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Authored by Jonathan Turley,

Buffalo 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.

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).

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.