Rossy v. City of Buffalo et al
Filing
55
DECISION AND ORDER granting in part and denying in part 32 Motion to Compel; granting in part and denying in part 32 Motion for Discovery. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 6/1/2020. (HKG)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARGARITA ROSSY,
as Administrator of the Estate of Jose
Hernandez-Rossy,
Plaintiff,
v.
17-CV-937-WMS
CITY OF BUFFALO,
JUSTIN TESESCO, Buffalo Police Department P.O,
JOSEPH ACQUINO, Buffalo Police Department P.O.,
POLICE COMMISSIONER DANIEL DERENDA,
Individually and in their representative capacities, and
AMERICAN MEDICAL RESPONSE d/b/a “AMR”
And its agents, servants and employees,
Defendants.
DECISION AND ORDER
Plaintiff, as the administrator of her son’s estate, commenced this action on
September 19, 2017. Dkt. No. 1. She alleges that the Defendant Police Officers beat and
fatally shot her unarmed son, Jose Hernandez-Rossy (“Hernandez-Rossy”), during an
unlawful, racially-motivated traffic stop; that the Defendant City and Commissioner failed to
train, supervise, or discipline the Officers; and that the Defendant ambulance company’s
employees negligently rendered or failed to render first aid, causing Hernandez-Rossy’s
death. Dkt. No. 1. This case was referred to the undersigned by the Hon. William M.
Skretny, in accordance with 28 U.S.C. § 636(b)(1)(A), for all pretrial matters. Dkt. No. 11.
Currently before this Court is Plaintiff’s Motion to Compel (Dkt. 32), seeking various
records including the personnel files, prior disciplinary records, internal affairs investigation
reports, and prior complaints of excessive force against the Defendant Police Officers;
Defendant Officer Joseph Acquino’s (“Acquino”) medical treatment records from the night
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of Hernandez-Rossy’s shooting; and the Buffalo Police Department’s Records relating to
the Housing and Strike Force Units to which the defendant Officers were assigned. Dkt.
No. 32. For the following reasons, Plaintiff’s Motion is GRANTED in part and DENIED in
part.
FACTS
This case centers around the fatal shooting of Hernandez-Rossy by
Buffalo Police Officers on May 7, 2017. According to the Complaint, Buffalo Police
Officers Joseph Acquino and Justin Tedesco (“Tedesco”) were on duty at 5 p.m. that
evening when they observed Hernandez-Rossy, whom they knew, driving his SUV.
Despite having no lawful basis to detain Hernandez-Rossy, the officers pulled his car over,
“rushed the vehicle[,] and forcefully entered the driver’s door . . . .” Dkt. No. 1, p. 5. In
“imminent fear for his life,” Hernandez-Rossy “tried to avoid the physical assault by driving
away,” but Acquino forced his way into the driver’s compartment, and took control of the
steering wheel, causing the car to crash. Dkt. No. 1, p. 5.
There is some dispute as to what happened next but Acquino testified at his
deposition that Hernandez-Rossy shot him in the ear while the two struggled inside the
vehicle. Dkt. No. 32, pp. 8-9. When Hernandez-Rossy, unarmed and unclothed from the
waist up, attempted to flee the scene,1 Tedesco shot him several times at his partner
Acquino’s urging. Dkt. No, 32, pp. 8-9. Officer Richard Hy (“Hy”), who is not named as a
defendant, arrived at the scene after Hernandez-Rossy was shot but was still alive. Dkt.
No. 32, p. 5-6. Hy questioned and examined Hernandez-Rossy, and thereafter applied a
Plaintiff’s counsel affirmed that eyewitnesses reported that Acquino and Tedesco pistol whipped
Hernandez-Rossy, prompting him to run away. Dkt. No. 42, pp. 4-5
1
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tourniquet to his wounded arm. Dkt. No. 32, p. 5-6. Hy testified that the Buffalo Fire
Department took over, and Hernandez-Rossy lost consciousness. Dkt. No. 32, p. 6. At
some point, an American Medical Response ambulance arrived on the scene to transport
Hernandez-Rossy to the hospital, but he did not survive his injuries. Dkt. No. 1.
According to Plaintiff, the subsequent investigation revealed that no firearm
was discharged in Hernandez-Rossy’s SUV and “Hernandez-Rossy did not have a firearm
at any time during the events that resulted in his death.” Dkt. No. 32, p. 9.
DISCUSSION AND ANALYSIS
Officer Acquino’s Medical Records
Plaintiff seeks disclosure of Acquino’s medical records relating to the
physical injuries he sustained during the May 7, 2017 altercation with Hernandez-Rossy.
