The Guerena Shooting, Analysis 5.2

NOTE: This update concludes the analysis of the interview of Sgt. Krygier. I also include a summary analysis of updates 5 and 5.2, provide a working theory of the case, and add some final thoughts.

THE INTERVIEW CONTINUES:

KC: At his point in the transcript, the Detectives focus on what is obviously their developing narrative:

Farmer: “Okay. So let’s move back to the, to the briefing that you got real quick.
Krygier: “All Right.”

Farmer: “Um, you said that, you said that, uh, you were, you were briefed that the, the bad buy had involvements with home invasions, uh, narcotic and, and human smuggling, and those types of activities.”
Krygier: “Not necessarily human smuggling.”

Farmer: “Okay.”
Krygier: “But, uh, specifically a home invasion, uh, specifically a double homicide and specifically that he was, he would, uh.”

Tzystuck: “He’s with the cartel.”
Krygier: “Yeah, yeah.”

Farmer: “Drug, drug rips and stuff like that.”
Tzystuck: “Okay.”

Farmer: “And his involvement in the cartel.”
Krygier: “Uh-huh (yes).”

Farmer: “Is, are firearms and, and body armor and those types of things, things that you know through your, your training and experience to be involved in, in, you know, uh…”
Krygier: “The drug trade.”

Farmer: “…yes.”
Krygier: “Yes.”

Farmer: “Okay.”
Krygier: “Yes.”

[MC: This section of the transcript reads like the first read through of the script of a play by a particularly inexperienced high school cast. The Detectives obviously want to paint Jose as a dangerous cartel gunman and killer, but go over the top, suggesting that Jose was involved in human smuggling, an accusation that appears nowhere else in this case. Perhaps they were making things up; perhaps they were merely confused. Krygier does not entirely discount the human smuggling suggestion, likely because he doesn’t know what they know and doesn’t want to accidently step on their narrative, but he manages to repeat the idea that Jose was somehow involved with a double homicide. If so, have the police checked his firearms for ballistic matches with the weapons presumably used to kill the victims? There is no known indication of this, nor does Krygier say anything about the disposition of the weapons in the Guerena home.

NOTE: Remember that the search warrant affidavit said nothing about evidence of a double homicide, nor did it list such potential evidence or suggest that it could be found in Jose’s home. Therefore, the warrant authorized no search for any such evidence, which the police obviously did not expect to find there. Of course, there is no probable cause in the warrant at all; it was a fishing expedition from the beginning, a fishing expedition I remain amazed any judge would authorize.

The detectives get Krygier to say that Jose is involved in “the cartel,” but there is no discussion of which cartel, and Krygier is only repeating what he was told two days earlier. He obviously has no direct personal knowledge of Jose Guerena or anyone he knew.

Detective Farmer tries to get Krygier to say that body armor and guns and “those types of things” are the tools of cartel gunmen, but Krygier has to finish his question for him, which begins a round of agreement that reads like a parody.]

KT: As Krygier continues, he is prompted by the Detectives to describe what he was thinking and feeling as the "gunfight" began. Krygier says "the guy" said something, but confuses the issue by immediately saying that "the guys," then "the team," said something. His explanation is basically that with bullets flying, he took cover and really didn't see much of anything. He implies that the gunfight that wasn't a gunfight took from five to six seconds, but does not say it explicitly. He adds: ""I could tell that the majority of the rounds, most of the rounds now were ours."

Krygier said when the team retreated back to the armored vehicle, he checked to make sure none were injured and "I asked, did he shoot, um, someone said, I'm not sure. And a couple said, yeah, he shot at us. I mean I couldn't say specifically who, who made those statements, but I was told both things."

[MC: Again note the lack of precision. As a supervisor, he is supposed to be able to control events, yet he can't even recall who said something as important as whether they were fired upon. Of course, they were not. Krygier says that he knew the police were firing most rounds--a remarkable statement. How could he—how could anyone—make such a statement? Is Sgt. Krygier intimately familiar with the sound signature of each of his men's weapons? Why don't the Detectives clarify such an obviously odd assertion?]

