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Jose Guerena Vindicated: Widow Receives $3.4M Settlement from Arizona Police

A bumbling SWAT raid killed the hardworking Guerena, a combat Marine veteran of two tours.

by
Mike McDaniel

Bio

October 13, 2013 - 12:00 am

On May 5, 2011, at approximately 9:30 a.m., a SWAT team of officers from four local agencies served a search warrant at the home of Jose Guerena near Tucson, Arizona. The subject of the search warrant was drugs. Within seconds of breaking in the front door, the officers shot and killed Jose Guerena, who was apparently holding an AR-15 rifle.

Hearing only these facts, one might believe the officers were justified in killing Guerena, and might expect that Guerena’s widow would be unable to recover a dime. Anyone following the case’s media coverage — particularly if one believes the comments from Pima County Sheriff Clarence Dupnik — might believe the SWAT team was one of the finest in the nation, that the officers made not a single mistake, and that Jose Guerena was a murderous thug, the “enforcer” of a multi-million dollar local drug cartel, and the prime suspect in a double murder.

Instead, Vanessa Guerena’s $20 million wrongful death lawsuit against the four police agencies was recently settled for $3.4 million. Even with that extraordinary settlement, the police of Pima County, Marana, Oro Valley, and Sahuarita have been loath to admit fault. Deputy Tracy Suitt of the Pima Couty Sheriff’s Department, which will pay $2.35 million of the settlement, wrote:

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.

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 Huckleberry maintained the settlement was a “calculated risk management settlement,” which was not an admission of wrong-doing. Marana will pay $72,000, Oro Valley will pay $260,000 and Sahuarita will pay $100,000.

With a smaller settlement, perhaps Deputy Suitt’s and Administrator Huckleberry’s spin might be believable. But a $3.4 million settlement? The police did not want this case anywhere near a jury. And the attorneys for the police were wise indeed: the police made horrendous mistakes before, during, and after the raid, mistakes that caused the death of an innocent man.

I wrote at PJ Media of Jose Guerena two years ago: he was a Marine veteran of two combat tours, and was working 12-hour shifts in a local copper mine to provide for his young family at the time of his killing. On the morning of his death, he had returned from work only a few hours before the police arrived. He ate breakfast, showered, and went to bed. He had no idea that the police had been occasionally — and incompetently — watching him and his relatives for some time.

The search warrant affidavit for Guerena’s home, vehicles, and the homes and vehicles of three others mentioned no evidence of crime and was devoid of probable cause. The closest the affidavit could come to implicating Jose in a crime was an observation that he was the passenger in a pickup truck in which a roll of plastic wrap in a cardboard box was found. The affidavit also noted that years earlier, Guerena was arrested on drug charges and was once a “person of interest” in a drug-related case investigated by ICE. Deceptively, the affidavit did not tell the judge those charges were dismissed, and that nothing came of the ICE investigation. Amazingly, Detective Tisch, the author of the affidavit, wrote that during his year-long investigation of Guerena the police had not seen any of these supposed big-time drug criminals in possession of drugs. But Tisch asked for a warrant, and Judge Harrington granted it. (Harrington has refused my request to discuss his actions.)

None of the elementary elements of a competent drug investigation were present. There was no information from confidential informants, no photographs, video, or recordings of drug transactions, no controlled buys, no information about drug shipments, methods of sale, packaging, delivery, or, indeed, any specific information about what kinds of drugs, their quantities, and where they might be found.

Drug agents do not routinely serve warrants unless they are certain they’ll find substantial quantities of drugs and other evidence of crime, and are ready to make many arrests as high up the chain of a criminal organization as possible. To do otherwise is to ensure that most of the drugs, and most of the criminals at all levels, will simply vanish.

As Jose Guerena slept — he slept during the day for his night shifts — the SWAT team pulled up in front of his home. The interior walls of his home were a dark gray, all of the blinds were closed, and all of the lights were off.

Watch here: the 54-second video of the raid recorded by the police is a primer on how not to conduct a SWAT operation.

