Wednesday, October 2, 2013



Comment:  Once again, reviewing this incident, reminds us of the growing need for protocols and procedures for when law enforcement and citizens meet.  Especially when it is common for both the drug gangs and law enforcement to get the wrong address.  Remembering also that the gangs on both sides of the border use false uniforms, badges, equipment, yell "police" and even have cloned law enforcement vehicles.   

Steller: Let's learn something from Guerena killing
September 29, 2013 12:00 am  
  Tim Steller Arizona Daily Star

For more than two years, the Pima County Sheriff's Department has steadfastly defended its performance in the investigation and raid that led to the death of Jose Guerena.

That continued Sept. 19, when Pima County and other jurisdictions settled a wrongful-death suit brought by Guerena's widow, Vanessa, for $3.4 million.

The 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," a department-issued statement read. "Therefore, the department does not agree with this settlement."

The department's continued defiant rhetoric suggests it just doesn't get the fundamental fact of that day: The operation at Guerena's home was a total failure. It failed in that it found no evidence of crimes on Guerena's part, but more important it failed because it led to the unnecessary killing of a man in his home.

If Sheriff Clarence Dupnik or his department would recognize that fact, perhaps we could feel more secure that the department has learned lessons from the incident and will be less likely to cause an unnecessary death and a multimillion-dollar settlement in the future. What is there to learn?

Don't believe the hype
Those who investigate drug traffickers sometimes get caught up in the vast quantities of drugs the traffickers are moving, the guns involved, the money paid, the occasional violence and threats.

I say this from long experience covering drug cases in federal court and on the border. I got caught up in the excitement sometimes, too, but was often disappointed when I found that these supposedly big traffickers were actually small-time criminals leading modest, if dysfunctional, lives.

There's evidence from the Guerena case that investigators and the SWAT operators who acted on their information thought they were up against a big, violent drug family. Sgt. Wayne Thibault briefed the SWAT teams before they served the warrants that day.

"I then told them this family has a history of violence to include kidnapping and homicide," Thibault said in a deposition given as part of the civil case.

Of course, the Guerena family members had been victims of the violence he referred to, not perpetrators. But the reference undoubtedly built the sense of danger in the mission.

A grand jury indicted Jose's brother, Alejandro Guerena, on a big charge: Illegally conducting a criminal enterprise. Essentially he was accused of being a kingpin leading the family smuggling business.

But then, in June, Alejandro Guerena was sentenced — to 105 days in jail that he had already served, and five years of probation. An earlier plea agreement had established this sentence and was counter to Pima County Attorney's Office policy, Chief Criminal Deputy County Attorney Kellie Johnson told me. But the judge followed it at sentencing.

Be that as it may, this was not even close to a drug-kingpin sentence.

When to use SWAT
At the time of the raid on the Guerena home, it was a uniform practice for the Pima Regional SWAT team to serve search warrants in narcotics investigations. In the Guerena case, those officers took information provided by the lead investigator on the case, Detective Alexander Tisch, and received preparation from SWAT Sgt. Thibault.

Several SWAT officers reported that Thibault referred to the Guerenas' home in the 7100 block of South Redwater Drive as the place where the "muscle" of the organization could be found.

That seems like reason enough to use a SWAT team to serve a search warrant, but the more mundane truth was that Jose Guerena lived there with his wife and two young children. And Jose was working nights at Asarco's Mission mine near Sahuarita — a detail the officers didn't know.

Video of the incident and depositions in the civil case suggest that the SWAT team created the volatile atmosphere. From the moment they turned on their sirens to the time they started shooting about 35 seconds had passed. In between, the team announced themselves as police, broke the door in and released "flash-bang" devices in the backyard — a distraction that could easily delay a resident's answering the front door.

Vanessa Guerena said her husband was sleeping when it all began, and she woke him up. SWAT team members said he came around the corner into a front hallway pointing an AR-15 rifle at them, prompting their shooting. Officers fired about 71 rounds at Guerena, striking him 22 times.

On Friday I asked Larry Seligman, a retired Sheriff's Department lieutenant who worked in SWAT for years, about the incident.

"A SWAT operation is, generally speaking, a highly sensitive, potentially dangerous event," he told me, in defense of the officers.

But Seligman, who has no inside knowledge of the case, said no rational person would have pointed a gun at a SWAT team coming in his front door, because that is asking to be killed — "lunacy" he called it.

"I don't think he knew they were police," Seligman said. "I think he thought he was being home-invaded and did not know he was going to engage a SWAT team."

In retrospect, it's highly unlikely this homeowner, asleep after a night at work, had time to process that police were at his door. It would be good if the Sheriff's Department acknowledged this and learned from it.

Though the department would not answer my questions about the case, it appears they may have learned something. In depositions, deputies said the department now decides on a case-by-case basis whether to use the SWAT team to serve drug-case search warrants. They also write out a threat assessment before these raids, Capt. Donald Kester said in a deposition.

Guilt by association
Sheriff's Department investigators remain convinced, it appears, that Jose Guerena was an active participant in the family drug-smuggling and money-laundering business. And indeed, it could be that he was.

The facts that Guerena was a U.S. Marine Corps combat veteran and that he worked the night shift at the mine do not mean he was innocent. But there was relatively little evidence against him before the warrant was served, and what officers found in the search was not illegal — body armor, a Border Patrol cap, guns — just suggestive.

In hindsight, it's clear that when the SWAT officers arrived at South Redwater Drive that morning, neither they nor the investigators had much individual information about Jose. In the affidavit used to obtain the search warrants served that day, Tisch wrote: "In summary, this group of individuals has been surveilled for a six month period, and certain facts about their behavior have been established. There is no pattern to suggest that a legitimate work routine exists. No one ever went to a place of business and stayed for any significant amount of time."

That obviously wasn't true of Jose Guerena, who only showed up once during the surveillance.

A lot of families in Southern Arizona are involved in smuggling and related crimes. It would be unfair if investigators presume each member is guilty by association with their brothers, cousins, uncles and others and unleash SWAT against them all.

The costs, $3.4 million and a life in this case, are too high. And it would be especially wasteful if we don't even accept the lessons we're offered in return.


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