June 19, 2011

The Guerena Shooting, Analysis 4

We have established an archive for all articles relating to the Jose Guerena shooting. They may be found in our archives section in the right hand margin of the Confederate Yankee home page.

Since the publication of the third analysis article on June 9, several entirely predictable, but interesting, events have occurred. The Pima County District Attorney’s office has cleared five SWAT officers of any wrongdoing in the shooting death of Jose Guerena. Christopher Scileppi, attorney for Vanessa Guerena, Jose’s widow, has announced that he and his team are pleased with what their investigation has revealed and will, within days, be making predictable demands of the law enforcement agencies involved. They will refuse those demands and Scileppi will file suit.

Additional Links for this analysis article:

(1) For a June 3 KGUN9 interview of Pima County Sheriff Clarence Dupnik, go here.

(2) For a June 4 Arizona Star article containing some SWAT officer statements, go here.

(3) For the June 14 KGUN9 story on the clearing of the SWAT team, go here.

(4) For a June 17 Fox11 interview with Guerena Attorney Christopher Scileppi, go here.

(5) For an Arizona Star article naming the officers who shot Guerena, go here.

This article will be devoted to an analysis of the statements of those involved, including several Pima County Sheriff’s Department press releases, the statements of Sheriff Dupnik, and attorney Scileppi. Most of the police reports have yet to be released to the public, but some additional information has been made public. I’ll provide that information and attempt to explain what it likely means. I’ll also try to further clarify the law governing the legitimate use of deadly force, particularly in light of statements made by Sheriff Dupnik


It is unlikely that anyone is surprised that the Pima County DA’s Office has cleared the SWAT team of wrongdoing, noting that when SWAT killed Guerena, they were not breaking the law. Chief Criminal Deputy Attorney David Berkman wrote:

"A close examination of the rifle revealed it appeared to have been damaged by being fired upon from such an angle that it must have been pointed toward officers. The officers were mistaken in believing Mr. Guerena fired at them. However, when Mr. Guerena raised the AR-15 semi-automatic assault rifle in their direction, they needed to take immediate action to stop the deadly threat against them."
Regarding the possibility of a civil suit, SWAT attorney Mike Storie said:

“"They've been posturing to make money off of this thing from the beginning, from the reckless comments from an attorney who knows nothing of what he's talking about. So that became obvious. I would think that if more intelligent minds have taken a hold of this thing and reviewed it they might rethink the whole lawsuit thing.”


While it is legally the job of the Pima County DA’s Office to render judgment on the police in this, and any other case where police wrong doing is a possibility, there is always an inherent conflict of interest. Pima County stands to be civilly liable in this case. I have no knowledge that this fact influenced the DA’s decision, however it would certainly have been known to him and to those who provide his budget. That said, such pronouncements are routine, and while those supporting the SWAT team’s actions in this case have been quick to claim vindication, the case is far from over.

Deputy DA Berkman’s statement is disturbing on several levels. He identifies Guerena’s weapon as an “AR-15 semi-automatic assault rifle.” This is incorrect and inflammatory. As I’ve noted in the earlier articles, most police officers are surprisingly uninformed and inexperienced in firearms use and terminology, so it is unsurprising that a prosecutor would also be uninformed. However, the police and attorneys alike are responsible for the precise use of language. Such issues are not merely niggling arguments over grammar. They matter.

The term “assault rifle” refers to a specific class of small arms with these very specific characteristics:

(1) Shoulder fired;
(2) Gas operated;
(3) Firing an intermediate (in size and power) rifle cartridge;
(4) Using a detachable box magazine;
(5) Capable of fully automatic fire.

A fully automatic weapon differs significantly from a semi-automatic weapon. A semi-automatic rifle will fire only one round for each separate pull of the trigger. When the trigger of a fully automatic rifle is pulled and held back, the weapon will continue to fire until the trigger is released (as in firing a two or three round burst using only manual trigger control) or until all of the ammunition in the magazine is exhausted. Semi-automatic rifles and handguns are very common. Fully automatic rifles are not. Citizens can own fully automatic weapons, but the federal government strictly regulates such weapons. Permission to purchase one is time consuming, expensive and difficult to obtain.

One of the oldest tactics of the gun control movement has been to try to trick people into believing that machineguns--fully automatic weapons—are commonly used in crimes. Their internal documents have actually suggested lying about such things in an attempt to make the public think that any firearm that resembles a military weapon must be a machinegun. The term “assault weapon” was coined by anti-gunners and the media for this purpose. There is no such thing as an “assault weapon,” but there is a class of military weapons known as assault rifles. In fact, criminals overwhelmingly choose handguns. Semi-automatic rifles such as the AR-15, which resemble their military counterparts, are virtually never used in crimes.

Jose Guerena’s rifle was an AR-15 type, semi-automatic rifle of the kind in widespread use for competition, sport shooting and hunting. AR-15 pattern rifles and carbines are among the best selling firearms on the market and are so common as to be unremarkable on any shooting range. It was not a fully automatic “assault rifle” and was actually mounted with a telescopic sight, an accessory that suggests that the rifle was to be used for hunting or target shooting. The AR-15 design is, in fact, inherently accurate.

Berkman’s imprecise language may have been revealing of nothing more than a lack of knowledge of firearms and firearm terminology, but it may also have been an unethical attempt to smear Jose Guerena to further the story that he was a dangerous, violent criminal.

NOTE: A Pima County SD “Media Release” done by Public Information Officer Deputy Jason S. Ogan also identified Guerena’s rifle as “an automatic AR-15 assault rifle.” A law enforcement officer should know better.

