New York Attorney General’s Special Investigations and Prosecutions Unit (SIPU) released a comprehensive report on its investigation into the death of Jose Hernandez Rossy in Buffalo in May 2017, pursuant to Executive Order No. 147.
The investigation, led by Chief Deputy Attorney General and Chief of the Special Investigations and Prosecutions Unit, Alvin Bragg, found that under New York State law and guided by U.S. Supreme Court precedent, the officers’ actions did not meet the requisite legal criteria of criminal misconduct. 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.
The report, available here, details SIPU’s comprehensive investigation into the encounter between Mr. Hernandez Rossy and Buffalo Police Department (BPD) officers on May 7, 2017.
“The death of Mr. Hernandez Rossy was a tragedy and my heart goes out to his family, friends, and everyone who cared about him,” said Attorney General Schneiderman. “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.”
Under the plain language of the relevant New York State statute, an officer may use deadly force to stop a civilian from fleeing if the officer reasonably believes that (1) the civilian committed a felony involving the use of force, or (2) the civilian committed any felony and was armed with a deadly weapon. These legal protections apply even if the officer’s reasonable belief is ultimately determined to be mistaken.
As detailed in the report, BPD Patrol Officer Justin Tedesco, the shooting officer, and several civilian bystanders saw (1) Mr. Hernandez Rossy and a second officer, BPD Patrol Officer Joseph Acquino, wrestling inside of Mr. Hernandez Rossy’s car over what PO Acquino mistakenly believed to be a gun, following a traffic stop; (2) Mr. Hernandez Rossy attempt to drive away while wrestling with PO Acquino, only to collide into a house, after almost driving into a child on a bicycle; and (3) PO Acquino emerge from the vehicle bleeding from his head, with his ear partially detached, and shouting that he had been shot. Civilian bystanders also saw and heard Mr. Hernandez Rossy struggle with PO Tedesco, break free, and attempt to flee. PO Tedesco warned Mr. Hernandez Rossy not to flee. When PO Tedesco’s warning was not heeded, PO Tedesco shot Hernandez Rossy in the arm as he was running away. In fact, Mr. Hernandez Rossy had not been armed and, although PO Acquino was seriously injured during the struggle, he had not been shot.
SIPU’s investigation included: (1) interviews of the Buffalo Police Department officers; (2) interviews of eight civilian witnesses and a review of videotaped interviews with five additional civilian witnesses; (3) review of 911 calls by civilian witnesses; (4) review of videos captured a civilian witness and a residential recording device; (5) review of the medical examiner’s records; (6) review of Mr. Hernandez Rossy’s and the injured officer’s ambulance and medical records; (7) interviews of BPD officers, Buffalo Fire Department members, and Emergency Medical Technicians who responded to the scene; (8) review of all BPD digital video evidence and photographs of the scene; and (9) numerous forensic analyses.
Under the executive order, OAG may offer recommendations for systemic reform arising from the investigation. Accordingly, OAG recommends that:
- given that the BPD officers involved were not equipped with Tasers, BPD examine outfitting its members with Tasers.
- BPD become a New York State accredited law enforcement agency. This is the second time OAG has made this recommendation, as this investigation was lacking in areas of evidence collection and documentation, including, in particular, the BPD’s failure to perform – or perceive the need to perform – a prompt and complete accident reconstruction.
The report was produced as part of the Attorney General’s role as the state’s special prosecutor. In July 2015, Governor Cuomo signed Executive Order No. 147, appointing the Attorney General to that role to oversee investigations into incidents where unarmed civilians die during interactions with police, or incidents where there is significant question as to whether the civilian was armed and dangerous. As part of the Attorney General office’s commitment to transparency, in cases in which it’s determined that charges cannot be brought, the Attorney General’s office releases a comprehensive report detailing the findings and available evidence from its investigation.