Defendants contend that the records are “irrelevant and privileged under Health Insurance
Portability and Accountability Act of 1996.” Dkt. No. 37. As previously noted, Plaintiff
maintains that Hernandez-Rossy was never armed and that the Defendant Officers were
wholly unjustified in using deadly force against him. In the days following the shooting,
during a videotaped interview in which he was represented by counsel, Acquino told state
investigators that Hernandez-Rossy shot him while the two men struggled in the SUV, and
that medical records from ECMC would confirm that he was wounded by gunfire. Dkt. No.
32, p. 9. Defendants now decline to release Acquino’s medical records, arguing that they
have not placed Acquino’s physical injuries at issue, and that the only relevant inquiry is
whether a reasonable officer on the scene would have been justified in using lethal force.
Dkt. No. 37, pp. 16-17.
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Defendants argue that this Court should deny Plaintiff’s Motion to Compel
in its entirety because the accompanying Notice does not comply with Local Rule of Civil
Procedure 7, and because Plaintiff did not attach records or deposition testimony to the
motion. Dkt. No. 37, pp. 3-4, 16. I decline to deny Plaintiff’s motion based on objections to
its form. For purposes of moving forward with in camera discovery, I will accept the
affirmation of Plaintiff’s counsel, as an officer of this Court, that Acquino testified in this
manner during his interview with investigators.
This Court finds that whether Acquino sustained a gunshot wound while he
wrestled with Hernandez-Rossy in the car bears directly on whether it was reasonable for
Tedesco to shoot Hernandez-Rossy after he emerged from the vehicle. Hodge v. City of
Long Beach, 425 Fed. App’x 33, 34 (2d Cir. 2011) (in determining the reasonableness of
force used by a detaining officer, a court considers “the totality of the circumstances faced
by the officer on the scene,” Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995), including:
(1) the “severity” of the crime; (2) “whether the suspect poses an immediate threat to the
safety of the officers or others;” and (3) “whether the suspect is actively resisting arrest or
attempting to evade arrest by flight” (internal quotation marks omitted)); Ortiz v. Vill. of
Monticello, 2012 WL 5395255, at *11 (S.D.N.Y. Nov. 2, 2012). Acquino’s medical records
take on even more significance given his sworn testimony to investigators several days
after the incident that Hernandez-Rossy shot him and that his medical records would bear
out his statement. Plaintiff asserts that Defendants have tampered with and destroyed
evidence to cover up the true circumstances of Hernandez-Rossy’s shooting. If Acquino
was not actually shot during his struggle with Hernandez-Rossy, this would undermine
Acquino as a witness, call into doubt the findings of the underlying investigation, and lend
credible support to Plaintiff’s theory of a cover-up.
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For this reason, Defendants are directed to produce Acquino’s medical
records to my chambers for in camera review within 45 days of this order. This Court
cannot determine whether the relevance of these records outweighs the interest in keeping
them confidential without reviewing for itself Acquino’s testimony before investigators.
Accordingly, Plaintiff’s counsel must provide within 45 days of this order a certified
transcript of Acquino’s testimony regarding his injuries. Plaintiff’s counsel is directed to
refer to the Local Rules of Civil Procedure to ensure that any subsequently filed motions
comply with this Court’s Rules.
Police Personnel Records
New York Civil Rights Law § 50–a provides that the personnel files
of police officers are not to be disclosed except by the express written consent of the
individual officer or pursuant to court order. N.Y. Civ. Rights Law § 50-a; Mercado v. Div.
of New York State Police, 989 F. Supp. 521, 522 (S.D.N.Y. 1998). Civil Rights Law § 50-a
was enacted to protect testifying officers from being harassed during cross-examination
about “unsubstantiated and irrelevant complaints” against them and to prevent
“unrestricted examination of their personnel records.” Martin v. Lamb, 122 F.R.D. 143, 146
(W.D.N.Y. 1988) (quoting Matter of Capital Newspapers v. Burns, 67 N.Y.2d 562, 568
(1986)). However, in federal civil rights cases such as this one, whether a record is
privileged is dictated by federal law, not state law. See von Bulow by Auersperg v. von
Bulow, 811 F.2d 136, 141 (2d Cir. 1987); United States v. Collier, 2013 WL 125691, at *1
(E.D.N.Y. Jan. 9, 2013). “[I]n the context of a civil rights action asserted
against police officers, [there is] no federal rule prohibit[ing] discovery of police personnel
documents.” Smith v. Cnty. of Nassau, 2013 WL 3893380, at *2 (E.D.N.Y. July 24, 2013)
(internal quotations omitted).
