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Jury absolves Tucson police of negligence in 2018 death of Joel Andrade

A jury found that the city of Tucson and two police officers were not negligent in the 2018 fatal shooting of 53-year-old Joel Andrade,  whose family sued, claiming more should have been done prevent the death of the South Side father and husband.

The Andrade family filed a lawsuit against the city and Officer Ernesto Ortiz and Sgt. William Corrales. A jury decided last week that they did not prove their claims during a four-day civil trial.

The officers shot and killed Andrade in his house in September 2018 after his wife’s daughter, Yadira Moreno, accused him of sexual assault, a claim that’s never been proven. After Moreno began hitting Andrade with a broom, Andrade’s wife Patti Andrade took her husband to the bathroom and agreed with her daughter to call the police to settle the issue. When police arrived, Joel locked himself in the bathroom with a pocket knife.

For three hours, 19 officers, including a SWAT team, tried to talk Andrade into surrendering, before he came out of the locked bathroom with an antique, broken .22-gauge Winchester rifle, which police hadn’t known about until Andrade emerged.

Ortiz and Corrales fired seven times at Andrade with semi-automatic AR-15 rifles, hitting him twice and killing him. Police then waited to allow medics to provide aid until after a robot had been sent in to make sure it was safe.

Lawyer Paul Gattone, making the case for the Andrade family during the lawsuit, told the jury that police should have called a mental health professional, given medical attention sooner and done a better job of finding out if there were weapons in the house.

The four-day trial decided whether the city of Tucson and the two officers who shot Andrade had in fact acted negligently in their response. The ruling in favor of the city and the officers was decided by an eight-person jury that was mostly white, middle-aged or older, and evenly split between men and women. There was an alternate juror who didn’t help decide the verdict but sat through the trial.

The trial took place in the Pima County Superior Court in the courtroom of Judge Douglas Metcalf.

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After the verdict, Gattone told TucsonSentinel.com, “We’re frustrated. It was a difficult case, but we tried our best to get the right outcome. It was worth the fight.”

“I think the people of Tucson lost here,” he said. “Especially people of color who are impacted the most by this kind of misconduct.”

Patti Andrade, who gave emotional testimony on Monday, when she was asked to identify her husband in photos of the bloody crime scene, said “I’m glad it’s over” after leaving the courtroom.

The city of Tucson’s attorney, Renee Waters, said the city has a policy that prohibits her from commenting on active cases, including after a verdict in case of an appeal. Gattone has said that he does in fact plan to appeal.

'Officers did everything their training required'

In her closing arguments, Waters told the jury that TPD officers did everything in line with local law enforcement policies and national standards to help Andrade, including bringing in a hostage negotiator who was trained to deal with people who are suicidal or in crisis, and by shooting him to protect other officers.

“It was Joel Andrade who dictated the outcome of the response that night,” Waters said during the trial. “Officers did everything their training required them to do. They did everything required by Tucson policy and national standards. Joel’s determination to die that night prevailed.”

Andrade was cutting his neck while police talked to him. Joel had been telling police “Mata me,” or "Kill me" in Spanish, and before he locked himself in the bathroom, he told his wife Patti to take care of herself. A moment later, police escorted from her house to prevent Joel from being able to take hostages.

In his opening arguments, Gattone said that when Patti called the police the evening of Sept. 10, 2018, “she had been expecting police to help her. Instead, Joel died in a hail of bullets.”

The key witness for Gattone was Roger Clark, an expert on police use of force policies and SWAT tactics from California. Clark, who testified last Wednesday, said TPD was “ineffective” in their three-hour talks with Joel. Clark said he "never allowed myself to be drawn into a suicide by cop."

More progress should have been made in those three hours, Clark said, as most negotiations go much longer. “In those three hours, you should be laying the groundwork for a much longer negotiation,” he said, and by that time, TPD should have realized that they weren’t getting through to Andrade and considered another approach like calling a mental health professional.

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“I didn’t believe that TPD couldn’t find a more effective negotiator, including a mental health professional,” he said from the witness stand. “I imagine there are mental health professionals available in a county this big, and there’s the VA hospital.”

Clark also criticized Corrales’ decision fill Andrade’s living room with layers of police armed with lethal and less-than-lethal guns like an ARWEN, which fires blunt-force ammo. Andrade was hit by an ARWEN before he was shot with rounds from semi-automatic rifles.

Corrales put his men in danger, Clark said, by crowding them in a small space and making it hard for them to leave when Andrade emerged with a rifle that they didn’t know was inoperable. The officers said they shot to protect the other 17 police in the room, who struggled to retreat when Andrade came out of the bathroom.

Waters' response to Gattone’s expert witness was a series of investigators, who reviewed the case on the witness stand, and higher ranking officers who were either at the scene or understood SWAT tactics as well.

An FBI and an internal affairs investigator agreed that Ortiz and Corrales had acted according to national and state standards and were “consistent with Tucson’s use of force policy,” Cpt. Christopher Dennison, the internal affairs investigator, said. The FBI detective, Frank Hanson, also added that there’s no way Ortiz or Corrales could have seen from 30 feet away that the rifle was inoperable or that it had a hole in the side of its barrel.