Within a few seconds of their arrival, Vanessa spotted armed men in her front yard, and frightened, she woke Jose. The SWAT team was dressed in olive drab, and while they wore “police” emblems on their chests and backs, their weapons and equipment obscured them, particularly in front. Vanessa did not recognize them as police officers.

Jose rushed his wife and four-year-old son into a closet in a back bedroom, as far from the front door as possible, saving their lives.

He had only seconds, just enough time to take up a scoped AR-15 rifle, and wearing only boxer shorts, was caught in the open when the police broke in his front door.

Sounding a siren for less than nine seconds, and “yelling” so quietly their voices can’t be heard on the video, the police smashed in the door within 33 seconds of arriving. The officers did not immediately execute a dynamic entry, but stood, apparently having no idea what to do, in the open doorway. Having just come from bright sunlight into a dark home, they probably couldn’t see a thing, and didn’t plan for that foreseeable danger.

Within seven seconds of breaking in the door, a single officer fired a few rounds. Then four officers fired a panicky, uncontrolled, and un-aimed fusillade of 71 rounds, hitting Guerena 22 times. The other 49 bullets shredded the Guerena home floor-to-ceiling and exterior wall to exterior wall. They actually hit several nearby homes.

They even managed to shoot up the front door and the walls on both sides of the front door frame in which they were standing.

One SWAT officer not involved in the initial shots drew his handgun, ran to the door, and fired a number of “me too” shots between the heads of his fellow officers. He could not have had any idea of what he was shooting at or why.

It is a miracle that the police did not shoot themselves, Vanessa, and her son.

Rather than enter and secure Guerena, they picked up their shield-carrying officer who had somehow fallen down and ended up facing backwards, and they retreated — leaving Jose bleeding on the floor.

They removed Vanessa and her son — separately — when they came to the door on their own, and despite Vanessa’s pleas, denied Jose medical treatment for more than an hour and fifteen minutes, ensuring that he would bleed out and die. There would be no one to dispute their version of events.

During that time, they sent two separate robots to poke and prod Jose, and had a doctor who never saw or examined him declare him dead from a distance.

What evidence did they find in the home of this supposed murderous drug cartel enforcer? Nothing. Not a single marijuana seed. A detailed analysis of the raid is available here.

The spinning began immediately: Jose suddenly became a suspect in a double murder; the police claimed he fired at them, until it was revealed that he never took his rifle off safety.

At the other raided homes, only a tiny amount of marijuana and some money were found. No arrests were made, and Sheriff Dupnik claimed that Guerena didn’t shoot only because he — a two-tour combat Marine — couldn’t flick off the safety of his rifle.

In the year that followed, Jose’s brother and his wife were arrested on low-level drug charges, pled guilty, and received probation. This indicated not only their lack of prior criminal complicity, but the lack of seriousness of the offenses. A few others related to the family were similarly charged and sentenced.

The police spin began to fall apart when officers were put under oath to give depositions. One of the foundations of the police story was that during the planning for the raid, the SWAT officers were told Jose was terribly dangerous and that they could expect extreme danger when they raided his home. Yet the video of the raid certainly doesn’t depict a SWAT team steeled for deadly danger:

“Sgt. Thiebault talked about the fact that he felt that the residents at the Redwater address [Jose’s home] 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.

[Vanessa’s attorney Chris] 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.

This is only one of the contradictions the jury would have heard. Another would have been Sheriff Dupnik admitting he had no actual evidence to claim that Jose was a drug gang enforcer or killer. There remains no evidence that Jose Guerena was involved in drug dealing — or even drug use. This, however, has not stopped the police from continuing to smear his name:

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.

Some members of Jose’s family apparently had some involvement in drugs, but if they were actually involved in a major drug ring that dealt in over 10,000 pounds of marijuana and made over $5 million as the police allege, there remains little or no evidence of it. Where Jose is concerned, there is no evidence at all.

