June 19, 2011: The Guerena Shooting, Analysis 4

All of the articles on this case can be found in the SMM Jose Guerena Case archive. As always, those interested in reading the comments accompanying the original posts should visit the Confederate Yankee Jose Guerena archive.  Confederate Yankee is now shut down for all except archival access.

Since the publication of the original third analysis article on June 9, 2011, 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

SWAT CLEARED:

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.

ANALYSIS:

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—the DA’s employer–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 equally inept. 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 weapon 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.  There is no evidence whatever to suggest that any weapon Jose Guerena owned was fully automatic, nor have the police made this claim, except here by mistake.  In fact, if Jose did have a real machinegun, the police would surely be trumpeting it as prima facie evidence of their narrative branding him as the enforcer of a “mid-level drug trafficking organization.”

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 in America.

Jose Guerena’s rifle was an AR-15 type, semi-automatic rifle of the kind in widespread use for competition, sport shooting and hunting. Semi-automatic technology has been widely available in pistols, rifles and shotguns for more than a century.  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 narrative that he was a dangerous, violent criminal.  However, even the most potentially dangerous automatic weapon wielded by the most dangerous criminal is dangerous only if it was .actually fired.  Jose’s common, semiautomatic rifle was not.

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 unleashed in the general direction of Guerena, it would be practically impossible to tell 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.

The SWAT officer’s initial statements indicated that they had no idea what Jose was doing, if they saw him at all (a factor which is still very much unresolved as they came out of bright sunlight into Jose’s darkened home).  Several said they fired because they saw the “muzzle flash” of his weapon (he didn’t fire a shot) and others fired because their shield man fell down for reasons unknown and they thought he must have been shot.  It is equally possible that Guerena 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—and the shrapnel they produced–that hit him literally from 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, particularly considering that he was in his own home when the SWAT team broke in his door, but Berkman is clearly trying to suggest otherwise. He simply cannot know that what he is representing as fact is 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 or taunt those who might be able to do their client substantial harm. Arrogant attorneys—and they certainly exist—are essentially painting figurative targets 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 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 to his clients.

INFORMATION BOTTLENECK:

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, where they were standing (or falling) 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 believe 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.

Analysis:

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—a recently discharged veteran of two combat tours–could not, at will, manipulate the safety of an AR-15 is ludicrous. 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. Engaging and releasing the safety of an AR-type rifle would be, quite literally, second nature to any Marine.  Again, perhaps this is just an odd use of language, 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:

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.

Analysis:

This introduces the possibility that Dupnik intends to pin one or more unsolved murders on Guerena. It is not uncommon for unscrupulous 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.

In addition, there is no evidence to indicate that Jose had any reason to expect a visit from the police, and surely not a particularly incompetent SWAT team.  There is no evidence to suggest that Jose knew that he was a suspect in a murder.  The affidavit I addressed in Update 3 of this case does not mention it, even though Det. Tisch—the affiant (the officer writing the affidavit)—goes to great, even ridiculous, lengths to try to make Jose appear to be a criminal.  If Jose truly were a murder suspect prior to the assault on his home, the police certainly would have mentioned that fact.  All available evidence indicates Jose was expecting nothing more than getting some sleep after a long, hard shift in a copper mine.  That he died wearing only the briefs he wore to bed that morning is suggestive of his actual frame of mind, to say the least.

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.

Analysis:

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. If true, the Pima County Sheriff’s Department is amazingly timid and incompetent.  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. In fact, it admitted that no one involved had been seen in the possession or presence of narcotics! 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. Indeed, to do otherwise would be astonishingly negligent.  Again, the officer’s actions at the raid are indicative of officers engaged in a routine, even boring training session rather than officers about to assault the home of a violent murder suspect suspected of being an “enforcer” for a “mid-level 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.

Analysis:

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 independent, above-reproach 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. Wearing only briefs, he attempted to defend his family, never having the chance to step outside his home. He did not assault the officers, but remained inside his home, the last line of defense against what anyone would reasonably have perceived as a potentially deadly threat.  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–in this case the general direction being essentially the entire Guerena home–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 (and here I’m assuming that the officer has time to go to ready rather than being forced to go immediately from a draw to the first shot) 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.  It is a bad guys hands that will hurt a police officer, not his face.

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 blindly 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.  In such a case, who knows where his rounds are going?  He certainly doesn’t.

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?”  Employing proper techniques and tactics is the best way to ensure that you go home after the shift.

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 or more. They’re usually 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 a proper 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 or the tactical situation, and we reasonably expect police officers to be in control of them selves, particularly in the application of deadly force.

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. In fact, their greater speed and ability should give them the luxury of being able to wait those fractions of a second necessary to be absolutely certain deadly force (or additional rounds) is required, fractions of a second less capable and experienced officers cannot afford or actually accomplish.  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 and/or laser 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?  Should we not expect them to be more capable than their less well trained and experienced peers?

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 suspect 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 locked 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 flashed 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 a  malevolent 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, including several involving actual firearms—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?  Isn’t that what we should expect of, as Sheriff Dupnik put it, a “nationally recognized SWAT team,” a “premier SWAT organization?”

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 generally pointed 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 [the SWAT officers involved] 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.’

ANALYSIS:

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 and did not portray Jose Guerena as a violent 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—they do not want any jury to hear.

FINAL THOUGHTS:

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 was the direct result of their un-aimed, panicky fire. They had reason to fear for their lives but Jose Guerena had nothing to do with it and they were too dumbstruck to realize that the only people endangering their lives were their fellow officers.

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—and/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 shot 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 (what, in police circles, is commonly called the “oh shit!  I’m hit! reflex).

It is also likely that coming into a dark home, dark so that Jose Guerena could sleep during the daytime (the interior walls of the home were painted in dark shades), out of the bright sunlight, the officers couldn’t clearly see Jose Guerena or what he was holding. He was likely 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 a gunfight that wasn’t a gunfight, unable to clear his malfunctioning handgun with his shield shielding him and his fellows only from the police camera filming the raid from the driveway of the Guerena home?

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 and less honest and forthcoming.

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.  After all, if your SWAT team is one of the finest in existence, if your team made no mistakes, what changes are required?

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

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