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Jose Guerena's Family Sues Pima County Over SWAT Raid Killing

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Jose Guerena, a 26-year-old Marine and Iraq war veteran, was killed May 5 when a SWAT team broke into his home a little after 9:30 a.m. According to Guerena's wife, Vanessa (who was home at he time, along with their 4-year-old son), Guerena thought the police were home invaders. He ushered his family into a closet, then grabbed a rifle. When the police battered down the door, they saw Guerena and his rifle, and opened fire. The SWAT team released 70 rounds. Guerena didn't fire a shot; the safety of his rifle was still on.

Last week, Arizona attorney Chris Scileppi filed notice of a $20 million lawsuit against Pima County, Ariz., on behalf of Guerena's family. The lawsuit provides a good opportunity to look back at what has happened since since the morning of May 5.

THE INVESTIGATION

Pima County police initially claimed the raid on Guerena's home was part of a marijuana investigation. Days later, they said it was part of an investigation into a series of home invasions, including one that had claimed the lives of two of Vanessa Guerena's relatives. Three weeks after the raid, the Pima County Sheriff's Department released a number of documents related to that investigation.

Those documents strongly suggest Guerena's brother Alejandro and perhaps some associates were engaged in criminal activity, but there's very little that incriminates Jose Guerena. At another home raided the same morning, for example, police found marijuana, $94,000 in cash and several weapons. According to police reports, Alejandro Guerena pulled up to the house in a pick-up truck while the raid was going on, and police found a pistol in his truck.

Three months have now passed, and police in Pima County have yet to make a single arrest related to the home invasions investigation. If Alejandro Guerena or any of his relatives or associates -- including Jose Guerena -- were so dangerous that they required the use of paramilitary police tactics -- and police found illegal weapons, drugs, and cash indicative of a criminal operation -- it's difficult to comprehend why the alleged dangerous criminals are still at large.

Jose Guerena himself had no prior record, though Pima County police officials have since painted him as a criminal. Shortly after the raid and killing, Michael Storie, attorney for the SWAT team and the Pima County police union, told the media that police found a "portion of a law-enforcement uniform" in Jose Guerena's home, suggesting Guerena was part of a home invasion crew that disguised themselves as police officers. Police reports released by the sheriff's department confirm the item to which Storie was referring was a Border Patrol baseball cap.

The day after my first article on Guerena's death ran on HuffPost in May, Storie emailed me to say Jose Guerena had been arrested in 2009 on drugs and weapons charges, and that he was released because he "flipped on a higher-up." But the details of that arrest are less incriminating: Guerena, his brother and another man were arrested in 2009 after a traffic stop that turned up a small amount of marijuana and a gun. It isn't clear from official court records to whom the gun or the marijuana belonged.

The arrest appears to have resulted from little more than Guerena getting caught in the wrong place at the wrong time. There wasn't enough evidence to charge any of the men with a crime; all three were released, and their records were cleared. There's no indication that anyone "flipped" to give information leading to other arrests.

Even Storie concedes the police didn't have enough evidence against Guerena -- and didn't find evidence in his home during the raid -- to charge him with a crime. The question remains as to why the Pima County Sheriff's Department found it necessary to send a SWAT team to serve its search warrant for the Guerena residence in the first place.

SWAT TACTICS

While the investigation into the alleged criminal activities of the Guerena family apparently continues, the investigation into Jose Guerena's death at the SWAT team's hands ended two months ago. In June, the Pima County Attorney's Office announced that none of the officers who shot Guerena would face criminal charges, finding that the firing of 70 rounds into a home with a child inside, in a residential neighborhood, was "reasonable and justified."

But audiotapes of the raid released in late May raised some questions about Pima County officials' accounts of the raid. According to the Arizona Daily Star, Storie initially claimed the SWAT officers "were separated immediately after the shooting so they could be interviewed and provide objective statements of what happened."

But as the Daily Star reports, on the audio tapes, "after about 45 minutes, all the SWAT officers are together. They can be heard talking about what happened." The paper then summarizes the ensuing conversation:

"That was um, like a movie, the way he jumped out," said the SWAT team leader.

Another member says, "Well, he waited, he waited and once Hector came up..." said another SWAT member just before being interrupted by the SWAT leader who said, "What did he say?" Hector is the name of one of the SWAT officers.

