September 29, 2011
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.”
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.”
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.”
[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…"
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."
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.]
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.
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.
September 27, 2011
The Guerena Case, Analysis 5
Since the last update (#4) posted on June 19 there have been relatively few sensational developments. Those seeking the first four articles should visit our Guerena archive by taking this link, or simply by visiting the archive in the right hand column of the Confederate Yankee home page. In addition, a PDF of the police interview of Sgt. Krygier, the Pima County SWAT team supervisor involved in the Guerena assault is available here.
It has been my goal in this series to provide far more in-depth analysis than has been done elsewhere on the Net or in the traditional media. This is the first of a two part update which will hopefully provide greater insight into Jose Guerena's death.
An Arizona Star article of August 5th noted that three (now four+) months after Jose Guerena's May 5th death, there have been no arrests related to the "mid-level drug ring" to which Sheriff Dupnik and his public relations officers claimed Guerena belonged after his death at the hands of Dupnik's SWAT team. No drugs, illegal items, or anything remotely related to crime was found in Guerena's home, however, according to Pima County authorities, "stolen cars, drugs, cash and weapons were found in another one of the four houses raided that May 5 morning…"
Sheriff Dupnik told the AZ Star that no arrests have been made because they are working on a "much bigger" homicide investigation. Dupnik said: "We could go out and make some arrests today, and we could've made some arrests some time ago, but we have two different investigations going on and the homicide is a priority, and we don't want to turn off the flow of certain information."
Regular readers will recall that Dupnik is referring to the March 2010 murders of Manuel and Cynthia Orozco. Cynthia was the daughter of Jose Celaya who owned one of the homes searched by Pima Co. on May 5. Sheriff Dupnik has suggested that Jose was, in some vague way, involved in the deaths of Manuel and Cynthia and has claimed that he was the enforcer for the drug ring involving several of his relatives. Dupnik is apparently still claiming that some of the people whose homes were searched are in some unspecified way still tied to the killings. Dupnik told the AZ Star: "This is extremely complicated and we need to be extremely careful about how we deal with certain issues. The drug case is very complicated because there are so many people involved."
The AZ Star noted: "For now, Dupnik said, detectives will continue working on the homicide case. It could take thousands more hours' work before any arrests are made, he said."
It is unusual for there to be no arrests of any kind in a drug case brought to a conclusion by the service of search warrants, particularly warrants of multiple properties. However, virtually everything about the behavior of the police that caused Jose Guerena's death was unusual, to say the least. Consider:
(1) Despite keeping members of Jose's family under surveillance for many months, the police admitted in their affidavit for a search warrant that they had never seen any of them in possession of drugs, nor had they so much as seen anyone they suspected of involvement in a "mid-level drug ring" smoking a joint. The strongest "evidence" listed in the affidavit relating to Jose was, nine months earlier, he was a passenger in a truck that was carrying a cardboard box containing plastic wrap. They noted that people involved in drugs sometimes use plastic wrap. This is no evidence at all; it's not even probable cause. People involved in the drug trade sometimes use cardboard boxes too. The police had suspicions but no probable cause and no actual evidence. None.
(2) Despite being full of factual errors and contradictions, despite listing no actual probable cause to believe that a given person had committed a specific crime and that specific evidence of such crimes could be found at a specific place as required by the Fourth Amendment to the Constitution, a judge issued a warrant authorizing a massive fishing expedition.
(3) From what is currently known, it appears that the police found potential evidence of crime, which included a small, unspecified amount of marijuana, at only one of the four homes they searched on May 5. These are surprisingly unproductive results for multiple raids on those involved in a criminal enterprise of the size and scope that Sheriff Dupnik continues to claim.
(4) Police statements indicate that their surveillance of their suspects was an on-again, off-again affair, and was anything but comprehensive. In fact, Sheriff Dupnik said that they did not watch Jose Guerena's home at all in the hours prior to serving the search warrant and killing him because they were afraid it would tip off those they were trying to catch. This is, to put it kindly, utter nonsense. Failing to watch a home about to be searched for drugs before making the search is the worst kind of incompetence. For the sake of safety alone, it is mandatory that officers know exactly what is going on at such homes. Is anyone home? If so, who? How many? Where are they? What are they doing? Is there any indication that they suspect something? Is the case blown? Are they destroying evidence? We're not speaking of highly advanced SWAT techniques here, but of Basic Police Procedure 101. One need not be Sherlock Holmes to accomplish such a simple yet mandatory task.
(5) Search warrants are virtually never served in drug cases until the officers involved are ready to end the investigation, for once searches are done, anyone not immediately scooped up will make themselves scarce and bury any evidence of their relationship with those that have been arrested. Any evidence not seized by the police will immediately disappear. In drug cases, search warrants will not be contemplated until there is hard evidence of criminal involvement and the probability of seizing substantial quantities of drugs and related evidence. This will normally consist of controlled buys from dealers, information from informants who have actual access to the homes and vehicles of those involved in the drug trade, access that will produce information such as the kinds and amounts of drugs involved, the suspect's methods of packaging and distributing them, storage places and methods of transporting the drugs, what kind of weapons the police will face and complete backgrounds on everyone involved, delivery routes and schedules, and a variety of other vital information. None of this was done in the Guerena case. The search warrant affidavit contained no such information. As a result, the police found little or nothing for approximately a year of effort involving countless man-hours of police labor.
(6) The affidavit did not focus on Jose, nor did it suggest that he was in any way violent or dangerous. The police did not indicate that they feared they would be facing violent resistance, and they did not ask for a no-knock warrant which would be standard operating procedure if they feared potential violence or the probability that drug suspects would be trying to destroy evidence. In fact, Sheriff Dupnik indicated that they knew that Jose would probably be there and that his wife and perhaps some of their children would be present too. Almost certainly the police knew that Jose worked in a copper mine, they knew his shift and work schedule, and knew that he would probably be in bed when they conducted the search. If they didn't know these things, this would be yet another indicator of gross incompetence.
I suggested in Update 4 that it was possible that Sheriff Dupnik would claim that Jose Guerena was the killer in the Orozco case, despite the fact that there appears to be no known evidence of his involvement in this, or any other crime despite the best efforts of Dupnik's agency to pin something on him. It was only after his death under a hail of 71 police bullets that the police began to paint Jose as a highly dangerous drug ring enforcer and a murder suspect. Bizarrely, Sheriff Dupnik simultaneously painted Jose as a man who provoked his own death, claiming that the only reason Jose did not fire on the clueless SWAT operators that raided his home was because he was unable to manipulate the safety of his AR-15. Suggesting that a Marine veteran of two combat tours would be unable to manipulate the safety of an AR-15 reveals an extraordinary lack of intellect on the part of Sheriff Dupnik, and potentially an extraordinary amount of arrogance and disdain for the intelligence of the public.
What is most likely is that the police have no real evidence of any crimes. If they did, in fact, find a ledger of sorts with names and amounts near them, this could conceivably be suggestive of drug involvement, yet according to their own statements, they found none of the other kinds of materials, equipment or substances associated with the drug trade, and found only a small—unspecified--amount of marijuana. Such ledgers are used for a very wide variety of legitimate pursuits. They claim to have found a stolen vehicle—one vehicle, not “vehicles” as Sheriff Dupnik has claimed--yet no one has been charged and no information on the vehicle has apparently been released. Has it been returned to its owner? Did they actually find a stolen vehicle? They claim to have found more than 30 cell phones, but there is no information on them. How many were new and functional? Were some old, inactive phones? Were some prepackaged "burner" phones? Without such information, it's impossible to say that the fact that they were found—if they were found—is an indicator of criminal activity. They claim to have found $100,000 in cash, which might seem damning, but many people keep large amounts of cash on hand for a wide variety of perfectly legitimate reasons.
I do not ask these questions merely to throw suspicion on the police, but because they have had to backtrack on a wide variety of claims in this case and because they have made confusing and contradictory claims. They initially claimed that Jose fired on them first, provoking their panicky fusillade, but had to admit he never took his rifle off safe. They claimed that he had parts of police uniforms, but eventually had to admit that those parts of police uniforms were nothing more than one, possibly two pieces of unspecified body armor and a hat with a Border Patrol logo. All of these items are perfectly legal and widely available. They made a great deal of finding three or four firearms in Jose's home, but there is no evidence that any of them were illegally possessed or ever used in any crime. In addition tens of millions of Americans own far more firearms. They claimed that evidence indicates that Jose had to have been pointing his rifle at the SWAT team, yet it is impossible to know this from bullet or shrapnel damage to the rifle, particularly considering the volume of fire directed at Jose and its wildly inaccurate character (slashing Jose and his home from ceiling to floor).
Please remember that search warrants are simply not done in drug cases unless the police are sure they're going to interdict a substantial quantity of drugs, produce substantial related evidence and catch a substantial quantity of criminals, yet this case has yielded virtually nothing except the brutal death of an innocent man. Surely this is very embarrassing to the police—assuming they are capable of embarrassment. Sheriff Dupnik would obviously appear to be immune.
What would comprise a mid-level drug ring in Tucson, AZ? More than a handful of relatives and a small amount of marijuana would have to be involved in such a criminal enterprise, wouldn't it? Actual evidence of drug trafficking would not be hard to find, would it? The criminals involved would have lengthy records, particularly records relating to the drug trade, wouldn’t they? There would be substantial evidence of contact with other known drug criminals, yet none of that is the case here.
Enough is currently known to draw reasonable conclusions and to suggest a theory of this case, but I'll return to that theory at the end of this article. I turn now to another, very interesting and disturbing facet of this case: Officer statements.
THE SWAT SUPERVISOR SPEAKS:
On May 5 at about 1244, Sgt. Bob Krygier was interviewed by Detectives Farmer and Tzystuck of the Pima County Sheriff's Department. Krygier was the SWAT team supervisor of the Guerena assault. This interview was conducted less than four hours after the assault on Jose Guerena's home.
In Update 4 I included Sheriff Dupnik's comments about the SWAT team:
“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.”
The videotape of the assault, and Sgt. Krygier's 12 page interview transcript do not support the sheriff's assertions of professional competence and national preeminence. In fact, it stops rather abruptly, and for a rather obvious reason.
The transcript is as remarkable for what Sgt. Krygier says as for what he does not say. Despite being the supervisor on scene, no more than 25 feet from the door of the Guerena home, he claims to know virtually nothing about what happened. His statement provides even more evidence that the SWAT team had no idea what they were doing that morning. Their level of confusion and misunderstanding is truly remarkable. At one point, they claim to have mistaken Vanessa Guerena's call for help to be a neighbor telling them that someone in a nearby house was shot, leading them to break into several nearby homes before they realized that it was Vanessa trying to tell them that Jose had been shot—by them—and that he needed help.
I'll provide the substance and quotations from the transcript prefaced by KT (Krygier Transcript) interspersed with my comments enclosed in brackets, beginning with the initials MC (My Comments).
KT: Sgt. Krygier explains that he was the supervisor of the assault, but that he put Officer Jake Shumate of the Marana Police in functional command, saying "I kind of guided him through it so it was more of a mentoring thing…" Apparently Krygier and Shumate wrote the plan for the assault.
Krygier explains that he was briefed for the assault by detectives on Tuesday, two days before the assault. He said he and others "did a scout of [Guerena's] the house" on Tuesday. Krygier said he was told—presumably by a Detective Hess—that Guerena (he referred to Jose only as "the bad guy" or "the suspect" throughout the transcript) was directly involved with drug cartels and running drugs, and was "...associated with a homicide where a husband wife got killed and the daughter called, uh, for help."
Krygier said Jose was also "associated with three other properties that we were also serving warrants on today, uh, as well as, if not actively taking part in hiring out to do rip crews, uh, to steal other people's marijuana and perform home invasions, so that was kind of the tactical background on it."
Krygier also said that officers driving by the Guerena home were followed and that a vehicle registration inquiry was somehow done on the truck of one of the officers. Krygier characterized this as "…bad guys who are, know what they're doing and obviously, uh, you know, alert of what was going on around 'em."
[MC: It is difficult to know if Krygier was actually given that information on Tuesday, two days before the assault, or was filled in after the shooting of Jose and before his interview. If his statement can be taken at face value, how can the police explain the complete lack of such information in the search warrant affidavit? The affidavit, as I mentioned earlier, contains nothing more damning about Jose than the assertion that he was a passenger in a vehicle carrying plastic wrap some nine months earlier. No one in, or associated with, that vehicle was doing anything illegal.
If Sgt. Krygier is to be believed, the police believed Jose was associated with drug cartels, was conducting home invasions, robbing other drug criminals at gunpoint, involved in a double murder, and was a shooter for hire, yet the police mention none of this in the affidavit, do not request a no-knock warrant and do not bother to drive by the home the morning of the assault to see what is happening there to ensure their relative safety.
Even the most casual viewing of the 54 second police video of the assault on the Guerena home would not lead one to believe that the SWAT team expected to encounter such a highly dangerous criminal.]
KT: Sgt. Krygier reviewed the tactical plan with Lt. Stuckey, the commander for "the mission" as he terms it, at app. 0730 May 5. Lt. Stuckey approved the plan and Krygier briefed the team at about 0800. He takes pains to say that he took along detectives to ensure they had the right house, "…where the main bad guy is." He said: "And, and and we had even briefed that in our plan, that if something were going to happen, it was probably going to happen at Red Water" [Guerena's home].
[MC: Krygier says nothing about intelligence relating to the residents of the Guerena residence. Sheriff Dupnik claims reasonably specific knowledge about the residents, their habits and who was home that morning, but Sgt. Krygier says nothing at all about it.]
