No criminal charges against BPD officers for fatal shooting of Jose Hernandez-Rossy

CONTRIBUTED PHOTO Jose Hernandez-Rossy is pictured.

BUFFALO, N.Y. (WIVB) — A report by the Attorney General’s Special Investigations and Prosecutions Unit states that Buffalo Police Officers Justin Tedesco and Joseph Acquino did not act criminally when Tedesco shot and killed 26-year-old Jose Hernandez-Rossy last May.

According to the report, Tedesco believed Hernandez-Rossy had shot his partner, Officer Acquino.

Any time an unarmed civilian dies at the hands of law enforcement, the AG acts as a special prosecutor to ensure the investigation is impartial. The same procedure took place following the death of Wardel “Meech” Davis.

The 60+ page report details the moments leading up and immediately following Hernandez-Rossy’s death. It also includes reports from the Medical Examiner’s Office and several civilian witnesses.

MORE | Death of Hernandez-Rossy ruled homicide after police altercation

Ultimately, the report found that Tedesco reasonably believed Hernandez-Rossy had a gun and had shot his partner, thus clearing him of criminal wrong-doing.

The report states:

“New York law explicitly permits an officer to use deadly physical force against a fleeing suspect if the officer reasonably believes that such fleeing individual has just committed a felony involving physical force against another person. According to the involved officers’ testimony and the accounts of multiple civilian witnesses, the officers in this case had a reasonable, if mistaken, belief that Mr. Hernandez Rossy had shot Officer Joseph Acquino in his vehicle prior to fleeing from the scene.”

U.S. Supreme Court precedent also permits this.

The incident occurred in May in Buffalo’s Black Rock neighborhood. Officers Tedesco and Acquino reportedly attempted to pull over 26-year-old Hernandez-Rossy because he was spotted smoking marijuana.

Here is how a report from the Attorney General’s office describes the incident:

“BPD’s late afternoon encounter with Mr. Hernandez Rossy began when PO Tedesco and his partner, PO Acquino, attempted to stop a vehicle after noticing that its operator — Mr. Hernandez Rossy — appeared to be smoking marijuana. PO Tedesco, who was driving the patrol car, activated the horn and lights, but Mr. Hernandez Rossy did not stop his vehicle. PO Tedesco then pulled around and in front of the vehicle, cutting it off. Both officers approached the driver’s
side of the vehicle and observed Mr. Hernandez Rossy smoking what appeared to be a marijuana cigarette. PO Acquino then began asking Mr. Hernandez Rossy questions. According to PO Acquino, (1) Mr. Hernandez Rossy did not verbally respond to those questions; (2) Mr. Hernandez Rossy moved his hand toward the top right pocket of his jacket; and, in response, (3) PO Acquino jumped into the vehicle through the driver’s side door, reaching toward Mr. Hernandez Rossy’s jacket pocket. PO Acquino recalls feeling something “hard” in the pocket and he believed that hefelt a “small caliber gun.” He started yelling, “Gun! Gun!” At that point, Mr. Hernandez Rossy accelerated his vehicle forward with PO Acquino partially inside, splayed across Mr. Hernandez Rossy’s lap.

A young boy was riding his bicycle in the street in front of Mr. Hernandez Rossy’s vehicle. As Mr. Hernandez Rossy continued to drive forward, while struggling with Mr. Hernandez Rossy, PO Acquino saw the boy and turned the steering wheel to the right so the vehicle would avoid striking him. The vehicle instead struck a stop sign, then crossed a row of bushes and struck a house, before stopping. Although PO Acquino does not remember it and PO Tedesco (who was
outside of the vehicle) did not see it, the vehicle was traveling at such a speed that its airbag deployed, as shown by photographs of the vehicle and forensic analysis of the airbag. 

PO Acquino heard what he described as “the loudest fireworks” go off in his right ear and felt a burning sensation. He exited the vehicle bleeding, with his right ear partially detached from his head. PO Acquino believed Mr. Hernandez Rossy had just shot him in the head and began yelling to his partner various iterations of “Justin I’m shot” and “Help me!”