Two other voices say they "couldn't hear anything" and that they didn't know if Jose Guerena said anything before the shooting began.

"He yelled something, 'I got something for you' or something," the SWAT leader told them, according to the audiotapes.

When video of the raid itself -- shot from a camera mounted to the helmet of one of the officers -- also surfaced in late May, it raised more questions. (Note: this linked video contains graphic violence.)

I asked U.S. Army Staff Sergeant Anthony Schiessl to review the video. Schiessl has seven years of experience as an Army Combat Engineer, including three deployments to Iraq, where he participated in counterinsurgency raids. Schiessl also trained other soldiers in "urban operations," raids that include "breaching and room clearing."

Schiessl described the raid on Guerena's home as "amateur, undisciplined, unrehearsed and ineffective."

I asked Schiessl how plausible it is someone that like Guerena, who was asleep at the time, would have heard the police announcement of their presence depicted in the video. "Not plausible at all," Schiessl said. "The short siren burst could have been a police car passing. The flash bang grenades being used next door would have added to the confusion. When looking out a sunlit doorway from a dark hallway, it is difficult to see anything but a silhouette. Add in several people yelling, and it would be extremely difficult to comprehend what is happening if you're woken from sleep."

In fact, if Guerena had been the dangerous threat the police claim he was, Schiessl says the raiding cops should count themselves fortunate to be alive. "This team is lucky they encountered a disciplined, trained Marine who knew to hold his fire," Schliessl said.

At the Confederate Yankee blog, former SWAT officer Mike McDaniel posted a series of detailed critiques of the raid, reaching a conclusion that echoes Schiessl's criticisms. "[I]t is very hard indeed to see how the police acted with anything less than amazing incompetence," he wrote.

McDaniel is particularly critical of Pima County Sheriff Clarence Dupnik's statements about the raid to local news station KGUN. Dupnik said:

This was an unfortunate situation that was provoked by the person himself ... 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 ... It's not an issue ... law abiding people don't have to worry about confrontation with the cops.

McDaniel responded:

"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."

Other military and police bloggers also weighed in with criticism. The cop-run blog Beat and Release posted a lengthy and critical commentary on the initial statement from SWAT commander Sgt. Bob Krygier. The blog This Ain't Hell, run by several military veterans with combat experience has been extremely critical of the raid and the way the Pima County Sheriff's Department has handled its aftermath.

THE POLITICAL FALLOUT

A strange consequence of the Guerena raid has been the ensuing controversy within the Pima County Republican Party.

Following the raid, Pima County GOP Chairman Brian Miller sent out a letter Pima County GOP letterhead that said, in part:

[I]t is my hope that this tragic event will lead to a renewed discussion of the policies that routinely lead to heavily armed and militarized local police invading private homes and a renewed interest in the civil liberties codified in our Bill of Rights.

Miller added in another interview, "It is the fundamental foundation of our country that every citizen has the right to question the policies and conduct of our government and law enforcement agencies. Strong civilian oversight is essential to maintaining citizens’ trust in our police departments -- and therefore to the ability of those agencies to conduct law enforcement activities both peacefully and successfully."

Miller's concerns were apparently too controversial for the Pima County Republican Party. In early July, the party sent out a press release announcing that Miller had been stripped of his position. "The role of the Republican Party is clear: to elect candidates and support those candidates once elected," the release read. "The recent statements and actions of Chairman Brian Miller have not served to further those goals, but rather the opposite. Mr. Miller’s statements regarding the SWAT raid have created serious problems for our elected officials, money raising efforts and have divided the Party."

The Miller episode illustrates the difficulty of publicly criticizing police operations. If there were any scenario that would allow a Republican to express some skepticism of police tactics, this would seem to be it; the Guerena raid ended in the death of a Marine and war veteran with no criminal record, a man who was defending his home with a weapon he owned legally -- and was overseen by a Democratic sheriff. Yet Miller's public criticism of the raid cost him his job.

The Guerena family lawsuit likely faces an uphill battle. Police officers are protected by the doctrine of qualified immunity, which makes it difficult for lawsuits like the Guerena's to even get into court. But if their case is allowed to proceed, they will get access to records the Pima County Sheriff's Department has yet to release. The result could be an understanding of whether the tactics and raid that claimed the life of Jose Guerena were aberrant, or standard practice in Pima County.

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