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The "me too" shooter

The “me too” shooter

I admit I was looking forward to a trial in the Jose Guerena lawsuit.  It would have been an opportunity for the kind of public exposure and shaming that might have a lasting effect on a group of police agencies–particularly the Pima County Sheriff’s Department led by Sheriff Clarence Dupnik–and an opportunity for the kind of compensatory and punitive damage awards that would have absolutely required the kind of change necessary for the residents of the Tucson area to have any confidence that a visit from their SWAT team would not inevitably lead to the deaths of innocents.

That opportunity may have been lost.

A settlement has been announced: $3.4 million dollars.

Pima County will pay 2.35 million, Marana will pay $720,000, Oro Valley–$260,00 and Sahuarita, $100,000.  Only some of these amounts will be paid by insurance companies.  Each jurisdiction is losing a substantial sum of taxpayer money for their failure to properly staff, train and supervise their police agencies, not only the SWAT team, but their drug investigators.

As expected, the governmental entities (hereinafter “GEs”) involved–as well as the police–are furiously spinning the settlement:

A spokesperson for the Pima County Sheriff’s Department disagreed with the decision to settle, but hinted a prolonged trial could wind up costing taxpayers even more.

‘The Pima County Sheriff’s Department strongly believes the events of May 5, 2011, were unfortunate and tragic, but the officers performed that day in accordance with their training and nationally recognized standards,’ wrote Deputy Tracy Suitt.

‘However, legal advisors and insurers recognize the unpredictable resolution of disputes at trial regarding police conduct and even well accepted police tactics. As a result, well established business and insurance principles call for compromise and the resolution of disputed cases to mitigate risk and avoid the expense of a trial.’

Pima County Administrator Chuck Huckelberry called the agreement a ‘calculated risk management settlement.’

The settlement is not an admission of any wrong-doing, Huckelberry said.

Suitt Translation: “We did everything just the way we should have done it, but those darned insurance companies made us settle.”

Huckleberry Translation: “We calculated that if this went to trial, we’d end up bankrupting the entire county.”

It is entirely normal for GEs to proclaim that they did nothing wrong and/or that they admit no fault.  In fact, that’s virtually always part of the agreement: both sides settle and agree not to publicize the amount of the settlement, while the governmental entity that is culpable as sin gets to say it admits no fault and the attorneys for the aggrieved party–and the aggrieved party–have no comment.  The court record is sealed; end of story.  And in most settlements, the amount paid out is not quite a token, but considering what might have been paid, not much more.  This case is very, very different.

If the settlement were less than a million, the GEs could reasonably argue that they settled as a matter of expediency, a means of getting the case–and all the bother, a mere annoyance, really–behind them without having to shell out any real taxpayer dollars.  But a payout of $3.4 million is another universe of reality altogether.  That unmistakably signals that they knew that if they went to trial, they were going to end up having to pay far, far more than that.  And it would not only be the financial loss, but heads, particularly political heads, would have to roll.  Surely, reassigning, even disciplining various SWAT officers and their supervisors would be required.  The same would be true of various drug agents and their supervisors.  Even the heads of the police agencies involved might have to be sacrificed, except for Sheriff Dupnik, of course.  He’s elected, but something like this might even rouse normally semi-conscious voters to “throw the bum out.”  Even with a settlement of this size, I’m sure that the GEs and those that run them believe they have sufficient plausible deniability so that they can lay low awhile and quietly return to business as usual.  Or at least they likely hope so.

I will do what I can to see that’s harder than they imagine.

A trial would have been a disaster for the GEs and the involved police agencies.  The police screwed up in the investigation stage, the planning stage, the raid, the aftermath of the raid and during the years following the raid.  It would hardly have been worse if they had planned to do wrong everything they possibly could.  I present a partial list of the devastating things a jury would have heard.  A visit to the Guerena case archive will provide much greater detail.  Consider these items, and their effect, not only on a jury, but on the public at large hearing day after day of damaging testimony.

