It disgusts me to say this, but this outcome was a foregone conclusion before Jose Guerena’s body had even hit the floor:
Guerena did not fire a single shot in the incident, but Pima County Chief Criminal Deputy Attorney David Berkman said in the report issued today that the five SWAT team members were justified in using deadly force because the former Marine pointed his weapon at them.
"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," Berkman wrote. "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."
I will certainly grant that the one picture of Guerena’s rifle we lowly peons have been permitted to see was neither overly clear, nor did it show a comprehensive view of the firearm in question; however, given how many times the Pima County Sheriff’s Department has had to retract previous statements when those statements were found to be… less than honest, it would not at all surprise me if the "damage" was either completely fabricated, or was … created … after the fact.
And even if one accepts the hypothesis that Jose was pointing his rifle at the SWAT team, allow me to be blunt: so what?
The Pima County Sheriff’s Department created this situation when they reached and stretched for every piece of unrelated information they could possibly find to manufacture something approximating "probable cause". The Pima County Sheriff’s Department created this situation when they decided to stage a full-force invasion of his home, rather than simply arrest him at the job they knew he worked. The Pima County Sheriff’s Department created this situation when they sent a full, tac’d-out SWAT team to execute a simple arrest warrant, rather than simply send a few squad cars and uniformed officers. The Pima County Sheriff’s Department created this situation when their SWAT team skulked around the exterior of a Marine’s home, and especially one that had lost family members to home-invaders. The Pima County Sheriff’s Department created this situation when, through their gross negligence and incompetence, they inadequately and insufficiently identified themselves before bursting through the Guerenas’ door (a "police siren" that strangely sounds like 90% of car alarms out there, and "yelling" "Police!" barely loud enough to be heard on their own helmet cams?).
So given all of those chains of failures that resulted in this disaster, and given strange, armed, aggressive men breaking down the door to your home and maybe identifying themselves as "police" and wearing something approximating the appropriate gear (because criminals never do that), what would your reaction be?
The PCSD created a situation, whether through intent or incompetence, where a reasonable person could be in fear for his life, and the life of his family – what, exactly, did they expect Jose to do?
Which brings us back around to the mind-numbing idiocy of the Sheriff’s Department… Sheriff Dupnik unsurprisingly claims that using a SWAT team to execute a "high-risk warrant" was "justified". Well, let us briefly walk this through… The PCSD believed that Jose was wrapped up in some kind of drug trafficking in Pima County. Worse, they believed he was the "heavy" for the organization – the man with the guns, the one counted on to "bring the pain". For the sake of argument, we will simply accept those hypotheses, which brings us to this unavoidable question: if you knew a man was the "enforcer" for a supposedly-dangerous drug-running gang, why on God’s Green Earth would you engage him on his own turf? The PCSD had been surveilling Guerena and his family for months… they knew where he worked, they knew where he shopped, they knew his commute routine, they knew everything they needed to make this a quick, simple, painless arrest.
But no. The PCSD has to justify their ownership of a SWAT team to their residents, so they figure a little door-kicking, a little tactical ballet, a little "hey, look, we took down this ‘armed and dangerous’ drug runner", a little hamming it up for the camera would make those schleps in Pima County be thankful that they have such an awesome SWAT team on their side. Except… crap… Vanessa Guerena was just a little too observant, and Jose was just a little too fast, and now they have the public relations nightmare of the month.
Whoops, time to sweep it all under the rug and claim it was "justified"!
And now, through the incompetence of more people than I care to count, an unconvicted man is dead, and those responsible for his death will be shielded in the future from being held accountable. I hope the people in Pima County are taking notes – this is what your Sheriff’s department thinks of you and yours… they have no problems storming your home and shooting you down based off a tenuous thread of circumstantial evidence, and when the news hits the light, they will exonerate themselves without even a "whoopsie-daisy". As I said at the beginning of this post – disgusting.
And speaking of the evidence, consider this:
Det. Tisch’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 don’t appear on this affidavit.
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.
In fact, read that entire post – it is lengthy, but it perfectly illustrates the chain of reprehensible errors that resulted in Guerena laying dead in his home… and, sadly, even continued after his death.
This is why I wrote what I did last week and clarified it a couple of days ago, and why I agree with what Barron wrote – our police departments (not all of them, but enough) have decided that they can, and maybe even should, gun you down based on nothing more than suspicion and "threatening acts". No trial. No evidence (remember that there was no contraband found in Jose’s home). No presumption of innocence. No due process. Worse, our politicians do not seem to care – or, at least, not enough to reign in their police/sheriff’s departments, and worse still, our citizenry do not seem to care, apart from watching the blip roll past on the news.
Ironically, despite the fact that SWAT team members are subject to greater legal restraints than their counterparts in the military, they are often less well-trained in the use of force than are the special ops soldiers on which they model themselves. Indeed, SWAT teams frequently fail to conform to the basic precautions required in military raids. For instance, after reading about a drug raid in Missouri, an army officer currently serving in Afghanistan commented:
My first thought on reading this story is this: Most American police SWAT teams probably have fewer restrictions on conducting forced entry raids than do US forces in Afghanistan. For our troops over here to conduct any kind of forced entry, day or night, they have to meet one of two conditions: have a bad guy (or guys) inside actively shooting at them; or obtain permission from a 2-star general, who must be convinced by available intelligence (evidence) that the person or persons they’re after is present at the location, and that it’s too dangerous to try less coercive methods.
If that is not the beginnings of a "police state", I do not know what is.