Buffalo’s Police Brutality Didn’t Start With Martin Gugino

By Geoff Kelly
Reposted from The Nation
June 16, 2020

Buffalo protest
Protesters march through Buffalo, N.Y., in response to George Floyd’s death. (Hsa htaw / Shutterstock)

On June 4, two cops shoved this segregated and poor city into the center of the month-long national uprising precipitated by the killing of George Floyd.

The spotlight—the harsh glare that erases nuance—has moved on to new outrages in bigger cities. The local aftermath has fallen into familiar and frustrating tropes: police circling the wagons, a package of ill-defined reform proposals, and attempts at scapegoating that serve politics rather than progress.

The particulars of the incident have been well covered.

Shortly after 8 that night, the Buffalo Police Department’s Emergency Response Team was ordered to clear the square in front of City Hall. In response to unruly protests the weekend before—some isolated vandalism on the city’s relatively affluent and predominantly white West Side, a violent and chaotic police charge on the city’s predominantly black East Side—Mayor Byron Brown had imposed a weeklong curfew.

As they had each night that week, a handful of protesters, all of them peaceful, took their time complying.

Among them was Martin Gugino, 75, a Catholic Worker active with the Western New York Peace Center. Gugino, a motorcycle helmet in one hand and a cellphone in the other, stood before the ERT’s advancing line, engaging a couple of cops—maybe taunting them, maybe asking questions, definitely too close for comfort.

One of the cops, Aaron Torgalski, cross-checked Gugino with his club. Another, Robert McCabe, shoved Gugino with one hand. Gugino fell backward, struck his head on the pavement, and began bleeding from one ear. He lay stiff and still, except for his fingers, which curled and uncurled eerily. His skull was fractured.

Torgalski, McCabe, and other ERT members marched past Gugino’s prone body. One broke ranks momentarily, intending to see to Gugino. He was stopped by another officer, John Losi, who pulled the errant cop back into line. Just the day before Losi had made local news by taking a knee in Niagara Square with protesters—the first Buffalo cop to take part in that symbolic ritual. He’d presented the act as a transaction: I’ll kneel with you if you want me to, Losi told demonstrators, if in exchange you’ll clear out at curfew.

No such bargain was on offer the following evening.

New York State Police medics, following ERT’s advance, put Gugino into an ambulance, which took him to a trauma center. Two weeks later, he remains hospitalized.

The police department’s communications director—who is also the mayor’s communications director—quickly issued an explanation of the incident: Gugino “tripped and fell.”

That lie was exposed before it had even been told.

The whole scene—the shove, the fall, the seemingly callous march forward, the would-be good Samaritan whose generous instinct was thwarted—was captured on video by a reporter for WBFO, the local NPR affiliate. The video circulated widely on social media and local news sites.

The mayor’s communications director reversed and apologized for the initial lie, explaining that police officials had not seen the video, which was quickly going viral. The mayor repeated that explanation first to local media and then in a succession of appearances on national television: with CNN’s Chris Cuomo, MSNBC’s Rachel Maddow, and CBS’s Jeff Glor, a Buffalo native.

The mayor also used those media opportunities to identify the root problem with policing in Buffalo: He blamed the police union.

“The police union is on the wrong side of history,” Brown told Maddow. “This union has been on the wrong side of history for a very long period of time. And they have been a real barrier to the reform of policing in the City of Buffalo.”

Certainly, Buffalo’s police union stubbornly defends officers accused of unwarranted violence. And the union and its attorneys take full advantage of a contract—and New York State civil service laws—that make it difficult to discipline or fire police.

But according to activists circulating a petition demanding his immediate resignation, Brown has never demonstrated an inclination to change the way police operate.

In fact, those activists say, the opposite is true. Under three police commissioners named by Brown in his 14 years as mayor, the department has instituted policies embodying the specific brand of racism that fuels protests across the country.

Some examples:

§ Setting up police checkpoints in poor, mostly black and Latino neighborhoods, which were discontinued after their constitutionality was challenged in a lawsuit.

§ Raising revenue for Brown’s cash-strapped administration by targeting motorists in those same neighborhoods for minor infractions—busted headlights, expired registrations or insurance cards, rolling stops.

§ Creating special units with a reputation for brutality and disregard for the Fourth Amendment.

More to the point, in the past three years alone, Buffalo police have killed four young men of color under questionable circumstances—Wardel “Meech” Davis, Jose Hernandez-Rossy, Rafael “Pito” Rivera, and Marcus Neal—with no consequences to the officers involved. Earlier this year, the city paid $4.5 million to settle a lawsuit by Wilson Morales, who was paralyzed from the waist down after being shot by Buffalo police officers in 2012. The 17-year-old was out picking up pizza. The officers who shot him have since been promoted; one made captain last year.

Indeed, the creation of Buffalo’s Emergency Response Team—the unit whose members fractured Gugino’s skull— belies any frustrated reformist agenda. The ERT unit was formed in response to the 2014 local protests over the police killing of Michael Brown in Ferguson, Mo.

In some cities, Ferguson precipitated a hard look at racist and militaristic policing practices.

Here in Buffalo, the Brown administration invested in a new crowd control unit.

The ERT is a kind of junior varsity to the department’s SWAT team, according to John Evans, president of the city’s police union. Its 57 members are trained for three days at a FEMA camp in how to hold their clubs, march in a phalanx, and make mass arrests.

It’s an on-call unit, not a permanent one: Most of its members are young patrol officers looking for a little bump in their paychecks by pulling extra duty. The ERT is seldom deployed. After the first weekend of protests in Buffalo, Evans said his officers were ill prepared to deal with demonstrators.

Within hours of the incident, Torgalski and McCabe were suspended without pay. The next day, Erie County District Attorney John Flynn announced that he would charge the officers with assault.

More than 200 officers from law enforcement agencies across the region showed up at the arraignment of Torgalski and McCabe. Fire engines with lights flashing blocked traffic, allowing their supporters to spill into the street. Some came with umbrellas that they opened in front of TV camera crews to prevent them from capturing Torgalski and McCabe exiting the city court building.

Evans said in an e-mail to union membership the officers were “simply executing orders” and the suspensions and charges were an attempt to “fuck over these guys.” Evans also warned his members that the union was not in a financial position to pay legal fees for officers charged in civil suits as a result of such incidents.

In response, all 57 members of the ERT resigned from the unit, though not from the police force. Brown blamed the union for the resignations, saying Evans had effectively blackmailed ERT members to refuse to work the protests.

Here, too, the truth is more complicated.

In the past, the City of Buffalo has assumed legal costs for police officers facing civil suits. Last November, however, the state’s Court of Appeals ruled the city was not obligated to pay for the civil defense of an officer caught on video in 2014 striking a man repeatedly with a baton outside a bar.

Because the officer, Corey Krug, violated the department’s use-of-force policies, the court ruled, he was not working within the scope of his duty. Therefore, the city could opt out of providing his defense, though the city would remain on the hook to pay if the plaintiff won a judgment.

But complexity has no place in a campaign fought by press release, which is what the Brown administration seems to have in mind as it seeks a way around this crisis. When Brown released some tepid reform proposals last week—at a press event that included NFL players and a pair of singing cops—among them was a pledge that the department would no longer deploy the ERT to quell protests.

Of course, it wouldn’t: The ERT had disbanded itself five days earlier.

And that, it turned out, is a cause for celebration. In the days since, the city’s demonstrations—whether large or small, contained to downtown or sprawling into marches through the city’s neighborhoods—have been peaceful. There has been no violence, no vandalism. And zero arrests.