Investigation Phase:

* Incompetent, intermittent surveillance of the supposed major drug gang.

* No video, no photographs, no controlled buys, none of the information and basic investigatory steps necessary to building a drug case.

* Multiple lies, misrepresentations, omissions, and obfuscation on the affidavit for a search warrant.  Imagine the detective that wrote that affidavit–Tisch–on the witness stand trying to explain all of this and more.

* Imagine trying to explain why the affidavit, warrant and return were sealed by Judge Harrington.

* No probable cause on the affidavit.

* A total lack of evidence of any drug involvement, or involvement in any crime, on the part of Jose in the affidavit.  Imagine Detective Tisch having to explain how being the passenger in a pickup he didn’t own that was carrying plastic wrap in a cardboard box implicates Jose in a drug gang.

* A total lack of identification of the specific statutes supposedly violated by anyone mentioned in the affidavit.

Planning Phase:

* A complete lack of surveillance prior to the raids.

* No tactical planning that considered any option other than an armed SWAT raid.  Why not simply approach Jose at work, when he stopped for coffee, or any other place advantageous to the police?  There is no reason at all, none, that an offensive raid on his home was necessary.  The police knew his schedule and if they didn’t, that’s just another example of their incredible incompetence.

* The leadership of the team turned functional control of the raid over to a junior officer, and thought he did a great job!  Imagine explaining that.

* In depositions, SWAT officers–and others–badly contradicted each other, rendering everything they said unreliable.  Imagine them having to explain how all of their statements about being told Jose was a stone cold cartel killer and they expected armed resistance at his home prior to the raid were lies made up afterward to justify his killing.

The Raid:

* Imagine anyone trying to explain or justify the 54 second video.  Imagine a real SWAT expert taking that video apart, frame by frame, for the jury.

* Imagine the SWAT supervisors explaining why the SWAT team was so professional they were playing music in their armored vehicle during the raid.

* Imagine the SWAT officers explaining why they just stood there, doing nothing, rather than entering in an organized, professional fashion.

* Imagine the shield man–Officer Hector Iglesias of the Sahuarita Police–trying to explain how he ended up on his ass, his back to the supposed killer, when there had not been a shot fired.

* Imagine any of the five SWAT shooters explaining why they fired even one shot.

* Imagine any of the SWAT shooters explaining why they emptied their weapons.

* Imagine any of the SWAT shooters explaining why they only hit Guerena with 22 out of 71 rounds, and how they came to ventilate his home from floor to ceiling and wall to wall.

* Imagine any of the SWAT shooters having to explain how they shot neighboring homes.

* Imagine explaining how they managed to shoot up the front door of the house, and the walls on both sides of the doorframe.

* Imagine the “me too” shooter explaining what or who he was shooting at and why.

* Imagine explained their “run away, run away!” retreat.

The Immediate Aftermath:

* The officers were so disorganized and cowardly, they did nothing until Vanessa came to the front door.

* Vanessa told them there was no one but her 4 year-old son inside.  Why didn’t they understand and act on that?

* Imagine them explaining how they planned to enter to search for the 4 year-old child, and if they didn’t immediately find him, turn around and run away again.

* Imagine them explaining how they left the boy alone in the house until he came to the open, bullet-shredded door unbidden.  Imagine the video of a crying, pajama-clad child being snatched by the men that killed his father being played in court.

* Imagine Vanessa’s testimony about begging them to get Jose medical help and about not leaving her son alone with his dying, bleeding father.

* They left Jose to bleed out for more than an hour and 15 minutes.  Two possibilities: abject incompetence and cowardice, or they left him to die so he couldn’t contradict their version of events.  In effect, they murdered him twice.  Neither option reflects well on the police.

* Imagine explaining the two robots poking and prodding Jose, and explaining why they felt it necessary to have a doctor declare him dead from long distance rather than having the doctor–or any medical personnel–treat him.

* The officers found nothing in their search of Jose’s home.  Explain that.

