Police As Perpetrators

I’d been told that Martin Gugino didn’t like to talk about himself, and that turned out to be the case. “The thing I’m more concerned about is H Street in Washington,” the white-haired protester told me in a telephone call after I’d inquired about his health.

Gugino became known around the world when Buffalo police officers, moving forward to clear a public square of protesters who lingered as a June 4 curfew took effect, pushed him to the ground and walked past as he lay bleeding from his ear. The seventy-five-year-old told me that he’d spent the month of June hospitalized, and then another month undergoing three two-hour rehabilitation sessions a week. He reports he still feels unsteady on his feet. “It’s not the same,” he said, adding, “I’m more interested in walking into a courtroom. That’s all I need.”

Two police officers are charged with felony assault in connection with his injuries, and a civil suit is in the works. Gugino said he’d approached the police to tell them his view that the First Amendment takes precedence over the city’s curfew. He wound up flat on his back.

Something like that had occurred on H Street three days earlier, on a much larger scale. Using federal police, Bureau of Prisons riot teams, and National Guard backup, as well as exploding chemical irritants, rubber bullets, and gas canisters, federal officials chased two thousand demonstrators out of Lafayette Square across the street from the White House. That cleared the path for President Donald Trump to be driven directly from a Rose Garden announcement of his  nationwide crackdown on violent protests to nearby St. John’s Episcopal Church, where he held up a Bible in front of news cameras.

There is a mostly semantic debate about whether the protesters were forced out of the park because U.S. Park Police wanted to make way for a security fence, or to quell a lawful demonstration so the president could get his photo op. But both can be true. The Trump administration cites the acting chief of the Park Police, Gregory Monahan, who told a congressional committee, “There is 100 percent zero correlation between our operation and the president’s visit to the church.” Except that Trump’s trip to St. John’s minutes after the protesters were routed was exquisitely timed to illustrate the political message Trump had just pronounced in the Rose Garden, whether or not Chief Monahan knew at that moment how his force was being used.

Certainly, Trump and his entourage knew. Defense Secretary Mark Esper acknowledged: “I did know that, following the president’s remarks on Monday evening, that many of us were going to join President Trump and review the damage in Lafayette Park, and at St. John’s Episcopal Church.” And Trump signaled it, too. “And now I’m going to pay my respects to a very, very special place,” he said as he finished his remarks. Police were moving forward by the time Trump started his announcement. As he began with a promise to seek justice for George Floyd, the pounding peals of exploding devices deployed against Black Lives Matter demonstrators in Lafayette Square resounded in the Rose Garden.

“It was almost like a Michael Bay film,” said Alka Pradhan, a human-rights lawyer at the Defense Department for the Guantanamo Bay Military Commissions. She knows Gugino through Twitter; he often comments on her tweets about the Guantanamo Bay detainees, she said. Gugino had suggested I contact her because of her legal expertise.

But, having been arrested twice without a conviction for his role in Guantanamo-related demonstrations outside the White House, Gugino was able to cite the applicable rule in the Code of Federal Regulations, 36 CFR 7.96, without looking it up. This rule reflects a settlement the federal government agreed to in 2015 over a lawsuit charging that police had violated the constitutional rights of 386 people who were arrested without warning during a 2002 demonstration in Pershing Park over World Bank policies. U.S. Park Police agreed to give three audible warnings at least two minutes apart, along with other steps designed to protect protesters from illegal mass arrests.

The warnings given to Lafayette Square demonstrators in June—from a distance of half a football field—were “barely audible,” according to the congressional testimony of Major Adam DeMarco, who was the D.C. National Guard’s liaison to the Park Police. Furthermore, DeMarco testified that “From my observation, those demonstrators—our fellow American citizens—were engaged in the peaceful expression of their First Amendment rights. Yet they were subjected to an unprovoked escalation and excessive use of force.” 

Chief Monahan testified that over three days of protesting in the park, fifty of his officers had been injured, including eleven who were taken to a hospital, with three admitted. I asked Gugino what he makes of the attacks on police there and in many other protests across the country, including the fire-bombing of police cars. “If it weren’t for the police, the thugs would be in charge,” he told me. “You need to have a police department.” But, he said, sometimes the police become the thugs. “You’ve got to have a good police department.”

When we spoke, Gugino pinned the blame for what happened in Lafayette Square on Attorney General William Barr, who, according to a White House spokeswoman, told the U.S. Park Police to move forward—though Barr says he did not give the order. Again, semantic differences are involved: Barr was on the scene, speaking to Park Police members, and in his words, “my attitude was get it done, but I didn’t say, ‘Go do it.’” This will be put to the test in a lawsuit that civil-liberties lawyers filed on behalf of Black Lives Matter D.C., charging Trump, Barr, and other officials with a conspiracy to deprive the demonstrators of their constitutional rights, a law originating in the Ku Klux Klan Act of 1871.

Or, as Gugino put it when we spoke, “The breaking up of a peaceful protest is illegal.” This, he said, is what he wanted to tell Buffalo police officers on June 4, three days after the Lafayette Square incident. First, he spoke with some officers stationed on one side of Buffalo’s City Hall. “They just said, ‘Get on the sidewalk.’” Then he went to the other side of the building. The crowd had thinned out. “There were probably more police than there were protesters,” he said.

Then came the fateful moment when he stepped up to a line of police as they moved forward. “I wanted to ask them questions,” he said. “Does the curfew trump the law of protest?”