BUFFALO, N.Y. – The mother of a man fatally shot by a Buffalo police officer in May is suing the City of Buffalo for what her legal complaint describes as "unlawful conduct" that led to her son's death.
The civil suit, filed Tuesday Sept. 19, seeks compensation from the City of Buffalo for "committing acts under the coIor of law amounting to police brutality and misconduct."
Attorney Nelson Torre, representing Margarita Rossy, wrote of that May 7th evening that Buffalo police officers Justin Tedesco and Joseph Acquino "dragged him across the lawn, and through a large hedge of shrubs onto the sidewalk, Where the defendants acting together then beat, and pistoI whipped decedent JOSE HERNANDEZ-ROSSY, and forced him to the ground."
Also named in the lawsuit are Buffalo Police Commissioner Daniel Derenda and American Medical Response (AMR) ambulance company.
The lawsuit alleges "the decedent was unnamed and posing no threat to anyone."
"The absence of a gun by itself is not relevant to the issue of what did Tedesco reasonably believe?” P.B.A attorney Tom Burton said.
Article 35.3 of New York's penal law justifies the use of physical force in attempting to arrest someone or prevent an escape. It even justifies use of deadly force when it's "necessary to defend the police officer...or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.”
Burton's point is that in the immediate aftermath of the altercation, Tedesco believed Acquino had been shot.
"The law doesn't require certainty; it recognizes that cops have to make split second decisions,” Burton said.
But what transpired leading up to the shooting? The lawsuit alleges the initial stop was unlawful altogether.
Investigative Post reporter Daniella Porat reported Wednesday that the police department's Housing Unit and Strike force –which officers Acquino and Tedesco are a part of– have conducted unlawful stops before.
"Judges have found that seized guns and drugs could not be admitted into evidence because it was the manner in which these officers searched individuals, stopped individuals, that made their actions unconstitutional,” Porat said.
Burton alleges that Hernandez-Rossy pulled Acquino into the car, whereas the lawsuit alleges Acquino reached into the car himself.
Channel 2 is reaching out to the family for comment; in May they spoke with reporters saying they wanted answers.
You can read the lawsuit here:
© 2017 WGRZ-TV