It’s the fault of white people who aren’t even there. As crime increases, jobs and opportunities evaporate, and it’s all white people’s fault. No matter how many billions of dollars taxpayers pour into African American communities, it’s never enough. Now activists want restitution.

    Being colorblind or not caring about race is now considered racist. It alienates.

    Is the best way to protest racial profiling to loot, burn, and beat people? That only reinforces the stereotype. It must be maddening for the peaceful protestors.

    When is the African American community going to have their red pill moment, and realize that when 13% of the population commits 60% of the crime, it’s a problem? It’s their problem to solve, because what can an outsider even do? Cops aren’t the biggest threat to African Americans; African American criminals are. One of my black friends is a conservative, and he’s frustrated beyond measure at the self destruction. He was up all night listening to gun shots, sirens, and screaming, wondering if his apartment building was going to burn down by rioters.

    Stay in school, study hard, graduate high school, get a job, don’t do drugs ever, and wait to have kids until you’re married. That’s the math that produces a likelihood of a middle class life. It’s not handed to you.

    Kids are born into high crime neighborhoods. How do they get plugged into the math formula of success when zero people in their lives put them on that path?

    There is a reason why when someone sees an Asian teenager in a hoodie walking home at night, you assume they just finished their 4th study group of the night, and are headed home for piano or violin practice.

    Of course one should judge each person on the content of their character. That requires getting to know them. To be frank, men in general create more wariness, because men commit more violent crime. If a woman is walking alone at night, and a white male follows behind her, she may get nervous. That is her self preservation instinct, honed over millennia. Out of 325 million people, some are just unreasonable in their wariness of males, including black males. Apparently, calling the cops on black birders is rather common. Other times, it’s just people seeing a strange male of any race.

    As for profiling, the community has some work of its own to do on crime.

    1. I don’t have the patience to reply to all of that, but re: your comment that “No one else focuses on their ethnic ancestry prior to migrating to the US. We aren’t Scottish-German-Anglo-Americans,” most African Americans have slave ancestry. Their migration was forced migration, in contrast to all other migration, which was voluntary. Most do not know what countries their ancestors were enslaved from. They self-identify as African American because that’s as much info as they have about their ancestry; they don’t know if their ancestors were Ghanaian, or Senegalese, or … It’s bullsh*t to claim “No one else focuses on their ethnic ancestry prior to migrating to the US.” Do you seriously not know any Italian Americans, or Scotch-Irish Americans, …?

      You ask “Do black people want to be valued the same as everyone else, or more?” The same! Right now, they’re often valued less. Because we’re still a racist country.

      “when 13% of the population commits 60% of the crime…”
      They don’t!
      FFS, the fact that you think they do is part of the problem. Why on earth do you believe such crap?

      1. Italian-Americans do not identify that way, hyphenated, at all times. You don’t say, this I met this great Italian-American named Joe the other day. Any Native American I ever knew referred to himself by his tribe, and only Native or First when talking about the people as a whole.

        African tribes captured rivals, and sold them into slavery. African Americans are Americans. Slavery still exists in the African continent. An African from a variety of countries could be an active slave owner, immigrate to America, and become a citizen. They would then be called an “African American.” They actually have more of a link to Africa than Americans who were born here. Their relationship to slavery would be markedly different. I want to make sure African Americans are included, not separated out and hyphenated. It makes it sound like they are split between Africa and America. But they are not Africans. They are Americans.

        The label does not apply only to the descendants of slaves.

        Everyone has equal rights under the Constituion. If there is a violation of Civil Rights, there is a process for remedy that does not involve burning down minority owned businesses. African Americans commit more crimes, and so are sadly incaracerated at a greater rate. BLM considers this a mass incarceration of black people. If there was a limit on how many African Americans can be arrested, based on the population distribution, then the group would have more rights than any other ethnic group in America.

        According to the FBI database, African Americans committed 52.6% of the murders in 2016, and 54.5% of the rapes. It is true that many other crimes do not rise to this high of a percentage. However, African Americans commit a disproportionate number of violent crimes. This is not genetic. Single motherhood is a high risk factor for the child to be raised in poverty, live in a high crime neighborhood, drop out of school, do drugs, commit crimes, join a gang, go to prison, and/or be murdered. Having no faith worsens this outcome. It’s statistics. Welfare policies financially punish poor mothers who live with the father of their children. There has grown a financial incentive to destroy the black nuclear family, with catastrophic results. Single motherhood is also rising in other demographics, as well. As long as this is not fixed, there can be no improvement. But that has to come from within the community.