* The SWAT officers knew their shooting was wild and out of control, and believed that they might have killed the residents of two nearby homes and broke into both to find out.  Good luck explaining that.

* When Vanessa was on the phone with a dispatcher after they retreated from the home, the SWAT officers thought she was talking about someone dead in a nearby home.  Good luck explaining that.

* Multiple detectives lied to Vanessa, telling her she was not under arrest, but she could not go and had to answer their questions.  It’s recorded and on a transcript.  Explain that.

The Continuing Investigation:

* The police claimed Jose fired first.  Then they admitted he didn’t fire at all.

* Sheriff Dupnik claimed the only reason Jose didn’t fire is because he couldn’t manipulate the safety of an AR-15.  A two-tour combat Marine.  Good luck explaining that.

* Sheriff Dupnik claimed that Jose knew the officers were there to arrest him for a double murder.  He later admitted he had no evidence to believe that.

* Sheriff Dupnik–and others–claimed Jose was a double murder suspect, and was a cold-blooded cartel enforcer.  In his deposition, he was forced to admit he had no evidence for either charge.  Good luck with that one too.

* The police claimed Jose had police uniforms, then parts of police uniforms, finally, a Border Patrol baseball cap.  Explain that against the reality he got the cap when he applied to become a Border Patrol officer.

* The police claimed he had a great deal of body armor, but showed only a single desert tan vest, probably Jose’s Marine issue.

* A few of Jose’s relatives were charged and sentenced for low level drug offenses, resulting in probation, yet they supposedly sold more than 10,000 pounds of marijuana and made more than $5 million dollars over a few years.  Good luck explaining where all that pot and money went, or why all of them lived modest lifestyles and drove inexpensive used cars.

* The police never found a shred of evidence of drug involvement on Jose’s part.  Good luck explaining that.

And there is more, gentle readers, so very much more.

Final Thoughts: 

At the Huffington Post, Radley Balko has an article on the settlement that is worth your time.  

As I’ll explain in future updates, the depositions and other information discovered during discovery absolutely sunk the case for the police.  Fortunately, there are still a number of apparently honest officers that felt obligated to tell the truth.  I have no doubt that the attorneys representing the police did not want to have to defend the official story of events in court.  Officers of the court are required never to knowingly allow a witness to lie, and to tell the judge when they are lying.  This is a part of the legal ethics code that is broken every day, but in this case, the lies would have been so frequent and egregious, few lawyers would feel comfortable covering for them.  An example, via KPHO.com:

Scileppi [Christopher Scileppi, Vanessa’s attorney] argued that after the shooting, investigators tried to paint Guerena as the ‘muscle” or ‘enforcer” of the family drug gang. Scileppi said authorities had no evidence to back up those accusations.

Sworn statements made during depositions of detectives and SWAT members appear to show different versions of what the investigators knew about Guerena before the raid.

‘They believed that the person there would be armed and most likely would not comply,’ said SWAT Deputy Matt Ford.

‘Sgt. Thiebalut talked about the fact that he felt that the residents at the Redwater address was the muscle. Meaning it was, you know, the people we could anticipate might have weapons or those that it was their function to protect the organization,’ said SWAT Lt. John Stuckey.

But when Sgt. Wayne Thiebault  was asked whether he made those statements, he said he did not. Thiebault’s version of what was said was backed up by another detective named Theresa Hess.

Scileppi said the contradiction is evidence that the investigators knew very little about Guerena before the raid, and that the idea that he was an enforcer was thought up by investigators later.

‘It was something that they have manufactured after the fact. After the shooting in order to justify why they were there,’ said Scileppi.

That kind of testimony would have been absolutely deadly for the police.  There is only one possibility: someone’s lying–and they’re all police officers.

But what about the citizens of Tucson?  Did their political representatives learn anything from this preventable debacle?  Consider this:

Oro Valley Town Manager Greg Caton said the decision to approve the $260,000 payment was unanimous.