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The fact that there is no federal corollary to New York Civil Rights Law § 50-a
does not mean that a federal civil rights plaintiff may have “free and unfettered discovery
of police personnel documents.” Dorsett v. Cnty. of Nassau, 762 F. Supp. 2d 500, 531
(E.D.N.Y. 2011) aff’d, 800 F. Supp. 2d 453 (E.D.N.Y. 2011) aff’d sub nom. Newsday LLC
v. Cnty. of Nassau, 730 F.3d 156 (2d Cir. 2013) (internal citations and quotations omitted).
Rather, to determine whether a defendant police officer’s records should be disclosed in a
federal civil rights case, a court “must balance the interests favoring and opposing
confidentiality.” King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y 1988).
Initially, the police officer or government entity seeking to block disclosure
must make, through competent declarations, a “substantial threshold showing that harm is
likely to occur as a result of disclosure of the requested documents.” Dorsett, 762
F.Supp.2d at 532; see King, 121 F.R.D. at 189 (internal quotation marks omitted). “Only
upon satisfying this initial threshold showing will a Court turn to the next prong and weigh
the factors in favor of and against disclosure.” Id.
“[E]ven where no substantial harm is shown . . . , an objection as to the
relevance of the documents may [still] prevent their disclosure.” Cody v. N.Y.S. Div. of
State Police, 2008 WL 3252081, at *3 (E.D.N.Y. July 31, 2008) (citing Barrett v. City of
New York, 237 F.R.D. 39, 42 (E.D.N.Y. 2006); see also Unger v. Cohen, 125 F.R.D. 67, 70
(S.D.N.Y. 1989) (holding that where defendants made no substantial threshold showing of
specific harm, the court had no choice but to order disclosure “unless defendants'
objections on grounds of relevance are sustained”). In this regard, “irrelevant records will
not be subject to discovery even where defendants fail to meet the requirements for
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shielding the documents from disclosure . . . .” Bishop v. Cnty. of Suffolk, 248 F. Supp. 3d
381, 389 (E.D.N.Y. 2017).
Plaintiff requests the disciplinary records of Acquino and Tedesco, and
Officer Hy, who is not named as a defendant in this action. Plaintiff contends that “the
defendant City of Buffalo conducted an Internal Affairs investigation into the officers
involved in this incident, and that one or more of the officers involved[,] including defendant
Tedesco and P.O. Richard Hy[,] have a prior disciplinary . . . history of which the defendant
City of Buffalo was aware.” Dkt. No. 32, p. 4. Defendants oppose disclosure of these
records, arguing that “any documentation relating to [the] alleged misconduct or
malfeasance on the part of Officers Tedesco, Acquino[,] and Hy has little probative value in
comparison to other evidence concerning the reasonableness of Officers Tedesco,
Acquino, and Hy’s conduct under the circumstances existing at the time of the shooting.”
Dkt. No. 37, p. 10.
Defendants’ argument might be availing if Plaintiff was asserting only an
excessive force claim against the individual Officers and was not also alleging that the City
was liable for failing to train and discipline those Officers. “[T]o hold a city liable under §
1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and
prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189,
195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983))
(internal quotation marks omitted)). A plaintiff may establish the existence of an official
policy or custom by showing that the constitutional violation was caused by: “(1) a formal
policy officially endorsed by the municipality; (2) actions taken by government officials
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responsible for establishing the municipal policies that caused the particular deprivation in
question; (3) a practice so consistent and widespread that, although not expressly
authorized, constitutes a custom or usage of which a supervising policy-maker must have
been aware; or (4) a failure by policymakers to provide adequate training or supervision to
subordinates to such an extent that it amounts to deliberate indifference to the rights of
those who come into contact with the municipal employees.” Brandon v. City of New
York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted); see also Spears v.
City of New York, 2012 WL 4793541, at *11 (E.D.N.Y. Oct. 9, 2012).
This Court finds that Plaintiff has shown that the requested records are
potentially material and relevant to: (1) whether Acquino, Tedesco, and/or Hy, as
members of a specialized Buffalo Police Department unit, were engaged in a pattern of
racial profiling, using excessive force against civilians, and/or covering up such conduct;
and (2) whether the Defendant City and Police Commissioner were aware of the Officers’
behavior and failed to intervene. Defendants argue that “the instant action concerns the
isolated actions of officers during a singular incident on May 7, 2017—unlikely to be
actionable under a Monell theory.” Dkt. No. 37, p. 10 (citing Abujayyab v. City of New
York, 2018 WL 3978122, at *13 (S.D.N.Y. 2018)). However, Plaintiff has alleged that the
Officers’ abuse of Mr. Hernandez-Rossy is not an isolated incident, but rather a single
example of pervasive, racially-motivated police brutality that went unchecked by the City
and Police Commissioner. Dkt. No. 1. Plaintiff’s counsel cites as proof of this that at least
two active-duty Officers had disciplinary records of which the City and Commissioner were
aware. The requested records will certainly reveal the truth or falsity of this allegation.
