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SWAT and the Second Amendment

A citizen holding a gun while defending his home should not be considered cause for deadly force.

by
Mike McDaniel

Bio

July 21, 2012 - 12:00 am

On May 5, 2010, at 9:30 a.m. in Tucson, a multi-agency SWAT team served a search warrant at the home of Jose Guerena (a Guerena case archive may be found here). Guerena, a former Marine combat veteran, was sound asleep, having returned home from the midnight shift at a local copper mine only a short time earlier.

Guerena’s wife Vanessa saw armed men in the front yard and woke Jose, who had time only to hide her and their son in a closet as far from the front door as possible and to take up a rifle to meet the unknown threat. Jose would not take his rifle off safe or fire a shot. Smashing in the door, five members of the SWAT team fired 71 rounds into the home, shredding it from floor to ceiling and wall to wall. They hit Jose 22 times and denied him medical care for more than 74 minutes, ensuring his death. They even managed to shoot the front door, doorframe, and the walls around the door multiple times. Miraculously, Vanessa and her son were not harmed.

The search warrant affidavit upon which the police relied contained no probable cause to search Jose’s home, but a judge — believed to be Charles V. Harrington — authorized it anyway, and shortly after the botched raid, Judge Harrington ordered it sealed. No evidence of the drugs — or anything else illegal — the police supposedly sought was found. The officers did try, weakly and briefly, to identify themselves before smashing in the door. They did not have a no-knock warrant. Several officers initially claimed Jose fired at them or pointed his rifle at them, but it quickly became clear they had no idea what Jose did, nor could they explain which officer fired the first shot or why.

On July 15, 2012, at 1:30 a.m. in Leesburg, Florida, Lake County deputies knocked on the door of 26-year-old Andrew Lee Scott’s apartment, thinking attempted murder suspect Jonathan Brown was inside.  They did not identify themselves in any way. Brown had been seen earlier in the apartment complex, and his motorcycle was parked near Scott’s apartment. This was the only “evidence” of his presence. When Scott opened his door with a gun in his hand, a deputy opened fire, killing Scott. Brown was later found in a nearby apartment and arrested.

Police have not released many details, but the deputy fired multiple rounds, including some through the door of the apartment. Initial police statements suggested that Scott pointed the gun at deputies, but they seem to have backpedaled to the position that Scott was merely holding the gun. Scott apparently had prior arrests for drugs, and a small amount of marijuana and related paraphernalia was found in Scott’s apartment. News accounts made no mention of a warrant.

Said Sheriff’s Spokesman Lt. John Herrell: “It’s just a bizarre set of circumstances. The bottom line is, you point a gun at a deputy sheriff or police officer, you’re going to get shot.”

How are these cases related? In each case, an innocent man was unnecessarily killed by police officers.  And in each case, the police justified the shooting by the fact that the victim, reasonably defending his home, was armed when confronted by the police. In the Guerena case, Sheriff Clarence Dupnik said: ”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.”

Unlike Sheriff Dupnik, the community — every community — has more than sufficient reason to be concerned about the idea that anyone holding, perhaps merely carrying, a firearm within his own home is fair game for absorbing an unlimited number of police bullets should the police suddenly arrive and demand entry, with or without identifying themselves or their intentions.

To understand this issue and the danger this kind of police thinking presents, it’s important to understand the general legal requirements for the use of deadly force. These requirements may vary a bit from state to state due to differences in statutory language, but they apply to police officers and citizens alike. In many respects, police are expected and required to be far more capable and accurate in the application of deadly force than citizens, and rightfully so.

Deadly force is justified only to stop the imminent threat of serious bodily injury or death to oneself or another. A possible threat at sometime in the future is insufficient. A threat that might reasonably result in a painful bruise is not sufficient. A reasonable person — or reasonable police officer — must believe that if they do not immediately use deadly force, they or another will be very seriously injured or killed, and they must be able to clearly articulate their convincing reasons for that belief.

If deadly force is justified, one may fire as many rounds as necessary from as large and powerful a weapon as required to stop the threat. This principle, however, does have some practical limitations.  Police officers are always required to use the minimum force necessary to accomplish any legitimate objective. If two rounds are enough to stop a deadly threat, they are not justified in firing more. Police officers are always — always — personally responsible for each and every bullet they fire. They are always responsible for ensuring a safe backdrop before firing. If they miss or their bullets over-penetrate, they must be certain their bullets will not strike innocents.

It might seem unnecessary to state that the police — and citizens alike — may not create the conditions necessary to claim justification for using deadly force. That is essentially premeditated murder.  However, considering that police shootings of innocent citizens in their homes are something less than uncommon, it may be necessary indeed.

The Guerena case is noteworthy in part because Jose Guerena did not fire a single round or even take his rifle off safe, yet five police officers fired 71 rounds in a blind panic, stopping only when they emptied their magazines or their weapons malfunctioned. Their bullets not only struck nearby homes, many flew through the Guerena home and ended up in places unknown. It is a miracle they did not shoot each other. In the Scott case, a single deputy fired an unknown number of rounds, but he apparently did not empty his magazine despite also perforating the door of the apartment. It is not known how many rounds struck Scott or where the other rounds fired came to rest, though apparently no one else was hurt.