Deputy DA Berkman’s statement that a “close analysis of damage to Guerena’s rifle indicates that it must have been pointed “toward officers” is, to put it kindly, nonsense. Considering the volume of fire directed at Guerena, it would be practically impossible to tell, merely by an examination of potential bullet or shrapnel damage to his rifle, when or how that damage occurred. Even if such precision was possible, and it is highly unlikely that it is, particularly in this case, it would still be impossible to tell when the rifle was pointed “toward officers,” whatever that means. It is entirely possible that the rifle could have been pointed in a variety of directions at any given moment as Guerena reacted to the multiple hits on his body. It is equally possible that Guerena could have dropped the weapon with the muzzle oriented in the general direction of the front door of his home where it could have been hit by the bullets that hit him literally head to toe and that exited the back wall of his home from ground level to seven feet or more high.

When Guerena pointed the weapon at the SWAT team—if he did—is of course of paramount importance. Merely pointing it in their direction means little, but Berkman is clearly trying to suggest otherwise. He simply cannot know that what he is representing as fact is a fact.

SWAT Attorney Storie’s comments about the motives and intelligence of Vanessa Guerena and her attorneys are, to put it plainly unprofessional and foolish. Every rational attorney knows that it is unwise to publically challenge those who might be able to do their client substantial harm. Arrogant attorneys—and they certainly exist—are essentially painting figurative targets on their backs and on the backs of their clients. Considering the manner in which Jose Guerena was killed and the inhumane police treatment of Vanessa Guerena, common decency would dictate restraint in Mr. Storie’s use of language. It would appear that Mr. Storie is crudely daring Mr. Scileppi to sue. It is highly likely that he will get his wish. When the time comes to try to settle the case rather than risk the kind of award a jury will be likely to give, Mr. Storie’s juvenile taunts will be less than helpful.


There are four law enforcement agencies involved in this case: The Pima County Sheriff’s Department, the Sahuarita Police Department, the Oro Valley Police Department and the Marana Police Department. As I’ve noted in past articles, establishing a multi-agency SWAT team can help to ease the enormous financial burdens involved, but it creates unique problems, problems that are often never solved and that can actually make a SWAT team less effective, even dangerous.

In cases like this, things become very complicated. There are four separate governmental entities involved, and all have a duty to the public they serve to limit liability to the greatest degree possible. It is not known what, if any, agreement these entities have regarding criminal and civil liability as it relates to their joint SWAT venture, but it takes little imagination to realize that they will be likely to seek every way possible to limit their individual liability.

There will be four distinct groups of lawyers advising the town councils or county commissions involved, and all will want to circle the wagons and release as little information as possible, which is precisely what has happened. Police reports are public records, and generally may not be withheld. One of the obvious exceptions is records which might compromise ongoing investigations (including internal investigations), and that is the current reason given for withholding more specific information from the public.

An Arizona Star article names the five SWAT officers who killed Guerena. They are:

(1) Officer Jake Shumate, Marana Police;
(2) Officer Jason Horetski, Oro Valley Police;
(3) Officer Hector Iglesias, Sahuarita Police;
(4) Deputy Kenneth Walsh, Pima County SD;
(5) Deputy Chris Garcia, PCSD.

So it would seem that these five officers each fired at Guerena. It is currently unknown when they fired, exactly how many rounds each fired, how many rounds fired by each officer struck Guerena or any other particulars, however they have been clearly identified as the officers involved, which is interesting in that there were more officers present. As I noted in my analysis of the 54 second video of the raid, I could make out only three officers who were likely shooting, and the fourth officer who fired an unknown number of late, “me too” shots toward the end of the fusillade. I could not see a fifth officer firing, but apparently the police authorities involved and the DA’s Office believes there were five, and there was at least one officer from each agency involved.

With four police agencies and four separate governmental entities involved, expect substantial foot-dragging and outlandish delaying tactics to be employed in every way possible. An example is another press release where Deputy Ogan claimed that the PCSD was being “open and forthcoming with information released to the news media.” He wrote:

“The day the search warrant was served, we reported to the media that Mr. Guerena fired at SWAT officers. This is what was understood at that time. After a more detailed investigation, we learned that he pointed his assault rifle at SWAT officers, however, the safety was on and he could not fire. This is a clear example of erroneous information being provided without careful investigation. Rather than risking the release of further information, it is imperative that we complete all aspects of this investigation.”

The general thrust of the statement—if one does not wish to give the police the benefit of the doubt--is that because the police were incompetent in the release of false information, they are not going to release any additional information until it has been appropriately laundered. This might not be an unreasonable assumption when one considers Deputy Ogan’s odd syntax: “…the safety was on and he could not fire.” Perhaps this is simply clumsy syntax, akin to writing: “he had no car keys and he could not start the car.” It does have the effect of suggesting that the only reason Guerena did not shoot at the officers was because he somehow could not release the safety of his weapon.

If this is Dep. Ogan’s intent, it is unwise on many levels. Every Marine is, first and foremost, a rifleman. Were he alive today, Jose Guerena would be able to recite the serial number of his Marine-issued rifle. To suggest that a man with his experience could not, at will, manipulate the safety of an AR-15 is ridiculous. And as those who are familiar with the AR-15 family of weapons know, one of its great advantages is its excellent ergonomics. The safety is perfectly placed, mechanically positive, designed so that the operator can be absolutely sure of its position by touch alone, and is easily manipulated. Again, perhaps this is just an odd use of language, or a lack of knowledge of firearms, or it may be yet another ploy to smear Jose Guerena in death as a means of limiting police liability.


Pima County Sheriff Clarence Dupnik has made a variety of statements regarding the case, but his most revealing interview to date was apparently made on June 2 and reported by KGUN9. Dupnik made a variety of surprising claims (I’ll add my analysis in brackets following his statements):

“My feeling is that the reason he came not to the door, but entered the hallway with an assault rifle pointed, the only reason none of us were shot, is because he forgot the safety was on. And by the time he realized, he was shot. But my feeling is the reason he came with that gun is that he thought we were there to arrest him for murder.”

