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

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.