Police officers have, in the eyes of the law, a greater burden due to their supposedly superior training and experience. They are expected to be calm, observant, and capable of the use of superior tactics that will minimize danger to themselves and others to the greatest degree possible. In dangerous situations, they are expected to be capable of taking the extra fractions of a second necessary to be absolutely certain they need to shoot. When they shoot, they are expected to fire the minimum number of rounds necessary to stop a deadly threat, and to be absolutely accurate.  Unfortunately, reality can be very different indeed.

The simple truth is many police officers are not good shots. A great many citizens surpass the average police officer, not only in terms of combat experience, but in shooting skill. Firearm training is very time consuming and expensive for law enforcement agencies. For a 100-man police force, a 50-round yearly qualification can cost $1500.00 in ammunition alone. Taking officers off the street for qualification and training is many times more expensive. SWAT officers are supposedly given enhanced training, which is much more expensive than common street officer training. Many officers never truly become comfortable and proficient with their duty weapons, and I’m speaking only of attaining minimum yearly — or less frequent — qualification scores. Many never fire their weapons other than required qualification shooting, and many never clean their weapons.

As bad as this situation is, the only training in the use of deadly force some officers will ever have is in their basic training academy. This it also true for training in shoot/don’t shoot scenarios. This training is vital, for it consists of taped, interactive scenarios that help officers to properly, quickly, and accurately evaluate when they should and should not shoot. Unfortunately, this sort of training is even more expensive than common qualification shooting, and after basic training, many police officers never again have the opportunity to refresh and upgrade their knowledge and skill.

As bad as both situations are, they are compounded by several factors that virtually guarantee the unnecessary and unjustified deaths of innocents:

(1) Millions of citizens lawfully carry concealed weapons. Police can encounter them, male and female, young and old, at any time and any place. Competent officers know this and behave properly and professionally around everyone.

(2) Millions more have firearms in their homes. Competent police officers know they may encounter legally armed people whenever they go to any citizen’s home. They know they may face particular danger if they do not clearly identify themselves or their purpose, particularly when they arrive at times and under circumstances people would not expect visitors — or the police.

(3) Contemporary police training often focuses on the idea that police officers must go home, unharmed, at the end of every shift. This is, of course, to be preferred by any person of good will, but when this idea is not balanced by proper training and the application of proper tactics, it can easily lead to a “shoot first and let God sort them out” mentality.

(4) There is reason to believe many contemporary police officers are hardwired to shoot first and often.  Those entering police academies over the last decade are the first generation born into a computerized, predominantly visual world. For many, their introduction to a computerized world and the world of tactics is shoot-’em-up video games. A venerable police axiom is “train the way you want to fight, because you’ll fight as you’ve trained.” In other words, when situations go to Hell in an instant, police officers fall back on their training, on what they’ve been hardwired through practice and repetition to do.  In the case of the younger generation of police officers, it’s possible they’ve hardwired themselves to shoot, shoot, and shoot again, without regard for reality or consequences. They have, in essence, trained themselves to be aggressive and amoral.

The first key to preventing unwarranted shootings is continual and correct training. This is expensive, but in the long run far less expensive than dead innocents and the millions cities will end up paying to grieving survivors.

The second key is careful selection, hiring, and supervision to ensure that amoral people never carry a badge and gun. Every police agency has officers that should not be police officers, people psychologically and emotionally unsuitable for the job. Every officer knows who they are, yet they continue to be employed, and they inevitably cause great harm.

The final key is the use of proper tactics. In many cases, such tactics are nothing more than the skillful application of common sense rather than advanced, high-tech skills and procedures. In many cases, SWAT teams should simply not be used. As I have previously noted, such teams should always be properly trained and employed in carefully controlled circumstances. They should not be used for the service of common warrants and for apprehending criminals commonly handled by a patrol force.

In the Guerena case, the police knew Guerena’s habits and working hours. All they needed to do was take their time, to exercise a bit of patience, and to approach Guerena with one or two officers at a time of their choosing when Guerena had limited or no access to weapons and was at a tactical disadvantage.  They could have approached him at work, at the 7-11 where he routinely stopped for coffee, or even at his mailbox. Had they taken this rational approach, they could easily have arranged to serve the search warrant and no one would have been harmed.

In the Scott case, the officers were likely caught up in the excitement of the moment and felt a pressing need to catch an attempted murder suspect as quickly as possible. Rather than taking the time to be certain who actually lived in Scott’s apartment, they pressed blindly ahead. They could easily have watched the apartment from concealment and caught Brown — if he was actually there — as he left.  They could have simply called the occupants on the phone and safely talked them out. More importantly, they could have clearly identified themselves and used proper tactics and equipment to protect themselves to avoid having to shoot.

In both cases, the officers did not control events; events controlled them. This is a fundamental tactical mistake taught in all competent police training.

In a free society, a society with a fundamental right to keep and bear arms, police officers believing they may shoot a citizen in his own home simply because he is carrying a firearm cannot be tolerated.  Officers must absolutely avoid putting citizens in situations where they might be armed, or even pointing firearms in the direction of police officers banging on or breaking down their front doors. If such misconduct is tolerated, as in the cases of Jose Guerena and Andrew Scott, the next knock on any citizen’s door may be the last they ever answer.

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