After the car struck the house (which two civilian witnesses were in at the time of the collision), PO Tedesco saw PO Acquino’s bleeding head and heard PO Acquino yelling that he had been shot. PO Tedesco entered Mr. Hernandez Rossy’s vehicle through the passenger’s side and both officers wrestled Mr. Hernandez Rossy out of the vehicle. Around this time, several civilians called 911 stating that an officer had been shot. PO Tedesco then tried to restrain Mr. Hernandez Rossy, who vigorously resisted. PO Tedesco advised Mr. Hernandez Rossy that he would be shot if he did not stop resisting. By this point, PO Acquino had moved away from the struggle and was yelling, “Help me . . . I’ve been
shot . . . Shoot him!” Mr. Hernandez Rossy twisted out of his sweatshirt and began running away. PO Tedesco again advised Mr. Hernandez Rossy that he would be shot if he did not stop. Mr. Hernandez Rossy continued to run away and PO Tedesco then fired three shots. One struck Mr. Hernandez Rossy in the arm; he continued to run for approximately two blocks after being shot. Mr. Hernandez Rossy ultimately died as a result of the gunshot wound to his arm, which ruptured his brachial artery.

Upon arriving at the scene, BPD investigators immediately began searching for the weapon they believed Mr. Hernandez Rossy had used to shoot PO Acquino. No weapon was found. The evidence reviewed during the investigation shows that Mr. Hernandez Rossy was unarmed and that it was activity related to the crash and airbag deployment — not a gunshot — that caused PO Acquino’s injury. However, the evidence also indicates that POs Acquino and Tedesco, as well
as numerous civilian witnesses believed Mr. Hernandez Rossy had shot PO Acquino.

At the moment PO Tedesco shot Mr. Hernandez Rossy, he was under the erroneous, yet reasonable, belief that Mr. Hernandez Rossy had just shot PO Acquino: PO Tedesco saw PO Acquino emerge from Mr. Hernandez Rossy’s vehicle bleeding from the head with his ear partially detached and shouting that Mr. Hernandez Rossy just shot him. In addition to the two officers, numerous civilian witnesses also believed Mr. Hernandez Rossy had just shot PO Acquino.”

“According to the involved officers’ testimony and the accounts of multiple civilian witnesses, the officers in this case had a reasonable, if mistaken, belief that Mr. Hernandez Rossy had shot Officer Joseph Acquino in his vehicle prior to fleeing from the scene,” Schneiderman’s office said.

The officers’ actions did not meet the criteria for criminal charges according to the report.

Following the incident, the officer who shot Hernandez-Rossy was placed on administrative leave, a standard procedure after an officer fires a weapon.

“The death of Mr. Hernandez Rossy was a tragedy and my heart goes out to his family, friends, and everyone who cared about him,” Schneiderman said. “Based on a thorough investigation—an investigation that included accounts from more than a dozen civilian eyewitnesses and a review of photographic and video evidence—and an exhaustive legal analysis, under the chaotic circumstances preceding Mr. Hernandez Rossy’s death, the officers’ actions did not exceed the legally permissible standard of police conduct established by the United States Supreme Court and New York state law. This determination does not lessen the tragedy of Mr. Hernandez’s death, nor does it excuse the use of excessive force by police in other cases. Nevertheless, we hope that today’s extensive and transparent report about our investigation will provide the community and Buffalo PD with the facts, evidence, and recommendations necessary to help prevent these types of tragic events from happening again.”

The office of the Attorney General recommends that the Buffalo Police Department look into arming its members with tasers; currently only members of SWAT carry them.

Buffalo Police Captain Jeff Rinaldo told News 4 the department is looking into tasers.

Neither Tedesco nor Acquino had tasers at the time of the incident.

The AG’s office also recommends that the department become a New York State accredited law enforcement agency.

Both officers remain on paid administrative leave.

An internal investigation with Buffalo police is ongoing. An attorney for the family of Hernandez-Rossy says a civil lawsuit for wrongful death and use of excessive force is pending in federal court.

MORE | The entire report from the Attorney General’s office can be found here.

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