        This is not OK. No innocent child should lose his opportunities at this rate. I have no idea how to break this cycle. The constant drum beat that Caucasians are all racist and hate African Americans is not true. It would have been impossible for Barrack Obama to have won the Presidency were it so. The country did not suddenly become racist. African Americans keep hearing the message that there is nothing they can do to improve their lot. The world hates them. This is NOT true!!! There is so much that the average person can do to help steer their destiny! We need to stop treating African Americans like helpless victims, not expected to abide by the same standards. If business owners rioted, looted, and burned because they were legitimately angry that the shutdown led many of them to lose their livelihoods, their actions would not be excused. If Trump supporters looted and burned out of legitimate anger at the wrongdoings revealed in our government, their actions woudl not be excused. But the looting and rioting and burning has been described as a legitimate expression of anger. African Americans are just as capable as anyone else. Criminal behavior should not be excused or even lionized. There are plenty of law abiding, accomplished African Americans to be role models for young people of any race.

        African Americans are Americans, my countrymen. I expect the law to apply to them the same as anyone else. I vehemently oppose BLM’s efforts to defund the police force, which would subject all of us to crime. And I wholeheartedly support any African American who experienced racism. However, every disparity is not proof of racism.

        Why do I believe this? The FBI and CDC data, and many published studies on single moherhoood and the resulting outcome for the children.

        1. I would add that culture varies widely by neighborhood. In bad neighborhoods in the grip of gangs, criminals are busy. But then in quiet middle class neighborhoods, blacks and white kids play on the same baseball and soccer teams, and crime is low. The difference is in the statistically probability that certain choices lead to a middle class lifestyle.

          The tragedy is that children born in bad neighborhoods are not taught those tools, and it’s hard to break the cycle.

        2. Correction: African Americans committed 54.5% of robberies. They committed 29% of the rapes in 2016.

          The problem is that in high crime areas, criminal elements like gangs are busy terrorizing the population, driving up the stats significantly.

          1. I take it that this is as close as you’ll get to saying “I was wrong when I claimed ‘13% of the population commits 60% of the crime…’”

            Just to be clear, the FBI document you linked to is for *arrests*. For lots of crimes, no one is ever arrested; for a fraction of crimes, the crime isn’t even reported, much less is there an arrest, and of course arrests aren’t convictions. It’s also striking that you can’t even bring yourself to focus on all arrests, where they say “In 2016, 69.6 percent of all individuals arrested were White, 26.9 percent were Black or African American, and 3.6 percent were of other races.” It’s disproportionate, but it’s nowhere near 60%, and there’s no way to know what the %s would be if there were convictions for all crimes committed, not just a subset. For all you know, the %s in that report partly reflect more blacks being arrested for their crimes than whites are for their crimes. We don’t know what the racial breakdown is for all crimes committed.

            And I simply don’t have the patience to go through all of the errors in the rest of what you wrote.

  6. The fall was accidental. The protestor approached officers, got in their way, and touched them. It seems pretty standard for police to push people away from them. The push did not appear to be that hard. While the lead officer did pull another up who appeared to want to render aid, he was on his radio calling for an ambulance. It was a head injury, and a possible spinal injury. He may not have wanted to move him. Other officers assisted. It is not true that the police ignored him.

    None of these facts will matter. The meme will go around the world that the cops pile drove an elderly man who innocently asked them for directions because he was lost, and then they left him there to die.

    That said, the man was a bit on in years, and tall, both a combination to lose balance. The sound of his skull hitting the pavement was gruesome. You could hear the fracture.

    I think anyone over the age of 65 should be steered out of the way. But I’m not a cop. I would want to know what procedure they use for people over the age of 65.

    I do not agree that this was a criminal act, nor a fireable offense. Touch a police officer and you will probably get pushed back, or arrested. However, I think their procedures for dealing with difficult or unruly people over the age of 65 needs review. This was an accident.

    If these cops are charged, the rest of the force should just quit. They can’t do their jobs. They could easily go to prison if they physically interact with a minority or a protestor. At this point, if they even arrest any African American, they will be accused of being racist. Everyone is always recording, and few will wait for an investigation.

    It’s not worth their freedom.

    1. Karen S– I agree with all you have said. It is so easy to criticize when you have no idea what things are like. These officers know that other officers have been assaulted and even killed by “protesters” and so the last thing they want to do is let anyone get too close. Suddenly a very tall man approaches going against the flow and holding something in his hand that he presses against you. Every instinct in your body tells you to push him away. Is it a knife, a zip gun? It’s hard to see with the plastic shield in place. It’s too bad that the man fell and I hope he’s ok, but we expect too much of our police when we demand that they go against the very instincts that allow them to go home at night and live to police another day.

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