Halloween Police Shooting Costs San Jose $5 Million

The going rate for San Jose police to shoot a man is $275,000 per bullet, according to a lawsuit settlement between the city and a Halloween drunk.

Of course, taking a bullet might not be worth it.

Javier Gonzales-Guerrero took 20.

The City Council is expected to sign off on a lawsuit settlement with Gonzales-Guerrero, 27, who was shot 20 times by four police officers a week before Halloween in 2011. Guerrero, dressed in green hospital scrubs and passed out in a hotel stairwell, spooked officers because he had a golden gun sticking out of his waistband. Police say he reached for the gun in an aggressive manner when they tried to wake him, and they opened fire. And, man, did they ever.

When one of the four officers— Brian Johst, Mark Stephens, Tim Stephens and Gary Petrakovitz—stepped on the gun to clear it out of reach, the handle broke. That’s because the gun was a fake.

The lawsuit filed by Gonzales-Guerrero says the man has had to undergo numerous surgeries to “repair his ravaged body.” For this reason, the city was content to pay the largest settlement for police conduct in San Jose’s history. All four officers have returned to active duty since the incident, according to a police department spokesperson.

Josh Koehn is a former managing editor for San Jose Inside and Metro Silicon Valley.


  1. Guess what: firearms for years have been painted in such a way that they could easily be mistaken for a toy. Just do a Google search for “Real guns painted to look like toys” and you’ll get hundreds of images along with news items and intelligence briefs from various law enforcement agencies. In fact, I know for a fact that SJPD has been briefed at various times on exactly this danger and, in the poor light of your typical hotel stairwell, it would be difficult – if not impossible – to tell the difference… right up to the point that you stepped on it to secure it and it broke.





    While I fully support the 2nd Amendment and generally believe that stricter firearm regulations have not led to safer communities here in America, I also think that it is well past time to have meaningful discussions on responsible use of and access to firearms. And, now that the cat’s out of the bag with respect to weapons painted to look like a gun, Law Enforcement professionals are far more likely to err on the side of caution and treat anything that looks like a gun as though it were real and potentially dangerous to them as they attempt to discharge their duties. There is simply no way to be certain until the ‘weapon’ in question is ‘in hand’ and can be physically examined in order to determine whether it is real or a toy/replica.

  2. Point any gun real or fake at an officer and you deserve to be shot. City should have fought this lawsuit.  But seems they are more concerned about laying off officers that protecting them.

  3. I can certainly see why police departments around the globe are so eager to hire SJPD officers. No doubt these four have been snapped up by cities that appreciate their talents.

    • Galt we all know that you could do a much better job than not just these 4 but a better job than any currently employed SJPD officer. Likewise, you could rock the Dewey Decimal system , fight fires and administer first aid better than any common librarian or SJFD firefighter/paramedic. Maintain the parks? As soon as the potholes are filled…

      Bottom line is you now have a valid excuse for not applying form anyone of these City jobs they just don’t have the pay and benefits or the security that were such enticements for so many in years past.

      I am sure you are totally content with being the smartest person around and the best at everything you try your hand. Wouldn’t want to be you? But, it also must be awfully lonely being so much better than the rest of us.

      • No, I’m just an imperfect, fallible human. I’ve always maintained that police and fire are too and should be treated accordingly. But “no Galt, you’re wrong, you couldn’t do what we do, nobody could do what we do, we’re special, we were picked from among thosands of applicants, grow a pair, you have no idea what we go through, etc., etc.” It’s public safety who convey an exaggerated sense of their abilities and skills. They project the image of carefully chosen, intensively trained, heroic supermen performing a job not fit for mere mortals. That’s the spin when they’re negotiating for pay and benefits. But as soon there’s trouble on the job and a mistake is made they want to be able to shrug their shoulders and say, “hey, what do you expect. We’re only human”. They want to have it both ways.

        The truth is, Meyer, my take on this incident is pretty much in line with that of retired3 above. I think police officers are imperfect human beings doing an impossible job and it’s every citizen’s duty to show them the respect not to put them in a position where they have to make a choice like this jackass Gonzalez-Guerrero did. And it’s just not that hard to do. And when it does happen the benefit of the doubt, not just in an internal investigation but in a civil lawsuit as well, should go to the officers.

        Unfortunately though, too much of our population has bought into this image, one partially perpetuated by you guyses PR, and now they expect perfect, mistake free policing. So when police mistakenly shoot an unarmed person, the average potential jurist, having been brainwashed into believing that it’s reasonable to expect perfection from the police, is quite likely to assume that the police simply must not have done things “right”, and side with the jackass plaintiff. So SJPD’s self seving propaganda not only hits us financially with high pay and benefits but also increases our exposure to lawsuits. Thanks a lot.