The $3.4 million settlement is vindication for Jose Guerena, a young man who honorably served his country and lived in a modest home as he worked hard to build a life for his family. Residents of the Tucson area have reason to be worried about their police, for they appear to have learned nothing. Their internal investigation of the raid — conducted by themselves — found them to be not only blameless, but paragons of professional tactical proficiency and police virtue. There is no evidence they have adjusted their policies, procedures, or tactics or that they have disciplined anyone involved. Jose’s shredded home, unoccupied to this day, stands in mute testimony to their ineptitude and to the danger they still pose to the community.

While Vanessa Guerena will become a relatively wealthy young widow, I’m sure she and her sons would rather have her husband alive.

Mike McDaniel is a former police officer, detective, and SWAT operator, and is now a high school English teacher. He blogs here.

Comments are closed.

Top Rated Comments   
The money doesn't make it right. Somebody in authority ought to be sitting in prison right now.

BTW, Sheriff Clarence Dupnik is a big lib who likes to pretend he "cares": http://www.politico.com/news/stories/0111/47293.html

And I haven't seen Joe Arpaio involved in any crap like this.
26 weeks ago
26 weeks ago Link To Comment
If you want stuff like this to become much more rare, then we need laws which make it clear that not prosecuting cops like this will make the department directly liable for damages. No insurance, the money comes right out of the department's budget without regard for how that affects the department as a whole.
26 weeks ago
26 weeks ago Link To Comment
Mr McDaniel
Thank you for following up on this. I for one do not believe the police should have para-military teams breaking down doors. As the saying goes, when all you have is a hammer, everything looks like a nail. The men on those teams would serve their community better by patrolling the streets.

As I recall from your previous articles, the police had several chances to arrest this man in the open, in broad daylight, without breaking down his door in the early morning. If the police really thought this guy was some type of enforcer, then they put their men in extreme, unnecessary danger by raiding that house.

So many things wrong with this story...disgusting.
26 weeks ago
26 weeks ago Link To Comment
All Comments   (34)
All Comments   (34)
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I have decided that if I see cops on my property that I will not only hide but call 911 immediately. They are not to be trusted for any reason and if you are holding a weapon in the defense of your home they will KILL you! They will not be punished nor will they show any remorse. If you have survivors they will probably throw down a "Weapon" if you were not holding one to make it look like you were holding to give them crediblity.
26 weeks ago
26 weeks ago Link To Comment
Good ol' Sheriff Dipstick, the same guy who tried to blame the inflammatory rhetoric of the Tea Party for the Gabby Giffords shooting. Seems that his SWAT Team did more murdering in one raid on one day than all the Tea Partiers in the world have ever done.......EVER!!! Still, not one of the killers is going to prison. If it seems unfair, it is.
26 weeks ago
26 weeks ago Link To Comment
cops are not hired for their intellect, and it shows
26 weeks ago
26 weeks ago Link To Comment
Another reason to remove from police and judges their immunity from personal responsibility for their acts.
Every cop on that raid should have had to kick-in part of the settlement, with the Sheriff and Judge paying 25% each.
26 weeks ago
26 weeks ago Link To Comment
Actually the Arizona Police will pay nothing. The Arizona Taxpayers will pay the $3.4 MIL, and Lawyers will receive about $1 MIL out of this.
26 weeks ago
26 weeks ago Link To Comment
It appears that Pima County, who will pay the majority of the 3.4 million, is not self-insured so the insurance policy will cover at least part of the amount. I do not know about the other counties involved regarding insurance. Pima County has spent about 250K of taxpayer money so far on private attorneys to defend this case. The final bill will be, no doubt, considerably higher.
26 weeks ago
26 weeks ago Link To Comment
I've been watching/reading reports about SWAT teams for well over 20 years as they have become increasingly thuggish and irresponsible. As far as I'm concerned there should be a "dead or alive" bounty on 'em!
26 weeks ago
26 weeks ago Link To Comment
I am going to look into an iron door inside an iron door jamb.
26 weeks ago
26 weeks ago Link To Comment
For some unknown reason people on the right seen to accept knee-jerk support of police and law enforcement.