KT: Krygier was driving an armored vehicle, apparently the vehicle from which the videotape was taken. He parked behind Guerena's SUV, blocking it in. He said that most of the entry team had been standing on the "skids" of the armored vehicle so they could rapidly approach the door, and also suggested that others were getting out of the vehicle as he turned on overhead lights, and another officer turned on the siren while officers were approaching the door. Krygier says that as he got out of the armored vehicle, he had to tell an officer to turn off the siren: "As I got out of the, uh, the bear cat, uh, Almaraz, I think left the siren going to long, 'cause we don't wanna keep it going, because obviously then we can't hear. So I breached, I said, hey, turn that off, so he turned it off."
[MC: On one hand, the officers are standing on what are apparently running boards of the armored vehicle so they can rush the door, yet they don't have a no-knock warrant, so any rush to the door will, of necessity, be a "hurry up and wait" maneuver. They also used overhead lights and siren, but didn't want to leave the siren on long—it was activated only about 9 seconds with a brief interruption, perhaps when Krygier was telling the officer to shut it off—and apparently didn't realize that people inside a home, particularly if sleeping with all of the blinds shut, couldn't see the overhead lights operating in bright daylight—the lights were operating in front of the garage, not near a window--and couldn't hear the siren either. Remember that the video camera also recorded music playing in the armored vehicle. Sgt. Krygier does not—this is not surprising—mention this.]
KT: Krygier approaches the door where officers are knocking and identifying themselves in English and Spanish. Within seconds of his approach to the front door, Off. Shumate gives the command to break in the door. He said: "Um, no one had, no one had, uh, submitted to our authority, no one came to the front door, nobody opened it, there, there was no reply from inside." Krygier does not know who broke in the door, and he hung back, apparently around the front of the garage. He said that about 2-3 seconds after the door was broken in he began hearing gunfire.
[MC: The videotape indicates that from the first knocking on the door until the door is broken open, only seven seconds elapse. Particularly in a home where the residents may be sleeping, and where there could be a language issue—as illustrated by the Police use of English and Spanish—this is surely insufficient time for anyone to respond to the door.]
KT: Krygier heard someone say "grab Hector." Krygier identifies "Hector" as the officer handling the shield and says that he fell down, but does not explain how or why that happened. He says: "So, uh, and there was a lot of gunfire going on. I, I couldn't estimate the numbers, but know-, knowing how many people were there, probably 80, 100 rounds were fired. I can't say how many the bad guy fired, um, at us." Krygier says: "So we immediately retreated back to armor once we, uh, made sure everyone was okay. I came on the radio and advised, uh, that shots had been fired. We got back to the, the bear cat kind of tried to, tried to calm things down. Obviously, there was a lot of, uh, tension going on at that point. The adrenaline was pumping." Krygier notes that he had never actually seen inside the residence to this point.
[MC: The videotape, and earlier statements, including those of Krygier, indicate that the officers emptied their magazines—Hector’s handgun was reported to have malfunctioned after firing an unknown number of rounds--which brought all shooting to an abrupt stop. There was a two second pause, and an unidentified officer fired a final shot. The reason for that disconnected round remains unknown. They did not immediately return to cover, but stood there, stuck in the doorway of the home, apparently having no idea what to do. At some point after the video ended, they eventually abandoned the assault entirely and retreated to cover—if Sgt. Krygier can be believed, they had emptied their weapons in panic—but while the video was rolling, no attempt to reload, regroup, assault, or do anything but stand still in dumbfounded shock is visible.]
KT: Krygier notes that at this point, Lt. Stuckey arrived and he was informed that "…they saw a male figure down in the hallways, they, you know, into the house with a gun and he was shooting at us. Um, they obviously said they fired, they said they don't know what happened, because there was a lot of smoke and they couldn't really see through it after the, the shooting, but the shooting had stopped, so that's when we retreated."
[MC: As I noted in my initial post on this case which analyzed the video, from the first to the last shot, only ten seconds elapse. I can see three officers shooting from outside the home through the doorway and believe another was just inside the doorway shooting as well. The police have identified five shooters. Remember that the Guerena home was completely dark inside and had dark gray walls, all of which would be expected for people who sleep during the day. However, coming out of bright sunlight, the officer's vision would surely have been compromised. It's unlikely they saw more of Guerena than a dim silhouette, if they saw that much.
Modern gunpowder is known as "smokeless powder," but this is not entirely accurate. Gunfire does produce smoke from unburned powder. With the volume of fire blasted into the home in a very small area, and considering the dark interior, it's not at all hard to believe that they officers found their bolts and slides locking back, their weapons empty, in the midst of a thick cloud of smoke that completely obscured what little vision they had, though this is not visible on the video. Again, the officers do not immediately retreat. They stand essentially motionless for at least four seconds—an eternity in a fire fight--the amount of time the camera continues to record after the final shot is fired.
NOTE: At no time during the transcript does Sgt. Krygier say why the officers fired except the vague, second hand assertion that Guerena fired at them. It is not clear exactly when they learned that he did not fire a shot, but anyone with the kind of knowledge of firearms one would expect of one of the finest SWAT teams in the nation would be able to tell that Guerena’s weapon was on safe and unfired in very short order. Until it is known with certainty precisely when it was determined that Guerena had not fired and by who, Sgt. Krygier’s statements should not be taken as the last word.
The vague nature of this transcript is remarkable in that officers involved in shootings are commonly anxious to get on the record their justification for shooting, particularly if they believe the shooting to be fully justified. Are we to believe that the SWAT supervisor, the co-planner of the assault, the officer in charge on the scene, didn't ask what happened? That he did not ask for specific, to the second details? That he had no specific idea why the officers unleashed such a torrent of fire? Is this volume of fire in what appears to be an unremarkable assault common for this team?f]
KT: Krygier says he spent the next ten minutes or so on the armored vehicle's PA system trying to get Vanessa to come out, finally directing officers to rush and grab her when she appeared at the door a second time. He says that she primarily speaks Spanish and relays: "She says that her husband has been shot. He's inside. He, the last she saw he was breathing, but it was very, you know, labored and shallow. She also told us that a, uh, her four year old son was inside, in a back bedroom too scared to come out. So at this time, um, we're concerned mostly, our primary concern was with the four year old." He says Stuckey, Shumate and he make a "tactical plan" to "go rescue this kid." However, he says that if the kid wasn't in the back bedroom where he was supposed to be, they would abandon him and not search further. "We weren't gonna go through the house, 'cause we still have unknown threats. We don't know if there's there's other people in there." He notes that Vanessa told him of Jose and her four year old. As they are planning to enter, the four year old comes to the door and officers grab him. Krygier says: "So the plan then progresses. We're uh, you know, gonna start treating this as a barricaded subject, um, 'cause there's no known other victims or hostages inside. And, those plans start to go into, uh, into effect."
At this point, an odd exchange between the detectives conducting the interview and Krygier takes place.
Krygier: "Um, uh, how much further do you guys want me to go? Do you want me to…"
Farmer: "That's fine."
Tzystuck: "Yeah, and keep, you."
Farmer: "You deployed the robot, right?"
Krygier: "Yeah, exactly. Uh, if you want me to talk about deploying the robot."
[MC: This passage reveals the complete lack of experience and common sense employed by the officers. They have Vanessa and she has told them who is in the home. They can see Jose and he's obviously no threat. They must believe that as they have shown no concern whatever for his survival, either because their hasty retreat has intimidated them, because they care nothing for his survival, or because they believe him to be completely incapacitated or already dead. Even if they feared he might be feigning incapacitation, it would be a simple matter to properly cover and handcuff him while they completed a search. Yet they are going to "rescue" the child. Rescue from what threat? By seizing Vanessa, they have stranded him in his own home with his dying or dead father. They are the only people causing harm that morning. Seizing the child, they suddenly decide they have a barricaded subject. No doubt Vanessa told them there was no one else there, or perhaps they didn't think to ask, though even for a team as inept as this one, that's hard to imagine.
Some 10-15 minutes (at least) have already passed from the last shot and no further hostilities have occurred. Because they have failed to clear the house, because instead of pressing the entry instead of running away in shock, their weapons empty due to their lack of situational awareness and tactical sense, they have surrendered every tactical advantage they ever had. If there were, in fact, other gunmen in the house, they could have regrouped and picked off officers from the windows with ease. Krygier makes no mention of establishing a perimeter at any point in the transcript, so if others were present, they could have equally easily escaped. For whatever reason, incompetence, anger, or simply inexperience, Krygier has admitted that they have decided to deny Jose medical attention. They're going to allow him to bleed out and die.
NOTE: At no point in the transcript does Krygier clearly state that a perimeter was established and maintained nor do the detectives ask--a remarkable state of affairs.
At this point, the detectives prevent Krygier from going into greater detail about what happened and why they did not secure treatment for Jose by diverting him to the use of a robot, a change in direction Krygier seems only too happy to take.]
KT: Krygier notes that he had, by this time, assumed command—sort of—but that Officer Shumate "…was doing a great job. Outstanding job." He directs another officer who is operating a small robot and they find Jose and watch him for some time and see no respiration, so they run the robot into him and he does not respond.
At this point, Krygier makes an amazing admission. He says: "A little misinformation came out that, um, someone called from 71—and said they had been shot." Only the number "71" appears. One or two numbers following it have been blacked out for unknown reasons. Krygier led a team to the house across the street in front of Jose's home. Despite seeing no gunshot damage, they break in and find no one injured. Another team finally gets around to searching the home behind Jose's house. This home has taken gunshot damage and they break in, but find no one. Krygier is not providing time frames, but it's obvious all of this has taken some time. He eventually says that they finally realized that the caller was Vanessa who earlier called the police to get help for Jose. He says: "Um, so then we slow it down again."
The detectives ask if Krygier confirmed that "he is deceased inside the house...the suspect?" Krygier responds oddly indeed:
"Without going in. And through the robot, uh, we have paramedics that were on scene. They saw whatever they saw, I, I won't say what they saw, but what I saw was a man with a lot of blood, uh, not moving at all."
He adds that the officer/paramedic called the SWAT doctor, a Dr. Kastre, and “…she, uh, with whatever laws that she has was able to pronounce him dead.”
[MC: Krygier’s admission of running around the neighborhood breaking in doors is extraordinary. Clearly, these misadventures took valuable time, time for Jose to bleed out while denied medical care. There is no accounting for the time involved. Such an admission does not tend to make the police look terribly competent, but admitting incompetence to divert attention from something far worse—a conscious decision to allow a wounded man to bleed to death—is a common police tactic. What is also uncommon is a physician making a pronouncement of death, at a distance and without having actually examined the patient.
The transcript spends considerable time, with much prompting by the Detectives, to deal with this issue, which would tend to indicate that they understood the sensitivity of their decision to deny care to Jose only scant hours after the assault and were already working to minimize attention to it.]
KT: Kryger explains that they exercised extraordinary caution in finally clearing the house, assigning no less than two officers to keep Jose covered, despite having already had him declared dead from afar. He describes the gore surrounding Jose and says that he was sure he was dead. He claims that it took 20 minutes to clear an attic and ends that long statement with another extraordinary admission: “Um, since I’m not going to do a report, can I throw a few more things in that we saw?”
[MC: Police procedure requires all officers that actually have a role in a case to write their own unique report. The unique case report number is commonly assigned to the primary officer first assigned the call, and all others write supplementary reports using the same case number. For the man in charge of the assault to fail to write a report is an indication of a significant breach in normal procedure and is a very disturbing sign, which is commonly indicative of a cover up. Why else would the supervisory officer involved in a very serious case—and few are more serious than an officer-involved shooting, particularly one involving five officers from four law enforcement agencies firing at least 71 rounds--fail to file his own report?
The vague and non-specific nature of the transcript suggests the answer: mere hours after the assault, the police are already spinning, rigging reports and ensuring that discovery will be as difficult as possible. Police agencies should always take steps to protect themselves against unjust, unreasonable charges, but this is done by making sure that every detail is completely covered and that all procedural steps have been properly taken. The opposite appears to be happening here.]
KT: Krygier tells the Detectives that he saw five separate guns in the Guerena home. He also tells them that he found something “…uh, uh, or appeared to be body armor” in a hallway closet that in the garage he found a large plastic storage container that was “…full of body armor.” He also mentioned finding a Border Patrol hat in the garage.
He said: “So it, it appeared that he had, he was well armed, um, well armored, and, uh, you know, prepared for different types of things with the, uh, amount of body armor and weapons that we saw in there. The Detectives ask if Jose was wearing body armor and Krygier tells them that he was wearing only boxer briefs.
[MC: So a Marine combat veteran has a set of body armor in a plastic storage box in his garage, and he also owns five weapons, two of which were in a gun cabinet, and the others distributed in various places in his home, a home in Tucson, AZ, which has a high crime rate. I suspect that the body armor in the storage box was his military issue. Body armor is degraded by constant exposure to human sweat and body oils, so police agencies and the military do not reissue used body armor for that and sanitary concerns. The police have not described this armor in particular, but it is entirely possible this was Jose’s military issue and that he took it home with him when he left active duty. Despite official military policy, this sort of thing is quite common for entirely commonsensical reasons. The police are clearly trying to make the legal possession of body armor and of no more than five firearms look somehow sinister.]
NOTE: THE SECOND PART OF THIS UPDATE, OWING TO LENGTH, WILL RUN ON FRIDAY, SEPTEMBER 30.
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.
SHERIFF DUPNIK SPEAKS:
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.”
ANALYSIS: THE USE OF DEADLY FORCE
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.”
CHRISTOPHER SCILEPPI SPEAKS:
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.