KT: The Detectives ask:

Tzystuck: "Were you already in position? Were you already where you were gonna be standing during the breaching?"
Krygier: "Um, I may, I was, the door had already been breached. So basically what I was doing was I was through the threshold, as they took another step forward, I was gonna get right into the line of…"

Tzystuck: "Okay."
Krygier: "…what would be the line of fire, because I was gonna go ahead and make entry."

They spend a page getting Krygier to explain that he and his team were uniformed and that many police vehicles were around, asking ""And it's safe to say that if anybody looked out a window they would have seen some kind of vehicle that, that was marked as a Sheriff's Department. They would know that the police are out front, out in front of their house."

[MC: Krygier's answers are very much in line with the police video. There was no stack, no apparent organization. The SWAT team had no idea how or when they were going to enter, and Krygier was not prepared for their entry. He apparently intended to follow whoever went through the door in whatever order. Notice that he does not say that Officer Three would follow Officer Two who would follow Officer One, yet he was the co-planner of the assault.

Indeed the officers were uniformed and police vehicles were present, but as the Detectives observed, this would have been visible only if someone looked out not "a window" as they asserted, but out the front window, which—from available photographs—was the only window offering a view of the front yard. Remember that the Guerenas knew only that they were under attack by armed men. After being awakened, Jose sent Vanessa and their son into hiding—which despite the worst efforts of the police saved their lives—and had no time to take up even an effective defensive position let alone run to the front of his home and look out the window. It would not be unreasonable to believe that if he did, the police would have fired on him through the window.

The most important point to understand regarding the use of lights and siren, even the seven seconds of sort of yelling and knocking the police did before breaking in the front door is that during those scant seconds, Vanessa and her son were hiding in a closed closet in the back of the house, completely unable to hear or see anything going on in the front yard. Jose, awakened out of a sound sleep, wearing only boxer shorts because he had time only to hide his family as best he could and take up a weapon, was also in no position to see or hear anything the police said or did. And even if he understood Police were assaulting his home, he would not have had time to safely answer the door. Most likely, the door would have been smashed in as he was scant feet from it, and there is no guarantee that this particularly inept SWAT team would not have emptied their magazines out of the shock of finding him standing right in front of them.]

KT: The Detective's final exchange with Krygier is particularly interesting—and tragic:

Tzystuck: "I don't know if you've already said this, were you scared? Did you think you were gonna get shot? What was your thought process?"
Krygier: "Yeah, I, I was scared. Um, you know, there were, there, there was so many round being fired. Um, and again, I think I was mostly scared because I couldn't see what was happening and I was literally inches away from the gunfight. Um, I was behind some cover, uh, you know, some stucco, but if you look at the house, you see these bullets are flying right through everything. Um, yea, I was very scared actually. Uh, and uh, I just, then I was, then I was making sure all the guys were okay and wanted to get them out of there and behind cover, so we could see what was going on."

Tzystuck: "And because you made entry into the house, to secure it, to make sure there was no parties injured and you happened to see the deceased suspect."
Krygier: "Uh-huh (yes)."

Tzystuck: "Were there multiple spent rounds next to him or on the floor, in the area, did you kn--, happen to notice that?"
Krygier: "Yeah, there, there were all kinds of rounds. Um, there were rounds from the front door to him."

Tzystuck: "Okay."
Krygier: "Um, there were actually there was rounds, handgun rounds that appeared that had gone through something and didn't quite make it where they were going, but yes there were. There were holes in the wall, um, holes next to him, holes in the refrigerator, holes in the wall behind where he was. Uh, a lot of holes."

At this point, the Detectives stopped the interview.

