Arbitrator who cleared Buffalo police of pushing a 75-year-old at protest called it 'absolutely legitimate'

• An arbitrator cleared two Buffalo cops of wrongdoing for pushing a protestor in 2020.
• Two officers at a demonstration were caught on camera pushing a 75-year-old man to the ground.

An arbitrator who cleared two Buffalo police officers to return to duty called it "absolutely legitimate" that they pushed a 75-year-old protestor at a June 2020 demonstration, according to the decision.

Officers Aaron Torgalski and Robert McCabe were caught on video at an anti-police brutality rally pushing Martin Gugino, who was standing in front of them.

Police initially said Gugino "tripped and fell."

The video, taken by local reporter Michael Desmond, also showed the officers' colleagues walking past Gugino, who doesn't get up, as blood pours from his ears and onto the sidewalk. Gugino was hospitalized after the incident and suffered a fractured skull, his lawyer said at the time.

"There is no persuasive evidence, particularly when the Desmond video is reviewed in its various frames, that the Respondents sought to push or drive Gugino to the ground," Arbitrator Jeffrey Selchick said, according to the decision put online by a Buffalo News editor.

The ruling clears the officers of departmental charges of improper use of force and acting in a way that discredited the department.

Selchick said that the officers were only trying to get Gugino was out of their "personal space" and that he "definitely not an innocent bystander."

He likely fell to the ground because he had objects in both hands, is advanced in age, or was surprised that the police used force, Selchick said.

That force, though, was "minimal," he said.

The two officers were immediately suspended without pay after the incident, and 57 officers resigned in support of him.

The pair then returned to the payroll 30 days later.

They had been arraigned on assault charges, but a Grand Jury declined to indict them and the charges were dropped.

A lawyer representing Guginotold Buffalo News that she wasn't surprised by the ruling.

"We are not aware of any case where this arbitrator has ruled against on-duty police officers, so his ruling here on behalf of the police was not only expected by us, but was certainly expected by the union and city who selected and paid him," Attorney Melissa D. Wischerath said, noting that the decision won't impact a lawsuit filed against the department.

It is common for officers who are suspended or fired to have their discipline overturned during the arbitration process, Insider previously reported.

The discipline is usually thrown out because there isn't evidence that what the officer did was in violation of the department's policy; discipline must be "progressive," meaning harsh punishments must follow other warnings; or the department didn't punish other officers for the same behavior.