[This introduces the possibility that Dupnik intends to pin one or more unsolved murders on Guerena. It is not uncommon for law enforcement agencies to use this tactic. It clears a major case (Look at us! We solved a murder!), there is no prosecution or trial, and the alleged killer can’t say otherwise. It would also have the effect in this case of providing a post mortem justification for SWAT actions where their pre-raid actions could and did not. Again, we are expected to believe that a Marine combat veteran would have no idea that his safety was on and would be unable to manipulate it. The most likely explanation: Guerena ultimately recognized the people breaking down his door as the police and, unwilling to shoot police officers for any reason, left his weapon on safe.]

Responding to a question about contradictory police stories about who the police believed would or would not be home when the warrant was served Dupnik said:

“I don't have an explanation, but that's not the facts that I have. We had reason to believe that he probably was going to be there. We also had reason to believe that the kids may not, and the mother, because they were supposed to be at school. That was their normal pattern. But we did not conduct the surveillance that day because we would have been identified. We can't do that. First of all, when we are serving a search warrant on a property, it's typical for when the people find out that you're outside the house, the start destroying evidence that they can, burning documents, and things of this nature. That's one of the reasons that we don't do that. We had no reason at all to believe that this was anything other than any of the multitude of other search warrants that we've served where we never had a problem. We had no reason to believe that this guy was going to do that. But because he is part of a very violent organization, we considered it high risk.”

[Notice the lack of precision in his statements. It is likely that the police had no idea whatever who was in the home when they assaulted it. The suggestion that they could not do surveillance prior to assaulting the home is nonsense. The video of the raid indicates clearly that the officers were not in the least concerned that anyone was going to be destroying evidence, and the search warrant affidavit also made no such claims. Yet in the next sentence, Sheriff Dupnik contradicts himself and clearly says that the police had no reason to believe the Guerena was going to destroy evidence! Amazingly, Sheriff Dupnik claims that Guerena was part of a “very violent organization” and that the police considered it to be a high-risk situation. This too is utter nonsense. The search warrant affidavit said nothing at all about violence. It did not identify anyone as a violent criminal, and certainly not Jose Guerena. It did not request a no-knock warrant, which is the logical, rational thing to do if violence or the destruction of evidence is anticipated. Again, the officer’s actions at the raid are indicative of officers engaged in a boring training session rather than officers about to assault the home of a violent murder suspect heavily involved in a drug gang.]

In response to a question about changes in SWAT procedures, Dupnik said:

“But as far as the other criticisms, let me tell you that Pima County has a nationally-recognized SWAT team. As a matter of fact, one of our commanders goes all over the country instructing other organizations on SWAT techniques and protocol. We have one that's known internationally, Dr. Richard Carmona, who goes all over the world talking about SWAT. In my judgment, we have a premiere SWAT organization, and at this point I don't see any need to -- This was an unfortunate situation that was provoked by the person himself.”

[Does Pima County have “a nationally-recognized SWAT team?” It’s possible. There is no Good Housekeeping Seal of Approval for SWAT teams. There is no certifying agency. Many officers make a name for themselves by putting together a program that recycles freely available information in a slightly different form. Some know what they’re doing, others don’t, but anyone can claim to be the finest SWAT team on the planet and normally, such assertions are difficult to conclusively disprove. We can best judge the performance of this particular team by their own video and by their actions. At the moment, there is no reason to believe that what they did is anything other than a textbook example of how NOT to conduct a SWAT operation.

It is hard to understand what Sheriff Dupnik is thinking in his final sentence. Jose Guerena was awakened out of a sound sleep after a long shift at a copper mine by his wife who spotted armed men in their yard. Reportedly wearing only briefs, he attempted to defend his family, never having the chance to step outside his home. How this translates into an “unfortunate situation…provoked by the person himself” is exceedingly difficult for the rational mind to grasp.]

Telling, and frightening, is this exchange between reporter Jennifer Waddell and Sheriff Dupnik:

“Waddell: We have had some viewers who have come out and said, look, how do I know that the SWAT team isn't going to bust into my house and shoot me dead in my house for what they would say is no reason. What would you say to the community to address some of those concerns of perhaps mishandling?”

“Dupnik: I don't think anything was mishandled. Unfortunately, this individual points an assault rifle at cops. You do that, you are going to get killed. And the community has no reason to be concerned about it. We have a national reputation. We have been doing this for many years. And our organization as I said is nationally recognized as one of the most proficient. It's not an issue. We average about 50 of these searches of where we have to have a search warrant from judge. And law abiding people don't have to worry about confrontation with the cops.”


As I noted in the first article of this series, the police may use deadly force if there is an imminent threat of serious bodily injury or death to themselves or others. They may use sufficient force to end that threat. These legal guidelines also apply to citizens. If a single bullet causes a bad guy to stop doing whatever he was doing that gave an officer the justification to shoot, that’s great. If six bullets are required, that’s allowable too. Of course, when 71 bullets are fired, only 22 strike the intended target, and the rest ventilate the neighborhood, it is reasonable to wonder if the officers involved used excessive force.

In such cases, some observe that police officers are taught to “shoot until the threat is ended.” It is entirely possible police officers are being taught this, or that they are incorrectly taking this lesson from more rational and less dangerous training. In any police shooting, officers are expected to fire only when absolutely necessary, to use the minimum force required—if two bullets will do the job, don’t empty a magazine—and to be accurate. A single hit by a properly aimed bullet is far more effective and likely to stop a bad guy than 71 rounds fired in the general direction of the bad guy.

The proper way to respond—and we’ll assume for the purpose of this example that the officer involved is unquestionably justified in shooting—is to start any confrontation from the “ready” position. In other words the officer should begin with his weapon in his hands, in a proper shooting posture, his finger “in register” (straight and in contact with the frame of his weapon, outside the trigger guard and away from the trigger) and pointed downward, roughly at the beltline of the bad guy. This is absolutely necessary so that the officer can actually see what the bad guy is doing. If his weapon is extended straight out from the shoulders in front of his face, he can only see his sights and that portion of the bad guy’s head above them; he can’t see what the bad guy’s hands are doing.