June 10, 2011
The Guerena Shooting, Analysis 3
Since the posting of my first two articles (available here and here) on the shooting of Jose Guerena by a Pima Co., AZ SWAT team, a number of documents and photographs have been released by the Pima Co. Sheriff’s Department and by other sources. This update will focus primarily on four issues: The affidavit for the search warrant that provided the legal justification for what turned out to be the shooting death of Jose Guerena by SWAT officers, an analysis of photographs of gunfire damage to the Guerena home (available here), particularly the area of the front door, the Coroner’s report, and the statement of Vanessa Guerena obtained by police shortly after Jose’s death.
(1) Go here for the KGUN9 story, which includes photos of the interior of the Guerena Home.
(2) Go here for the KGUN9 story on the autopsy report.
(3) Go here for a photograph of the Guerena front door.
(4) Go here for a photograph of the rear of the Guerena home.
Thanks to "K" for providing some very useful information I might have otherwise overlooked.
We have also established a permanent archive for our articles on the Guerena shooting. Access it in the archives section at the right hand side of the Confederate Yankee home page.
The PIMA County SD should be given credit for making public certain documents. Unlike the Erik Scott case in Las Vegas, they have been reasonably forthcoming in making pubic at least some information. However, I sincerely hope that they do not believe that the information they have released tends to completely justify their actions or tends to make them look professional. In many ways, it does just the opposite.
As a former police officer, I understand the difficulties and demands of police work and want to give the benefit of the doubt to the officers involved. However, every police officer knows that their decisions and the actions flowing from those decisions, often made within seconds, will be picked apart later by those who have unlimited time to review what they had to do in an instant. They understand that they are only as good as their last arrest and that their abilities and performance are being constantly monitored and judged, not only by their peers, but by the other elements of the criminal justice system and by the public. Every officer knows this, and more, when he climbs into his police car to begin every shift. Unlike many cases, in the Guerena case, officers had more than sufficient time to carefully reflect and plan. There is, sadly, substantial evidence that they did not well use that luxury of time.
It is also important to note that while I do have access to the documents and photographs in the public realm, I do not have access to everything the police know. I am almost certainly missing information that would provide certain specific contexts. The analysis I provide is based on my experience and knowledge of the law and police procedure and psychology. I may make unintentional mistakes, small or large, and invite those who might have the specific knowledge necessary to correct such potential errors to contact me. I will promptly make any necessary changes.
THE SEARCH WARRANT AFFIDAVIT (PDF available here):
For the benefit of those readers who may have missed my first article, all police procedure relating to search and seizure of property or persons is governed by the Fourth Amendment to the Constitution, which states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
To obtain a search warrant, an officer must submit, in writing, a sworn affidavit, which particularly describes the place to be searched, and the persons or things to be seized. It must establish probable cause, facts and circumstances that would convince a reasonable police officer (and a reasonable judge) that specific crimes have been committed and that the specific people identified in the affidavit have committed them. Only after reviewing the affidavit will a judge issue a warrant. A warrant is based entirely on the affidavit and is the paper record of an officer’s legal authority to act. In many ways, the affidavit is far more important and revealing of an officer’s knowledge and competence than the warrant which issues from the affidavit.
The PDF of the Guerena affidavit I obtained runs to 17 pages which includes two attachments. It does not appear to be a direct copy of the actual affidavit as it is not dated, notarized or signed by Detective Tisch who is identified as the affiant. It is also not signed by a judge. It is therefore possible that there are differences between this document and the actual affidavit. It is not possible, considering what is currently known, to know what, if any, differences exist or the significance of those potential differences. One paragraph of the affidavit—lines 378-385—has been blacked out. The reasons for this are unknown.
The first two pages of the affidavit list the properties to be searched and the things to be seized. I am struck by the extraordinarily non-specific nature of the items listed. Nowhere does the affidavit suggest that specific kinds of illegal drugs in specific quantities may be found, nor are any other specific items of contraband or anything which might be used in a crime or fruits of a crime identified. The affidavit seems to be asking a judge to authorize a fishing expedition on a massive scale and would give officers the ability to search anywhere—including any vehicles—for just about anything, including an almost unlimited quantity of everyday items which commonly have nothing whatever to do with the drug trade.
To put it simply, this affidavit does not particularly describe the things to be seized; quite the opposite appears to be true.
The investigation appears to have begun in January of 2009 when Det. Tisch stopped Alejandro Guerena (Jose’s bother) and found several thousand dollars in cash and a concealed handgun. Alejandro was arrested on a CCW charge and apparently later convicted. No drugs were found. This obviously caused Det. Tisch to continue looking into Alejandro and surveillance was done between September 9, 2009 and February 23, 2010, though Det. Tisch does not specify if this was around the clock, continual surveillance, or the far more likely option: occasional, random surveillance when time and manpower allowed.
The affidavit describes watching Alejandro and others engaging in what might be drug activity and claims that Alejandro had no apparent means of financial support. On September 15, 2009 the police followed Alejandro who stopped at a Best Buy store, an appliance resale store and his home. The officers followed a vehicle that later left Alejandro’s home (Alejandro was apparently not driving it) and stopped at another home. Some time later, “numerous other vehicles” arrived and an unidentified person put a cardboard box taken from the garage in a white GMC Sierra pickup truck. The police followed and stopped the truck, finding that it was driven by Ramses Caballero. Jose was the sole listed passenger in the truck. Caballero gave the officers permission to search the truck. They found no drugs, but only plastic wrap, in the box. Det. Tisch suggested that plastic wrap is used in the drug trade, which is true, but there is nothing but suspicion to suggest that this particular plastic wrap had been so used or was destined to be so used. In fact, there is evidence to suggest that at the time, the Guerena family was using it to protect a relative’s furniture. This appears, according to the affidavit, to be the officer’s first contact with Jose in relation to this case.
The affidavit mentions a variety of drug related incidents involving people other than Jose. In particular, it mentions an Oct. 13 2009 incident:
“PCSD SIU [Special Investigations Unit] determined that Alejando Guerena had driven his 2010 Ford F-150 ‘Raptor’ Truck to the Phoenix, Arizona area.”
The affidavit does not say how the police knew this. Remember that Det. Tisch identifies that Raptor as Alejandro’s. This will be important shortly. The affidavit states that he made several stops in that area and when he returned was stopped for speeding. He gave permission to search and nothing was found.
Det. Tisch claims that Alejandro then began driving only his wife’s car and says that he believed that the people he was watching were drug traffickers who were changing vehicles to avoid detection. He also claimed that they were aware that they were being followed by the police and were therefore hard to follow. Det. Tisch wrote that after Alejandro was stopped while driving the Raptor, they never drove the white GMC Sierra truck and the Raptor again (lines 186-187).
The problem with this statement and the implications Det. Tisch is making is that on lines 151-153 he notes that the white GMC Sierra pickup was sold to people unrelated to the investigation near the end of September, 2009. Alejandro wasn’t driving the truck because it had been sold at least two weeks earlier, so it can hardly be evidence of suspicious behavior that he was not driving that vehicle, yet Det. Tisch treats it as such.
The police apparently began watching Jose’s home at 7180 S. Redwater St. on April 20, 2011. The affidavit does not say why nor does it particularly describe the nature of the surveillance. Det. Tisch writes that someone began following one of the police officers who was unable to lose them, and that Alejandro was seen “…driving in the area and talking on the phone.” Det. Tisch spends several paragraphs talking about the habits of drug dealers and suggests that what he is seeing is evidence of narcotics trafficking. The background information he provides does indeed describe the common practices of drug traffickers, but again, he is not consistently tying it to specific people. The only mention, to this point in the affidavit, of Jose is that he was a passenger in the white GMC pickup carrying plastic wrap in Sept. of 2009.
The next several pages of the affidavit consist of background information on those the police believe are involved in drug trafficking. I won’t go into great detail on those pages. Those interested should read the affidavit for them selves. What is clear is that Det. Tisch is doing his best to suggest that the people named have prior drug involvement, no clear means of financial support, and assets, including cars and clothing, that would seem to suggest drug involvement. I suspect that most readers will be struck by the inconsistencies and omissions present.
Alejandro is said to own four vehicles, two of which are said to be worth $11,934.00 (via the Kelly Blue Book), but Det. Tisch could not name or provide a value for the other two vehicles (Det. Tisch doesn't know how to run a registration check? He can find two vehicles in the Blue Book, but not the others?). Det. Tisch lists various arrests and charges going back to 2002, but states that many of the dispositions of these charges and arrests are unknown (Det. Tisch doesn't know how to look up dispositions?).
Jose Celeya, the father of Alejandro’s wife Pauline, is listed, but his criminal contacts and their dispositions going back to 1993 are also murky at best. Several vehicles are mentioned, but again, Det. Tisch apparently has substantial difficulty figuring out their worth.
Denise Ruiz, the daughter of Jose Celeya, is mentioned, but apparently has no criminal history. Det. Tisch says that she is the registered owner of six vehicles valued at $41,780 (a bit under $7000 each) but does not identify them or explain why that has any relevance, other than the implication that she is somehow living beyond her means. Det. Tisch tries to link her to the past, apparently unrelated drug involvement of others, including a boyfriend.
Det. Tisch is clearly trying to paint a portrait of a variety of people involved in a drug conspiracy, but one is immediately struck by the modest, mostly non-recent criminal histories—some have none—involved, as well as the modest assets of these alleged drug traffickers. These are not high-rollers driving brand new BMWs and living in million dollar homes, yet the police have at least allowed the suggestion of a high level drug conspiracy to be publically floated.
What is also very surprising is that the affidavit does not list a single, specific, recent drug transaction, arrest, or even any information from a confidential informant or witness directly tying anyone involved to drug activity. No drugs have been found in anyone’s possession, no drugs have been purchased from anyone and no one has been seen so much as smoking a joint. Indeed, on lines 396 and 397 of the affidavit, Det. Tisch writes:
“During the SIU surveillance concerning the aforementioned subjects, they were not observed handling or even in the proximity of narcotics.”
Det. Tisch, in lines 403-405, concludes by writing:
“For the above stated reasons, I believe that these individuals operate a mid-level drug trafficking organization in the Tucson area.”
Also oddly missing is any indication of why it was necessary to serve these warrants at this specific time. In drug cases, warrants usually aren’t served until the officers are certain that they can make substantial arrests and seize substantial quantities of drugs. Or alternatively, when they know that the case really isn’t going anywhere and they want to finish it to look for larger fish to catch elsewhere. There is nothing in the affidavit to indicate normal police procedures in drug cases. No major drug shipment is coming in or going out, no major players are arriving, nothing that one would expect in a “mid-level” drug operation investigation.
Let’s return to Det. Tisch’s take on Jose, a man the police have referred to as a sort of muscle or enforcer for this drug "gang." Det. Tisch begins his history by speaking of a previous drug and weapons arrest, however he is very non-specific, not even mentioning the date, and said only that: “no felony convictions were annotated on the record.” Indeed. It appears that all charges were dropped. Odd that Det. Tisch didn’t mention this.
Det. Tisch suggests that Jose was a “person of interest in a Immigration Customs Enforcement (I.C.E) investigation involving Conspiracy to Distribute Marijuana,” and goes on to again mention that he was “the passenger in the truck stopped containing the large rolls of saran-type wrap.” Again, there is no mention of anything more sinister than Jose riding in a vehicle, the owner of which was in possession of plastic wrap. It may have been used in the drug trade, but the police do not build a case for that and certainly do not tie Jose into such a case.
Det. Tisch claims that Jose is the registered owner of six vehicles, including the Raptor, which he previously identified as being Alejandro’s vehicle. If the vehicle does indeed belong to Jose, then it is certainly unremarkable that Alejandro would not be seen driving it at any point in time, yet Det. Tisch seems to want to use that “fact” to implicate Alejandro in drug trafficking behavior. Yet, on Attachment B, Det. Tisch lists only three vehicles belonging to Jose, the Raptor, a 2007 Chevy and a 2005 Chevy pickup. He requests permission to search all of the listed vehicles or any vehicles parked on or near the properties to be searched when the warrant is served.
Det. Tisch notes that Jose makes about $41000 a year. However, base salary and earned salary often are two different things, as overtime and other augmentations can considerably increase one’s earnings.
The affidavit is remarkably incomplete and lacking in genuine probable cause. That any judge would have issued a warrant based on this affidavit is amazing. During my police service, I would never have taken such a document to a judge. No judge with whom I ever worked would have issued a warrant, and my credibility would have been shot from that moment forward.
Det. Tish is clearly attempting to paint those involved as drug traffickers, and to be completely fair, what he and his fellow officers have observed and documented seems suspicious, and could indeed appear to be indications of drug involvement. But what is lacking is any specific, current criminal activity. He clearly has suspicions—possibly reasonably so—of ongoing criminal activity, but not the slightest shred of evidence of it. He wants a warrant for not one, but four homes and any number of vehicles, not because he has laid out grounds to believe that those homes are associated with specific crimes and that the evidence of those crimes may be found there, but because he obviously hopes to find such evidence if he’s allowed to search. That's why there were no associated arrest warrants. That’s a fishing expedition. That’s not the way search warrants work.
Det. Tish’s probable cause is particularly weak in relation to Jose. Let’s review the “evidence” against Jose listed in the affidavit:
(1) He was a passenger in a truck carrying plastic wrap in 2009.
(2) He was arrested in a drug related case sometime in the past, but all the charges were dropped. Remember that Det. Tisch didn’t fully explain this to the judge.
(3) He is related to some people who may or may not be involved in drugs in this investigation and has actually been seen at their homes and in their company, the company of his relatives by birth and marriage.
