The sister of the man killed by Buffalo police following a traffic stop said Wednesday afternoon that an officer had "no justification" for shooting him because he was unarmed.
"I don't know why a cop would shoot someone when they don't have a gun, they're not armed, and they're just running away from them," said Yesenia Algarin, the sister of Jose Hernandez-Rossy.
Erie County District Attorney John J. Flynn on Wednesday said there is "significant question" whether Hernandez-Rossy was armed.
When Officer Justin Tedesco fired his gun at Jose Hernandez-Rossy, he did not see a gun in the suspect's possession, but the lawyer for the officer said there was still ample justification for the use of deadly force.
Tedesco killed Hernandez-Rossy at about 5 p.m. Sunday after police stopped his vehicle on Garfield Street, a physical struggle ensued, and Officer Joseph Acquino's ear was severely injured.
Buffalo police initially said that Acquino was shot by Hernandez-Rossy. But police have been unable to find a gun that Hernandez-Rossy allegedly used despite daily searches in the Black Rock neighborhood.
Flynn said that Acquino thought he was shot, and Buffalo police had no reason to think otherwise.
"Based upon what I've heard so far, Officer Acquino thought he was shot," Flynn said.
Flynn would not comment on what Tedesco thought or knew when he shot Hernandez-Rossy.
[Photo gallery: Buffalo police officer wounded, suspect killed]
Flynn held his news conference one day after the state Attorney General's Office announced it was taking over from the district attorney the investigation into the fatal shooting of Hernandez-Rossy. The state Attorney General's Office is responsible for investigating the deaths of people at the hands of law enforcement officers when the deceased was unarmed or there is significant question about whether they were armed.
"We just want justice for our brother. And the truth should come out," said Algarin, a Buffalo resident. "We know in our hearts that he would never shoot a cop. He got killed. And now they want to bring in his past and make it seem like he's a really bad person. But he was a human being with three children."
Thomas H. Burton, Tedesco's attorney, said Wednesday that while Tedesco did not see Hernandez-Rossy with a gun, deadly force was, nonetheless, justified.
"The screams from his partner that he had been shot, coupled with the immediate observation Acquino had a bleeding head wound formed the basis for Tedesco's use of deadly force when the driver tried to escape after a violent fight with Tedesco," Burton said.
Burton also cited what Tedesco witnessed seconds earlier: "He had just seen his partner ending up in the front seat of the driver's vehicle before it careened into a house after almost hitting a child on a small bike," the attorney said.
A significant amount of narcotics seized from Hernandez-Rossy's 2011 Acura MDX sport utility vehicle, Burton said, provided Hernandez-Rossy with a motive for resisting the officers' efforts to question him.
While Buffalo police homicide detectives are not releasing details of their investigation into Hernandez-Rossy's death, law enforcement sources and others close to the investigation told The Buffalo News that the 26-year-old Black Rock man ignored the officers when they initially pulled up behind him with their vehicle's overhead lights flashing to signal a traffic stop. Tedesco, according to the sources, drove around Hernandez-Rossy's SUV and turned diagonally in front it, stopping the vehicle on Garfield Street, near Hartman Place.
At that point, the officers got out of their marked patrol vehicle and approached Hernandez-Rossy on the driver's side of his SUV.
Acquino, the closer of the two officers, ended up partially inside the vehicle just before Hernandez-Rossy hit the accelerator, the sources said, and crashed into the side of the parked police vehicle.
As the SUV continued forward, Acquino jerked the steering wheel to avoid hitting a child on a small mini bike. The vehicle then crashed into the foundation of a house at the intersection, according to police.
The crash, police believe, caused the airbag to deploy.
Witnesses at the scene said it appeared Acquino's ear was hanging off and that the police officer was screaming "I'm shot" and "Help me."
The state Attorney General's Office is looking at what else could have caused the officer's severe wound since no gun was found, according to one of the law enforcement sources familiar with the investigation.
Because of an airbag's high velocity when it opens and the loud bang it makes, the possibility that the airbag caused the severe injury and was mistaken for a gunshot is being investigated, the law enforcement source said.
Blood was found on the airbag and it is believed to be Acquino's based on how he was positioned inside the vehicle when it struck the house, according to two of the sources.
Although airbags are believed to have saved more than 40,000 lives since they were first introduced 30 years ago, they can cause serious and even fatal injuries when the driver or passenger isn't wearing a seat belt or is too close – or in contact with the airbag, according to the National Highway Traffic Safety Administration.
Whether it was the airbag or not, Burton said the totality of the circumstances from Sunday's incident prove that Tedesco was not in the wrong in his use of deadly force when he shot the fleeing Hernandez-Rossy.
"The officer needed a reasonable grounds to believe his partner was shot and if that exists, which it obviously does, the shooting officer did not commit a crime and has a defense under New York law," Burton said.
That is a central part of the state Attorney General's investigation – whether the fatal shooting of Hernandez-Rossy was legally justified.
"The fact that the state took over means it is just not us who have questions," said Karina Robles, a cousin of Hernandez-Rossy.
Relatives of Hernandez-Rossy are planning to hold a vigil in his memory at 7 p.m. Thursday on Tonawanda Street at Garfield Street, a half block from where Hernandez-Rossy collapsed.
Flynn said Wednesday that his office's role in the investigation is now over.
Acquino was discharged Tuesday from Erie County Medical Center. Doctors there performed surgery to reattach his ear.