When it becomes obvious that he must shoot, he raises his muzzle several inches, simultaneously putting his finger on the trigger, and if he is well trained, he fires no more than two shots into the center mass of the bad guy as the muzzle comes on line. He immediately returns to ready to assess the effectiveness of his shooting. If necessary, he fires again, but notice that he is not simply emptying his magazine. If his weapon is not in ready, he can’t see what effect he is having, and he is likely, if the bad guy falls, to keep shooting until he runs out of ammunition even though his target has long since dropped below his line of fire.

This is vitally important because police officers are absolutely responsible for each and every round they fire. Some officers might say, “yeah, but no matter what, I’m going to make sure I go home at the end of my shift.” I understand the sentiment, but if that officer fired a round that struck a bystander, even if they weren’t killed, home is not going to be a happy place that night, perhaps not ever again. It’s hard enough to explain misses. What possible explanation is there for rounds that hit innocents? “I didn’t see her?” “He just came out of nowhere?”

Going to ready, assessing, and reengaging takes only fractions of a second. Some continue to suggest that once an officer starts to shoot, he should actually empty his magazine before checking the effect of his fire, firing as many as 15 rounds. They’re careful not to put it that way, but that’s the inevitable consequence. If you don’t take the fractions of a second necessary to pause to assess the effect of your fire, you will eventually be doing it anyway when your slide locks back on an empty magazine. If you need to continue firing then, you’re in real trouble, because it will take far longer to reload and recharge your weapon than the fractions of a second making an assessment would take. Remember: A single accurate round is far more effective than any number of panicked rounds, and an officer is responsible for each and every round he fires. There are no call-backs or do-overs once the trigger is pulled.

Keep in mind too that if the bad guy falls—or ducks—and the officer is blindly emptying his magazine, he is not only likely to shoot unintended things and people, but he is far more likely to end up not going home at the end of that particular shift. An officer emptying a magazine is an officer who is not in control of him self, and we reasonably expect police officers to be in control of them selves.

For SWAT officers, as I have argued in past updates, all of this is true, but they bear an added burden. Because of their specialized training, their specialized equipment and their experience, they are expected to be faster, more accurate, and more capable of not making deadly mistakes than other police officers. If this is not so, how may the existence of a SWAT team be justified? Particularly when SWAT officers are using rifles and submachine guns with optical sights that enhance speed and accuracy, weapons that by their very nature deliver more effective and deadly fire than handguns, should we not expect them to do the job with fewer rather than more rounds?

Consider Sheriff’s Dupnik’s statement that if you point a gun at cops “you are going to get killed.” To be as kind to the Sheriff as possible, I could say that he is probably making the point that when someone is clearly and unmistakably placing officers in imminent threat of serious bodily injury or death, they may legally be shot. Perhaps the Sheriff is simply incapable of saying what is inherently reasonable in a reasonable way.

The problem is that in deciding when to use deadly force, the police must have substantial discretion. I’ll provide an example from my police experience that illustrates the point.

The Situation: I am backing another officer and his trainee on a domestic violence call at an apartment. We’ve been here before and the bad guy is a real bad guy who has severely beaten his girlfriend before. Of course, she always comes back, and when we arrive—she called for help--windows are already broken and we can see and hear him beating her inside the apartment. He won’t stop, and we break in the door and find ourselves jammed in a narrow entry hallway. We can’t easily retreat and there is no cover.

The bad guy is standing only about six feet from us holding a can of hairspray in one hand and a lit cigarette lighter in the other. He had a field expedient flamethrower. We filmed a firefighter in proper protective gear using it later. He could have easily sprayed our faces with flame from that distance.

Were we in imminent danger of serious bodily injury? Some might say yes, and might even get away with immediately shooting the bad guy. We drew and went to ready and tried to talk to him. It didn’t work. After a few seconds, he made a particularly insane grin, and began to raise his hands--and dropped the hairspray and lighter. He made a run for an upstairs bedroom where we pursued, jumped and subdued him.

How close was I to shooting him? My finger was on the trigger and I had begun, ever so slightly, to pull it, but I was not yet completely out of ready. Because I was not, I was able to see him drop his makeshift weapon and didn’t have to shoot him. Would I have been justified in shooting him when he grinned like an idiot and began to move his arms upward? Probably, and the world might have been a better place, but I could afford to take the few fractions of a second necessary to be really sure. Many people think it might be “cool” to shoot a bad guy, but it is a life-changing experience, and never in a happy-making way. The overwhelming majority of police officers serve an entire career without having to shoot anyone. This is a good thing for the officers and the public.

My experience isn’t unusual—I had many more like it—and untold thousands of people are alive today because police officers around the nation were sufficiently trained and competent not to have to shoot at the first hint of potential danger. Isn’t that what we should expect of every police officer? Isn’t that particularly what we should expect of the most highly trained and experienced officers with the best equipment?

The idea that when a SWAT team breaks down the door of a home without a no-knock warrant and is thereby justified in firing on anyone who has a weapon in their hands--in their own home--particularly if that weapon might be aimed in their direction, is nothing less than horrifying. It is essentially saying that officers may shoot first—in fact that they may plan beforehand to shoot first--and be reasonably certain later. If that is the case, anyone living in Sheriff Dupnik’s jurisdiction does indeed have to worry about “confrontation with the cops.”


Guerena attorney Christopher Scileppi recently spoke to Fox11. A sampling of his observations:

"We were silent for a while, we were doing our investigation and we're very pleased thus far with the results of what our investigation is showing."

"I don't consider enough for even probable cause to execute the warrant, but it certainly doesn't paint Jose as the bad guy."

"They should have been separated right away so they don't come behind the story. They got together. They made mistakes and they made statements, initially. They changed their statements."


Notice that Scileppi is not name calling or engaging in arrogant bravado. He is obviously proceeding patiently and professionally. His statements suggest:

(1) That he has found obvious and damaging mistakes, contradictions and other problems in police reports and other related documents and that he reasonably expects to find even more.

