Assault charges dropped against Buffalo police officers seen pushing protester

The grand jury voted to dismiss the charges.

Assault charges against two Buffalo, New York, police officers seen in a video shoving a 75-year-old man to the ground during a protest last year have been dropped, prosecutors announced Thursday.

Officers Aaron Torgalski and Robert McCabe faced felony assault charges over the June 4 incident at Niagara Square. In the video, protester Martin Gugino is seen walking in the direction of the officers before they are seen pushing him. Gugino fell flat onto his back and hit the back of his head on the concrete, video shows.

The grand jury voted to "no bill" the case, ultimately dismissing the charges, Erie County District Attorney John Flynn said during a press briefing Thursday.

Flynn defended his decision to bring charges against the officers.

"To this day, I'll stand by the fact that charges should have been charged, and there was probable cause at that time to charge that offense, and I stand by that," Flynn said. "I make no apologies for it."

The grand jury proceedings are sealed and Flynn was unable to elaborate on what happened, but he said prosecutors "put all relevant evidence" before the grand jury, including multiple witnesses.

"I sandbagged nothing," he said. "You have my word on that."

Both officers, who were suspended after the incident, entered not guilty pleas during their arraignment in June. The case was delayed getting to the grand jury due to COVID-19 restrictions that had closed the courts, Flynn said.

Joseph Latona, the attorney for Torgalski, told ABC News they were "obviously very pleased" by the grand jury's decision.

"We feel they made the right decision," he said. "And obviously it was their decision to make."

Thomas Burton, the attorney for McCabe, told ABC News they are focused on getting the officers "back in the saddle where they belong."

"Nobody wanted to see Mr. Gugino get hurt, but this did not happen because these two cops sought out to hurt anyone," Burton said. "The bottom line is, there's nothing malevolent here."

Gugino told Buffalo ABC affiliate WKBW Thursday night that he was shocked the charges against the officers were dropped. "It's a surprise and I think the whole world is going to be surprised," he said.

"You think I am breaking the law, arrest me," Gugino added, referring to the officers' use of force toward him. "Don't push me down. Where is that in the training manual?"

In a statement to ABC News Friday, Gugino and his lawyer, Kelly Zarcone, said that, like Flynn, they thought the incident "deserved serious scrutiny."

"Our position remains that the government's use of unnecessary physical force against peaceful protesters is patently wrong and un-American," they said.

Gugino told "Good Morning America" Friday he spent two months recovering, including one month in the hospital, after fracturing his skull.

"What happened to me is just a small, tiny, minuscule piece of ... what happens in the Black communities all the time," he told "GMA." "We got to do better. We have to do better than this."

Both officers remain suspended pending the outcome of an internal affairs investigation. It is unclear at this point when that will be completed, Buffalo Police Department Capt. Jeff Rinaldo told ABC News Thursday.

The Buffalo police union issued a statement in support of the officers following the grand jury's decision.

"As we have stated all along, Officers McCabe and Torgalski were simply following departmental procedures and the directives of their superiors to clear Niagara Square despite working under extremely challenging circumstances."

Gugino was among fewer than 20 demonstrators protesting against the death of George Floyd in Minnesota while in police custody. The protest occurred after a Buffalo curfew, Flynn noted.

"There was a curfew, and he broke the law," Flynn said. "He should not have been shoved. He should have been arrested peacefully."

ABC News' Alyssa Acquavella and Anthony Kane contributed to this report.

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