The town attorney for the town of Sahuarita had no comment and a Marana spokesperson did not return a phone call seeking comment.

County Supervisor Ramón Valadez said publicly he had concerns about the case prior to the County being named in a lawsuit.

“I had some very serious concerns prior to the case coming to the board about whether or not this is something we should be doing,’ Valadez said.

He was the lone supervisor to vote against the settlement with the Guerena case when it came before the board last week.

Supervisor Sharon Bronson did not attend last week’s meeting and had no comment about the settlement.

Notice that all of them seem to be expressing little more than relief they got off so relatively cheaply.  Apparently Mr. Valadez wanted to fight it out in court.  If so, residents might want to reconsider the wisdom of having Mr. Valadez as their representative.

According to the Arizona Star, only a single county Supervisor appeared to get it:

The shooting was a terrible, unfortunate situation costing taxpayers a huge amount of money, Supervisor Richard Elías said.

‘It goes to show we have to be very careful on how we serve our search warrants and how we train officers from other jurisdictions,’ he said.

Unfortunately, there is no evidence that any changes have been made, or are planned, for any of the agencies involved.  I suspect that there have been some under-the-radar ass-chewings, and in the future, after a decent interval, there may be some “reassignments,” none having anything to do with the Guerena raid, you understand.  No sir!  The agencies involved investigated themselves and found themselves not only blameless, but the very paragon of modern SWAT tactics and proficiency, so there is no way any training, reorganization, or other change is required.  But even that is uncertain.  Notice this:

Capt. Christopher Nanos, who is the head of the PCSD Criminal Investigations Division, told CBS 5 Investigates he still believes Guerena was involved in his brother’s drug smuggling business. Both brothers have since been indicted, and the indictment names Guerena as an active member of the gang.

Even after killing him twice, the Pima County Sheriff’s Department just can’t allow Jose Guerena to rest in peace.  Police officers understand that there is what they believe, even know, and what they can prove.  Competent, professional police officers never speak to the public about what they believe and know, only what they can prove.  Perhaps Captain Nanos actually believes that Jose was a drug criminal, but neither he, or any other member of his agency, have any proof.

I’ve written about this before, but once more, what could have been done?  Could Jose’s death have been avoided?  Absolutely.

Let’s ignore all of the investigative errors that led to the raid.  Once SWAT was involved, they could have simply intercepted Jose away from his home at any one of a multitude of places, including making a traffic stop, and served the warrant.  It would have been simplicity itself to have a few officers waiting at his home while other officers escorted him there, had the family have a seat in the living room under guard, while the search was done.  Precisely this sort of procedure is done every day across the nation by patrol officers or patrol officers assisting detectives.  SWAT need not have been involved at all, but once they have a chance to put on their outfits and helmets and jump into their armored, pseudo-military vehicles, few SWAT commanders have the common sense or restraint to do less than a full SWAT callout.

It is significant that most contemporary SWAT officers have no military experience.

From the moment they broke in his door, Jose Guerena was doomed.  As incompetent, poorly trained and led, and panicky as these officers were–they admitted they fired until they emptied their magazines or until their weapons malfunctioned and Iglesias fell on his ass for no apparent reason–if Jose so much as raised his hand or twitched, he would likely have been shot.

For the moment, residents of the Tucson area have no assurance that the same panicky, dangerous police officers won’t one day be at their door.  After all, any one of them might be carrying plastic wrap, using a cell phone while driving, or visiting a Best Buy store–all supposed indications of criminal activity written in the affidavit.  And Sheriff Dupnik has announced that when his officers break down their door, any citizen daring to hold a firearm to protect themselves or their family, will be shot and killed.  Good luck with that, Tucson. 

Vanessa Guerena will soon be a relatively wealthy young widow.  Relatively, because in the Obamaconemy, a million dollars isn’t what it once was.  But as I’ve written before, I’m sure she wishes, above all, that the SWAT team never came to her home, and that she had Jose back.

Ave atque vale, Jose.  Semper Fidelis.