(2) That he too recognizes that the search warrant affidavit lacked probable cause and was little more than a judicially authorized fishing expedition.

(3) That the police could not portray Jose Guerena as a criminal in the search warrant affidavit.

(4) That there are telling contradictions and indications of improper collusion in the statements of the SWAT officers.

Christoper Scileppi is obviously a happy man, and happy because he realizes that he has a powerful case that the police may come to realize—if they are rational and realistic—that they do not want any jury to hear.


Sheriff Dupnik has said that there is “no reason for anybody to be suspicious of what happened.” One need only view the 54-second police video of the raid to understand the inherent absurdity of that statement. At the moment, it’s known that at least two officers (details remain sketchy) claimed that they fired because they saw the muzzle flash of Guerena’s weapon. They were, by their own belated admission, tragically mistaken. Several spoke of fearing for their life because they saw wood splintering around the front door. That splintering wood came from their own unaimed, panicky fire. They had reason to fear for their lives but Jose Guerena had nothing to do with it.

What did happen? It is possible that after breaking in the door, after milling about aimlessly for a few seconds, one of the officers had a negligent discharge, probably from outside the home, a discharge that struck the door frame and possibly the door, showering the officer holding the shield—or others--with fragments, perhaps of the bullet, the door, or both. Thinking that he was under fire, he and the other officers simply opened up and more or less exhausted their magazines. Several also struck the door, wall and doorframe, perhaps making the hapless shield holding officer think that he was continually being hit and causing him to fall down. It is also possible that, coming into a dark home, dark so that Jose Guerena could sleep during the daytime (incidently, the interior walls of the home were painted in dark shades), out of the bright sunlight, the officers really couldn’t clearly see Jose Guerena or what he was holding. He may have been nothing more than an indistinct form to them—if they could see him at all--and once the shooting started, they more or less focused on what they, in a panic, thought had to be the threat. Only when their magazines were empty--or in one case, a weapon malfunctioned--did they stop to assess what was happening.

Deputy Christopher Garcia said Guerena yelled something before he began firing at him. Could it have been "don't shoot?"

Is this actually what happened? It’s possible, and it’s a reasonable scenario constructed from the available evidence. At some point in the future, we’ll likely have better information and can reconstruct what likely occurred with a greater degree of confidence.

I know that when this goes to trial, I would not want to be the “me too” shooter. How could you possibly justify running up to the door at the last second, sticking your handgun between the heads of fellow officers who were blocking the door and firing off a few rounds at…what? I know also I wouldn’t want to be Officer Iglesias who was holding the shield. How can he explain how and why he fired ten rounds and how he ended up falling down in the middle of gunfight that wasn’t, unable to clear his malfunctioning handgun with his shield shielding him from the police camera filming the raid?

From the moment the last echo of the last, unexplained gunshot died, the police have done nothing but given the public reason to be suspicious about their actions. Everything they have released to the public has only served to make them look even less competent.

At the moment, it would seem that Christopher Scileppi has every reason to be happy. It seems likely that Vanessa Guerena will be justly compensated for what the police did. It also seems unlikely that any meaningful changes will be made in the police agencies involved.

Quite different from the crude and cruel assertions of Mr. Storie, I suspect that Vanessa Guerena and her children would simply prefer to have Jose back.

Posted by MikeM at June 19, 2011 02:39 AM

Excellent analysis Mike!

Posted by: Col Bat Guano at June 19, 2011 11:16 AM

Let's see: There were sirens, flashing lights, knock and announce, entry and Guerena still decided to confront the police officers entering his home in accordance with a lawfully issued search warrant and confront them and point at them a loaded semi-automatic rifle.

Case closed. It is clear that Guerena was a drug dealer. It was not a case of mistaken identity.

And, for the record, it is quite common for the gun press to refer to semi-automatic pistols as automatic pistols. So trying to clear Guerena with the claim that the mistaken description of his weapon as an assault rifle is clearly a case of stretching.

It shows how little you identify as serious issues are in fact irrelevant. How is it relevant that this weapon was not an assault rifle? It was a weapon and could have killed the officers.

When you confront police officers with a gun, you will be shot. What is so hard to understand about that?

If he is just a hard working blue collar guy, what is with all the cash and numerous cell phones. To a real police officer that is evidence of drug dealing.

In the end this will be no more another Rosa Parks than Eric "The Drug Fiend" Scott.

Posted by: Federale at June 19, 2011 07:31 PM

I am getting sick of the "point a gun at a cop, you die" meme.

What about point a gun at ME and you die, officer? Why do the cops get to assault me and expect nothing in return?

This is not a binary situation, this is about reason. It is reasonable for a homeowner to arm themselves when ANYONE is breaking in the front door. With the numerous cases of getting the wrong address a SWAT team is going to have to start expecting to be aimed at by innocent people. It is not reasonable to assume that a home-owner will not be armed and making an assessment of the situation. It is unreasonable to not give that surprised person some time to figure out it's the police and to, well, surrender before you begin shooting. As an agent of the state a police officer is more replaceable than an individual citizen. Yes, that makes breaking into a house without knocking more dangerous, and I do not care. You could always stop executing no knock searches to solve the danger problem; but that never seems to be suggested by the "real police officers" does it?

This is not like someone pulling a gun on a cop at random in the street, this is someone in their home; that place where they are supposed to have a right to "be secure in their persons, houses, papers, and effects." The burden should be far more stringent on the police than what has been shown in this case to even knock on the door, let alone break it down.

You can't prove a negative, but would Mr Guerena have pointed a gun at the police if they had not been breaking the door down? had Mr Guerena ever pointed a gun at a police officer who wasn't breaking down his door? Who created the situation here?

I am fed up with this "police can do no wrong" attitude. I am fed up with special rules for the cops. The cops are supposed to be us; and they we. I'd feel far better if the rules for a cop shooting were at least as hard as the rules for when I can shoot. Especially since I can't call for back-up.

