The Buffalo News, N.Y.
A Buffalo police officer facing his first questions in a lawsuit over shoving a 75-year-old protester to the ground never lost his composure.
His lawyer was another matter.
If last week’s aborted deposition of Officer Robert McCabe is an indication of what’s to come, the federal lawsuit by Martin Gugino, the injured protester, against three police officers and also city officials will be especially testy.
The lawyer for McCabe later complained to a federal magistrate that Gugino’s lawyer asked nine questions that used the verb “kill.” The deposition ended abruptly after Gugino’s lawyer used the word “assault” in his question to describe the actions of another officer against another demonstrator during a protest against police violence held days before the one on June 4, 2020, when Gugino was hurt.
“This wasn’t one blatantly improper question,” Hugh M. Russ III, the lawyer for McCabe, told the magistrate at a hearing. “This was part of a series of questions designed to harass the witness.”
A federal magistrate ultimately decided the line of questioning was not improper. But the exchange provided a window into how contentious this high-profile case continues to be.
The current lawsuit involves the then-75-year-old Gugino getting pushed to the ground, hitting his head on the pavement and bleeding profusely from his ear during a protest in Niagara Square — an incident caught on video that drew millions of social media viewers and ignited criticism of the Buffalo police. Gugino’s legal team said in the lawsuit that the shove violated Gugino’s constitutional rights and U.S. Supreme Court safeguards that limit government’s ability to restrict freedom of speech and assembly.
McCabe and Officer Aaron Torgalski were cleared last year by an arbitrator, who ruled they did not violate Police Department regulations and did not intend to injure Gugino as they and other members of the department’s emergency response team sought to enforce an 8 p.m. curfew. And a grand jury in 2021 refused to indict them after both were charged with felony assault soon after the incident. But now because of the lawsuit, the officers face more questions — and not just about what happened that day in Niagara Square.
The ‘kill’ questions
Among the first questions from Gugino’s lawyer last week concerned McCabe’s tattoos.
What’s displayed on those tattoos, asked attorney Richard P. Weisbeck Jr., who represents Gugino.
“Religious and military related,” the officer replied.
Then came the questions of McCabe’s service in the U.S. Army, particularly his military training.
“So you had training on how to kill people and how to injure people, correct?” Weisbeck asked.
“Yes, and also not to injure people with non-lethal tactics,” McCabe, 35, replied.
What followed were more questions that Russ said were meant to incite McCabe to lose his temper, so that his reaction would be recorded on video.
“Do you agree there’s a big difference between being a soldier in the Army where you are trained to kill people in a war and being a public servant in a municipal police department in the United States where every citizen is guaranteed his or her constitutional rights?” Weisbeck asked McCabe.
“Yes,” McCabe replied. “But we’re not just trained to kill people in the Army. We have rules of engagement, so unless they use lethal force against us, we’re not allowed to use lethal force against them.”
Russ objected to the questions but told McCabe to answer them, except for one.
Gugino’s lawyer showed a screenshot of a video that he described as showing a police officer shoving a peaceful demonstrator with her hands raised in the air during a Niagara Square protest on May 30. McCabe was not at that protest.
“Who’s the police officer who committed that assault upon the citizen peacefully demonstrating against police violence?” Weisbeck asked McCabe.
Russ told McCabe not to answer. Then a tense exchange followed between the two lawyers over the type of questions and objections that federal rules allow during depositions.
“You can’t in federal court say don’t answer,” Weisbeck told Russ. “What’s the ground?”
“The word assault,” Russ replied, calling the question “argumentative, improper and blatantly improper.”
“I told him not to answer,” Russ said at the deposition. “If you have a problem, make a motion. If you want, call the judge.
“When your question is so blatantly wrong, I’m directing him not to answer, and I feel comfortable saying that to a judge,” Russ said.
“I can use that,” Weisbeck said of the word “assault.”
Weisbeck then ended the deposition and did what Russ suggested: He filed a motion with U.S. Magistrate Judge Leslie G. Foschio.
“I’m going to ask a lot of questions with words you don’t like, and we’re going to get a written order on this, and if you’re right, then I’ll have to reformulate all my questions, and if you’re wrong, I’ll be able to ask the questions in the form I determine,” Weisbeck told Russ. “So I’m going to get an order from the court because this is federal court. You don’t have an opportunity to just tell people not to answer because you don’t like the question.”
The judge’s view
Days later, the lawyers appeared before Foschio.
Russ sought a protective order “precluding harassing, argumentative and improper questions at defendant depositions.”
Weisbeck sought an order compelling McCabe “to answer all questions posed to him at his deposition” and refraining his attorney from directing him and additional parties not to answer questions unless the direction is in line with federal rules.
The judge sided with the protester’s lawyer.
“I honestly don’t see any overreaching behavior by Mr. Weisbeck,” Foschio said at the hearing. “I don’t see any unreasonable annoyance. I don’t see any embarrassment or oppressiveness in any of the questions. I don’t see it.”
Federal rules deal with the admissibility of evidence at trial but also the treatment of the witness being deposed, Russ told the judge.
“And my objection … is to the way the witness was being treated, and that the questions were escalating in impropriety, and it was an obvious attempt to cause my witness to lose his temper on a video camera.”
“Did he lose his temper?” the judge asked.
“He did not — only his lawyer did, Your Honor,” Russ said.
“Well, that’s unfortunate,” the judge replied. “But that’s not grounds for a protective order.”
When a lawyer harasses someone being questioned, “a judge knows it when he or she sees it,” Foschio said. “And I don’t see it here. I haven’t seen it from the get-go. I tried to see it, but I couldn’t.”
In his own words
The judge granted Weisbeck’s motion.
“I’ll be candid with you,” the judge told Weisbeck. “Lawyer to lawyer, I had a hard time grasping this, where you were heading with those questions and what your purpose was. But I defer to your expertise in the context of this unusual lawsuit. Far be it for me to second-guess your motivations in asking those questions. I’m not sure I really could fathom why you were involved in these tattoos, or why you were involved in his military background.”
Weisbeck, in court papers, said he needed a clear order from the court to prevent further disruptions of the depositions of the other defendants.
“If an attorney for a party can act as a gatekeeper dictating what words another attorney can use or select for his questioning of a witness or party, then that disrupts the entire deposition,” Weisbeck said at the hearing.
While Russ described Weisbeck’s questions as attempts to “get under the skin” of McCabe, Weisbeck said his tone during McCabe’s deposition was measured and non-aggressive.
“At no point were personal attacks made, the questions were not argumentative nor was the witness prevented from completing his answers,” Weisbeck said in his court filing.
Weisbeck told the judge his questions about the tattoos were for identification reasons.
“This particular defendant came in with a jacket in long sleeves,” Weisbeck said. “And instead of being intrusive, and asking him to take his coat or his jacket off and roll up his sleeves, I asked him just what are your tattoos?”
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