The state Attorney General's Office announced Tuesday it was taking over an investigation into the fatal shooting by Buffalo police of a suspect who police accused of wounding an officer.
Two days after a Buffalo police officer was shot and the man suspected of shooting him was fatally shot by another officer, one crucial piece of evidence is missing: the gun the suspect allegedly used.
“The Attorney General’s Special Investigation and Prosecution Unit has opened an investigation into the death of Jose Hernandez-Rossy, pursuant to the Attorney General’s authority under Executive Order No. 147," the Attorney General's Office announced.
Gov. Andrew M. Cuomo issued an executive order in 2015 that appoints the attorney general – not county district attorneys – as a special prosecutor responsible for investigating the deaths of unarmed people that are caused by law enforcement officers.
"It means that there is a significant question as to whether Mr. Hernandez-Rossy was armed," a source familiar with the investigation said of the AG's announcement. "The executive order gives the AG jurisdiction in cases in which the civilian is unarmed or in which there is a significant question as to whether he/she was armed."
That same source said that it should not be assumed that the officer’s head injury was caused by a gunshot.
“It’s become sort of conventional wisdom that the officer was shot, but that’s not necessarily the case. It’s unclear if the injury was caused by a gunshot wound and that is all part of the AG’s investigation,” the source said.
When the officers initially began the traffic stop, Hernandez-Rossy tried to take off and Officer Joseph Acquino wound up partially inside the vehicle on the driver’s side, according to police sources.
A law enforcement source and a second individual close to the case said it is possible that the rapid deployment of the air bag inside Hernandez-Rossy’s SUV might have caused the injury. Blood was found on an airbag in the SUV. The law enforcement source said the sudden force of the deploying air bag could cause serious physical harm and that there is a loud bang when it deploys.
Erie County District Attorney John J. Flynn is expected to issue a statement Wednesday regarding the transfer of the investigation to the Attorney General’s Office.
Police and firefighters were still searching Tuesday for a gun that police said Hernandez-Rossy used to shoot Officer Joseph Acquino in the ear on Sunday. Officer Justin Tedesco then shot Hernandez-Rossy, police said. Acquino underwent surgery at Erie County Medical Center to have his ear reattached and was discharged from the hospital on Tuesday.
Police and firefighters continued to search Black Rock Tuesday, following the bloody trail left by Hernandez-Rossy after he was shot. Hernandez-Rossy ran through backyards for several blocks before he collapsed on Tonawanda Street.
Buffalo Fire Department ladder trucks were brought in to the neighborhood Tuesday so officers could look on roofs and gutters in the area. Investigators with a K-9 unit on Monday searched the area where Hernandez-Rossy ran.
Thomas Burton, an attorney for the Buffalo Police Benevolent Association, said Tuesday it did not matter whether the Attorney General's Office or the District Attorney's Office was handling the investigation because the legal standard for the defense of the officer is the same and is predicated on the officer's perception of the imminent danger at the time of the shooting. Burton stressed that if an officer believes his partner is in grave physical danger, he is justified in using deadly physical force.
The Buffalo Police Department Tuesday issued a statement through a spokesman.
"Buffalo police have been and will continue to fully cooperate with the investigation by the state Attorney General's Office. As the investigation continues, anyone with information is asked to contact authorities," the statement issued by police department spokesman Michael J. DeGeorge said.
Hernandez-Rossy's family and their attorney are questioning the police account of what happened around 5 p.m. Sunday at Garfield Street and Hartman Place.
The Erie County Medical Examiner's Office informed his family that during the autopsy no visible signs of gunpowder residue were found on Hernandez-Rossy's hands, according to Nelson Torre, who represents the family.
Swabs taken during the autopsy have been sent to a lab for microscopic analysis to determine if he fired a gun shortly before he died.
Also, two witnesses have come forward who say they did not see Hernandez-Rossy with a gun, Torre said.
He said the witnesses saw Hernandez-Rossy and the police officers rolling on the ground in a struggle.
