The five SWAT officers who shot and killed Jose Guerena during a raid May 5 were cleared of any wrongdoing Monday, but the attorney for Guerena's family said Thursday that the investigation should have been done by an outside agency.

"This was a biased investigation; in fact it's hardly an investigation," said Christopher Scileppi. "The Pima County Attorney's Office works hand-in-hand with the Sheriff's Department and is not in a position to pass unbiased judgment."

Chief Criminal Deputy David Berkman determined there is no basis on which to prosecute officers from the Pima County Regional SWAT team because they were justified in using deadly force.

The officers shot at Guerena 71 times while serving a search warrant related to a drug-trafficking investigation, documents show, striking him 22 times.

Guerena was at his home in the 7100 block of South Redwater Drive with his wife and their 4-year-old son at about 9:30 a.m. when the SWAT team arrived.

Guerena was holding an AR-15 rifle when he was killed, which had the safety on and a round in the chamber, and did not shoot, sheriff's officials said.

"The officers were mistaken in believing that Mr. Guerena fired at them," Berkman wrote.

Scileppi said Thursday that as more information surfaced more questions have been raised in the killing of Guerena with "inconstancy and falsehoods."

Scileppi represents Vanessa, Guerena's wife, and plans to file a wrongful-death lawsuit against the Sheriff's Department.

Document showed run-in

A document released Wednesday shows Guerena had a previous run-in with law enforcement in another county.

In early 2009, a Department of Public Safety officer stopped a red pickup truck on Interstate 10 in Pinal County for a window tint violation, the document said.

Guerena was the driver and in the truck were his cousin and another man. Guerena told the officer there were two firearms and ammunition in the truck and gave him written permission to search it, the document shows.

During the search, the officer found two cans of powdered cocoa and lemonade containing marijuana and rolling papers. Guerena told the officer those were not his.

The officer arrested Guerena, his cousin, and the third man, for misconduct with weapons, and possession of marijuana and drug paraphernalia, according to the documents. Guerena was released with no court record of the arrest and was not charged with anything, according to Pinal County officials.

"Law enforcement doesn't let bad guys go without prosecution, and clearly Jose was not a bad guy," Scileppi said when told of the 2009 arrest. "Plus the Pima County Sheriff Department and SWAT team didn't have any of this information, so this couldn't have played a role in the characterization of Jose."

Contact reporter Fernanda Echavarri at or 573-4224.

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