Are The Criminal Charges Against The Buffalo Police Officers Excessive?

Buffalo-Cops-APBuffalo 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. They were careless people, Tom and Daisy.

    You begin to think everything about liberal discourse and action is a marriage of the feckless and the malevolent.

  2. “A hit, fall, or accident can cause a head injury that can lead to bleeding from the ear. This could be a sign of bleeding around the brain, so you should seek emergency medical attention.”

    A cracked skull, apparently.

  3. Watch how he waves his phone first at the microphone of the one officer, and then at the receiver on the belt of the other officer. He’s knows exactly what he’s doing.

    1. You are a bit nutty. At random I looked at one of those so called police brutality videos. Yes the police were hitting him but the perp was still fighting. The more you say the more of an idiot you sound like.

  4. We await Cuomo’s calls for firing the 2 NY lawyers who firebombed and encouraged others to firebomb police cars. Unbelievable that Pryor Cashman hasn’t fired Mattis. And maybe the woman who paid their $250,000 bail should be fired from Ropes & Gray.

  5. Unemployment rate was about 4.5% the day Trump took office after dropping from about 10% in 2009 under Obama in the teeth of the great recession…

    If the unemployment rate stays around 13% until the end of the year, and there’s no real reason to think it wouldn’t, that puts Trump way on the wrong side of the trend.

    Now will Dems be able to drive this message home the way Repubs would? That we shall see.

  6. Let me say first I have the highest reguard for law enforcement. We owe them a debit we’ll never be able to pay. That being said I also feel that they have to be held to a higher standard of conduct. These officers have to be responible for their actions. They pushed this man to the ground injurying him and left him laying in the street bleeding. This is not the conduct of a responible officer who swore to protect and serve.It’s not so much the fact that these officers pushed this man down. What it really is, is that they left him lay bleeding in the street without trying to help. When one officer tried to go to him, he was pulled away by another officer. They all just walked over him and left him there. I don’t understand how anyone could think this was ok.

    1. One officer was on his radio for ambulance immediately – watch him grab his mic, after stopping the other officer from bending over to (help?) … I question that he might have wanted to cuff him not certain, but it looked like he was going to try to help, and that he was already aware of the blood from the guys ear.

      I think the shoves were excessive. They could have used 2 to stand with him while the others went around, to the side or whatever.
      On the other hand if they always do such a thing it will be taken advantage of once the trouble makers see how they react.
      So it’s a fluid situation and tough the way we have protesters doing their best to disrupt and chant and yell things at the police they shouldn’t be. Now the same threaten the paychecks and jobs of the police. Expecting better treatment after what I’ve seen with this nationwide democratic party supported criminal misconduct is highly unlikely.

      I heard shouting to move back way too late for the elderly protester to move. There was a reporter and at least one other in their path in the video.
      I agree from what I see in the short video above he could have been frequency scanning the officers com devices.

  7. I saw this NYTimes headline: U.S. unemployment fell to 13.3% in May and the economy added 2.5 million jobs, a surprising upswing after pandemic-related declines.

    The left fears for the election with such good economic results. Now perhaps you guys are out on a rampage to see if the subject can’t be changed by killing and destroying neighborhoods. Not one iota of concern for the people whose lives are being destroyed and it seems to be mostly affecting black lives.

      1. Hellvis, stick to sports statistics and try to stay up to date. You are a year behind. I imagine being behind happened to you in grade school as well so perhaps you started to shave in 3rd or 4th grade.

        The expected news was far worse. That means we are ahead of what was projected. That is similar to the projections that the Patriots would lose by 6 in the Superbowl with the Patriots win scoring 35 to the Rams 6.

  8. …Justice. No peace.

    The inmates have taken over the asylum.

    Bush, Romney, Powell, Mattis, Allen, Esper and the entire Military/Industrial/Deep Deep State Complex line up against President Trump as he drains the Swamp.

    Well, duuuuh!

    We knew that!

  9. >It is standard for police to shove back individuals as a line moves forward.
    He wasn’t shoved, he was thrown. That makes it exessive force.

    1. Not to worry. The communists are doing away with law enforcement.

      Be happy. Don’t worry.

      Obama just ordered them to the suburbs.

      You’ll be fine. You’ll be just fine.

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