This conservative believes the police need to be kept on a short leash. MILITARIZATION of the police, terrorist style masks, excuses for excessive force puts us one step away from a POLICE STATE.

Look how the cops executed the unarmed, deranged woman in Washington 2 weeks ago.
26 weeks ago
26 weeks ago Link To Comment
As a conservative, I've been apalled at law enforcement's militarization and increasingly lethal and abusive policing.

I know that a favorite mantra is comparing non-liberals to the Gestapo, but realize that you're comparing "the right" to statists, socialists and fascists - all of them on the left. Obozo-care is the very definition of fascism. A frequent tactic of statists (and crazy ex-wives) is to accuse the opposition of doing *exactly* what they themselves are doing.

Regardless of ideology, an increasingly lethal and unaccountable government concerns all of us.

Meet us in the middle - become a libertarian?
26 weeks ago
26 weeks ago Link To Comment
I think the Right's knee-jerk, no-questions-asked support of law enforcement ended a long time ago, Gellero. The comments on this very thread should reassure you of that. Waco and Ruby Ridge served as wake-up calls and the steady drumbeat of no-knock raids, dead family pets, terrorized families and murdered innocents have only eroded our confidence further.

26 weeks ago
26 weeks ago Link To Comment
I wish that were true, Shepard. I think it's still very much alive and well in the WWII and Korea generation, and among low-information Republicans. (Yes, there are a lot of those. That's how people like Romney can get nominated.)
26 weeks ago
26 weeks ago Link To Comment
"Then four officers fired a panicky, uncontrolled, and un-aimed fusillade of 71 rounds, hitting Guerena 22 times. The other 49 bullets shredded the Guerena home floor-to-ceiling and exterior wall to exterior wall. They actually hit several nearby homes. One SWAT officer not involved in the initial shots drew his handgun, ran to the door, and fired a number of “me too” shots between the heads of his fellow officers. He could not have had any idea of what he was shooting at or why."

And keep in mind these are SWAT officers, ie the officers likely to have received the most "training" on how and when to use their weapons. The best training their department can provide and all they're capable of is panic fire. Remember that next time some jerk tries to tell you that I can't be trusted with my CCW because I'm insufficiently trained.

26 weeks ago
26 weeks ago Link To Comment
Is the 3.4 million before or after the Lawyers cut? 3.4 million is not a lot of money. It is basically replacement money of what he could have made if he had lived and done well. There really is not much punishment value in the award amount.

Given inflation, perhaps bad investments or unfortunate turn of events 3.4 million is worth less than having a hard working wage earner.

Which brings me to the fact of hard work. If he was working 12 hours shifts when did he have time to deal drugs or be an enforcer?

This story sucks!

It was bad enough that Dupnik inserted himself in the Gabby Giffords shooting and is pro-Obama. Now I am scared because I see what a dangerous martinet that he is. He is not properly training or disciplining his police force and they have a lot of fire power. This is on top of the fact that I fear he is so politically dishonest that he would not be a above political prosecutions if the civil fabric unraveled a little more.

His police force seems more like a goon squad with heavy weapons.
26 weeks ago
26 weeks ago Link To Comment
3.4 million is less than Lois Learner's estimated IRS retirement.
26 weeks ago
26 weeks ago Link To Comment
As a high level official, she will do way better than that. $3.4 million is about the value of the average public service employee's post-retirement pension and benefits. You think I am exaggerating? Do the math: retire at 55 with a pension worth $90k per year and a health plan that would cost $15k per year on the open market. If you live until you are 85, the taxpayer is on the hook for over $3 mm. You or I would have to save that much mostly after taxes during our working career to enjoy the same security and comfort. Yes I know they do pay something in but those small amounts are enabled by their generous salaries paid by the public.

This is the greatest scam perpetrated by government on the American people. The richest among us are, effectively, public service employees. But they still manage to badger and brow beat the private sector into giving them more and more for doing less and less.
26 weeks ago
26 weeks ago Link To Comment
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