(4) He was once “a person of interest” in an unrelated drug investigation by another agency. There was no evidence of criminal complicity, nor was he apparently charged with or convicted of committing a crime.
(5) He lived in a modest home, worked full time in a physically demanding job, earned a solidly middle class salary and owned either three or six vehicles of some value.
Where is the specific evidence, the probable cause, that would convince a reasonable police officer that specific illegal items or the evidence of specific crimes committed by Jose could be found at his residence? There simply is none on this affidavit. The fishing expedition wish list of the first two pages of the affidavit serves only to clearly indicate that Det. Tisch could not, for one moment, connect Jose or anyone else mentioned with a specific crime or to demonstrate that any specific contraband or fruits of a crime could be found in any of their specific homes or cars. Perhaps there is additional information, information that would fulfill the very plain requirements of the Fourth Amendment, but if so, it doesn’t appear on this affidavit.
Det. Tisch seems capable of being specific one moment, but incapable the next. He can identify precise vehicle values using the common “Blue Book” for two vehicles, but cannot do the same for two more. He knows that people were arrested, but cannot say whether they were convicted or exonerated. Any competent police officer can find such information with a phone call or by computer.
I cannot emphasize this enough: the Constitution absolutely requires the police to be able to clearly articulate how each and every person involved is directly involved in the commission of specific crimes—which must be specified—and exactly what items relating to those crimes may be found and where. The police must also be able to explain exactly how they came to know what they know. All of that is missing in this ridiculously general affidavit.
Here’s an example from my police experience. One morning a young man came to see me and told me that he was at the apartment of two acquaintances the previous night. We’ll call them Bob and Steve. He told me that he saw quite a bit of car and home stereo equipment in the home and asked about it. Bob and Steve wove a tale of multiple home and car burglaries, going into considerable detail. Not wanting to be caught up in these crimes, he decided to talk to the police.
By comparing reports of recently burglarized homes and cars, I was able to positively identify property from six separate burglaries including four costly tires they stole from a car, which tires they told him were in their apartment’s storage locker. I was able to do this based not just on his descriptions of the property, but by their descriptions to him of what they did, where they did it, and how they did it, which also matched the crimes in the reports.
Even though his information was only hours old, it wasn’t enough, so I visited the apartment. No one was home, but standing on the doorstep, looking through the front window--as anyone legally could—I could clearly see several items that matched the reported stolen property. Walking into the apartment’s laundry room, another publically accessible area which also doubled as the storage area, I could see the tread of one car tire which appeared to match that reported stolen, through a gap in the locked door of the shed.
With that information, I was able to specifically identify the people involved, the specific places to be searched, and the specific things to be seized, even including some serial numbers. I was also able to list the specific crimes committed, in this case, burglary, grand theft and felony destruction of property. I wrote the affidavit, obtained the warrant and recovered all of the property, and even more that also matched other reported crimes.
Review the Guerena affidavit. Is any of that kind of detail or information present? Drug cases are different, but actual evidence of crimes is mandatory. Informants are used to buy drugs, to get into buildings and to actually see drugs or the equipment used to package them. Lower level drug users are caught and used to obtain evidence against their dealers. Dealers are caught and used to obtain evidence against their suppliers. Intelligence on shipments is developed and careful, continual surveillance is employed to develop complete intelligence on the entire operation so that the police can identify criminals as high up the chain as possible. No competent police agency wants to waste six months of police work with nothing more than a small amount of drugs to show for it. In this case, it appears that surveillance was occasional at best, and again, there are no specifics, nor is there any indication of which crimes the police think any of those involved have committed.
What is also striking is that there is no indication of the expectation of danger, not for any of the suspects listed, and certainly not for Jose. Det. Tisch does not state than any of those involved were recently seen (during the course of the six month investigation) carrying or using firearms, or that any special permissions would be required to deal with any such concerns. As dangerous as Jose has become in death, in life he apparently posed no danger worth mentioning to Det. Tisch or other officers. Indeed, drug dealers often carry firearms and are known to use them, but Det. Tisch made no such assertions in this affidavit.
Det. Tish did not ask for any special conditions, such as service at night or an extended time frame for service. He did not ask for a no-knock warrant, and no judge would issue one absent a specific and convincing request.
There is insufficient evidence to suggest that Det. Tisch was trying to mislead the judge involved. It does describe what appears to be a pattern of possible drug-related activity, but that is not sufficient to establish probable cause. Det. Tisch does provide background information on how drug traffickers commonly operate, but that too does not establish probable cause. Det. Tisch does try to make those involved appear to be as criminal and suspicious as possible, but he does this by often leaving out inconvenient, even contradictory details such as the fact that Jose was arrested years earlier and the charges were dropped. I am still mystified why any judge would issue a warrant based on this affidavit unless he merely scanned it instead of reading it. If that was the case, it might appear to be competent.
If this is, in fact, a valid copy of the actual affidavit, Vanessa Guerena’s attorney is a happy man today.
PHOTOS AND GUNFIRE:
The Pima County SD has released photographs of the interior of the Guerena home. As expected, the interior of the home is heavily damaged, bullet holes and the resulting debris everywhere. However, because no floor plan of the home has been released, it is very difficult to draw any technical conclusions from those photographs as it’s not possible to establish the line of fire and the orientation of any of the rooms or items of furniture and other furnishings that are so obviously and heavily damaged in the home, however, it appears that bullets flew pretty much everywhere, particularly toward the back portion of the home.
I have also seen several photographs of the front door of the Guerena home, which provides a bit more information that supports my past observations. On the right doorframe, from waist to chest height, three apparent bullet entry holes are visible. One is actually in the wall of the home immediately adjacent the right outside edge of the doorframe molding at about waist height, and two are at roughly chest height in the actual right hand doorframe molding. One round pierced the left side door frame molding about 5” above the lock, and another pierced the wall of the home, some 3” to the left of the outside left edge of the molding and about 2” below the hole above the lock. Also visible are three gouge marks/bullet tracks on the right hand side of the door in the area of the two highest holes. These gouges indicate two bullets that obviously scored the outer surface of the door at some point in the shooting as the door swung open or perhaps rebounded back toward the officers. The third bullet appears to have actually pierced the edge of the door—it’s not visible in the only photograph I’ve seen—while it was standing open, and exited the front of the door at a relatively shallow angle, gouging the door and continuing on into the house.
Another very interesting photograph was of Jose’s AR-15, which was liberally flecked with bits of blood and flesh. More on this shortly.
It is apparent that if Jose Guerena was a mid-level drug enforcer, as the police have tried to insinuate, he certainly lived modestly. His home is not full of expensive furnishings, and is like the homes of many a young couple just starting in life. It is not cluttered with the expensive accumulations of many years of living, and it certainly contains no material evidence of conspicuous consumption fueled by drug money.
The photos make graphically clear the panicky and un-aimed volume of fire poured into the Guerena home. No jury will be able to view these photographs and see the police as professional or competent. There is no explanation, no excuse, no words, which can make those photographs tell any story other than that the police were completely out of control. God must have been looking out for Vanessa Guerena and her son that morning. The police certainly weren’t. That they were not hit is surely a miracle.
As the exit holes on the back of the Guerena home make clear, the bullet damage throughout the home reveals an appalling lack of team cohesion and marksmanship. Walls and furnishings are perforated from ceiling to floor and with significant horizontal dispersion. It’s reminiscent of a semi-comic scene in a movie where a home is so filled with bullet holes that it collapses. And as I suggested in the second update, it would seem that the police were not using hollow or soft point ammunition as many rounds penetrated many items before being stopped, or before blowing through the back wall entirely, striking the back concrete wall of the home, the home of a neighbor, or flying off into the surrounding area, striking things unknown.
The bullet holes and marks around the front door also speak to a complete lack of professional ability and execution. Because of the generally poor quality of the 54 second police video and the angle of the camera, it’s not possible to see exactly who shot the door and door frame and when, but it’s clear that the shots came from at least two officers. As my analysis of that video suggested, it is possible that at least one officer was actually inside the home and shooting, ahead of the three officers who can be seen shooting from outside the home, or while leaning in through the door. If this is the case, he was likely in the direct line of fire of those who perforated the door and doorframe. If an officer was inside the home, it is amazing that his fellow officers did not shoot him.
The gouges in the door also suggest one potential reason why the officer carrying the shield fell down. It is possible that he was struck by shrapnel from the door and feeling the impact, thought he was hit and fell. It’s not possible to know this with certainly, and he is unlikely to admit it, but this is now at least a possibility.
In addition, a new photograph of the back wall of the Guerena home makes clear that there are at least ten rather than the nine exit holes I could make out in the original video. The lowest hole now appears to be less than two feet above ground level, making the police marksmanship even more random than I originally thought. Giving automatic weapons to the inexperienced will tend to do that.
It is hard to explain precisely what these six or more holes in the front door and wall mean to those who aren’t familiar with these issues. Police officers are absolutely responsible for each and every round they fire. They are trained to fire only when absolutely necessary and with absolute accuracy and concern for their surroundings. Police officers don’t have the luxury of blindly firing away and sorting things out later. They must absolutely know where the muzzles of their weapons are every second and what is in front of them. This is particularly true for SWAT troops who are supposed to be even more highly trained and capable than the average officer. To paraphrase Shakespeare in Julius Caesar, if these bullet holes could speak, they would speak of officers who had no idea of their surroundings, no situational awareness, and no idea what was directly in front of the muzzles of their weapons. Imagine what those officers will say in court when they’re asked why they shot a door or why they fired with another officer in front of their muzzles. What possible answer exists that will not make them look like rank incompetents?
VANESSA GUERENA INTERVIEW:
Most people badly misunderstand the Miranda v. Arizona decision. Watching too many TV and movie police dramas, they think that if the police don’t read a bad guy “his rights,” he walks. Or they think that officers must read Miranda to everyone they arrest or anyone with whom they speak.
In truth, officers need read Miranda only when someone is actually under arrest and they are asking them questions aimed at getting statements what will implicate them in crimes. If they don’t, or if the bad guy demands an attorney and the police don’t stop, the worst that will happen is usually that any statement they get can’t be used in court against him. As with much of the law, there are exceptions to the rule, but they’re specific and rare. If the police have other evidence, the bad guy may still be convicted.
People also misunderstand what arrest means. When a field training officer, I always taught my trainees what I called the seven magic words: “please,” “thank you,” and “you are under arrest.” The first three have obvious utility. The last four are equally important because they made my trainees think carefully about arrest and what it meant and tended to remove all doubt or confusion.
If you’ve ever received a traffic ticket, you’ve been arrested. An officer doesn’t have to say “you’re under arrest,” for you to be arrested, though it’s always a really good idea so that no one has any unfortunate misapprehensions about what is going on. If a reasonable person was stopped by the police and did not believe that they were free to go when they wished, they were arrested. Do you see what I mean? Were you free to go until the officer handed you a ticket and told you that you could leave? Of course not, hence, you were arrested. Officers simply allow people to leave on their own recognizance because it would be impossible to take everyone who committed a traffic violation into physical custody, take them to jail, and take them immediately before a judge, although that sometimes--rarely--happens.
Why have I brought all of this up? Because the police actually arrested Vanessa Guerena while telling her that she was not under arrest.
The Scene: It is 1150 on May 5, 2011. Jose Guerena has been dead for only about 2 hours, officially for only about one. Vanessa Guerena, Jose’s wife, is in a room with three detectives, Pruess, Cornidez and Anderson. Her English is limited—she is from Mexico—and she is obviously upset, perhaps even in shock. The transcript of the interview makes clear that she doesn’t consistently understand what the detectives are saying—many of her answers consist of “okay”--and there is no initial attempt at translation. She has apparently been removed from her home and taken to their “command center.”
The detectives begin, as detectives do, by getting general personal information. Then they tell her that they’re there to talk with her about what happened.
Det. Pruess says: “Okay? And, when I leave, by the time I leave, um, you know, hopefully you’ll all are, both of us will have all of our, our questions answered.”
Notice that he says: “when I leave,” not “when you leave.”
The following conversation is taken verbatim from the transcript:
Pruess: “Okay? Um, they took you out of the house, and they put you in, in this, command center?”
Vanessa Guerena: “Yes.”
P: “In this room. Obviously you can’t get out. What I have to do, is I have to read you your rights. I doesn’t mean you’re under arrest, it doesn’t mean you’re gonna be charged with anything.”
P: “But by law, because you’re not allowed to leave, I have to read you your rights. Do you understand that?”
VG: “And, will, I speak, I can, I, gonna try my best, my, best English.”
NOTE: Det. Pruess has told her that she can’t get out of the room, and that she is not allowed to leave. This means that she is under arrest. Again, contrary to what people see on TV, if you don’t wish to speak with the police, you can refuse and leave at any time. If they don’t allow you to leave, you are under arrest. There is no other interpretation. The police have no authority to put you in a room and hang onto you—or to otherwise detain you--as long as they please unless they arrest you. He says that “by law” she’s not allowed to leave. That’s nonsense. He’s lying to her. He also says that he has to read her Miranda. As I’ve pointed out, there is no reason to read Miranda to anyone unless they are under arrest and you are asking them questions that you intend to use against them in court. The legal term is “custodial interrogation.” The police do not mirandize witnesses; it’s not necessary. Am I exaggerating? Did the detective misspeak? The transcript continues after Pruess read Miranda to her and says:
P: “Now, I know that you said that you don’t speak English. And I’m gonna slow down. We’re gonna go through this.”
VG: “Okay. I don’t understand…”
P: “Absolutely. I’m not gonna.”
