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.
Looks to me like the guy took a dive — wasn’t much of a shove. I think the cop”s defense should be he was only trying to enforce social distancing.
Secondly, the cop started to bend over to check the guy but was told to move on by another cop who immediately got on his radio and requested a medic.
The cop that did the shoving had a visible reaction, suddenly grasping what he’d done and where it was going to take him. What Cuomo said on the matter doesn’t have much bearing on me. What’s more interesting is that from the tactical response end — these guys train in threat level discrimination. This cop failed the test. I’m not insensitive to the word coming from within that it was time to begin a more energetic crackdown, but still, back to threat level assessment, huge fall down there and if it puts this cop in the legal system as a result, so be it. Is there any more of a pertinent message from the times that applies?
Looks like typical preparation for a plea bargain. The way law enforcement approaches everything nowadays — against civilians that is. Not the police. So that makes this unique.
There’s a report I saw yesterday claiming the guy was attempting to get the channel the cops radios were using.
Meaning, back to the “peaceful” American hating Commies:
https://www.thegatewaypundit.com/2020/06/must-see-look-democrats-media-violent-left-three-great-american-cities-just-one-week/
I agree that there was not intent, and the action was not excessive for a policy of moving the crowd back. (That policy and procedures might warrant review.) The 75 year old lost his balance, a not unexpected result from the elderly, but he otherwise appeared and acted fit. Police continuing to walk is a greater mistake IMO, though you can see the guy who did it likely reacted with fear, not malice.After seeing the guy fall, he puts his head down, as if “oh, s..t”, accurately anticipating the storm he just unleashed. Should he have personally stopped? What was the training for this possibility in standard procedures?
A punishment of some sort seems appropriate to me, but not criminal indictment.
Anon – it appears that the gentleman is an agent provacteur. I want to see x-rays and number of stitches.
Irrelevant as to the cops actions.
Anon – relevant as hell.
Cops are not judges and juries and almost certainly knew nothing of this guys past. If it was not a criminal past, doubly irrelevant.
No longer irrelevant in light of the newly exposed training tactics of agents of Antifa and BLM where provocateurs are purposefully placing LEOs in such untenable situations for just this sort of knee jerk reaction by liberal politicians for political reasons. This is a cultural war we are watching unfold and perhaps we should have a more military concept concerning rules of engagement. This chaos with regard to these encounters is purposeful and utilized to create discord and destruction.
Alma, the guy’s behavior is on camera before he is pushed. He is not physically aggressive.
That’s right over bookhead’s head, alma, but good analysis.
If mespo doesn’t know that the guy’s past will not be allowed in court if this goes to trial, it’s because he never goes there after catching a passing ambulance.
PS I might add that the guy who fell was talking to a woman officer, and right or wrong, the 2 cops who come up and push were likely reacting with something like chivalrous intent. All of this can still be improper, wrong, – but not malicious as so many other police/protester clashes have been. Look for the video from Philadelphia as bicycle cops run amok on a fairly small crowd of seemingly non-aggressive protesters. One beefy bully clubs a small woman in the head who was trying to pull another protester away, than continues attacking her on the ground.
Police have a hard and sometimes violent job. We should punish overtly abusive behavior, but be careful on the margins where split second decisions can be wrong without being gross or malicious acts.
Here’s a slow motion video: https://www.youtube.com/watch?v=N703XiJC_i0
He was talking to two cops who pushed him, both male. The cop on the left uses his baton held horizontally between his hands to push, while the one on the right pushes with his right hand.
I don’t know what was said, but simply can’t imagine any reason to push a peaceful 75 y.o.
I doubt that there was intent to injure, but there was indifference to the possibility of injury. We need more caring police. Police should not be indifferent to the possible negative effects of their actions.
…Are the charges Excessive? …
Let the experts decide while the movie unfolds.
“Round up the [new] usual suspects” … Casablanca
Another “true” movie story:
Bernie LaPlant : “TV…you can’t believe one word” … Hero
…Are the charges Excessive? …
Let the experts decide while the movie unfolds.
“Round up the [new] usual suspects” … Casablanca
Another “true” story:
“Bernie LaPlant : TV…you can’t believe one word … Hero
Based on the comments to this article, it is going to be a long hot summer.
Justified in pushing an old man aside? Sad, very sad. And yes, IMHO, criminal.
Kneeling on a mans neck for 7 minutes? At least 3 of the minutes with the man unconscious? Murder.
Tasing two people in a car, breaking the car window, dragging them out of the car because? they were late getting their pizza? Unconscionable.
Killing untold numbers of people in their own house because? The police had the wrong house? Also murder.