[MC: A lot of expended brass and holes indeed. As I mentioned earlier, the Detectives stopped the interview for a very obvious reason: A recitation of Guerena's obscenely ventilated home is the last thing to which the police want to call attention.]

ANALYSIS:

Professional police officers will recognize this not as the statement of a professional police officer doing his best to ensure that all of the facts are on the record, but that of a man covering his posterior and that of his boss. It’s that plain.

This interview was clearly done for reasons having nothing to do with professional practice. Normally, interviews are done to collect every fact, to tie up all loose ends, to establish precise, unbreakable time frames and to solidify evidence. They are exhaustive and detectives ask precise, detailed questions, questions they have prepared ahead of time. This interview does none of this. During the interview, which takes 12 pages and ran only 29 minutes, the Detectives asked only about 30 questions, most of which were general in nature. Few referred to any specific aspect of the case; most were simple encouragement of Krygier—not actual or complete questions at all--an attempt to keep his rambling presentation on what is obviously their preferred narrative, some elements of which were already obvious to the police just a few hours after the assault.

This is particularly evident in the almost complete omission of a time frame. Time is a vital element in every investigation. Every second must be accounted for. Failing to do this can allow suspects to establish false alibis, can make it possible for the defense to have evidence thrown out, can make the police look incompetent, even cruel and indifferent, and can cause a host of other, damaging problems. Yet, apart from what appear to be a few inadvertent and incidental mentions of time by Sgt. Krygier, such as taking 20 minutes to search an attic, there is virtually no establishment of a time frame at all, this despite the fact that this is the interview of the on the scene supervisor who was a planner and supervisor of all aspects of the assault and its aftermath. Again, are we dealing with stunning incompetence, or are the police willing to appear to be incompetent because the alternative is much worse?

When one considers that these Detectives are investigating not only a police shooting, but a SWAT shooting involving five officers from four agencies and at least 71 rounds, many of which ventilated the surrounding neighborhood, the complete lack of interest in establishing a second by second time frame for events is particularly amazing. In all of my years as a detective, I would have had no doubt that my supervisors, reading a transcript like this, would have justifiably read me the riot act. Not only that, I would have had good reason to fear for my job.

On the other hand, the lack of a second by second time frame is to be expected. No doubt the Police realize that such a professionally reconstructed model of events would not be in the least favorable to them and would potentially open them to criminal prosecution to say nothing of civil suits.

How then can these Detectives get away with conducting a comically brief interview that is so bereft of the essential details any competent investigator would not fail to at least try to collect in such a case? The answer is as disturbing as is it obvious.

A THEORY OF THE CASE:

There is now sufficient information in the public domain—and I have not yet written about all information to which I have access—to propose a conditional theory of this case. Because I do not have access to every bit of information available to the police, it is entirely possible that I am making errors in matters small or large, and if that is so, I am more than willing to be persuaded by convincing evidence to the contrary and to make any necessary corrections. That said, here is what appears to have happened.

For whatever reason Jose Guerena's extended family, mostly by marriage, became known to the police. Over several years, they had several contacts with members of that family and their friends and acquaintances, including the most incidental contacts with Jose, such as the occasion when he happened to be a passenger in a truck carrying some plastic wrap, though no arrests were made on that occasion.

Again, for reasons currently unknown, the police took an interest in these people and spent more than a year trying to build a drug case. They conducted what appears to be spotty surveillance, certainly not the kind of surveillance that would be expected if a significant drug operation—a "mid-level drug ring"--was under investigation. There were no known controlled buys, no attempts to get inside the supposedly mid-level drug ring, no apparent development of the kind of intelligence that would support the legitimate expenditure of substantial manpower and money and which would yield sufficiently solid information about kinds and amounts of drugs, shipment and delivery schedules, accounting procedures, money trails, or webs of related criminals in all directions. In short, there appears to be no evidence of the kinds of basic, essential police procedures necessary to conduct a competent drug investigation, which would reasonably result in a significant seizure of drugs, criminals and related evidence.