Those investigators also found that TPD had followed the “eight can’t wait” policies, which are limits on use of force, including a ban on chokeholds and providing warnings before shooting. They meant to reduce police-caused deaths, and all eight have been adopted by TPD.

Testifying officers also agreed that procedures were followed in checking if there were weapons in the house. In the first day of the trial, Waters played body-cam footage showing an officer asking Patti Andrade whether there were weapons in the house, to which she answered “no.”

“It didn’t cross my mind,” she said from the witness stand on Monday. “I forgot all about (the rifle).”

The gun belonged to her ex-husband and was kept in the house as a “keepsake,” she said. Moreno, Patti’s daughter, also said there were no weapons in the house when she spoke to a 911 dispatcher.

Sgt. Derek Duffy, one of the first officers to respond to the scene, told the court he had asked Patti twice if there were weapons in the house. He also said she “understood the questions.” He only talked to Patti, as she “was the only person who seemed to live in the house,” besides Joel.

Still, Gattone argued that not only should police have searched the house for weapons but that they should have asked more of the people who were at the house that day, including two of Patti’s daughters, who both knew about the gun.

Police testimony also refuted that mental health professionals would have stepped in to help, even if they were called. Although every officer who was at the scene and testified in the trial agreed that Andrade was in distress that evening, Sgt. Troy Lansdale, who came to the scene after the hostage negotiator, testified on Wednesday that the TPD negotiator was the best person to handle a mental health crisis.

Waters pointed out in her closing arguments that Andrade “rejected offers of help. He even rejected water,” referring to the hostage negotiator’s offer of water and Gatorade while Andrade was in the bathroom.

When Andrade came out of the bathroom, an officer yelled “Gun!” then “Egress,” a command that tells offers to retreat from their positions. Clark, making a statement that the defense later used to their advantage, said that giving another command like “Drop your weapon” would have confused officers, saying “it’s not effective to give multiple commands at once.”

'Their lives changed forever after those 3 hours'

Waters built up a lot of her case on Wednesday, when Clark, the officers at the scene and investigators testified, mostly in support of Ortiz and Corrales’s actions with the exception of Clark's testimony.

During those parts of the civil trial, Waters showed clips from body-cam footage that showed the last few hours of Andrade’s life. Patti and Joel’s children, who were sitting in the courtroom, repeatedly broke down in tears and at times had to step out.

“No doubt you are likely feeling a high degree of sympathy for the Andrade family,” Waters said to the jury. “But don’t substitute sympathy for judgment. Look at what the evidence shows.”

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The only officer who took issue with how the situation was handled, she said, was Clark, the expert, who she pointed out hadn’t been in the field for 30 years, saying that he hasn’t even been an officer “this century.”

“Where Clark fails is in keeping up with evolving practices and standards," she said, as she pointed out he wasn’t familiar with the "eight can’t wait" policies. She also noted that he was paid by the plaintiffs to be there, a normal practice for expert witnesses in a lawsuit.

“Officers took every effort to deescalate the situation… that rifle changed everything,” Waters said. “Andrade is a human being with his own free will. You can do everything right but still have a bad outcome. Officers can control how they deal with the situation, but they can’t control Andrade.”

During the trial, Gattone pushed back against the city's defense of how police handled the incident.

“The way those officers handled the situation wasn’t in line with general orders; it wasn’t legal,” he told the Sentinel outside of the courtroom. “They shouldn’t have handled it like a hostage situation.”

In Gattone’s closing arguments, he told the jury that “we’re determining whether their actions were reasonable” and said officers didn’t act reasonably because they “failed to arm themselves with the knowledge they needed to protect themselves.”

He also pointed out that Corrales, who fired the shot that killed Andrade and who was the supervising officer at the scene, didn’t have body-cam footage to provide as evidence because he had been charging the camera's battery.

This would have been “the single most important piece of evidence,” he told the jury, as “it would have been critical” in determining how officers made their decisions leading up to shooting Andrade.

Corrales also “bears responsibility for setting up inside the living room and the consequences of that, including Andrade’s death,” Gattone said. “What’s reasonable? Is it reasonable to have 19 officers crowd into a small space? Is it reasonable to point their weapons to deescalate the situation?”

In his closing arguments, Gattone also questioned why officers didn’t ask more family members at the scene about weapons in the house, saying “you’d expect officers to delve into this more, especially as we’re determining whether their actions were reasonable.”

Officer could have avoided being jammed in the living room, he said, and could have set up outside, a point also made by Clark in his testimony.

Gattone's last statements were an appeal to loss that Patti Andrade, who was sitting behind him, had gone through.

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“They lost a father. They lost a husband,” he said. “Their lives changed forever after those three hours.”

In a civil case such as the lawsuit brought by the Andrade family, the plaintiff bears the burden of proving their claims by a "preponderance of the evidence," rather than the "beyond a reasonable doubt" standard of a criminal prosecution. But even with that lower threshold, the jury found that Gattone did not prove the officers were negligent in Andrade's death.

Bennito L. Kelty is TucsonSentinel.com’s IDEA reporter, focusing on Inclusion, Diversity, Equity and Access stories, and a Report for America corps member.

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