VG: “I’m gonna go to the courts?”
P: “No, no, no, no, no.”
VG: “Oh, okay.”
P: “God, no, no.”
VG: (No answer listed.)
P: “What I’m telling you, is that you can’t leave here right now.”
P: “Because, there’s a door here. You know.”
VG: Oh, yeah, she told me already.”
VG: “I’m not going to leave, I don’t have nowhere to go.”
P: “Exactly. But much less, I wouldn’t let you leave right now, because I need to talk to you.”
P: “Okay? _____ is being into custody right now. It doesn’t mean you’re gonna go to court.”
P: “Doesn’t mean you’re gonna go to jail.
P: “Doesn’t mean your gonna be in arrest. But, what I have to do, is I have to let your know, that, you have a right to have an attorney present, only because you can’t go anywhere.”
P: “We don’t trap you in a room, and say, talk to us.”
P: “And we’re not gonna let you leave until you talk to us.”
P: “We don’t do it like that.”
“We don’t trap you in a room, and say, talk to us.” “And we’re not gonna let you leave until you talk to us.” “We don’t do it like that.”
In fact, they have trapped her in a room; they have told her that the law requires her to talk to them; they have told her that they're not going to let her leave until she talks to them, and they do, in fact, do it exactly like that.
Remember the term “custodial interrogation?” Vanessa Guerena is in a room with three detectives. They have told her, repeatedly, that she is not free to leave, that she has to stay and answer their questions. Would she reasonably expect that she was free to leave? Would you? Clearly, she has been arrested. Clearly, she is enduring a coerced interrogation whether she understands sufficient English to realize that is another question.
Are the police lying to her? Let’s give this the most charitable interpretation possible. The detectives aren’t sure if she has broken the law, so they want to be careful. They know that they (their fellow officers) just killed her husband in a particularly brutal and bloody manner and that no evidence of a crime whatever was found in their home. They want to protect themselves, their fellow officers, and get as much information, particularly incriminating information, out of her as possible before she gets wise and ”lawyers up.” They also want to mirandize her so that if she does implicate herself in any crime of which they are unaware, they can use her statement against her. So just to make sure, they mirandize her.
Notice how even the most charitable interpretation does not exactly make the police look noble. The reality is that three detectives have the wife of a man their fellow officers butchered only a few hours earlier in a room with them and they’re going to get what they want out of her regardless of the language barrier, regardless of her condition, regardless of the law. They tell her that she is not free to go, they tell her that’s it’s the law, that she has to answer their questions. They tell her that they have to read Miranda to her but that she’s not going to court when they’re clearly doing this in case they need to take her to court, perhaps in the hope of taking her to court. All lies, and lies that any competent detective would know are lies. They clearly don’t want to do anything that will cause her to shut up. They’re going to use any tactic necessary to get her to talk with them. These detectives did have a job to do, but they had considerable discretion in deciding how to do it.
In the rest of the transcript, the Spanish-speaking detective begins to translate. Vanessa’s questions and answers truly are emotionally wrenching. I’ll leave it to readers to decide whether they should think well of the police of Pima County, AZ.
THE CORONER SPEAKS:
According to Pima Co. Medical Examiner Dr. Gergory Hess, two of the 22 rounds that hit Jose Guerena were probably fatal. Hess spoke of a bullet that hit the left thigh and traveled into the abdomen where it lacerated a kidney and cut an artery and a bullet that entered the abdomen, damaging the spleen and left lung. Speaking to KGYN9’s Jennifer Waddell, Hess said “I doubt he would have survived even if paramedics had been let in immediately. There would have had to have been heroic efforts to try and stop the bleeding.” Hess said that no single shot was fatal but that Guerena died from rapid and severe blood loss. The official time of death was set at 1000, about a half hour after Guerena was shot.
Interestingly, the combined total of entry/exit wounds on Guerena’s body was listed as 96. The Coroner’s office attributed this to fragmentation of bullets striking Guerena and possibly shrapnel or flying debris from the walls and other items near Guerna, however, the report apparently did not specify finding such debris in Guerena’s body.
A listing of the entry wounds found:
(1) A graze to the head
(2) Upper right chest
(3) Lower right chest
(4) Left upper abdomen
(5) Three to the right upper arm
(6) Right elbow
(7) Right hand
(8) Left upper arm
(9) Left elbow
(10) Left forearm
(11) Left hand
(12) Two to the right thigh
(13) Right calf
(14) Right foot
(15) Four to the left thigh
(16) Left foot
No drugs were found in Guerena’s system, though a blood alcohol level of 0.024% (a tiny amount) was found, which, according to the Coroner’s report, could have been caused by decomposition after death.
Guerena was shot, literally, from head to foot. Only three of the 22 bullets striking him were in what the police call “center mass,” or that area of the upper center of the body most likely to cause damage that can quickly incapacitate an attacker. This means that of the 71 rounds fired, only about 30% struck Guerena at all, and only about 4% struck him where the police and SWAT teams train to shoot.
The Coroner’s assertion that Guerena would have likely died even if immediately attended to must be considered in light of his setting of the official time of death as 1000, or about a half hour after he was shot. The Coroner may be correct, but Guerena was never given a chance to survive. That fact is beyond dispute.
The affidavit was, in a real sense, the beginning of the chain of events that peaked, but not ended, with Jose Guerena’s shooting. It now seems clear that the officers involved did not have sufficient probable cause to obtain a warrant. They could not and did not clearly state facts and circumstances that would lead a reasonable police officer to conclude that specific people committed specific crimes and that the proceeds or evidence of those crimes—which were also not specified—could be found at a specific residence.
Sheriff Dupnik later told reporters that using the SWAT team to serve a high-risk warrant was fully justified, but there is also nothing in the affidavit that establishes the necessity for calling out a SWAT team. Det. Tisch called it a mid-level drug operation, but one that allegedly involved only a handful of people. If Jose Guerena was truly the heavy, the muscle for the drug operation as the police have claimed after his death, the affidavit would have been the logical place to explain that view and provide evidence to support it. The police did not. It has also been suggested that Jose was involved in murder and several SWAT operators apparently claimed that they were so briefed before the raid. If this were true and/or remotely provable, would this too not have been worthy of inclusion in the affidavit? After all, virtually everything else was thrown in, even unrelated incidents of no criminal activity years old.
In addition, the photograph of Jose’s AR-15 speaks volumes, not because it is covered in blood and flesh but because a telescopic sight of what appears to be 4X or slightly greater power was mounted. This is an odd choice indeed for the weapon of a drug gang enforcer as it would be of little or no use at close range or indoors. However, for a former Marine trained to shoot that very weapon accurately at long range, it would certainly provide an afternoon of useful practice at a shooting range. It was also a poor choice for a shootout inside a home. Wouldn’t a drug gang enforcer have handguns or other weapons more appropriate to close quarters battle at hand and ready to shoot?
That said, there is, for the moment, no evidence that any of the SWAT officers involved acted in bad faith in their intention to serve the warrant. They likely believed that the warrant under which they operated was valid, and would have had no known reason to believe otherwise. I would also like to believe that none of them went to the Guerena residence hoping for a chance to fire their weapons, or planning to manufacture a chance. Some would be tempted to say that there is no way to know such a thing, but there is. The operators on the team know. They know who is dangerous in that way. They always know. Of course, ever finding out that kind of information—if it does exist in this case—is another matter.
We now know that after exhausting all of their ammunition, the “team”—if it can be reasonably called that—was paralyzed and merely milled around, not reloading, apparently having no idea what to do next. They failed to immediately enter after the door was breached and emptied their magazines in a panic, even fell down. Instead of regrouping, reloading, and doing what they should have done in the first place, they actually did a Monty Python and, in essence, ran away. I am tempted to call it cowardice, but it was almost certainly a complete failure of training, individual initiative, and leadership.
They could see Jose Guerena, who was for some time, alive and moaning. He was down and no threat, lying in a rapidly expanding pool of his own blood. Unless, of course, they want to admit that they really couldn’t see him before they began firing and as they were firing, and so, couldn’t clearly see him thereafter. Amazingly, after removing Vanessa and their son from the house, they still did not enter the house, but sent in not one, but two robots to poke and prod Jose, and rather than have medical personnel already on the scene assess Jose, they did it over the phone (!) with a physician who would never actually see or touch Jose.
They utterly failed in the basic tactics and duties of any SWAT team under those circumstances. They did not enter and clear the residence. If there were, in fact, other shooters in the house, they could have easily regrouped and picked off officers or bystanders from the windows, or probably even escaped in the utter confusion that obviously reigned.
The detective’s treatment of Vanessa was cruel, stupidly done and unprofessional. Nothing more need, or can, be said about it.
Based on what is currently in the public domain, it seems clear that Jose Guerena was a young man working hard in a copper mine to care for his family. He had some relatives who may have had some involvement in drugs, but there is no evidence that he did, and substantial evidence to suggest that he did his best to avoid it. There are many families where this story is being played out. On the morning of his death he went to bed after a shift at the mine expecting only to sleep. There were no drugs in his system or his home. There was nothing illegal in his home. Vanessa and he did not know that it was the police about to attack his home.
I had, until reading the affidavit, wondered if the police might have had more damning evidence that had not yet been released. Judging from the affidavit, they did not have sufficient evidence to suspect Jose of anything other than having relatives who might have been doing some things that drug criminals sometimes do. Had they used reasonable, professional tactics, such as waiting until Jose was awake and walked out to his mailbox where he could be approached by a couple of officers, his home could have been quickly and easily searched. The affidavit reveals that they knew that he kept regular hours and habits. They could have easily and safely served the warrant. Remember that the affidavit does not identify him as a danger. His neighborhood would not have been ventilated by police bullets, and he would be alive today.
Although Jose Guerena probably did not know that it was the police assaulting his home, he may well have realized it at the last second, and leaving his rifle on safe, gave the last full measure of devotion for his country, devotion taken by those who manifestly did not deserve to demand that sacrifice from him or anyone.
The Case For SWAT Teams
Go here to read my latest article at Pajamas Media. The good folks there have published the article which, using the Jose Guerena shooting as a springboard, explores the advantages and disadvantages of SWAT teams and suggests means for avoiding the kinds of tragedies that poorly staffed, equipped and trained teams can cause.
June 09, 2011
The Blood of Patriots
U.S. Marine veteran Jose Guereńa was killed when Pima County Sheriff Dupnik’s poorly trained deputies gunned him down in his home. They fired 71 shots.
This picture of his blood-spattered limited edition AR-15 rifle, with the safety on, comes from a series of news photos (h/t SayUncle) of the Guereńa home, that shows police fired uncontrolled volleys of bullets from near ground level to ceiling height in one of the most clear-cut cases of excessive use of force I've ever seen.
Jose Guereńa was hit 20 times and was still alive when the police stopped shooting, according to his wife. The cops denied him medical care, refusing to let paramedics enter the home for 1 hour and 14 minutes, by which time Jose Guereńa was dead.
June 03, 2011
The Guerena Shooting: Analysis 2
A YouTube video of a memorial service at the home of Jose Guerena has been posted (here). It is more than ten minutes long, what is of greatest interest is the final few minutes shot by someone attending the service. The video focuses on the back wall of the Guerena home, the backyard fence and the wall of the home behind. Both homes are obviously frame homes covered in stucco, apparently reasonably thick. The fence is made of solid concrete blocks, somewhat narrower than common cinder blocks. Keep in mind that the camera is more or less constantly moving, the framing imperfect, and lens reflectivity—it was shot in bright sunlight—occasionally interferes. There were a few close-ups, but they were brief, shot from a distance, and there was nothing nearby from which to make accurate scale comparisons. Even so, a few reasonable conclusions can be drawn.
(1) I could make out at least 11 apparent exit holes in the back wall of the Guerena home, at least two through a window, and nine through the wall. The lowest hole in the stucco wall appears to be approximately 2’ above ground level and the highest, approximately 7’ above ground level. The exit holes have approximately a 5’ horizontal spread. It is possible—perhaps likely--that there are more holes that I could not see.
(2) The AR-15 platform is popular with SWAT teams because the weapons have excellent ergonomics, light weight, low muzzle blast and recoil, are readily available at reasonable prices, have a very wide range of available accessories, and fire the .223 cartridge, which, if the proper ammunition is used, is a very accurate and effective stopper while also being relatively safe in an urban environment. From this video, it seems likely that the proper ammunition was not used.
One of the disadvantages of the .223 in military use is that it fires a relatively lightweight bullet at high velocity, thus it tends to have poor penetrating capabilities. In Vietnam, where the rifle/cartridge combination was first used in any numbers, bullets could easily be deflected by foliage. However, when they hit a human being, would tend to immediately become unstable, yawing, tumbling and fragmenting, causing enormous damage. Over time, the military developed much more effective bullets that would tend to penetrate well in a wide range of situations.
For civilian police use, an entirely different dynamic is at play. The ideal police .223 round is one with a bullet that expands or fragments upon contact, minimizing the risk of ricochet in case of a miss, or over-penetration of walls or other things. To put it in stark terms, the police want bullets that will cause substantial damage upon impact, but that won’t completely penetrate the people they shoot, or if they miss, that won’t penetrate walls and keep going for miles. To that end, hollow or soft point ammunition is commonly used.
Military ammunition, commonly known as full metal jacket (FMJ) or “penetrator” ammunition, should not be used in the weapons of a SWAT team. Keep in mind that there are a few highly specialized applications for such ammunition, even in the civilian context, but virtually never for an entry team.