Our police and military response to this will ensure it does not end well. Does not end well for existing society. 50 years ago the Kern commission gave ideas on how to fix things with how black people are treated. We ignored it.
What will we do? Ignore mistreatment again or make changes. The choice is ours.
Paul:
Yeah the looting, fires and cop killing barely deserves a mention. You are warped.
I’m warped because I didn’t mention something? You didn’t mention the rape of women. You didn’t mention bank fraud.
Are you warped as well?
Why am I not surprised that you think what the Buffalo police did was ok? I’m sure the police who initially lied about what happened will have all sorts of other lies to support these actions. The officers didn’t just shove the old man they all walked by and over him after he fell as his blood poured out on to the sidewalk! People need to wake up. People of every race, creed and ethnicity are at risk. It was clear that all of the officers saw the protestors as the enemy as they marched as if in a foreign country against their own people. I had hoped that in our country police would refuse to attack AMERICANS Peacefully protesting but I was wrong.
Justice Holmes – those units are designed not to break up, hence leaving the injured activist. No one has said he was an innocent civilian.
When I first saw the video I thought Gugino had a gun…as he approached the cops
In the video, it can be seen that he has a police helmet and is trying to return it. The man was not braking any law, nor doing anything threatening to the police. They can even be heard on the tape saying “push him”. The police could have just walked around him. There was no justification for this. The cops were rightly charged.
MollyG – 57 of the fellow officers did not think the cops were rightly charged. They quit the unit. The charge requires intent to injure. There is no intent.
When you push an old man backwards onto a cement ground, what other intent was there? This is an issue for the jury to decide.
MollyG – if you have an agent provocateur, who fakes a tumble then you don’t have intent.
“He was just returning a police helmet?” Why do bad things happen to nice people
Sharpshorts – there is a time and place for everything, to paraphrase Nancy Pelosi’s brand new KJV Bible. This was neither the time nor the place to try to return that helmet.
PaulC……..Soon we will have a whole set of variously-themed Nancy Dolls……like Barbie!!
We have Revenge Nancy, Impeachment Nancy, and now Preacher Nancy w/Bible.
Oooooo ….what about Naughty Nancy! Wearing bikini-cut Depends?
Cindy Bragg – now I know where that strange arm gesture of Nancy’s comes from. Nancy is from SF when it was the porn capital of the US of A. Naughty Nancy is a Dominatrix. That is why that right arm goes up all the time, it is her whip arm. 😉
LOL
Fun comment of the day!
I was trying to be sarcastic…
By now I should know that people don’t “get” my comments
and although they watch the same videos, they see different things.
I think The guy “returning the helmet” was actually using his phone for “scanning”
the officers’ police radios. to grab the frequency that the police were using…
First the perp scanned the mic on the badge of the left officer
then scanned the transmitter on the belt of the 2nd officer.
Who ya gonna believe, the comment section or your lying’ eyes?
Using a cell phone to scan police frequencies is not a thing.that cell phones can do.
Mr. Turley apparently didn’t read the full text of Section 120.05 (http://ypdcrime.com/penal.law/article120.htm#p120.05). He quoted part 1, but the most relevant part seems to be part 12:
“12. With intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person”
One can certainly question whether intent to injure existed, but there’s no question that Gugino is over 65 and the officers who pushed him are more than 10 years younger.
My guess is that there is a separate paragraph addressing injury to the elderly (just as there are separate paragraphs addressing injury to minors, to first responders, etc.) because the legislature recognized that the elderly are more vulnerable. The officers who pushed Mr. Gugino should have taken his age and risk of falling into account.
Committ – at what age do Drs start asking patients about falling? What is your knowledge of risk of falling? I speak from experience. How about you. 😉
The “crime” here is just walking on after seeing that he was badly injured
My grandsons and I were watching this on tv….We all saw how the man was clearly interfering with the police. Also, the police did not push very hard……they were just moving him out of the way…..One of the officers immediately called for help when the man fell.
Even my grandsons said the man should not have been walking backwards because ” he is old!”
A nine yr old and 11 yr old concluded….”He should not have been interfering with police”.
The man was “walking backwards” because the cops pushed him. Nice to see you are training up a new generation of authoritarians.
Molly…you idiot….watch the tape.
It is your misfortune that you are not/ were not raised by me!
Cindy Bragg – still waiting for those pictures. 😉
Paul C…..the dangest thing happened. Our yellow lab, Beethoven, burst into our dark room just as the photos were being developed and quelle domage, they were ruined!
