Jose Hernandez-Rossy was unarmed and trying to escape a pistol whipping by two Buffalo police officers when he was shot in the back and killed, according to a new federal lawsuit.
Filed by Hernandez-Rossy's mother, the civil suit claims Officer Justin Tedesco fired the shots that killed Hernandez-Rossy after an altercation May 7 in Black Rock.
The suit accuses Tedesco and Officer Joseph Acquino of forcing Hernandez-Rossy out of his car, dragging him across a lawn and onto a sidewalk and then beating and pistol whipping him.
His mother is seeking an unspecified amount of damages.
"Margarita Rossy wrongfully lost her only son that day, and Jose left three young daughters and four sisters behind, all of whom miss him tremendously," said Nelson S. Torre, a lawyer for the family.
The family' s account of what happened that May afternoon, detailed in court papers, differs from what Acquino and Tedesco have reportedly told police.
They claim Hernandez-Rossy's vehicle was stopped after they caught him smoking a marijuana blunt while driving, and that the traffic stop soon escalated into a struggle.
"The facts can't support a more righteous shoot," said Thomas H. Burton, a lawyer for the officers. "What do you expect when you pull a uniformed officer into a car that contains heroin and you have a felony record."
The fight, according to Acquino, started when he reached into the 2011 Acura because he thought Hernandez-Rossy was going for a gun. No gun was ever found at the scene.
At some point in the struggle, Hernandez-Rossy stepped on the gas, causing the SUV to move and almost strike a young child on a minibike. The vehicle eventually crashed into the foundation of a house near the intersection of Garfield Street and Hartman Place.
When the car's airbag deployed, Tedesco was able to catch up to his partner and, according to police sources, heard Acquino shout that he had been shot. He also saw that Acquino's ear had been cut and his head was bloody.
At some point in the struggle, Hernandez-Rossy got free, fled on foot and Tedesco responded by firing three shots, according to sources. Hernandez-Rossy ran through several backyards before collapsing and dying at the scene.
His death was ruled a homicide by the Erie County Medical Examiner's Office.
"The federal lawsuit was filed in order to prove in U.S. District Court what happened on May 7, 2017," Torre said, and "the action is based primarily upon the physical evidence, and more than a half dozen eyewitnesses at the scene that afternoon."
Buffalo police officials declined to comment Friday but, in the past, have noted that a large quantity of heroin, estimated at more than 100 bags, was recovered from the scene after Hernandez-Rossy was shot.
Torre has said in the past that the heroin, even if it was discovered in Hernandez-Rossy's car, is not justification for shooting him.
From Day One, he also has stressed what he calls the ever-changing nature of the officers' account of what happened that day. He said police indicated at first the incident followed a routine traffic stop but now claim Hernandez-Rossy was spotted smoking marijuana in his car.
Torre also noted that none of the witnesses at the scene, including the two officers, ever saw Hernandez-Rossy with a gun.
'The absence of a gun is irrelevant," Burton said Friday. "What matters is Tedesco's perception of what was happening. Did the officer reasonably believe his partner was shot?"
Burton said Acquino's head was bloody and his ear dangling from his head when Tedesco heard him yell, "Help me. He got me. He shot me."
In Burton's eyes, it's clear why Tedesco felt it necessary to shoot when Hernandez-Rossy tried to flee. He also claims the allegations of pistol whipping stem from Tedesco hitting Hernandez-Rossy with a gun in an effort to avoid using deadly force.
Shortly after the shooting, the state Attorney General's Office announced it was taking over the investigation and would try to determine if Hernandez-Rossy was armed and whether the fatal shooting was justified. Investigators will also look into the cause of Acquino's injury.