75-year-old protester shoved to the ground by Buffalo police sues city, mayor and officers

A 75-year-old protester who was hospitalized for almost a month after police officers in Buffalo, New York shoved him to the ground last year has filed a civil lawsuit against the officers, city and mayor.

Martin Gugino is suing Buffalo mayor Byron Brown, police officers Robert McCabe, Aaron Torgalski, John Losi, police commissioner Byron C. Lockwood and deputy police commissioner Joseph Gramaglia, according to court documents filed Monday in the Western District of New York.

A viral video showed officers McCabe and Torgalski pushing Gugino at the end of a protest in Niagara Square on June 4, within minutes of a city-wide curfew. The footage shows Gugino stumbling backwards and hitting his head on the ground. He suffered a concussion and fractured skull, and spent nearly four weeks at the Erie County Medical Center. 

According to the lawsuit, the defendants violated Gugino’s constitutional 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, as well as to due process of law.  

The lawsuit requests a jury trial and seeks punitive damages to be awarded against the defendants. 

“The actions of Defendants were recklessly indifferent to Plaintiff’s civil rights, and callously disregarded his age, safety and health, particularly in light of known risks to the health and safety of an elderly Plaintiff who was shoved to the ground,” the lawsuit states.

The lawsuit argues the curfew was unconstitutional and Gugino had a “legitimate reason for being at Niagara Square.” The suit said Gugino was there to “peacefully exercise his constitutionally guaranteed First Amendment right to assemble and speak in public places. Therefore, Plaintiff, Martin Gugino, was exempt from the curfew order at the time he was assaulted by Buffalo Police Officers.”

One of his attorneys, Melissa Wischerath, said in a statement Monday that “you do not have freedom of speech unless you have freedom of protest.” 

“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,” she said. 

The suit comes as a grand jury declined to indict McCabe and Torgalski on felony assault charges earlier this month. McCabe and Torgalski were suspended without pay and arrested within days of the push. They pleaded not guilty and were released without bail pending further developments. 

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