Why then did the police decide to raid and search no less then four homes and every vehicle they could find? The search warrant affidavit is most revealing in what is absent: the actual probable cause necessary to conduct any search at all. The police even admitted that during the entire run of their investigation they had not seen any of their suspects in possession of drugs or even smoking so much as a single joint—in a drug case! Yet a judge issued a warrant giving the police carte blanche to search not only homes, but virtually every vehicle even remotely linked to the suspects despite no showing whatever of probable cause that any specific evidence of crime could be found there or anywhere.

The "evidence" the police did provide on the affidavit consisted almost entirely of supposition and innuendo. It described perfectly legal activity that might, in some circumstances, be what people engaged in the drug trade might do. It suggested that because some of those involved had several vehicles registered to them, they were obviously high-rolling drug criminals with no visible means of support. Yet the combined value of virtually every vehicle cited by the Police is less than the new cost of one of the kinds of vehicles drug criminals often drive. Amazingly the police could quote Blue Book prices for some vehicles, yet not for others despite being able to cite the makes, models and years. The quality of their evidence is essentially limited to what anyone driving past the suspect's homes could see by chance, except that in some cases, the Police are not that thorough.

Why would any judge issue a warrant with such an incredibly lame affidavit, an affidavit that clearly does not meet the minimum Constitutional standards for a lawful warrant? Perhaps he simply didn't read the affidavit closely. Perhaps he simply trusted the police too much. But he did issue a warrant for a virtually unlimited fishing expedition.

By this point, the detectives involved in the investigation were in a very bad position. They had already doubled down on a bad bet by pursuing what was obviously a dry hole for so long. At the time they applied for the search warrant, they did not have sufficient evidence to arrest anyone for the violation of any law; their affidavit makes that entirely clear. They had no informants. They had not a soul inside the "mid-level drug ring," none of the hallmarks of a competent drug investigation. The affidavit also makes clear that Jose Guerena was nothing special and was far from the primary target of the investigation. A hardened, cartel killing machine in death, Jose Guerena was not depicted as such in the affidavit submitted just a few days before his death.

If we are to believe that the detectives involved really thought that Jose was involved in a double homicide, was involved in armed robberies of drug criminals, was a member of a drug cartel and all that went along with such activity, and that they briefed the SWAT team in this way, everything they did before and after that briefing makes even less sense. Raiding the home of a stone cold drug gang killer would give any police officer pause and cause them to arrange every possible tactical advantage. In fact, the smartest thing to do would be to catch such a person on unfamiliar turf, to isolate and overwhelm them where they were separated from their most effective weapons, cover and support, yet this was not done. The next best option—though less than competent—would be to try to catch them unaware in their home. In this case, the only rational thing to do would be a no-knock warrant and the use of flash-bangs, yet this too was not done. Instead, the police obviously—as revealed by their own video—treated this as just another routine warrant service, and not a pressing or potentially dangerous warrant service at that.

Why would detectives hype this situation? Perhaps it was because they wanted to make it appear to their superiors and to the SWAT team that their case was deserving of such an enormous outlay of manpower and money. If the truth of their efforts and evidence was known, I can't imagine a competent SWAT commander who would not have had major questions prior to committing his people. However, when Detectives bearing an apparently valid warrant and tales of a vast criminal conspiracy arrive, what are their fellow SWAT officers to think? Whatever they thought, their actions on May 5 certainly did not indicate that they considered Jose Guerena to be a major threat. They didn't even bother to watch his home in the hours immediately before their raid. In fact, Sgt, Krygier made clear the fact that he took detectives along on the actual raid so that they would not make, at the last possible moment, the mistake of raiding the wrong house.

I'll not go into the specifics of the raid—the first four updates cover that in detail—but pick up the theory after the officers have retreated in a cloud of impenetrable smoke produced by their panicked bullet barrage, their weapons either empty or malfunctioning, dragging their shield man who has, for whatever reason, managed to fall down, leaving the team exposed to fire, fire that never actually existed.