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Based on the foregoing, I direct that Defendants produce the following
records for in camera review: any and all personnel records and internal affairs reports
related to substantiated charges or founded civilian complaints of excessive force or
constitutional violations against Officers Acquino, Tedesco, and Hy that occurred prior to
May 7, 2017. Defendants need not turn over any records relating to a disciplinary charge
or complaint of which the Officer was exonerated. See Law v. Cullen, 613 F. Supp. 259,
262 (S.D.N.Y. 1985) (holding that five prior charges against the defendant police officer did
not support the inference that the officer had a propensity for excessive use of force of
which the defendant city knew or should have known, given that four of the five charges
were unsubstantiated and the last was based on an improper search and not excessive
use of force); Hart v. Goord, 2010 WL 1644242, at *2 (W.D.N.Y. Apr. 22, 2010) (denying
as overly broad and unduly burdensome plaintiff’s discovery request for grievances against
a defendant corrections officer for which no disciplinary action was taken). After reviewing
these records, this Court will determine whether their relevance outweighs the interest in
keeping them confidential and protected from disclosure. Levy v. Harrington, 2011 WL
5191796, at *3 (W.D.N.Y. Oct. 31, 2011).2
Housing and Buffalo Strike Force Unit Records
Lastly, Plaintiff seeks the “Buffalo Police Records relating to the Housing Unit
and BPD Strike Force Unit that these officers were assigned to and/or worked with
regular[ly] in carrying out their duties including the date of the incident,” “both of which
units were disbanded subsequent to this fatal shooting on May 7, 2017.” Dkt. No. 32, p. 3,
10. Specifically, Plaintiff requests “paperwork showing the official policy, practices[,] and
Whether these records are admissible is an issue reserved to the trial judge and does not
constitute a bar to their initial disclosure as Defendants suggest. Dkt. No. 37, p. 12.
2
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purposes of [these] specialized units . . . .” Dkt. No. 32, p. 10. Defendants maintain that
Acquino and Tedesco were assigned to the Buffalo Police Department’s Housing Unit, and
not the Strike Force Unit. Dkt. No. 37, p. 18. This necessarily limits Plaintiff’s discovery
rights to Housing Unit records. Defendants state that they have turned over voluminous
sections of the Buffalo Police Department’s Manual of Procedures as well as the entire
Agreement for Police Services between the Buffalo Housing Authority and the City of
Buffalo, which details the mandate of the Housing Unit. Dkt. No. 37, p. 19. Based on
these representations, this Court finds that Defendants have complied with this particular
discovery demand. If Plaintiff is not satisfied with what has been produced, she will have
to particularize her request so that Defendants can respond by disclosing the requested
materials or asserting privilege or some other basis for not producing them.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Compel (Dkt. No. 32) is
GRANTED in part and DENIED in part, as follows.
Regarding Officer Acquino’s medical records related to injuries he sustained
on May 7, 2017, Plaintiff’s Motion to Compel is GRANTED in part. Defendants shall
disclose these records to my Chambers for in camera review within forty-five (45) days of
this Decision and Order. Plaintiff shall provide a certified transcript of Acquino’s testimony
before investigators to my Chambers within this same time frame.
Regarding the personnel records and internal affairs reports related
to substantiated charges or founded civilian complaints of excessive force or constitutional
violations against Officers Acquino, Tedesco, and Hy that occurred prior to May 7, 2017,
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Plaintiff’s Motion to Compel is GRANTED. Defendants shall furnish these records to my
Chambers within forty-five (45) days of this Decision and Order.
Following inspection of these documents, this Court will determine whether
they are relevant to this action and should be produced to Plaintiff.
Regarding the request for records related to the Buffalo Police Department
Strike Force Unit, Plaintiff’s Motion to Compel is DENIED.
Regarding the request for records related to the Buffalo Police Department
Housing Unit, Plaintiff’s Motion is DENIED without prejudice to renew with particularization.
SO ORDERED.
DATED:
Buffalo, New York
June 1, 2020
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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