Sorry…..” quel dommage”
(My French spell checker, Toots Sweet, is baking chocolate croissants and unavaiable at the moment)
Cindy Bragg – two things: 1) I want color not black-and-white 2) I am sure the negatives are fine. 😉
Paul C….you are a helluva negotiator!😊
MollyG– The only authoritarians I know of in this dispute are leftists who cannot tolerate anyone with a different point of view. Lara Trump was just canceled from a commencement speech. How many conservatives have been canceled so far by institutions under the control of leftists? The snowflakes at these schools cannot bear hearing something they’ve been trained not to believe. Have you heard of any conservative schools canceling any liberal speakers? Antifa attacks people who disagree with them because they are genuine fascists. CNN, MSNBC, NYT, Twitter, Facebook and others have shown that they do not tolerate different points of view. NYT routinely publishes lies about conservatives and then when one’s op ed slips through actually apologizes to its staff and readers. Hillary Clinton first made fun of the deplorables and now she is saying that anyone with a beating heart and functioning mind cannot possibly support Trump. This coming from one of the most corrupt people ever to be in American politics and yet she is not censored for talking about 50% of the Americans that way; only conservatives get censored. If we keep this up we will soon be joining Mao and having our own cultural revolution.
MollyG– And the beat goes on: “The Philadelphia Inquirer’s top editor is resigning after a staff uproar over a “Buildings Matter, Too” headline that ran on an article lamenting damage to businesses amid turbulent protests over the death of George Floyd in police custody, according to reports.” How dare he express an opinion that is not in line with the official talking points.
Honestlawyer, I’ll agree with you on this one. Ridiculous.
Honestlawyer, not surprisingly you left Fox out of your list and seemed confused about cable TV opinion shows and actual news sources like the NYTs, WSJ, WaPo, etc/.
Lara Trump commencement? Really? I’m sure she could get a the Trump U gig next year.
You apparently are not aware that the DOJ cleared Hillary of malfeasance in a long running investigation that finally ended last year. Unlike “Individual 1” – I mean Trump – Hillary is not the subject of possible future indictments when he exits office next year.
https://www.newsweek.com/hillary-clinton-cleared-wrongdoing-private-email-probe-1466426
In any case, a Trump supporter – you are.one, correct? – complaining about corruption is like…………. a Trump supporter complaining about lying.
How do you support Trump?
“the man should not have been walking backwards”
FFS, he was pushed backwards, and had he not walked backwards in an attempt to keep his balance, he would have fallen immediately.
Mr. Gugino did nothing illegal. If your grandsons believe that talking to police is “interference,” maybe you should teach them that in America, people have a right to talk to police.
There was no need for the police to push him. Why did they do it anyway, given his age?
A third officer even pushes the first officer away when the first officer starts to kneel down to see if Mr. Gugino is OK.
WTF is wrong with people? Are you so filled with hate for liberals that you’ll excuse unwarranted injury to the elderly as long as the person is liberal?
Commit……..Police in riot gear advancing down a sidewalk? Even a child knows, ss I have proven, that you get out of their way….It’s NOT the time to chat and “air grievances”!.
I am very proud that our boys fully understand common sense and the respecting of authority!
Of course that comes naturally if you’re a Texan. 🤠
Mr. Gugino wasn’t rioting.
Have you taught your grandsons the full text of the First Amendment?
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Peaceful protest is protected by our Constitution and was long ago incorporated to protect people against state government actions as well.
Commit….I sleep with a constitutional scholar. I’m good..
The quote from the latest copy of Junior Scholastic is impressive, I’m sure, wihen you’re discussing it with the other 4th graders.
Our commercial laws prevent companies from overcharging consumers but there’s nothing to keep prosecutors from overcharging cops.
Cops rarely get charged at all. It is the rest of us who commonly get overcharged. Do you think cops should get special treatment that the rest of us don’t?
Very little repercussions for anyone in law enforcement for doing a poor job police, prosecutors or judges.
Overcharging can result in acquittal where a lesser charge would convict, egg on your face us unpleasant.
The old coot is a communist activist and an Oscar nominee for taking that fall. Give him $500.00 and send him on his way after exonerating they cops.
mespo – also head wounds bleed more. Cuomo is cutting his own throat more and more every day.
mespo727272 — Quit just Making Stuff Up.