The officers, in shock, began to slowly regain their senses. Some of the more tactically competent possibly reloaded their weapons. Certainly all began to ask each other what happened. Quickly it dawned on them: not a single operator could say with honest certainty that anyone actually fired on them. Some no doubt told others "well, I shot because you shot," and "I shot because I saw everybody else shooting," or "I shot because I saw Hector [the shield man] fall down and I thought he got shot." Some probably asked: "who fired the first shot?" A feeling of dread likely began to settle over them. Did they just empty their weapons into someone's house for no reason?

They had likely never before been caught in a classic "fatal funnel." They had certainly never before been involved in a firefight—which actually wasn't—where 71--or more—rounds were fired in a span of seconds. They had likely never been caught, their weapons empty or inoperative, their shield man—their protection—on the ground, stunned and standing in a thick cloud of their own gunsmoke, unable to see anything, with no idea what would happen next. This was almost certainly a situation for which they had never trained, and they had no idea what to do, except eventually to retreat, to abandon the assault and to take cover from non-existant danger.

Once they had abandoned their assault, once they had surrendered the initiative, it was a foregone conclusion that they would not reenter the home in anything resembling a timely manner. They knew that Jose's wife and at least one child were still inside, and focused on getting them out, a process that would have taken at least 20-30 minutes. They were even very hesitant to do that, eventually removing both only when they separately came to the front door on their own initiative.

So intimidated were they that Sgt. Krygier admitted that they intended to "rescue" the child from a back bedroom of the home, but if they did not immediately find him, despite being fully into the home with multiple operators, they would immediately turn tail and retreat, scurrying back through the entire depth of the home, surrendering all of the ground they secured only moments earlier! Despite the presence of the SWAT commander--Lt. Stuckey--they were not thinking tactically and clearly and were completely in a defensive, intimidated posture. Remember that they had the advantage of two robots—and the time to use them—to ensure that the home presented little or no danger, and could have used the robots to help ensure their safety when they reentered.

It's difficult to say that anyone actually planned to kill Jose Guerena by denying him medical aid, yet that is exactly what occurred. Finally, after visits by two separate robots which repeatedly poked and prodded Guerena's unmoving body, after a doctor declared him dead by long distance, after about an hour and a quarter, they very, very slowly cleared the home. That's when things really went to hell.

On entering, some must have surely noticed that they shot up the front of the house around the door. They must have realized that there would be no way to cover this up and that explaining it would be embarrassing, to say the least. The more gun savvy among them would have quickly realized that Guerena's gun was on safe, and moments later, that it almost certainly had not been fired. It would be difficult to adequately explain the intense sinking feeling of those officers when that realization swept over them. At that point, they would have feverishly focused on tearing the home apart to find some, any evidence of a crime, anything that would justify what they just did. They found none, and the "we screwed up factor" must have increased exponentially.

They surely must have realized that the sheer volume of fire, and its tragic-comic dispersion, could not possibly be explained or justified in any way. Imagine their thoughts when they found the Guerena home shredded from floor to ceiling and from wall to wall by errant rounds—their errant rounds.

At that point, Jose Guerena became one of most vicious criminals any police officer had ever faced, while simultaneously being so incompetent at weapon handling that he could not release the safety of an AR-15 despite being a Marine veteran of two recent combat tours. He had parts of police uniforms! He had all kinds of guns! He didn't answer our knocks within seven seconds! But the uniforms were nothing but a widely available baseball cap with a Border Patrol logo and a ballistic vest of some kind, probably his issued vest, which the Police were absolutely not going to particularly describe.

At this point, the SWAT team became above reproach, one of the finest in the nation, simply the best. Jose Guerena brought the entire thing on himself, and is a suspect in a double homicide. And the spin continues, as do thousands of potential hours of delicate future investigations.

