Unlawful Entry

It was all over in three minutes.

At 1:47 p.m. on September 29, 1999, a Denver SWAT team, acting on information contained in a fatally flawed search warrant, burst through the front door of 3738 High Street. At 1:50 p.m., Ismael Mena lay dead on the floor of his bedroom, his arms, face and chest ripped by eight police bullets.

The first official police act in response to the shooting was to bag Mena's hands in order to preserve any gunpowder residue from the Burgo .22 revolver that officers say Mena pointed at them after they kicked open his bedroom door. The second official action was to set about getting another search warrant for the house, this time to secure evidence related to the shooting.

The warrant that brought the SWAT team to 3738 High in the first place had been requested by neighborhood police officer Joseph Bini, who claimed to have sent an informant into the house eight days earlier to purchase $20 worth of crack cocaine. The statements Bini made in a sworn affidavit to obtain that warrant would eventually lead to a charge of perjury against him; no drugs were found at the house where Mena rented a room, and officials now acknowledge that the raid targeted the wrong address. But the second warrant, which offers a version of the shooting as it was presented to homicide investigators minutes after the event, has its share of problems, too.

In his supporting affidavit, Detective Dave Neil states: "After the entrance door was forced open, officers...moved towards a bedroom located on the first floor of this residence, where they were confronted by the suspect, identity unknown at this time, who was kneeling on the floor, described as a three-point stance, and pointing a pistol at the officers. The threatened officers began yelling 'police' and 'policia' at the suspect and ordered him to lower his weapon, which the suspect refused to comply to.

"The suspect continued pointing a pistol at the Metro SWAT officers who eventually felt that their lives and/or the lives of other occupants of the home...were in danger and fired on the suspect. The suspect was struck by bullets from the Metro SWAT officers and he fell to the floor."

Neil's account, which he presents as "facts" related to him by another detective, places Mena on the first floor rather than in his bedroom on the second floor. It has him crouching and pointing his weapon at SWAT officers, but there is no mention of his firing upon them. By the time Jefferson County District Attorney Dave Thomas released the results of his investigation into the shooting, more than four months later, those facts had changed significantly.

According to Thomas's report, Mena was standing on his bed when his door was kicked open. Seeing the gun in his hand, the officers retreated, but Mena advanced on them, using the door as a shield. During the standoff, different officers claimed to have heard a "pop" from the room or seen a muzzle flash from the revolver. Subsequent examination showed that the gun had been fired three times, and two slugs were recovered from the hallway and stairwell outside Mena's room.

"From a legal perspective, whether Mr. Mena fired first is not significant," Thomas told reporters at a press conference earlier this month. The fact that Mena had pointed a gun at the officers -- and presumably fired it, according to the results of the gunshot residue tests on his hands -- made his death a justifiable use of deadly physical force.

Yet the contradictions between what's on paper and what actually went down at 3738 High last fall can't be explained away that easily. Although Thomas's probe ended with no charges being filed against anyone except Bini, an FBI investigation into the shooting continues, providing fodder for talk-radio shows, police critics and conspiracy theorists everywhere. Mena's family and their supporters have also asked pointed questions: about why Thomas wasn't appointed as a special prosecutor to investigate the case until early December, shortly after a KCNC-TV report revealed that officers may have hit the wrong house; about the complaint by a District Two police officer that she'd been pressured by superiors to fabricate reports about previous police calls involving Mena's residence, a complaint that's now the subject of an internal-affairs investigation; and about the untraceable nature of the Burgo .22 found in Mena's hand.

"The stories just don't add up," says LeRoy Lemos, a community activist who's become the point man for the Justice for Mena Committee. "What happened to the three-point stance? How hard is it to put a gun in a dead man's hand and fire it off?"

Loose talk about drop guns and coverups rankles city officials, who moved into damage-control mode with surprising alacrity. Mayor Wellington Webb has promised a review of the city's policy concerning no-knock warrants and hurled a few thunderbolts at the police department. After surviving the teargassing of party-animal football fans, a police thumping of drug suspects captured on tape by a TV crew, internecine sniping and other embarrassments, Denver police chief Tom Sanchez suddenly finds himself relieved of duty. And in marked contrast to the city's foot-dragging, see-you-in-court stance in other police-shooting litigation, Webb has instructed the Denver City Attorney's Office "to give all matters involving claims made by the Mena family the highest priority."

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Alan Prendergast has been writing for Westword for over thirty years. He teaches journalism at Colorado College; his stories about the justice system, historic crimes, high-security prisons and death by misadventure have won numerous awards and appeared in a wide range of magazines and anthologies.
Contact: Alan Prendergast