♏
DBB:
Whatever the merits of your comment (if any) I’m delighted to see you’ve joined the 21st century and are replying where appropriate. And you’re right, Comrade El Viejo is not eligible for the Oscar – either because he’s not Screen Actors Guild member or he’s not a proven child sexual abuser on the lamb.
mespo727272 — I always use the reply button right after the comment I wish to respond to. Where the comment goes is up to the flakey program which sorta supports this site. It has slowly become more reliable but still falters. That you assume that it ‘works’ merely illustrates your childish naivete regarding matters computational. I’ve been at it since the 1950s.
mespo………..As it’s my field of expertise 😎, I say that Actors’ Equity should preclude our Oscar contender from engaging in any kind of improvisational street theater.
mespo727272 — You are still Making Stuff Up. ➿
Mepo: It’s on the lam, not lamb. I don’t know why anyone would be on a lamb; aren’t there laws against that? 🐑🐑🐑🐑
He’s still in the hospital. For you to talk about what happened as if it were an act is heartless. You think his blood was an act? What’s wrong with you?
Father James Martin tweeted: “#MartinGugino, the 75 year old man knocked to the ground by police in Buffalo, is a longtime peace activist and volunteer at the Catholic Worker, a movement dedicated to justice and peace, founded by Servant of God Dorothy Day, who also took to the streets to advocate for justice.”
The Western New York Peace Center described him as “a longtime peace activist who does a lot of important work with the Plowshares, Catholic Workers, and many other local community organizations.”
Do you consider all people who work for peace to be “communist activists”? If so, that’s pretty telling.
Committ – it is going to be hard to prove intent, which is an element and this guy shouldn’t have been blocking the police.
Spoken like a true fascist.
The above was intended for our supposed freedom loving “don’t tread on me” patriot mespo whop favors busting Commie heads by the police.
Excessive Force. Is what? An amount of force too strong or not necessary. They knock an old guy down and he injured his head when it hit the ground. This was predictable. The punishment they get should be similar. Wack em on the head with a baseball bat.
The old guy was pushing his luck getting in the face of the police and it ran out. Yes, he should have been pushed out of the way. He made the first move. I have no patience for someone instigating violence and, in this case, the civilian started it. Maybe he thought he could get away with it. My first instinct would have been to push him back myself. However, you could hear it when his head hit the sidewalk, I wish the cop who tried to help him had been able to do so, is all. I find that to be more the crime than the shoving.
If you slow down and click thru the moments before they shove him, you can see he reaches out and seems to drag his phone down the cop on his right’s forearm. Twice. All 3 cops react in unison, with the 2 outside ones pushing him at the same time.
Something he did provoked that simultaneous reaction
As someone who is in the “victim’s” age group, he probably fell over his feet as stated by the police. One of the things I am asked on my annual physical is How many times have you fallen in the last year?
At our age, we are not as stable on our feet. If we were 20 years younger, that shove would mean nothing. Mr. Gugino brought this on himself.
Paul:
Have to disagree (though this is an emotional dialogue, not based on law).
Cops are required to respond with “appropriate” force. A 75 year old man cannot take the physical force of a 25 year old man, and it doesn’t need a brain surgeon to know that.
The officers evidenced irritation at being challenged and overreacted given their opponent’s readily apparent age and physical condition.
This was a visibly old man, who appears frail in build. Two armed and armored cops had little to fear. Their actions stemmed from anger, not fear,
monumentcolorado – I would take the “assume the risk” position for the police. You have a group of heavily armed police marching down the block and you (with a face mask so they really cannot get a real age) try to stop them. Is that stupid or what? A shove is reasonable force. They aren’t supposed to kiss his ring.
Police can use reasonable force to make an arrest or on people otherwise breaking the law, not whenever they want.
MollyG – if you follow the whole video, they arrest a guy with a plank right past the old guy.
Using the “Comey” standard, there was No Intent!
This is a complete scam. There are still shots of the footage that show no blood on the back of this agitators head after the “fall” and appear to come from a tube that is connected to his mouth (under his mask).
https://pbs.twimg.com/media/EZ3WD3NUYAAQi0M?format=jpg
Further more CTH reports the following ..
Martin Gugino is a 75-year-old professional agitator and Antifa provocateur who brags on his blog about the number of times he can get arrested and escape prosecution. Gugino’s Twitter Account is also filled with anti-cop sentiment [SEE HERE]. Last Thursday Gugino traveled from his home in Amherst, New York, to Buffalo to agitate a protest crowd.
During his effort Gugino was attempting to capture the radio communications signature of Buffalo police officers. CTH noted what he was attempting on Thursday night as soon as the now viral video was being used by media to sell a police brutality narrative. [Thread Here] Today, a more clear video has emerged that shows exactly what he was attempting.
In this slow motion video, you will see Gugino using a phone as a capture scanner. You might have heard the term “skimming”; it’s essentially the same. Watch him use his right hand to first scan the mic of officer one (top left of chest). Then Gugino moves his hand to the communications belt of the second officer. WATCH CLOSELY:
Sure Anonymous and no doubt the EMTs and hospital were in on it or can’t tell the difference between V-8 Juice and blood.