WHAT SHOULD HAVE HAPPENED:

Based on the information in the public domain, the detectives pursuing these people should have been forced by their supervisors to either put up or shut up after no more than six months, likely less. They should have been required to produce real, positive evidence and results, or dropped their investigation. If the Police had any evidence that these people really were involved in a significant criminal enterprise, there can be no doubt that Sheriff Dupnik would be shouting if from the rooftops. Perhaps some members of the Guerena extended clan had some criminal involvement, perhaps even drug involvement, but there is certainly no evidence that they were involved in even a low-level drug ring—whatever that might be in the Tucson area. With real supervision, the case would have been quickly dropped, and Jose Guerena would be alive today, going to work every night in a copper mine, supporting his young family, and sleeping peacefully through the day.

Even if the case had progressed to the next step, any judge reading the affidavit submitted should have refused to authorize a warrant. He would have been more than justified in doing just that. If the judge had done his job, if he had upheld the Constitution, Jose Guerena would be alive today.

Even if the case continued to progress, the SWAT commanders should have reviewed the affidavit and refused to be involved. I know that this is extraordinarily unlikely. In the real world, police officers have to be able to trust each other. They have to believe that a Detective's judgment, accompanied by what appears to be a valid warrant, can be relied upon. If the commanders of this SWAT team have a brain between them, they will never again so freely trust those particular detectives, and perhaps no others. They will instead establish new review procedures for the involvement of their team. But if they had exercised that kind of caution, Jose Guerena would be alive today.

The SWAT commanders, rather than seeing every situation as a nail and the full commission of their team as a hammer, should have dedicated sufficient time to learning Jose's routine, so that a few officers could have safely approached him at his mailbox, when he stopped for coffee at his favorite 7-11 on the way to or from work, or in any similarly tactically advantageous way. They could have quickly and safely secured him and anyone at his home and taken their time searching his home. They could have even used the telephone to call him and have him come to the front door! If they had exercised that kind of rational thinking, Jose Guerena would be alive today.

If they truly believed Jose Guerena to be the danger in life that they have discovered in death, and they had absolutely no choice but to assault him in his home (this is of course, farcical; they had a multitude of far less dangerous choices), employing proper tactics, including proper surveillance, running a competent stack where every operator is assigned a specific zone of responsibility, and assaulting with speed, surprise, professional skill and restraint and overwhelming force, it is far more likely that Jose Guerena would be alive today.

FINAL THOUGHTS:

Professional SWAT teams, after every mission, conduct an exhaustive after-action procedure, which commonly includes a full individual debriefing of each operator, and a group debriefing of the entire team. Every member of the team submits complete reports of their actions. These debriefings are supposed to be completely open and honest so that any mistakes or improper procedures can be identified and corrected. It would be interesting indeed to know whether this particular team actually does this, or if they did it in this case. Oh, to be a fly on the wall of that particular briefing room.

I have little doubt that some members of the extended Guerena family are less than angelic. The decidedly low-level arrest records of several of them would seem evidence of that. It is possible that Jose Guerena was involved in some illegal activity, or knew of illegal activity involving his relatives, though there is certainly scant evidence to support such a contention. There is no evidence to support the necessity of his death in a hail of panicky police gunfire.

This case is far from over, and future updates will be soon forthcoming. One would hope that the police officers involved, despite their official position, would recognize their errors and make the necessary changes in training, policy and thinking to prevent such a predictable future debacle. One would also hope that they realize that the only tactically capable person—as demonstrated by his actions rather than rhetoric--present at the Guerena residence that day was Jose Guerena. They are alive because he chose not to take his rifle off safe. They are alive because he was not the vicious criminal they claim him to be. If he were, their bodies would have been stacked like cordwood.

If they're smart, they'll give thanks that Jose Guerena was a Marine, a far more capable and experienced man than they. And if they're really smart, they'll ask for forgiveness from a far higher power than Clarence Dupnik.