(3) The exit points on the back wall of the Guerena home indicate that fully metal jacketed ammunition, perhaps even military penetrator ammunition (possibly even bullets with steel inserts) was likely used. Proper .223 ammunition striking a wall will fragment and/or begin to yaw or even tumble, and if a round fully penetrates, will tend to tear out a fist-sized chunk of wall, thereby exhausting all of its energy. The exit holes I saw on the video are of approximately .22 caliber surrounded by a silver dollar sized—perhaps a bit smaller—circular dish of stucco exploded outward. One would not expect to see this unless the rounds penetrating were not fragmented or tumbling upon penetrating the wall. Remember, these rounds would have had to, at the least, penetrate at least one inner wall of dry wall, one exterior cladding board and the stucco finish of the home. It is also possible that at least some could have also penetrated one or more 2” X 4” studs, and possibly even Jose Guerena.
(4) I could make out at least two holes in the 5’ tall brick fence in the backyard. The rounds appear to have penetrated the inward face of the bricks, and possibly have lodged inside. The camera angle and brief viewing would not allow me to tell if the rounds fully penetrated the fence, or if the police had actually dug the rounds out of the fence. It they were competent, this would be expected. These holes were widely spaced, one relatively high on the fence, one relatively low.
(5) Beyond the fence I could make out what appeared to be two bullet holes on the wall of a neighboring home. One appeared to be at about a 7’ level and the other, about a 4’ level. Again, it was not possible to determine the depth of penetration, or whether the rounds were recovered by the police.
The Guerena property appeared to be relatively new, neat and clean. The pattern of apparent exit holes seems to indicate the inevitable results of the panicky, uncontrolled fire the SWAT team unleashed. The video does not allow an accurate assessment of the interior layout of the home, but if Guerena was crouching in a hallway, as many accounts suggest, the police fire apparently flew down that hallway and out the back wall of the home. The width and height of the pattern indicates, again, panicky, uncontrolled fire. Fully automatic carbines fired by untrained people do tend to experience substantial muzzle rise, which would be reflected by hits very high--and quite wide--on the wall, particularly if Guerena was kneeling when shot.
If these rounds did not fly more or less down a straight hallway and out the back wall of the home, if they had to penetrate intermediate walls in their path, it is a virtual certainty that fully metal jacketed, over-penetrating ammunition was uniformly used. This is particularly so when the hits in the back fence and the wall of the neighbor’s stucco home are considered. Properly frangible ammunition would have been unlikely to penetrate the outer wall of the home, and those few rounds that did would have almost certainly been so fragmented as to have been unable to do more than bounce off the fence or neighboring homes. The holes visible in the video were made by bullets flying straight paths and retaining considerable energy—energy sufficient to seriously injure or kill--even after fully penetrating the Guerena home.
It is unlikely that some of the rounds fired will ever be recovered. Keep in mind that in any police shooting, the police have an obligation to be able to reconstruct precisely who fired each shot, from precisely which position, the flight path of each bullet and its final resting place. They should be able to tell which weapon ejected each piece of expended brass, and where each came to rest in respect to the weapon firing it. Due to the sheer volume of fire alone, this case would be an absolute nightmare for the evidence technicians trying to reconstruct events. In fact, there may be powerful institutional pressure to be inexact.
Also keep in mind that even with SWAT teams (professional teams), officers are issued a basic load of ammunition and every round must be accounted for. Every police officer is directly and absolutely responsible for each and every bullet they fire. After this shooting, every officer’s weapon(s) should have been immediately impounded, every magazine carefully checked and every issued round fired recorded. If this was not done, it would tend to indicate unprofessional conduct at best, and corruption at worst.
FMJ ammunition is commonly used for police training because it is substantially less expensive than hollow point or soft point ammunition. With SWAT teams, which should shoot a great deal more than a normal patrol force, this is a significant issue. However, professional teams understand the characteristics of the ammunition types I’ve outlined here and take great pains to keep their practice and call-out ammunition separate to avoid precisely what the video seems to indicate. Ideally, team leaders issue ammunition and check magazines before final deployment to ensure no mistakes are made. Even so police lore is full of stories of officers who accidently loaded their weapons with practice ammunition, often with comical results, but sometimes with tragic results.
In this case, it’s simply not possible to know, given the information from which I am working, what happened. Were the police unaware of the characteristics of the ammunition they were using? Did they know, but lack proper procedures to avoid mistakes? Virtually everything visible in the original 54-second video suggests a remarkably poorly trained, poorly led, uncoordinated and casual group of officers. If this is indeed the case, it would not be unreasonable to expect that a detail such as the proper kind of ammunition would be likely to escape their notice. SWAT teams are supposed to be very detail-oriented.
I’ve often said, particularly on those occasions when I narrowly escaped injury during my police days, that God protects cops and idiots. That was surely the case here. It is absolutely amazing that Mrs. Guerena and her child and neighbors were not injured or killed. It is equally surprising that the police did not shoot themselves. It would be interesting, by the way, for the local media to confirm that assumption by checking local hospital treatment records for the day of the shooting. While I have no concrete evidence that any officer was injured, I would not be at all surprised.
It is also now known that the SWAT team that raided the Guerena home is comprised of officers from at least four local Law Enforcement Organizations (LEOs). As I mentioned in the initial analysis, this can save money, but potentially creates a great number of problems as those officers selected may be selected for reasons other than their tactical abilities. The administrators of many agencies can tend to work at cross-purposes, interfering with, rather than smoothing the path for, their officers. Mrs. Guerena’s attorneys will certainly want to have all of the records of the SWAT team members and their individual and group training. Remember that with four LEOs involved, there are four rather than one sets of deep pockets. This knowledge may affect the quality of the follow-up investigation, which according to Sheriff Dupnik will be done by representatives of the involved agencies. That is never a good procedure or sign.
What should have been visible in a professional operation? Because only a few rounds would have been fired—only if absolutely necessary—and there would have been no misses, the home—and the neighborhood—would show not the slightest external evidence that police gunfire occurred.
Many people—including those hapless officers--are lucky to be alive today. Hopefully, they realize that.
May 28, 2011
The Guerena Shooting: Initial Analysis
As regular readers know, I’m a USAF veteran (I was a security police officer in SAC during the cold war) and have extensive civilian police service, including SWAT duty. I have been writing on the Erik Scott case In Las Vegas since August of 2010. Those extensive posts are available in our Erik Scott archive.
The Jose Guerena shooting, which took place on May 5, is similar in many ways. My co-blogger, Bob’s May 25 story on the Pajamas Media site (here) has stimulated considerable interest in the story on the Net. What I’ve yet to see is concise information that would allow people who don’t have police and/or tactical team backgrounds to better understand what appears to have happened in this case. To that end, I’ll explain why SWAT teams exist, what purpose(s) they should serve, how they should work, and proper police procedure in any case where the police have shot a citizen.
I’ll also analyze the brief—less then 60 seconds—police video of the actual shooting (it may be found here). Please keep in mind that I am working only from media and Internet accounts, including the aforementioned video and other documents released by the Pima County Sheriff’s Office, the law enforcement entity involved. As such, I don’t have all of the facts, and as Donald Rumsfeld might say, there are unknown unknowns. In other words, I don’t know enough about this specific incident to know precisely what I don’t know.
UPDATE 052911, 1329 CT: Go here for an updated news story reporting that Guerena, according to the medical examiner, was actually hit 22 times, not 60 as was originally reported by the doctors who examined him. See the "Analysis" section below for additional commentary.
SWAT TEAMS: RATIONALE AND REALITY
Special Weapons and Tactics (SWAT) teams have, over the last thirty years, become relatively common in American law enforcement. Their primary reason for being is to provide a highly trained, enhanced capability beyond the training and equipment available to patrol officers. Patrol officers are most commonly armed only with their handguns and perhaps .12 gauge shotguns in their patrol vehicles, though some police agencies have begun to also equip them with carbines, such as variants of the AR-15 family. This is rational in that the effective range of shotguns with reasonable accuracy is essentially the same as handguns. Many people think shotguns are extraordinarily powerful, long range weapons, but in fact, their enhanced effectiveness—compared with handgun ammunition—depends entirely on keeping the shot column together, which again, limits them to essentially the same practical range as handguns. Patrol officers commonly wear bullet-resistant vests (there is no such thing as a bullet-proof vest) sufficient only to stop common handgun rounds. Tactical vests such as those worn by SWAT operators are simply too large, bulky and heavy for daily patrol wear.
The classic scenario for a SWAT callout is a barricaded hostage taker, a situation that commonly ends with a negotiator talking the suspect or suspects out without bloodshed, or more rarely, with a single shot from a sniper’s rifle. More rare still is an assault by SWAT operators. This is rare because no matter how much SWAT types love to do this sort of thing, it is horrendously dangerous to everyone involved. SWAT teams are also commonly employed for the service of no-knock warrants, where absolute surprise, speed, and overwhelming action are a necessity to minimize danger and prevent the destruction of evidence.
SWAT teams are very expensive to equip, train and to maintain. Generally speaking, only major cities have dedicated SWAT teams whose focus is constant training. Such officers generally have no other primary duties and work together on a daily basis learning and honing their craft.
It’s particularly important to understand that one of the fundamental principles of professional SWAT philosophy and training is that each operator be superior to his police peers in physical prowess, mental and emotional stability, quick thinking skills, situational awareness, shooting skills, and every other skill specific to SWAT operations. What this essentially means is that SWAT operators are expected to be faster, smarter and more capable than the average cop. Where most officers would shoot, and shoot a great many rounds, they 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. And when they shoot, they are expected to do it with far greater restraint and accuracy than most officers.
Note the Navy SEAL who took out Osama Bin Laden with two rounds and two rounds only, one to the chest, one to the head. This is a classic example of cool, perfect shot placement under stress, and is precisely the sort of thing SWAT troops are supposed to be able to do. After all, if they are no better at this sort of thing than the average street cop, all that has been done is to give average street cops more destructive, longer ranged weapons.
In recognition of the generally greater danger SWAT personnel face when properly employed, most teams are armed with fully automatic weapons, such as the ubiquitous H&K MP5 in 9mm. Many also use AR-15 variant carbines in .223 with 16” or shorter barrels. So arming SWAT teams is reasonable and necessary—again, if they are properly employed—but it is also a contributing factor to many potential problems.
Many people assume that the police are generally expert shots. Not so. Many officers aren’t particularly fond of guns, and a surprising number own no firearms other than their issued handgun. Because ammunition is expensive, particularly when one is equipping an entire police force, most Law Enforcement Organizations (LEOs) tend to hold qualifications only once a year. The courses of fire for such qualifications tend to be relatively easy, require less than 50 rounds, and qualifying scores are generous. Officers are often allowed to shoot as many times as necessary to achieve a barely passing score. Most LEOs do not provide practice ammunition for their officers, so a great many officers only practice with their handguns consists of their annual qualification shoot. They may, or may not, clean their weapons thereafter. A great many civilians are far more proficient than most police officers simply because they are more interested in firearms and shooting, and are willing to take the time to practice.
During my police days, my most effective training was that I undertook on my own time and money, taking courses such as those offered by Chuck Taylor, among others, where I learned proper submachine gun handling and tactical employment. I am, in fact, certified by Taylor’s American Small Arms Academy to teach, among other things, the submachine gun. I also hold NRA training certification. No such training was available though my LEO which simply could not afford it, particularly for an entire SWAT team.
It is at least in part in recognition of this reality that SWAT teams try to obtain advanced training, and sufficient time and money to practice—a great deal--with their weapons. Exposed only to cinematic machine gun handling, many people have formed a very wrong idea of the proper employment of submachine guns, which consists primarily of spraying magazines of ammunition with a seemingly endless number of rounds from the hip, ventilating the landscape as far as the eye can see. In reality, such weapons should virtually always be employed only from the shoulder, sights must be used, and only two to three round bursts employed. With proper training, this is much faster and far more accurate. In SWAT missions, putting the minimum number of rounds necessary precisely on target at precisely the right moment with no margin for error is the expected level of performance. In fact, many real pros consider any mission where they had to fire a single round a failure. They understand that this will certainly not always be possible, but it is their goal.
Most LEOs cannot afford a full-time, dedicated SWAT team. There is simply not sufficient call for it, and it is far too expensive. They deal with this by appointing various officers from various bureaus to a team, equipping them as they can afford, and indulging in what training they can afford. This is a significant limitation because when the team trains, all of those officers are not doing their usual duties, which often requires calling in off-duty officers to work overtime shifts to cover for missing SWAT troops. Many agencies try to minimize this significant problem by forming joint teams comprised of officers from two or more local agencies. While this helps somewhat with costs, it produces unique problems in terms of arguments over authority, leadership, cost sharing, and a variety of other issues.
The paramilitary structure of LEOs can also interfere with proper staffing of a SWAT team. Ideally, because of the very nature of such teams and the situations for which they should be employed, the most qualified people, regardless of their daily rank or position, should be placed in each and every team position, from leadership positions, to snipers. Unfortunately, rank has its privileges, and people with rank are often placed in leadership positions commensurate with their rank in their LEO while far more capable people are passed over entirely or relegated to entry or perimeter team duties. I know of one team that appointed as its primary sniper—they’re most commonly called “marksmen” or something similarly non-threatening sounding—a detective who had never before fired a rifle, and whose entry level skill was far less than that of many available officers. It is this odd internal dynamic that might see a former special forces troop expert in small unit tactics, relegated to the most distant position on a perimeter or doing coffee and sandwich runs for the command post. Less competent and experienced "leaders" tend not to want far more experienced and capable underlings too close lest they look bad by comparison.