I am sick of the "us vs them" mentality of many cops. "To a real police officer that is evidence of drug dealing." To a real citizen that's evidence of a tyrannically minded jack-booted thug who's decided he's judge, jury and executioner who doesn't need to bother with irritating things like evidence and due process. A more reasonably minded person will ask, "where are the drugs then?"

Bite me, sir.

I hope that someday soon the proper relationship of the police working for the communities they serve is reestablished rather than the reverse you are espousing which currently holds sway.

Every single person collecting a government check works for the citizenry, not the other way around. If you find that you dislike serving, perhaps you should change carriers.

Posted by: McThag at June 19, 2011 11:13 PM

I like the cop who thinks that being in the car with saran wrap is proof you are a drug dealer. So after I kick in his door and shoot him I can prove he's a drug dealer when I search his kitchen and uncover not just saran wrap but also aluminum foil and baggies?

Posted by: Kevin at June 20, 2011 12:17 AM

Anyhow, Sheriff Clown's comments about "nationally recognized SWAT team" is due to their having a FEMA type 1 tactical team. Which really doesn't seem that special. See page 19 of
"Oversaw the creation of the Pima Regional SWAT team. This accomplishment resulted in the largest, most capable tactical team in the state of Arizona and the only FEMA type 1 tactical team in the southern region of the United States. The Pima Regional SWAT team is a collaborative effort comprised of officers from seven Pima County law enforcement agencies and medics from various local emergency medical support agencies. The program includes several distinct elements: Tactical, Negotiations, EOD, Canine, and Tactical Emergency Medical Support (TEMS). These elements work together to resolve dangerous incidents that pose a risk to the lives of the residents of Pima County."

I suspect there are some very strange politics in play here.

Posted by: Kevin at June 20, 2011 12:35 AM

whats so hard about considering thier behavior was totalitarian thug regime tactics.

whats so hard about considering that these leo's spit fucked up

the smearing of this marine does not help the cuase of good police it only harms. good police shouldnt knee jerk defend other cops in a terrible clusterf$ck and especially making up lies about the dead man who cannot defend himself is disgraceful and lowlife.

I hope this women ends up owning all these cops homes.

Posted by: rumcrook at June 20, 2011 12:45 AM

First, Federale has beclowned himself again with his own mouth. I'm convinced that he is not a LEO, and weep for our country if he is.

Second, I would like to point out that the Bad News Bears are a nationally-recognized baseball team. Judging from the video, Pima County is nationally-recognized in the same way.

Posted by: Phelps at June 20, 2011 01:16 AM

Sheriff Dupnik: Being stopped in a car with another guy who might be a drug dealer and registering a lot of cars is reasonable suspicion to decide that you are likely a hitman and send rough and armed men to your home to break down the door and drag you out, dead or alive.

Sheriff Dupnik: Having at least five officers fire 71 shots (and only hitting 22) at a man in his own home who never fired a shot and indeed could not fire a shot is not reasonable suspicion of any wrongdoing by the police.

Posted by: Phelps at June 20, 2011 01:26 AM

"beclowned himself" your being generous in that assessment.

Posted by: rumcrook at June 20, 2011 03:21 AM

From the hyperbole and contradictory statements coming from the police in this case one can conclude that at best those people are sloppy and unprofessional. At worst? Criminally incompetent.

Posted by: Brad at June 20, 2011 06:04 AM

Federale = Mall Cop

Posted by: SicSemperTyrannus at June 20, 2011 09:23 AM

Great article, one minor quibble:

You state: 'The term “assault weapon” was coined by anti-gunners and the media for this purpose. There is no such thing as an “assault weapon,”...'

Actually, there is, since it has become a legal term with a specific definition in the law and varies depending on jurisdiction. CA law co-opted the anti-gunner term (surprise, surprise) into the Dangerous Weapon Control law, which states (omitted long boring specifics, any interested can look it up at

"12276. As used in this chapter, "assault weapon" shall mean the following designated semiautomatic firearms: ..."
"12276.1. (a) Notwithstanding Section 12276, "assault weapon" shall also mean any of the following: ...

(4) A semiautomatic pistol that has the capacity to accept a detachable magazine and any one of the following: ...

(7) A semiautomatic shotgun that has the ability to accept a detachable magazine.
(8) Any shotgun with a revolving cylinder. ..."

But Federale is missing your point that anti-gunners (and police trying to cover for obvious mistakes) use the similar terms assault rifle/weapon to garner support by exploiting the emotions and ignorance of the uneducated. Trying to make the threat and mindset of the homeowner far greater than it was. He also is stating that police did knock and identify themselves, while others state that they didn't, that this was a no-knock raid. This also doesn't address that in poorer neighborhoods criminals often pose as police during home invasion robberies.

Posted by: styrgwillidar at June 20, 2011 11:28 AM

Not a LEO, but I have relatives/friends who are. And yes, some police departments teach 'shoot until threat stops'. This is not to say empty the magazine but assess while shooting, that is if the first two rounds don't appear to have effected the threat continue vice being hard-wired to shoot-shoot, look, shoot.

Following is link to an organization that studied perpetrator and officer motions during firearm engagements. Perpetrators were college students unfamiliar with firearms. (In the articles they refer to officers being trained to shoot until the threat stops). It is useful in understanding reaction times required to observe and respond to suspect motions. Action beats reaction.

I don't think that this applies to a SWAT raid which should have included briefs on likely occupants, assignment of threat sectors, shooting responsibilies and greater discipline in the use of weapons than in street encounters by a patrol officer.

Posted by: styrgwillidar at June 20, 2011 12:44 PM

Dear Styrgwillidar:

Thanks for your comments! Regarding the "assault weapon" hoax, one should always leave naming to those who actually deal with the technology. This is what happens when it is left to leftist Californians. When every semi-automatic handgun becomes an "assault weapon" because they accept detachable magazines by their very nature, it is clear that the term has no meaning. It tells us nothing useful. I may as well deem all bicycles "urban stealth assault vehicles" because one may tape various long guns to their handlebars.