"The witnesses did not see a gun on Jose, in Jose's hands during the struggle," Torre said.
He said the witnesses saw an officer get down on one knee and open fire twice at Hernandez-Rossy before the officer went to assist his injured partner.
Buffalo police have provided few details about the shooting, and declined to answer whether it is possible Hernandez-Rossy did not fire a shot.
Police also have not said whether they recovered Acquino and Tedesco's weapons; whether any witnesses saw Hernandez-Rossy with a gun; how many times the officers fired or how many shots Hernandez-Rossy fired; whether the projectile that struck Acquino was recovered; whether Hernandez-Rossy had the opportunity to throw away a gun out of sight of the officers; and why the officers initially pulled over Hernandez-Rossy in a car.
Buffalo Police Commissioner Daniel Derenda said Tuesday he can't answer any of those questions because the investigation is ongoing.
"There is a lot of information coming in that we are following up on. We are conducting interviews. If anyone has any information or videos, please come forward and contact the Buffalo Police Homicide Squad. The investigation is continuing," he said.
A woman who lives near the scene of the shooting told The Buffalo News on Tuesday that she saw Acquino and Hernandez-Rossy tussling on the sidewalk on Garfield Street before Hernandez-Rossy turned around and raised his arm. She said she did not see a gun in Hernandez-Rossy's hand, but she heard what sounded like a gunshot, and Acquino fell to the ground screaming in pain.
The woman, who refused to give her name because she said she is afraid of retaliation for speaking out, said she ran to Acquino to try to help. Another woman had put something on his ear. She said she looked at Acquino's ear and saw that it was partially detached and that there was a "spiral" shaped wound and a bullet visible.
"I saw the bullet," she said.
Two of Hernandez-Rossy's cousins on Tuesday placed red, white and black balloons on a signpost on Garfield Street at Tonawanda Street, near where Hernandez-Rossy collapsed.
"This is showing love and support for him," Jessica Rossy said.
Jessica Rossy, cousin of Jose, pauses after placing balloons near where he collapsed and died Sunday in Black Rock. pic.twitter.com/ZLz4JxTUrx
— Lou Michel (@LouMichelBN) May 9, 2017
"We don't want the last memory of him to be that of a cop shooter," Katherine Garcia said. "That is not him."
They said they are planning a vigil for him soon at the site.
A woman who lives at the house that was struck said she was inside with her fiancé and two children – ages 2 and 4 – when they heard the screeching of tires. Her fiancé thought it was coming from the back of the house, but the woman, who refused to give her name because of the nature of the case, said she knew it was coming from the front.
The woman ran to the window and saw a white SUV come crashing through the bushes on the side of the house and then strike the foundation, she said.
She said she got her children away from the window and saw two officers on either side of the car fighting with a man inside. The airbag had deployed and the doors were open.
She said it looked as though the officer who was closer to the driver was putting his shoulder to his ear, as if it were injured. The officers were trying to pull the man out of the car but pulled his hoodie off instead. Next, the woman said, she saw one officer get down on his knee on the sidewalk in front of her house and fire two shots from his weapon.
Close call for a kid
An 11-year-old boy was riding his electric minibike Sunday afternoon when he was almost struck by the vehicle Hernandez-Rossy was driving, according to the boy's father.
"He came home screaming and crying. He told me he almost got hit from a guy trying to take off from the police," James Best said.
A source familiar with the investigation said that Acquino was struggling with the driver of the moving SUV on Garfield Street when he spotted the child. The officer jerked the steering wheel to prevent the vehicle from hitting the child. The SUV then crashed into the side of a house at the corner of Garfield and Hartman Place.
Police officials said Acquino and a second officer fought with Hernandez-Rossy, before Acquino was shot in the ear and Tedesco shot Hernandez-Rossy.
Best said he took his son to police headquarters on Sunday to give a statement of what he saw.
The father said the boy told investigators that "he saw the officers pull the SUV over and at the last minute, it turned into the house."
Best expressed gratitude to Acquino for grabbing the wheel.
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