Beyond the enormous expense of time and salary for training a team is the cost of equipment. To equip a single operator with body armor, handgun, submachine gun, helmet, eyewear, radio and proper headset, Nomex protective gear, uniform, boots, and the various other necessary items can easily run to $5000.00 and more. In LEOS where shift supervisors are constantly being brow-beaten over an extra hour or two of necessary and justifiable overtime—virtually every LEO in America--such costs might as well be $500,000.00.
SWAT teams should generally be used only for high-risk situations requiring specific skills and equipment not available to a patrol force. However, many agencies have, for many years, used them for serving high-risk warrants, including arrest warrants for violent felons, and general search warrants in drug cases. While SWAT guys love to don their gear and practice their craft in the real world, this tends to develop a mindset within an agency that makes use of SWAT teams routine rather than rare. This can lead to complacency, which any competent cop can explain is potentially deadly. Particularly in drug cases, there is a heightened risk of bad information, which can lead to teams assaulting the wrong homes and even killing the wrong people. Police lore is full of such true stories, which are taught as cautionary tales in competent SWAT training.
Remember this: Your local SWAT team responding to a hostage situation in a bank where your wife works as a teller may be a highly trained, unified, competent group of operators expert in the use of their first-rate equipment and professional tactics. More likely, they’re a group of well-meaning, undertrained and underequipped cops with uninformed and inexperienced leadership. Their knowledge and skill levels will likely vary widely, and in fact, some may be less capable than many street cops. Any combination is possible, but the operator coming through the bank door with an MP5 may be expert in its use, or he may have only fired 50 rounds through the weapon a year ago at the last qualification, and have no real idea where its actual point of aim is today.
ORGANIZATION AND TACTICS:
I will not go into great detail here on specific SWAT tactics, as most importantly, the bad guys just don’t need to know. But secondarily, such information is available to those with a need to know, and in far greater detail that it is possible for me to provide in this single article.
Generally, SWAT teams are divided into command, assault, sniper and perimeter elements. The command element commonly includes the leader(s) of the team who will be responsible for making tactical plans and giving tactical orders. The sniper element will normally consist of a sniper and spotter, hopefully trained to function as two bodies sharing the same mind. Many teams can afford only one such team (a competent rifle can easily cost $3000.00 alone). If one of the members of the team is sick or unreachable when a call-out occurs, someone less trained and experienced will have to fill in—or not. The perimeter team’s job is to establish a safe perimeter around the target building or area and keep unwanted people out and the bad guys in.
It is the entry team that is of greatest interest to us here. Such elements commonly consist of an operator leading with a heavy, bullet-resistant shield or “bunker” as it is sometimes called. One or two operators are designated to break open doors using specialized tools. As soon as a door is opened, a “stack” immediately enters. A “stack” commonly consists of several men—usually three or four in addition to the man with the shield—following single file on each other’s heels through the doorway. In such stacks, operators commonly place one hand on the shoulder of the man in front of them, allowing them to stay together and to communicate readiness with a simple squeeze passed up the stack as they begin.
All police officers are taught to avoid the “fatal funnel,” or placing them selves in a narrow, tight area where it is easy for bad guys to shoot them. Being silhouetted in a doorframe is a classic example, as is being stacked up in a narrow hallway. If one can’t avoid such areas, it is imperative to minimize the time spent in them.
Each member of the “stack” has a specific area of responsibility, a portion of the space(s) they will enter they are responsible for checking out visually. Only they are authorized to engage—shoot—potential threats in their area of responsibility. This is essential because there can easily be more than one threat in more than one place. If an entire stack focuses or fires on the first perceived threat, the entire team may be wiped out by an unseen shooter. In addition, shooting in enclosed spaces is extraordinarily loud. Officers must be careful not to inadvertently deafen each other, or blind each other with the muzzle flash of a weapon fired too close to the eyes of a fellow officer. This kind of discipline requires constant training and conditioning and cool thinking under fire.
A significant part of training for entry teams and SWAT teams in general involves “deconfliction,” or muzzle awareness. Any police officer can attest to the fact that it is surprisingly easy to unintentionally point weapons at other people. In high stress situations where many people simultaneously occupy the same small place, particularly when sound and rapid movement in an unfamiliar area are also present, it is ridiculously easy to make deadly mistakes. By assigning very specific areas of responsibility, areas from which an operator’s muzzle should not stray, the possibility of accidently shooting another operator, rather than a bad guy, is minimized. It is minimized, but always a real danger, and such shootings are far more common than the police are comfortable admitting. Officers are also taught to keep their trigger fingers “in register,” or outside the trigger guard of their weapons, off the trigger, in direct contact with the frame or receiver of their weapons, until milliseconds before it is necessary to fire. This too minimizes the risk of accidental or unintentional discharges (ADs).
Generally, the stack’s duties consist of “clearing” every potential danger area in a structure. They do this by going room to room, never turning their backs—so to speak—on un-cleared rooms or areas, securing—by whatever means necessary—any hostiles. Only when the entire structure has been cleared, do other officers enter and conduct a search. Even so, no one relaxes prematurely. Properly done, a normally sized, three bedroom home may be properly cleared within a few minutes.
In some particularly dangerous cases, the stack will be preceded by one or more “flashbangs.” These are specialized hand grenades, which do not produce fragmentation, but a brilliant flash of light and very loud report, both effects being magnified by close quarters. The advantage of these devices is that they can render bad guys senseless long enough for the police to subdue them with little risk to themselves. The disadvantages are that if they detonate too close to a bad guy, they can seriously injure or kill them, and they can start fires.
Once a dynamic entry has begun, it must not hesitate. The stack must enter with speed and determination to surprise and overwhelm any resistance. Particularly in serving drug search warrants, one immediate goal is to prevent the destruction of evidence, which might be easily flushed down a toilet, for example. To that end, retreat or hesitation is not an option.
If anyone is injured, SWAT operators, as police officers, have the same duty to see that they receive aid as quickly as safety will allow.
THE LAW: SEARCH AND SEIZURE AND SHOOTING
Every aspect of search and seizure is governed by the Fourth Amendment, which states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Despite the claims of some of the self-appointed “elite” that the language of the late 1700s cannot be read or understood by the modern liberal mind, this, like the rest of the Bill of Rights, is quite clear. If the police want to search someone’s home, they need a warrant. To get a warrant, they must have probable cause, which is defined as facts or circumstances that would lead a reasonable police officer to conclude that a crime has been committed and that a specific person has committed it. A vague, general suspicion or inference is not probable cause. Saying for instance that Joe is a drug dealer and that Steve has been seen in Joe’s company does not implicate Steve in the drug trade absent specific evidence of his involvement.
To obtain a warrant, an officer must write a complete affidavit, which, as the Fourth Amendment so clearly states, describes his probable cause, and which particularly describes the place to be searched, and the persons or things to be seized. “Particularly” is an important word. Not only is it necessary to, for example, provide the address of a home to be searched, the home itself should be carefully described. If, for example, the SWAT team shows up at 1506 Walnut Street to search a two story red brick home with a detached single car garage and finds instead a single story ranch, painted tan with brown trim and no garage, they know something is very wrong. This is not uncommon, particularly with drug cases. Insufficient probable cause or vague descriptions will usually cause a judge, who must review each affidavit and approve each warrant, to refuse to issue a warrant.
There are exceptions to the warrant requirement, such as hot pursuit or exigent circumstances. In this case, the police apparently had a warrant. In servicing warrants, officers must commonly knock, clearly identify themselves and their purpose, and allow sufficient time for the occupants to respond. No-knock warrants may be granted, but only upon a convincing showing of specific danger and need.
Keep in mind that if anyone lies to obtain a warrant, everything that occurs as a result of the service of the faulty warrant may be tainted and many not be used in court. However, generally speaking, officers who are acting on good faith, who have no reason to believe that the warrant under which they are acting is faulty, are generally not legally liable. This, of course, does not excuse criminal behavior, negligence or incompetence.
The use of confidential informants in drug cases is always problematic. Such people are virtually always criminals and drug users and are inherently unreliable. Even so, they are often the only way to successfully penetrate drug operations. Professional, capable judges are always suspicious of such people and commonly require a higher standard of proof than just the word of a CI.
Search warrants must generally be served during the daytime, and within a specific, brief window of time, usually within 24 hours of their issuance. A judge may grant exceptions, but they must be spelled out in the warrant. After the warrant has been served, officers are required to promptly file a “return,” which is an after action report that specifically describes everything found and seized as a result of the warrant. Lying on any portion of the related paperwork is perjury, a serious criminal offense, usually a felony.
Prior to searching any home, particularly if a forced entry is likely, professional teams will have conducted sufficient surveillance, and will have produced detailed diagrams of the interior of the home, which will include likely locations of any firearms or defensive preparations, and hiding/storage places of any drugs. They will want to know how many people are usually in the home, their identities and everything about them. Even if the police cannot get inside a home, a great deal may be learned from merely observing the home and the manner in which it is constructed. Remember that professional teams try to avoid forced or “dynamic” entries because of the great danger involved. Professionals seek, prior to searching, to isolate and capture the primary suspect outside the home whenever possible. This is why careful surveillance and accurate information is so important; it can greatly lessen the risk to everyone involved.
WHEN THE POLICE MAY SHOOT:
Police officers may use deadly force when there is an imminent threat of serious bodily injury or death to them selves or another. It cannot be a possible threat that might manifest itself within the next few minutes. It must be obvious, real and about to happen at the instant that deadly force was used. If these conditions exist, an officer may use whatever force is necessary to stop the bad guy from doing whatever gave the officer justification to use deadly force in the first place. If the bad guy dies as a result of the application of that force, bad for him, but the police always shoot to stop, never to kill. If they shoot effectively—and SWAT teams are supposed to always shoot effectively and with the minimum expenditure of ammunition—the bad guy will usually be killed, but he will surely be stopped.
If a single 9mm round from an officer’s handgun stops the bad guy, that’s a good thing. If five rounds from a shotgun are reasonably required, that’s perfectly permissible under the law. However, the second a bad guy ceases to be a threat, all shooting must stop. The law--to say nothing of professionalism, common sense and decency--does not allow gratuitous magazine emptying or “me too” shooting when the danger has clearly passed.
In such circumstances, some will claim that when confronted by someone holding a gun, or even when the police suspect someone is armed—as in the Erik Scott case—the police may blithely fire away. This is dangerous nonsense. Remember that SWAT operators should be better trained and more experienced than their patrol brethren. They are expected to be able to wait those few fractions of a second longer before shooting necessary to be certain that shooting is absolutely required. In a nation with a Second Amendment, and where citizens may carry concealed handguns in most states, police officers simply cannot shoot anyone seen holding a weapon. In fact, officers deal with people who are openly carrying weapons, or who are carrying concealed weapons, every day without injuring anyone. Was this not true, our streets would be littered with the bodies of law-abiding people shot by panicky cops who had no legal reason to be certain of a threat before emptying their weapons.
Remember, again, that a SWAT team making a dynamic entry understands that citizens within might very well mistake them for home invaders and might meet them with firearms in their hands. Merely holding a firearm, or even pointing it in their general direction, does not automatically constitute an imminent threat of serious bodily injury or death, particularly for officers wearing highly effective body armor behind a bullet resistant shield. Remember too that SWAT operators are supposed to be more capable of correctly making just this kind of split second judgment.
Professional teams are extensively debriefed after each mission. Each and every discrepancy is minutely analyzed and discussed. An officer firing when he might have avoided it, or firing more than reasonably required, is in trouble. An officer crossing the bodies of his teammates with the muzzle of his weapon because he was distracted and didn’t cover his area of responsibility is likewise in trouble. SWAT teams work for perfection, but understand that human beings seldom reach it.
THE GUERENA RAID:
With all of these factors in mind, let’s analyze the 54 second video clip released by the Pima County SO. The video seems to have been shot from a helmet-mounted camera worn by an officer in the back seat of a vehicle parked in the driveway of the Guerena home. The vehicle is apparently parked behind another vehicle, which is directly in front of the garage. Throughout the video, music, apparently from the radio in the police vehicle, can be heard. As the officers are preparing to enter, I can hear them speaking, but for whatever reason, most of what they say is unintelligible. No doubt, others using other equipment might be able to more clearly hear what is being said.
Before I begin a second by second breakdown of the action, some general observations. Not counting the two officers who are apparently in the vehicle—one in the driver’s seat clearly in the view of the camera as the video begins and the officer recording the incident—there are as many as seven officers clustered around the door and front yard of the home. And I do mean clustered, as in having no apparently coherent organization. In fact, throughout the tape, they appear to be more or less constantly shifting their positions, apparently aimlessly.
The viewpoint of the camera is apparently through the left side, back window of the police vehicle and is slightly to the right of the plane of the front door of the home. Immediately to the front of the police vehicle is a garage, to the left of that, the front door, and to the left of that, what appears to be a living room picture window. It is bright daylight. The camera appears to be approximately 25 feet from the front door of the home.
The officers making a sort of entry can generally be seen only from the back and the camera is somewhat shaky throughout the clip. Brief glimpses of the faces of a few of the officers are possible, but it is very difficult, perhaps impossible to identify them. Keep in mind that the time frames are based on the time stamp running with the video, so I may be off by fractions of a second here and there.
Seconds 0-8: The clip begins with the camera focusing on an officer in tactical gear and helmet in the front seat of a police vehicle. The field of view shifts around, finally settling, shakily, on a consistent view of the front of the home and of the approximately seven officers in tactical uniforms and gear in the front yard, driveway and near the front door. An officer with a bullet-resistant shield is consistently standing, more or less, in front of the door.
5: The police vehicle siren begins.
7: It stops for about a half second and begins again.
