Gil Kerlikowske has watched the video, and he is calling it “assault.”
Kerlikowske, who was Buffalo’s police commissioner from 1994 to 1998 and later held top law-enforcement jobs in Seattle and for the federal government, has reviewed the June 4 video of two city police officers shoving a 75-year-old protester, who fell backwards and hit his head on the pavement in front of City Hall.
“It’s pretty clear to me it was an assault,” said Kerlikowske, whom The Buffalo News contacted by phone at his summer home in Martha’s Vineyard. “Frankly, I was glad to see the prosecutor bring the charges.”
Kerlikowske was referring to felony second-degree assault charges brought by Erie County District Attorney John Flynn against officers Robert McCabe and Aaron Torgalski, both of whom have been suspended without pay by the Buffalo Police Department after pushing protester Martin Gugino to the pavement.
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“It didn’t look like there was much of an opportunity for this guy to turn around and walk back,” said Kerlikowske, who was police chief in Seattle from 2000-2009, and then joined the Obama Administration, first as drug czar, and then as commissioner of U.S. Customs and Border Protection, which is the federal government’s largest law-enforcement agency.
“You can say, ‘You need to leave. We’re moving forward. We’re moving the group out,’ ” Kerlikowske added. “You could turn him around. The other part is, ‘Look, if you're not going to disperse, if you're not going to leave, we're going to have to arrest you.’ That kind of thing. On the video, you just didn’t see any of that.”
The video, shot by WBFO radio reporter Mike Desmond, shows Gugino approaching a contingent of Buffalo police in tactical gear as they were clearing Niagara Square to enforce a citywide curfew. Gugino, holding a cellphone in his right hand and a helmet in his left hand, is seen talking to two officers who, like the rest of the Buffalo Police Department’s Emergency Response Team, were wearing helmets with face shields and carrying batons.
Cries of “Move!” and “Back!” are heard in the video, although it’s not immediately clear from whom, since more than two dozen police are seen in the frame. The officers, Torgalski and McCabe, pushed Gugino. McCabe held his baton horizontally with both hands to push Gugino backwards while Officer Aaron Torgalski simultaneously reached out with his right hand to shove Gugino, who stumbled about six steps backward and fell to the pavement, lying face-up on the ground. Blood is seen pouring from the area around his right ear. Amid the commotion, shouts of “He’s bleeding out of his ear!” and “Get a medic!” are audible. Gugino was hospitalized and is still recovering at Erie County Medical Center. His attorney said Friday he has a fractured skull.
The video, which has been viewed nearly 83 million times, drew the attention of celebrities around the world and even President Trump, who mused in a tweet – with no facts to back this up – that Gugino may be an antifa provocateur who was trying to black out police equipment.
Both officers are facing charges of felony second-degree assault. The Erie County District Attorney said if McCabe and Torgalski thought Gugino was committing a crime, they should have gripped, handcuffed and arrested him.
“They’re not trained to shove a 75-year-old man with a baton and knock him to the ground,” Flynn said.
Kerlikowske dealt with multiple significant demonstrations during his law-enforcement career, especially as police chief in Seattle. The situations he faced reinforce the sensitivity of what people in Buffalo and across the country are grappling with now: Police-public interactions during demonstrations are complex, and words, actions and choice of uniform and equipment can make a significant difference.
Kerlikowske came to Seattle in 2000, the year after 50,000 people converged on the city to protest during the World Trade Organization meetings. Those protests turned tense and destructive; police used tear gas and pepper spray and the chief ultimately retired. For the anniversary of those protests, Kerlikowske was in charge, and ordered his officers to wear normal police uniforms – “soft gear” – rather than armored riot gear. That worked well during the day, but as the scene grew more tense at night, “we had to harden up people,” Kerlikowske said.
One year later, crowds of people in Seattle rioted during Mardi Gras, and Kerlikowske had officers in hard gear. But he was criticized for ordering his officers to hold back as crowds grew violent.
During his phone interview with The News, Kerlikowske was asked what considerations police officials need to factor when deciding how to handle protests — a question that is especially relevant now for the Buffalo Police Department. The department’s 57-person Emergency Response Team resigned from the unit after the suspension of McCabe and Torgalski, and Mayor Byron Brown and Police Commissioner Byron Lockwood have announced plans for changes in the city's policing policies.
“You get the sense and the feel of the demonstration to begin with,” Kerlikowske said. “Are you expecting violence? Are you expecting assaults? Are you expecting rocks or bottles or other things to be thrown? And hard confrontations?”
With that information, he said, you prepare what police refer to as the “demonstration management team” and decide on equipment and dress: regular uniform, or what police often call “hats and bats” — helmets, batons, shields, and so on.
“I think that that's kind of the difference, how they're outfitted,” Kerlikowske said. “It makes a difference in how they prepare.”
While Kerlikowske reinforced that the footage was enough for him to look at the officers’ interaction with Gugino and call it assault, the video doesn’t answer every question someone needs to analyze the full situation. For example, he was troubled that the officers walked by without helping Gugino, unless there was a medical person steps behind. It’s also not known from the video alone what announcements were made to protesters before the police started clearing the square, and it’s not apparent to an outside viewer where the supervisors were located.
Kerlikowske also pointed out that experience with protests makes an essential difference.
“I read the stories about the peace activists and the number of protests,” Kerlikowske said. “(Gugino) is probably more accustomed to the protests than some of the officers that were assigned there.”