Thanks too for the links on the time/motion studies. The axiom: "action beats reaction" is, in the strictest sense, generally true. However, even that truism may be beaten if one is trained, experienced and employs good tactics and therefore anticipates the action. It may also be beaten through the proper employment of SWAT resources, which is absolutely not what was done in the Guerena case.

Routinely using SWAT teams to serve run-of-the-mill warrants actually makes such incidents more, rather than less, dangerous. To suggest that whenever the police decide to break into a home, even with a warrant, they are justified in shooting anyone who might have a gun in their hand--in their own home--is arguably sanctioning premeditated murder (I am not, by the way, saying that you suggested this). The police may certainly protect their lives, but when they unnecessarily provoke a deadly force incident--on purpose or through incompetence--that's another matter.

Posted by: Mike Mc at June 20, 2011 05:40 PM

Mike, thank you for the discussion. I thought the Force Science stuff is relevant because some of their articles mention police being trained to 'shoot until the threat ceases'. Interesting stuff in terms of how long it takes someone to stop shooting after realizing the threat has ceased.

But it reinforces your points that a SWAT team should be trained to a level that fire is focused and limited.

I have used the CA law to illustrate to anti-gun/uneducated folks that 'assault weapons' are not machine guns, since by definition in CA they are semi-autos (or whatever elso the legislature decides to define them as in the future), with machine guns covered by federal regs. Helps them understand the distinction between military 'assault rifles' and civilian owned 'assault weapons'.

Posted by: styrgwillidar at June 20, 2011 07:35 PM
While it is legally the job of the Pima County DA’s Office to render judgment on the police in this, and any other case where police wrong doing is a possibility, there is always an inherent conflict of interest.
What I found interesting is that it was the Pima County DA who reviewed this. Here, the normal procedure is that most, if not all, police-involved shootings are investigated by the State Police and reviewed by the Commonwealth's Attorney (same as a DA) from another jurisdiction. Something that ignited the media-storm this did would certainly be handled that way, to avoid any appearance of bias.

Only the most gullible will believe that the DA conducted anything but a rubber-stamp investigation of this killing.

With the numerous cases of getting the wrong address a SWAT team is going to have to start expecting to be aimed at by innocent people. It is not reasonable to assume that a home-owner will not be armed and making an assessment of the situation. It is unreasonable to not give that surprised person some time to figure out it's the police and to, well, surrender before you begin shooting. [...] Yes, that makes breaking into a house without knocking more dangerous, and I do not care.
Agreed. While I certainly would like every officer to be able to go home at the end of his shift, there is a point where you have to say "You knew the job was dangerous when you took it." Posted by: Jake at June 22, 2011 11:01 AM


["You knew the job was dangerous when you took it."]

Does that imply criminals get to shoot first? Would you demand that of military also?

Here, they use a sitting Grand Jury, however many states don't. I believe a District Attorney review is SOP in Pima County, so.....why should this review be different? Why would the District Attorney's Office be cabalists in this alleged collusion? Certainly not financial as the county is self-insured, which means their trust funded with tax dollars.

I understand the 'evil' Judge perspective and the five 'evil' SWAT operators from four different jurisdictions viewpoint, but 'rhetorical strategy' from the DA too? I don't see the intrigue proffer.

Posted by: Buck Turgidson at June 22, 2011 02:33 PM
Does that imply criminals get to shoot first? Would you demand that of military also?
I believe MikeM addressed that first question in his first analysis of this raid. Members of a SWAT team are expected to take that extra second to determine if he is actually a threat or not, rather than simply start shooting in a panic if they see a gun that may be pointed even vaguely in their direction. They knew being a cop was dangerous when they took the job, and they knew the added danger when they volunteered to join SWAT.

Of course, I would bet that danger is one reason the guy at the front door has a big, bulletproof shield for everyone to be behind, too. It lets them take that extra second while remaining behind cover - if they actually stay behind it like they're supposed to.

As for the second question, according to some sources (which I have not yet seen contradicted anywhere), the military currently does have to let the enemy shoot first.

Should the police in the US have looser rules of engagement than the army in a war?

Re: the DA - The reason those situations here are handled by a prosecutor from outside the officer's jurisdiction is that the local prosecutor works closely with those officers and their departments on a regular basis. This creates a "friendly" professional relationship, and in such a situation can create at least the appearance of bias, if not actual bias - at the very least, a prosecutor stands to alienate the police he depends on to do his job if he finds against the officers involved.

Posted by: Jake at June 22, 2011 04:37 PM

Dear Jake:

Thanks for your insightful comments. Indeed, the primary reason most professional law enforcement agencies use outside agencies to investigate police shootings is precisely what you have stated. They understand that it is vitally important that the public have confidence in the police and that even the appearance of impropriety can be harmful to that confidence. By involving agencies completely outside the local criminal justice system--to include the local prosecutor's office--this can be avoided.

As you also wisely suggested, local prosecutors very much like this procedure, particularly if the state, for example, will make charging decisions. It prevents the kinds of hard feelings that can make working with the police on a daily basis difficult or impossible.

As I said, professional agencies tend to do this.

I also appreciate your comments regarding the danger of police work. Every officer does indeed understand the inherent danger of the job, and that danger certainly does not require that officers allow bad guys to shoot first. However, officers have a moral and legal obligation to be absolutely certain of the necessity of shooting and of their marksmanship. Bad guys tend not to care about collateral damage; the police must care very much. This is one of the obligations--and the dangers--of being a police officer.

Officers should indeed be determined to go home at the end of each shift, but this is not accomplished through panic and paranoia but through solid training, situational awareness, sound tactics and calm, professional appraisal of every situation.

Posted by: Mike Mc at June 22, 2011 06:01 PM


Sorry pilgrim, I've never heard the 'take the extra second' because you have hard armor & a shield offering. It was always 'fear for your life' or 'eminent threat of great bodily harm/death'. And, it did not change regardless of your unit assignment.

