Two officers cleared in deadly 2019 shooting
DA’S report says the evidence suggests the suspect fired a gun but that it malfunctioned
SAN JOSE >> Prosecutors have cleared two San Jose Police Department officers of criminal liability from a deadly 2019 confrontation on the side of Highway 85, with a Santa Cruz County man who is shown on body camera reaching for a gun before he was fatally shot.
Sgt. Lee Tassio and Officer Matthew Rodriguez struggled with 29-year-old Aptos resident Andrew Roberts in the passenger-seat area of an SUV driven by Roberts’ father, when Roberts is shown on the footage reaching for a handgun.
According to a Santa Clara County district attorney’s shooting report released Feb. 10, the trigger of the stolen Glock 26 9 mm pistol Roberts was holding had been depressed and a chambered round had an off-center firing-pin strike, suggesting it was “highly likely” that Roberts had tried to fire the gun but that it malfunctioned.
The encounter marked the second deadly shooting involving Tassio, the other being a fatal shooting in 2011. Rodriguez currently is being prosecuted for alleged misdemeanor assault in an unrelated case alleging he used excessive force when he violently dragged a woman across a Mcdonald’s parking lot during a car stop last summer, which was captured on eyewitness video and widely viewed.
Deputy District Attorney Rob Baker wrote in the 24page shooting report that Roberts “was solely responsible for putting SJPD Sergeant Lee Tassio into a position where he had no other choice but to use deadly force to protect his life and the lives of other officers.”
Annrae Angel, an attorney who represented Roberts in previous criminal cases, said Feb. 10 that the report does not consider how police had multiple earlier opportunities to arrest him in a safer way, given that they had been following him as he traveled from Palo Alto and appeared to be headed back to the Santa Cruz area.
About two weeks before the shooting, Roberts was stopped by San Jose police near Valley Fair for an unsafe lane change, and Rodriguez was one of the officers conducting that stop, according to the report. After handing over his driver’s license, Roberts drove away from the stop, backing into a police car in the process and causing minor damage.
Angel said she believes that resulted in the surveillance and pursuit of Roberts, calling it “an arrogant response for running from them.” She also wondered why they didn’t conduct a conventional felony car stop in which they could, from a safe distance, order Roberts to get out of the SUV.
In the body-camera footage, Rodriguez, one of the officers who approached the vehicle, can be heard telling Roberts to exit the Lexus SUV, after Roberts’ father, who was driving the vehicle, followed orders to turn off the ignition, and later reached across his son and opened the passengerside door.
The footage shows Roberts refusing to respond, instead looking at his phone; when Rodriguez moves to arrest him, Roberts reaches for his waistband.
Tassio, who was working with Rodriguez as part of the San Jose Police Department’s Violent Crimes Enforcement Team, is then seen and heard using his stun gun on Roberts, which was ineffective. Rodriguez got a hold of Roberts’ hand that is holding the pistol, assuring other officers “I got it” as he and the suspect continued to struggle.
Tassio then yells, audibly in the footage, “I’m gonna (expletive) shoot you, man!” and then “I’m gonna shoot!” and “I’m gonna (expletive) kill him!” In the shooting report, he told investigators “I was scared he was going to kill me. I was scared he was going to kill Matt.”
On the day of the shooting, Roberts’ father, Dennis, drove his son to San Jose to get some of his jail tattoos removed, and later went to dad’s late mother’s home in Palo Alto, where they watched football.
The shooting report acknowledges that San Jose police had been surveilling him by this point — about 30 minutes before the freeway stop — which Angel said fuels her assertion that any arrest could have happened around that time.
The DA report does not evaluate the tactics used by police in their pursuit of Roberts, but it presents officers’ rationale for making the stop on Highway 85 near Saratoga Avenue: they “wanted to stop the vehicle before it passed into another jurisdiction,” and that “making the stop within the city limits of San Jose made SJPD resources more readily available if needed in an emergency.”
In statements to investigators, Dennis Roberts described trying to restrain his son and that “the only reason he let go of Andrew’s arm was because he believed the police were going to take Andrew into custody peacefully.”
According to the report, Dennis Roberts said he believed the officers acted unreasonably in using lethal force: “They shot him, which pisses me off because he didn’t need to be shot. He wasn’t going to get his gun out, or he shouldn’t have been able to with so many officers there.”
Angel also took issue with authorities’ citation of Andrew Roberts’ criminal history, which consists of nonviolent convictions for gun possession — one involving a weapon belonging to a friend on scene — auto theft and a juvenile arson case, which she said lacked context and vilified him. She said cumulative prison time, consisting of multiple mandatory-minimum 32-month sentences, made Andrew Roberts fearful of law enforcement.
Contact Robert Salonga at 408-920-5002.