Sep 15


Judge throws out counts in fatal police shooting lawsuit

A federal judge allowed several claims to proceed in a civil lawsuit by the family of Jose Hernandez-Rossy, who was killed by police in 2017 after a traffic stop. But the judge rejected the bulk of the family's allegations.

A federal judge has dismissed several counts against the Buffalo Police Department and two officers involved in the 2017 fatal shooting of Jose Hernandez-Rossy. 

Left intact in a lawsuit filed by Margarita Rossy, the dead man’s mother, are claims that police improperly used lethal force after violating Hernandez-Rossy’s rights against unreasonable search and seizure when they pulled him over on suspicion of smoking marijuana while driving. 

Otherwise, U.S. District Court Judge William Skretny on Sept. 5 threw out claims that police targeted Hernandez-Rossy, 26, based on race and that the disciplinary history of Officer Justin Tedesco, who pulled the trigger, evidenced wrongdoing. Skretny also decided that Hernandez-Rossy’s mother is not entitled to punitive damages. The judge further ruled that claims of mistruths by Tedesco and his partner, Officer Joseph Acquino, in the shooting’s aftermath weren’t relevant and that the plaintiff is not entitled to punitive damages. 

Tedesco shot Hernandez-Rossy while he ran from police near the intersections of Tonawanda and Garfield streets. Acquino claimed that Hernandez-Rossy had shot him while he was partway into the decedent’s car, but no gun was found, nor was gunshot residue found in Hernandez-Rossy’s car.

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An internal affairs investigation absolved the officers of wrongdoing. An investigation by the state attorney general’s office also cleared the officers. 

The attorney general determined that Acquino, who suffered a partially detached ear while wrestling with Hernandez-Rossy in the car, hadn’t been shot. Acquino’s injury could have been caused by an airbag that deployed after the moving car crashed, the attorney general reported in 2018. Tedesco fired after Acquino yelled that he’d been shot, and the attorney general found that the officers had acted in good faith. 

Hernandez-Rossy’s mother had alleged that police targeted him because he was Hispanic, but Skretny found there was no evidence that officers knew his race when they stopped his car. 

While the parties were waiting on the judge’s decision, the plaintiff filed a motion arguing that Tedesco had disproportionately targeted minorities when writing traffic tickets. In disallowing information on Tedesco’s tickets — garnered from an unrelated lawsuit filed by Black Love Resists in the Rust, which alleges police discrimination in writing traffic citations — Skretny in April called the filing “not admissible evidence but merely an attorney’s allegations and hearsay.” In his Sept. 5 decision, Skretny labeled the ticket-writing allegations “belated and excluded evidence.” 

“Plaintiff has not presented any evidence of the officers’ intention to discriminate against Rossy-Hernandez based on his ethnicity,” the judge wrote.

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The plaintiff alleged that Acquino misled investigators after the shooting and wasn’t truthful about the location of Herandez-Rossy’s car, but Skretny determined that allegations of falsified evidence weren’t pertinent. 

“Plaintiff merely alleges that the officers fabricated evidence to cover up their respective roles and justify their actions during the traffic stop and shooting, thereby obstructing the subsequent investigation of the shooting and the administration of justice,” Skretny wrote. “Plaintiff, however, has not set forth any evidence of a proceeding where Hernandez-Rossy’s rights were implicated or how he was harmed by alleged falsification during the post-mortem investigation.” 

The judge directed the parties to attempt settlement via mediation. Lawyers for the city and the plaintiff could not be immediately reached for comment.

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