The Killing of Jose Guerena-an Expert Commentary

On May 5th at about 9:30 a.m., an Arizona SWAT team carried out a military assault on the home of Jose Guerena, a marine veteran of two tours in Iraq. They were allegedly executing a search warrant for marijuana. As the SWAT team made entry the father of two with no criminal record picked up an AR-15 assault rifle; a weapon he would never fire. Within 7 seconds, Jose Guerena’s 27 years of life were ended in a hail of gunfire. The young man who had ducked death in Iraq for two years lay dead, his body shredded by 60 bullets fired by US lawmen. The Pima County Sheriffs Department immediately declared the Search Warrant “secret,” by withholding it from public scrutiny.

The airwaves were quickly dominated by so-called use-of-force experts opining as to whether or not the invading SWAT team had the legal right to use deadly force; one even remarked that he thought that shooting the man 60 times was “excessive.” The fact is, as any court-qualified expert knows, from the moment the combat-trained ex marine picked up his gun his homicide was legally justified and that there is no such thing as “overkill.” If the first bullet was justified, all that follow were simply consistent with the old police adage that “one shot begets many.”

One of many examples of legally justified “overkill” was the killing of 23 year-old Sean Bell in 2006 on the eve of his wedding. The unarmed man was hit with more than fifty bullets fired by NYPD undercover detectives. When the judge explained the laws governing the use of deadly force to the jury, the three officers accused manslaughter in the case were quickly acquitted of all charges.

The talking heads now dominating the airwaves in the Guerena case are also focusing on whether or not the police had adequately identified themselves before making a forced entry, yet I could find not a single one who considered that the SWAT team might have been executing a “no-knock” search warrant which would have permitted forced entry with no warning at all. In fact, I’ve heard not a single on-air expert relate the contents of this now-secret search warrant to the tragedy itself. Nor is anyone questioning what possible logic and/or authority would permit the Pima County Sheriffs Department to withhold a search warrant – a public record – from public scrutiny.

A Familiar Pattern
The pattern of events surrounding the killing of this young war veteran are chillingly similar to a pattern that I have been professionally involved with for more than four decades: Search warrants obtained on the basis of uncorroborated or poorly corroborated informants, and/or “phantom informants” – nonexistent informants invented by corrupt police. A largely hidden problem that has been plaguing our justice system since President Nixon declared a “war on drugs” in 1973.

A Case in Point
Donald Carlson of Poway California, a senior executive for a fortune 500 Company, had much in common with Jose Guerena. They each lived in an area where gang-related home invasions were common. Each possessed legally owned guns. Each was targeted by a multi-agency, SWAT Team armed with a search warrant expecting to find drugs.

Neither man had criminal records. Mr. Carlson, like Mr. Guerena, picked up his gun when his front door was battered down and opened fire, luckily hitting nothing but his own furniture. Carlson like Guerena was immediately gunned down in a hail of gunfire, after which the invading police found not an iota of evidence of anything illegal. Donald Carlson, however, survived to hire lawyers to sue the government.

Mr. Carlson’s attorneys retained me as their use-of-force expert. Unlike the Guerena case, the attorneys were able to obtain the search warrant and all its supporting documentation. After I reviewed the reports and warrant, I told the attorneys that, in my opinion, the agents who shot Mr. Carlson acted within the law. Carlson had represented a legitimate threat to their lives. However, what my review also revealed was that the search warrant that brought the SWAT team to Mr. Carlson’s door in the first place was based upon the fabrications of a Confidential Informant, a paid criminal whose uncorroborated words were submitted to a court as “fact.” All standards of Informant-Handling were ignored during a four-month investigation resulting in the granting of four bad search warrants, including the one for Mr. Carlson’s home.

My recommendations were the same as they would have been were I reviewing the case as a Department of Justice Inspector: that the entire matter be put before a federal grand jury to consider criminal charges against the agents and attorneys responsible for the search warrant. This never happened. The government settled out-of-court with Mr. Carlson for $2 million and the matter vanished from both the courts and headlines.
The Carlson case happened in 1992. Since that time, I have been directly involved as a trial consultant/expert witness in more than a dozen similar incidents, most of which resulted in the police using the snitch’s uncorroborated words to justify murder – and then later to villify the victim as protection from a civil law suit and possible criminal action. Jose Guerena is no longer able to defend himself against what an uncorroborated snitch might have said about him in that “secret” warrant, which brings to mind Yogi Berra’s oft quoted words: looks like déjà vu all over again.

Michael Levine

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