An attorney is calling on Governor Andrew Cuomo to give the state attorney general jurisdiction to investigate an officer-involved shooting.

Rafael “Pito” Rivera was fatally shot by a Buffalo Police Department officer in September.  On Monday, Erie County District Attorney John Flynn said no criminal charges will be filed against the officer.

Police said Rivera had a gun in his hand and ignored commands to drop the weapon. They do not believe that he fired his weapon, but he ignored commands to drop it. They also believe it was a situation in which the use of deadly force was justified.

Steve Cohen, the attorney for Rivera's family, said video shows Rivera was shot in the back while running from police.

He’s asking the governor to sign a superseder, giving the state attorney general authority to investigate the shooting.

“The AG’s jurisdiction under Executive Order 147 is limited to circumstances in which a law enforcement officer causes the death of an unarmed civilian,” the attorney general’s office said.

Flynn’s office also released a statement saying in part that the attorney general’s office was notified of the shooting when it happened and declined to investigate the case “because the deceased was armed with a loaded gun.”

DNA testing conducted on a gun found during the investigation confirmed that only Rivera had touched the weapon.