FOR IMMEDIATE RELEASE
On behalf of Martin Gugino, the seventy-five-year old peaceful protester who suffered a fractured skull after he was shoved to the ground by members of the Buffalo Police Department (BPD), lawyers from Lipsitz Green Scime Cambria LLP today filed a lawsuit against the city of Buffalo. The lawsuit asserts that the city of Buffalo and others violated the constitutional rights of Gugino, including his rights to freedom of speech, peaceful assembly, protest, movement, unreasonable seizures, freedom from the unlawful use of force by government agents, and due process of law.
The lawsuit, filed in the United States United States District Court for the Western District of New York, claims that the city enacted an “unconstitutional and draconian” week-long curfew, one “selectively enforced against peaceful protesters” like Gugino. Moreover, the defendants used “unlawful and unnecessary force” against the seventy-five-year-old Gugino in an effort to “suppress the exercise of his constitutional rights”.
On the evening of June 4th, the BPD deployed a 57-member militarized force called the “emergency response team” (ERT) to disperse three peaceful protesters, one of which was Gugino, sitting on the steps of City Hall. Minutes after the 8 pm curfew, a curfew Gugino’s attorneys claim is clearly “unconstitutional”, three members of the BPD forcibly pushed Gugino to the ground “without warning in violation of his clearly established constitutional rights guaranteed under the First, Fourth and Fourteenth Amendment to the United States Constitution.” Gugino then stumbled and fell backward, audibly cracking his skull on the pavement. Members of the ERT walked by Gugino as he lay unconscious on the ground, blood pouring from his head. Shortly afterward, the BPD released a statement that Gugino “tripped & fell.” Video of the incident quickly circulated around the world, however, that clearly contradicted the City and BPD statement.
Gugino was transported to Erie County Medical Center having suffered a concussion and fractured skull. He was initially treated in the intensive care unit and, after nearly four weeks, was released from the hospital.
Richard Weisbeck, one of the attorneys on the case, points out that, “Gugino became the victim of police brutality at the very moment he was peaceably and constitutionally protesting against police brutality.” According to Weisbeck, the lawsuit demonstrates that Gugino committed no crime and had a right to be protesting at that place and time. “Any statements to the contrary only serve to perpetuate and justify state violence against citizens,” he added.
Niagara square, where the incident took place, was intentionally designed as a public space for area residents to peacefully exercise their First Amendment rights to assemble, speak, and seek redress of grievances in public places. Since at least as far back as 1763, it has been a gathering place for Presidential visits, civil rights protests, vigils, protests against the federal and state governments, and more. Considering this history, the lawsuit states, Niagara square is a publicly owned place, one in which the Supreme Court, in Shuttlesworth v. City of Birmingham, asserted the right of free expression. If a person is faced with a law that restricts free expression in these places they may ignore it, according to the Supreme Court, as long as they are “peaceably” assembling to picket, protest, or distribute handbills.
“Let us not forget Sen. Ben Sasse (R-Neb.) recent words” said Melissa Wischerath, co-counsel for Gugino, “that the five freedoms enshrined in the first amendment – speech, religion, press, assembly, and protest – are clustered together because they are interconnecting. You do not have freedom of speech unless you have freedom of protest. By assaulting Martin Gugino as he peacefully protested in Niagara Square, the City and BPD attacked Martin Gugino’s most fundamental rights as an American. If any one person’s rights are suppressed by the state, it harms all of us by eroding the foundation of our constitution.”
Gugino was assaulted within minutes of the 8 pm curfew, one imposed by the city two days earlier when Mayor Brown instituted a city-wide one-week curfew of all “nonessential pedestrian and vehicular traffic” from June 2 until June 8, during the hours of 8 p.m. until 5 a.m. This curfew is in clear violation of the designated public forum doctrine. Content-based restrictions on speech in public forums are strictly scrutinized, and none is permitted by the First Amendment except as necessary to serve a compelling state interest and only when narrowly drawn to achieve that end and where it is the least restrictive means to achieve that compelling state interest. In Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-151 (1969), the Supreme Court held that subjecting the right of free expression in publicly owned places to the prior restraint of a license, without narrow, objective, and definite standards, is unconstitutional, and a person faced with such a law may ignore it and exercise his First Amendment rights. As long as people “peaceably” assemble to picket, protest, or distribute handbills, the state may not penalize the assembly.
Weisbeck added, “If the roles were reversed, and Gugino pushed a BPD officer who then fractured his skull, he would have been immediately indicted, and for good reason.”
Moreover, when instituting the curfew Mayor Brown declared that, “the BPD has been instructed not to unnecessarily detain any person out for a legitimate purpose.” Yet, according to the lawsuit, despite this instruction from Mayor Brown, the BPD demanded that citizens disperse during curfew hours upon threat of arrest and use of force even though they had a “legitimate purpose” to peacefully assemble and demonstrate against police brutality and police misconduct.