June 14, 2011 -- The SWAT team that gunned down a former Marine in his Tucson, Ariz., home was cleared today of any wrongdoing in the incident.
Jose Guerena, 26, was killed in a hail of bullets from the SWAT team, which broke down the door to his home on May 5 while trying to serve a search warrant as part of a home invasion probe.
Guerena did not fire a single shot in the incident, but Pima County Chief Criminal Deputy Attorney David Berkman said in the report issued today that the five SWAT team members were justified in using deadly force because the former Marine pointed his weapon at them.
"A close examination of the rifle revealed it appeared to have been damaged by being fired upon from such an angle that it must have been pointed toward officers," Berkman wrote. "The officers were mistaken in believing Mr. Guerena fired at them. However, when Mr. Guerena raised the AR-15 semi-automatic assault rifle in their direction, they needed to take immediate action to stop the deadly threat against them."
Mike Storie, an attorney representing the SWAT officers, told ABC News affiliate KGUN-TV in Tucson that he never expected that the investigation would result in criminal charges.
"This is no surprise to me," Storie told KGUN. "I fully expected this. It's the correct result."
SWAT team members acknowledged in interviews that Guerena never fired his weapon before the officers broke down his door and killed him with a barrage of 71 bullets, shown in a dramatic helmet-cam video released last month.
Guerena, a veteran of two tours of duty in Iraq, was asleep after working a night shift at the Asarco copper mine when his wife, Vanessa, saw the team outside her youngest son's bedroom window and yelled to her husband. He grabbed his AR-15 rifle.
Vanessa Guerena didn't know the men were SWAT officers and thought they might be home invaders, especially because two members of her sister-in-law's family were killed last year in their Tucson home, said her lawyer, Chris Scileppi.
The video and audiotapes released showed the police officers briefly used a siren and announced who they were, shouting, "police, search warrant, open the door," in English and Spanish as they arrived at Guerena's home.
A SWAT officer, Sgt. Bob Krygier, told officials of the sheriff's office who investigated the incident that the raid on Guerena's home was probing "possible drug running, home invasions and potential homicides."
He said "many guns" were found in the house, including the AR-15 that Guerena was holding, another rifle and a handgun. Body armor and a U.S. Border Patrol hat also were found, he said.
"He was well-armed, well armored," Krygier said.
But when asked if Guerena was wearing body armor at the time of his death, he said, "No. ... He basically had a pair of boxer briefs on and that was it."