14: The siren ceases. The siren sounds very much like a car alarm, and is not very loud, even within the vehicle that is apparently broadcasting the sound. It has sounded, with a brief interruption, for only about nine seconds.
15: An officer can be heard saying “do it.”
17: An officer says “bang, bang, bang,” apparently over the radio. It’s not clear what he means or why he is saying this.
26: An officer holding a large, purpose-built pry bar, approaches the door and knocks lightly several times. He immediately retreats backward toward the garage.
33: An officer advances and apparently kicks the door open (officers standing in the way obscure the action, but the pry bar is apparently not used). That officer withdraws to the area of the garage. Officers immediately start moving around, but in no organized fashion. There is no stack, and no one seems to have any idea what to do. There is no organized attempt at a dynamic entry.
38: At this point, it appears that another officer actually enters the home to the right of the officer holding the shield. It is difficult to be sure, because various officers shift directly in and out of the view of the camera, which does not change. The shield-holding officer stands in the doorway, but does not enter. Another officer is standing to the left of the officer with the shield. He too does not enter, but only points his weapon into the home through the doorway. Again, officers are apparently speaking, but I cannot make out what they are saying.
40: Shots start, and are apparently a combination of semi-automatic and automatic fire. No muzzle flashes are visible and it is impossible to tell exactly who is firing. In addition, their specific weapons are not visible. Two officers immediately retreat out of the frame of the camera, to the right, in front of the garage. This leaves the officer who is apparently inside the house, the officer holding the shield who is blocking the doorway and the officer leaning over his left shoulder, at the left side of the doorway, leaning in, apparently firing. It appears that the officer with the shield is armed only with a handgun (normal procedure when carrying a shield) while the others are armed with long guns of various types. I can make out the distinct reports of at least three weapons.
Almost immediately, an officer in the background, who was closer to the camera, has slung his long gun behind his back. He draws his handgun, and runs to the front door.
44: Positioning himself between the officer holding the shield and the officer on the left, he sticks his handgun between them, apparently one-handed, and begins to fire. By this time, the officer holding the shield can be clearly seen to be on his back on the ground in the doorway. His shield is now oriented so that it is between him and the camera.
48: The shooting stops. The officers seem disoriented, not knowing what to do. There are no apparent attempts to reload. Only the three who remained outside are visible. The officer who apparently entered, ahead of the shield man, is not visible.
50: One final round is fired. It’s not possible to tell who fires it or why. The camera quickly shifts downward, away from the scene of the shooting, and the video stops at 54 seconds.
(1) There appears to be no organization at all. The officers are not organized into an entry stack, they are not apparently taking pre-determined positions, and they mill about, apparently not knowing what should happen next.
(2) They are apparently announcing themselves, but their words are muted. It would be entirely possible for people in the home to be unable to hear what they are saying.
(3) The activation of the siren appears to be uncoordinated with the action at the door. I cannot hear any radio traffic asking for such activation, and there are no visual signals requesting it. If the residents heard it at all, it could be easily mistaken for a car alarm.
(4) Music, apparently playing in the police vehicle, is a very disturbing sign. It indicates a lack of training and concentration that would be potentially deadly in any SWAT operation. This is an amazing bit of foolishness. It is hard enough to clearly hear radio traffic and voices in fast moving, stressful situations. Adding extraneous music is incredibly stupid and dangerous.
(5) Whoever knocks does so very quietly and makes only 4-5 knocks. It’s not possible to tell whether the home has a doorbell, but from the knock to the kick that opens the door only about seven seconds elapse, not nearly enough time for any resident to answer the knock even if they did hear it.
The evidence currently suggests that Vanessa Guerena, Jose’s wife, spotted armed men roaming about the yard. Telling Jose, he directed her to hide in a closet with their four year old child, and taking up an AR-15, crouched in a hallway to intercept what he likely thought were armed home invaders. The exact time frame of these actions is currently unknown.
That the officers take the time to knock and sound a siren indicates that they did not consider time to be of the essence. They were apparently not concerned that the residents of the home would be armed and waiting for them, or that they might be trying to dispose of evidence. Had this been the case, they would have obtained a no-knock warrant and entered without warning, maximizing shock and surprise and minimizing the danger. As it is, their actions indicate a poor state of planning and readiness, haphazardly combining elements of a low-risk warrant service-albeit with a fully armed SWAT team, which makes no sense—and a high-risk, no-knock entry, for which a SWAT team makes sense.
(6) When the door is kicked open, the officer who apparently opened the door has to hastily retreat through several other officers, indicating very poor planning. In proper dynamic entries, the breaching officer or officers are positioned so that they can immediately swing out of the way without obstructing others, allowing the stack to immediately enter. Here, no one moves toward the door in a coordinated manner.
(7) After the door swings open, it takes about five seconds for an officer to apparently enter the door on the right, the shield man to stand in the doorway, blocking it, and the officer on the left of the door to lean in and point his weapon into the home.
(8) An important consideration here is that the officers were standing in bright sunlight. Upon entering, or looking into the home, unless they took appropriate steps to compensate, their vision would be compromised. Anyone who has been outside in bright sunlight and stepped into a building without lights on understands what I’m talking about. It is likely that when they saw Guerena, and the specifics of that encounter are far from clear, they saw only a dark and/or indistinct outline. It is impossible to see if the officers are wearing goggles or dark glasses, which would allow them to see clearly in a darkened dwelling upon entry, but there is no apparent sign of them adjusting such eyewear off their eyes as they stand in the doorway. It is entirely possible that those who fired had no real idea why they were firing because they could not clearly see the “threat” that was drawing their fire.
(9) The shooting begins with 4-5 evenly spaced shots, apparently on semi-automatic. Those shots are quickly joined by a wild melee of fire which lasts about eight seconds, followed by a two second silence and one final shot. According to media accounts, the SWAT team “leader” said that the officers involved exhausted their ammunition. That’s not at all hard to believe, and it is possible that more than 71 rounds were fired.
What is absolutely clear is that the firing was not professionally done. Professional operators fire in two-three rounds bursts, take the milliseconds necessary to asses whether their fire has had the desired effect, and fire again, in a carefully controlled, highly accurate manner, only if necessary. What I heard on the video was panicky fire. Two officers heard the first firing, and they simply opened up and held their triggers down, or kept pulling the trigger, until their bolts locked back, their magazines having been emptied. No doubt their trigger fingers were still jerking even then.
Considering the nature and volume of fire, it is amazing that Guerena was hit some 60 times. It is also amazing that the entire neighborhood was not ventilated. Apparently at least one round did strike a neighboring home—which indicates that the police recognized the reckless manner of their fusillade sufficiently to check out the surrounding area—which caused to police to break into that home to ensure they hadn’t killed anyone. Apparently, they were lucky and did not. It is equally amazing that they did not shoot each other.
UPDATE 052911, 1329 CT: According to a more recent local news story, the medical examiner has reported that Guerena was hit not 60 times as originally suggested by doctors, but only 22 times. This is far more in line with common results of police shootings where most rounds fired do not hit their intended targets. This is also far more in line with what would be expected of the wild and uncontrolled fire of the SWAT shooters in this particular incident, particularly those firing on full-auto. Highly skilled operators can control fully automatic fire in a submachine gun or light carbine such as the AR-15, untrained operators cannot. In any case, carefully controlled and aimed short bursts are always preferred. Police officers are directly responsible for each and every bullet they fire. In this case, nearly 70% of the rounds fired by the police missed. This might make more likely my contention that the officer's vision was compromised and that at least some of them had no real idea of their target or why they were shooting at it, other than the knowledge that one of their number was initially shooting at something. As shocking as all of this might be, the hit rate is about average for police shootings. SWAT teams should do much better. Knowing this, it is even more incredible that the officers did not shoot Mrs. Guerena, her child, themselves, or anyone else in the neighborhood.
(10) That the shield man never actually entered the home, but merely stood in the doorway, perfectly silhouetted, in the very center of a textbook fatal funnel speaks very poorly of the team’s training and experience. It’s not clear how he ended up on his back in that doorway. Did he trip and fall? Perhaps he was knocked off his feet by his teammates, eager to get in on the action. It is also possible that the fourth officer who hastily ran up to the door and thrust his handgun between two of his fellow officers may have fired it so closely to the head and face of the shield man that he was momentarily stunned--or injured--and knocked off his feet. Other officers block the view of the camera, so it is not, from the video alone, possible to know what happened.
(11) Perhaps the most egregious and telling indicator of little or no training, planning, experience and ability is the officer who runs to the doorway, thrusts his handgun between two fellow officers, likely shooting very close to their ears and eyes, to fire off some “me too” rounds. It is highly unlikely that this officer could have had any idea of his target, if he saw one at all. To be completely fair, he was probably acting as police officers do, tending toward action rather than inaction, but proper SWAT training teaches only appropriate, effective action. There is absolutely no room for “me too” shooting, on the street or during SWAT operations.
(12) It is not, of course, possible to know what the officers did prior to the video, but they had obviously been there for at least a short time before the videotaping began.
The information available through media accounts does not present clear probable cause for a search of Guerena’s home. One media account noted:
“The reports state Jose Guerena; his brother, Alejandro; and Jose Celaya were named as suspects in briefings given to officers before the search warrants were served. Many of the officers' reports refer to the sheriff's long-term drug investigation as the reason for the search warrants.
Reports show about $100,000 in cash, marijuana and firearms were seized that morning from the four homes that were searched.
Items found in Jose Guerena's house included: a Colt .38-caliber handgun, paperwork, tax returns, insurance papers, bank statements and a bank card, reports showed.
Another report said detectives found body armor in a hallway closet and a U.S. Border Patrol hat in the garage.”
Notice that there is no information to indicate that any drugs or money were found in Guerena’s home, or that Guerena or his home, were in any way directly related to criminal activity. In fact, the police have, to date, not released the search warrant affidavit, warrant and return for Guerena’s home. However, there is no evidence to indicate that they found anything at all illegal in Guerena’s home. If they had, considering the public and Internet attention this case is generating, they surely would have made it public. Any drug case they were working has long been blown. Secrecy is no longer an issue.
None of the items listed as having been found in Guerena’s home are illegal, or indeed, unusual, particularly for a former Marine who had served two combat tours. One reason that the warrant information has not been released is likely that it was non-specific. In other words, the grounds for searching Guerena’s home may have been shaky at best.
Another media reports notes:
“According to a report, a detective interviewing Jose Guerena's younger brother, Jesus Gerardo Guerena, asked him about the slayings of Manuel and Cynthia Orozco. Jesus Guerena said he knew the couple because they were related to his brother Alejandro's wife.
According to Star archives, Manuel and Cynthia Orozco were killed during a home invasion in March 2010.”
This seems to indicate the police straining to find justification for SWAT involvement in the search, to say nothing of justifying the search itself. Guerena’s younger brother knew two people killed in a 2010 home invasion because they were related to his brother’s wife? Hopefully this is not the extent of the police’s justification for the search, or of Guerena’s being “linked to a double homicide.”
Very disturbing is the fact that the police did not allow Guerena medical help for about an hour and a quarter. In fact, they may not have entered the home after their fusillade of fire, instead withdrawing and eventually sending in a robot to poke and prod Guerena to make sure he was dead. That the SWAT team apparently did not immediately follow up their fire and completely clear the home is further, damning evidence of unbelievably poor leadership and execution. For those who have experience in such matters, the apparent behavior of the police is simply mind-boggling.
What is also unknown is how the police handled the aftermath of the shooting. Officer involved shootings are probably the most demanding situations officers face. The need for absolute perfection in the handling and collection of evidence, the interviewing of witnesses and involved officers, even the precise accounting for each round fired and its final resting place—a nightmare in this case—is of the utmost importance. The slightest deviation from proper procedure can indicate incompetence, cover-up or both.
As you read further accounts of this situation keep in mind that the actions of the police must be judged only on what they knew, or reasonably should have known, when they arrived to serve the warrant that morning. Post-shooting attempts to paint Guerena as the worlds most dangerous drug dealer and homicidal maniac (who, faced with four armed men he likely recognized as police did not take his weapon off safe) mean nothing at all, other than that the police are furiously spinning to justify what may turn out to be unjustifiable.
I don’t have all the facts. No one does. But based on the video, and what is currently known, it is very hard indeed to see how the police acted with anything less than amazing incompetence, incompetence that cost the life of a former Marine, a man who was apparently a solid citizen working hard in a copper mine to provide for his young family.
Update Be sure to read Part 2 of this analysis.
May 25, 2011
Seventy-One Shots: The Death of Jose Guereńa
A hard-working Marine veteran of Iraq was gunned down in his own home by a Pima County AZ SWAT team that originally claimed he fired and hit their men during a no-knock raid. Evidence shows, however, the combat veteran never too his safety off, and family members want to know why the cops kept an ambulance crew from the victim for more than an hour.
Another case of murder with a badge? Decide for yourself after reading my latest article at Pajamas Media.
Update: Jonn Lilyea of This Ain't Hell has been on this story from the beginning, and notes via email that this wasn't even a legitimate SWAT team, but instead a gaggle of officers "cobbled together from four LE agencies."
This was gross incompetence leading to the shooting of a good man, followed by the purposeful obstruction of potentially live-saving medical care, and an obvious cover-up and smear campaign in the process of going south.
I'm not ready to charge the officers in this shooting with murder, but they are at the very least candidates for some sort of variant of a "manslaughter with depraved indifference" charge that should lead to the end of their law enforcement careers.
A distinguished veteran died at the hands of overzealous cops who insist on smearing his reputation after gunning him down. This should never happen, much less become so commonplace.