Guerena made a disastrous error by confronting the police with a firearm and the meager excuses made for his decision are pointless, as it was a 'legitimate use of deadly force'.

Posted by: Buck Turgidson at June 22, 2011 11:37 PM
Sorry pilgrim, I've never heard the 'take the extra second' because you have hard armor & a shield offering.
Then you should go back to that first analysis I referenced and re-read it. Our host here, writing from the perspective of an experienced police officer with SWAT entry team experience, specifically stated:
Where most officers would shoot, and shoot a great many rounds, they [SWAT] are expected to be able to take the extra few seconds—or fractions of a second—necessary to more fully and accurately analyze any situation before shooting.
They did not take that extra few seconds - or even a fraction of a second - to determine whether this was a real threat or simply a startled homeowner reacting to what he thought was a home invasion, and instead started what is obviously panic-fire at the mere sight of a firearm (which may or may not have even been pointed at them). Rather than assess the effectiveness of their fire, they simply continued firing until they ran out of ammunition. (Contrast that to this non-SWAT incident local to me, where a police officer confronted with an armed suspect who actually did shoot at him only fired once, and stopped when that successfully disabled him.)
Officers should indeed be determined to go home at the end of each shift, but this is not accomplished through panic and paranoia but through solid training, situational awareness, sound tactics and calm, professional appraisal of every situation.
Truth. And PCSO's SWAT team failed that on every single point.
Posted by: Jake at June 23, 2011 11:38 AM

D'oh! Didn't close my link tag! Sorry about that!

Posted by: Jake at June 23, 2011 11:40 AM


IMO that "perspective of an experienced police officer with SWAT entry team experience" is wrong, and if I were in that doorway it would be MY decision to shoot or not - nobody else! My decision to shoot will be reviewed and judged by the powers set-up by the state and already in place. You can second guess, conjecture, speculate, theorize, hypothesize and even become hyperbolic, but it will not change (as the body politic agreed) the KNOWN facts.

Like the Scott case, all that's left is the civil litigation, which is obligatory in today's 'Coca-Cola' society. Even Matasareanu's family tried to sue. Go figure.

Posted by: Buck Turgidson at June 23, 2011 04:06 PM

Gee Buck,

How do you conclude Guerena choose to confront the police? All the evidence seems to indicate that Guerena, even though he had just woken up, figured out that the police were not a threat hence no shots fired from Guerena and his rifle didn't have the selector lever set to fire.

Yet the ever changing stories from the SWAT time after the fact and the panic fire which riddled the Guerena home indicate it was the SWAT team which choose inappropriate violence.

At the very least there is inadequate evidence available to us to condemn Guerena. Yet you leap to condemn him. If your objective is to boost the reputation of the police among the skeptics your advocacy is not working.

Posted by: Brad at June 24, 2011 01:59 AM
it will not change (as the body politic agreed) the KNOWN facts.
Which known facts?

The tactics and organization that would be laughed at by all but the most amateur Airsoft kiddies?

The ridiculous 'knock' that wouldn't have been heard from the end of the hallway, much less by
a man sleeping in a bedroom that probably had the door closed?

The wild, uncontrolled fire of the SWAT team?

The so-far unsubstantiated claims - by an organization that has changed its story about the incident at least twice - that Guerena pointed his rifle at the team making entry?

And these are just the facts of the actual entry and shooting. They don't even address the fact that the affidavit was inadequate for a warrant, or that SWAT never should have been used for this in the first place, or that there were several other ways to handle the situation even if he had been an actual threat worthy of SWAT involvement that would have been safer for all concerned.

You've been blaming Guerena from the start, based on nothing more than the fact that he was holding a rifle when someone broke down his door, and the unsubstantiated claims by the people who shot him that he pointed it at them. You refuse to acknowledge that SWAT members are supposed to be held to a higher standard than officers on the street. You've ignored the evidence of incompetence and the ever-changing story of the shooters seemingly on the basis of your apparent belief that the police never lie. You argue that we should not question the judgment of a team that has quite thoroughly demonstrated its incompetence and lack of judgment.

As Brad has pointed out, at the very least there is inadequate evidence available to us to condemn Guerena. PCSO, on the other hand, has demonstrated its incompetence, provided wrong information, changed its story multiple times, and engaged in obvious (and pathetic) attempts to publicly smear Guerena.

But I guess it must be his fault, because the people who shot him said so.

Posted by: Jake at June 24, 2011 08:12 AM

["If your objective is to boost the reputation of the police among the skeptics your advocacy is not working."]

Well Brad,
It worked for the people that count, did it not?

That being said, I was in fact somewhat perplexed about the safety. If you truly believe it's the cartel coming through the front door at 0900, why leave the safety on. If you truly believe it's the Police coming through the front door at 0900, why have the rifle in the first place or at least put it down and not point it, to show your hands are empty. I've seen many people, even street agents/police, forget to swipe the safety off even when shooting at non-stressful range practice. It is possible he just forgot, however, I doubt this is the case with a combat Marine, considering their cult-like training on the issue. I don't think we'll ever know.

I only chastise Guerena for his poor choices, which proved to be fatal.

Posted by: Buck Turgidson at June 24, 2011 11:16 AM

["But I guess it must be his fault, because the people who shot him said so."]

In a word, yes. How else would it be? What proof do YOU have the police conspired to bear false witness? Because someone misspoke hours after the incident and later, during the post-shooting investigation, they realized it was wrong and publicly correct it? Please!

Many mistakes were made, Jake, the biggest one being Guerena possessing the firearm. Had not that happen, we wouldn't be have this parley, despite the other mistakes. It would have been a story about an ongoing drug investigation on page three in the local section.

BTW, exactly which famed national SWAT/TACTICAL organization analyzed and censored the PCSD multi-jurisdiction SWAT team?

Posted by: Buck Turgidson at June 24, 2011 12:15 PM