Rossy v. City of Buffalo et al
Filing
63
DECISION AND ORDER re 32 MOTION to Compel MOTION for Discovery filed by Margarita Rossy. Defendants are directed to turn over COB In Camera Submission 0001-0009 and 0015-0023 to Plaintiff within one week of this Decision and Order. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 10/02/2020. (HKG)
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.
This Court presumes familiarity with the underlying allegations in the
Complaint. Dkt. No. 1. On June 1, 2020, the undersigned entered a Decision and Order
(Dkt. No. 55) directing defendants to produce for in camera review: Officer Acquino’s
medical records relating to injuries he sustained during his confrontation with HernandezRossy on May 7, 2017; and 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, or Hy that occurred prior to
May 7, 2017. Dkt. No. 55, pp. 5, 9. I also directed Plaintiff’s counsel to provide a certified
transcript of Acquino’s testimony regarding the cause of his injuries. Dkt. No. 55, pp. 5.
The deadline to comply with my Decision and Order was extended upon letter request.
Dkt. No. 60.
Having reviewed Officer Acquino’s testimony and his medical records, this
Court finds that select records should be disclosed as they substantially bear out Acquino’s
testimony that he was shot while struggling with Hernandez-Rossy in his SUV. To that
end, Defendants are directed to turn over COB In Camera Submission 0001-0009 and
0015-0023 to Plaintiff within one week of this Decision and Order. These records
document Officer Acquino’s transport by ambulance to ECMC on May 7, 2017, the medical
treatment he received at ECMC for the injuries to his face and ear, and the opinion
rendered by his doctor months later as to the cause of his injuries, while revealing no more
than necessary about Acquino’s health.
It is noted that the cause of Officer Acquino’s injuries is squarely at issue. As
previously found by this Court, whether Officer Acquino sustained a gunshot wound while
he wrestled with Hernandez-Rossy bears directly on whether it was reasonable for Officer
Tedesco to shoot Hernandez-Rossy after he emerged from the vehicle. See Lennon v.
Miller, 66 F.3d 416, 425 (2d Cir. 1995) (in determining the reasonableness of force used by
a detaining officer, a court considers “the totality of the circumstances faced by the officer
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on the scene”); Ortiz v. Vill. of Monticello, No. 06 CIV. 2208 ER, 2012 WL 5395255, at *11
(S.D.N.Y. Nov. 2, 2012) (reasonableness of force analysis includes three specific
considerations: (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”).
Regarding the personnel records and internal affairs reports, this Court finds
that they need not be disclosed as none of the disclosed complaints involve injury to any
civilian; substantiate deceit on the part of Officers Acquino, Tedesco, or Hy; or otherwise
demonstrate a pattern of racial profiling. Two founded charges relate only to the failure to
file requisite paperwork. In this regard, the documents are not relevant to whether:
Officers 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; or that the Defendant City and Police
Commissioner were aware of such behavior on the part of the Officers, but failed to
intervene.
This Court received the articles sent by Plaintiff’s counsel regarding
Officers Tedesco and Hy. Plaintiff notes that according to a July 2020 Investigative Post
article, Officer Tedesco was within the top 10% of Buffalo Police detectives, patrol officers,
and cell block attendants who received the most complaints in his or her work area. See
https://www.investigativepost.org/2020/07/20/buffalo-police-release-disciplinary-records/.
While Officer Tedesco may have complaints against him, the records produced by
Defendants and reviewed by this Court do not show that he used excessive force against
civilians or that he was engaged in unlawful racial profiling. See Law v. Cullen, 613 F.
3
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).
Plaintiff’s counsel also notes that according to another, more recent
Investigative Post article, Officer Hy is currently under investigation for scuffling while offduty with a man described as mentally disturbed, and that the Officer had been suspended
for head butting a teenager while off-duty in 2016. See
https://www.investigativepost.org/2020/09/03/buffalo-cop-under-investigation-after-scuffle/.
This would not fall within the scope of documents this Court ordered Defendant to disclose
as it did not involve a civilian complaint to the Buffalo Police Department. According to the
article, because he was off-duty, Hy was charged in West Seneca, fined, sentenced to 50
hours of community service, and ordered to stay away from the victim. He was incidentally
suspended by the Buffalo Police Department. If Plaintiff requires more information
regarding this off-duty incident, he may depose Hy, seek out the records from the West
Seneca Police Department or municipality, and if necessary, move this Court for an order
compelling disclosure. This Court notes once again that Plaintiff has not named Officer Hy
as a defendant in this case. Nor has she alleged that Hy was involved in pulling
Hernandez-Rossy’s SUV over or that he used any force against him whatsoever.
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CONCLUSION
For the foregoing reasons, Defendants are directed to turn over COB In
Camera Submission 0001-0009 and 0015-0023 to Plaintiff within one week of this
Decision and Order.
SO ORDERED.
DATED:
Buffalo, New York
October 2, 2020
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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