        • I wish I could appreciate your sentiments but I can’t. First you say that you agree that agree with “retired3’s post?  – you should have stopped right there.

          You go on to say the police “mistakenly shot an unarmed man.” Well as they say “hindsight is 20/20” and there are numerous court cases that (1) acknowledge this and (2) have ruled that hindsight is IRRELEVANT and the case can only take into account THE FACTS KNOWN TO THE OFFICERS AT THE TIME THEY ACTED.

          The facts known at the time ACCORDING TO THIS ARTICLE ARE that the guy who got WAS armed and WAS REACHING for the pistol in his waist band while ignoring the police commands that had they been followed would have resulted in you never hearing about the case. 

          So as usual the media (in this case) SJI and Josh has skewed the story into something it is not and led those predisposed to criticizing the police (like you) for what ever reasons to conclude the problem is with the police. 

          You want the City to fight the case?  You really think that the City will win when the jury will be make up of a bunch armchair quarterbacks like you? Who key in on the fact the pistol turned out to be a toy? That 20 rounds and hit the suspect and he didn’t die? When the threshold to win in CIVIL COURT for the guy who got shot is 50% + 1 or a “preponderance of the evidence” as opposed to a “no shadow of a doubt’ unanimous verdict in a Criminal Case?

          The real problem here is the local Federal Court. Prudence says that you only fight something in court if you are reasonably sure you will prevail. The City’s decision to pay $5million is a simple business decision. The record bears out that the local federal court has not been kind to the police.
          I can’t tell you how many slam-dunk 100% defensible cases that the City has fought in Federal Court only to loose and pay far more than they could have settled before trial for.

          2-3 years ago at the height of SJ’s budget crisis the Merc tried to make hay out of the CSJ paying something like $2million in settlements for the previous year. Outrageous? Sure when taken out of context – the context being that (1)  $2mill was the total dollar amount paid to several/many people who filed suit against the City and settled.  (2) other City’s in the bay area had paid HUNDREDS x $2million to individual persons who had sued in federal court and prevailed and done so multiple times in the same period of time where SJ paid

          Only when CSJ’s $2mill was put in that context did people see the wisdom in settling out of court.

          SJ has lost lawsuits it tried to defend like paying nearly $1mill for shooting a gangmembers guard dogs during a search warrant , tasing a drug crazed gangmember who had just beaten his girlfriend in a hotel room and on and on and on….. all legally justifiable all seemingly “cut and dry” cases that the City should have easily defended in court but LOST due to a jury or judges decision that really defied common sense.

          See the idiots who would sit on this jury or the Judge in a court trial with no jury come into the case predisposed to believing that the police CAN NEVER BE WRONG and when things don’t fit that notion then big dollars are to be awarded.

          the common belief is that the police carry guns and thus are marksmen who never miss. Because police are supposedly marksmen who never miss the idiots in the world say “the police should never have to kill anyone because all they have to do is shoot the weapon out of the hand of the person holding it to solve the problem.”

          The other common misconception of the idiots is “the police shoot to kill” and even though they good enough shots to shoot weapons out of hands they are predisposed to being rogue assassins.

          Another is former IPA now SUPERIOR COURT JUDGE Teresa Guerrero-Daly’s hard and fast rule in police shootings that “when one [cop] shoots, they all shoot.”

          Now Juror Galt – you come to the jury believing that the “police mistakenly shot an unarmed man” due to the fact that you already have all the facts you need to cast your vote. Then as if you didn’t already know enough you hear the plaintiff tell of the pain and suffering of 20 bullets when (1) a single well placed round would have proved that the pistol in his waste band was a plastic toy (2) the cops should have fired a warning shot which would have certainly gained his compliance and/or but that the police being marksmen and predisposed to torturing poor defenseless drunks fired 20 rounds be cause they could… award drunk idiot $100mill? $200mill? how much….?

          $5mill is a great deal thanks to the Federal Courts, the local media and the “galts” of the world.

        • I was replying to “John Galt” – if he has now shortened his name to “Galt”  then yes I guess IO am replying to you.

          Like I said hindsight is 20/20 but the law says that only “facts known to the officers at the time”  that means that facts such as whether the gun was real or fake that came to light after the shots were   fired cannot be used to determine whether the officers acted properly in discharging the weapons.

        • Hang on there MW. You’ve got me wrong. I’m sympathetic to the position of the cops- not the jerk that passed out in a public stairwell. You object to the phrase “mistakenly shot an unarmed man”? It’s a fact. 20/20 hindsight does reveal that they mistakenly shot an unarmed man. Doesn’t mean they weren’t justified though. And no. the City probably was wise to settle. That was my point. There’s too many potential jurors out there who’ve bought into the perfect cop propaganda. But I’m not one of them.

  4. I agree with Officer Anonymous.  Its always easy to make these calls in hindsight. But if we were in that stairway, I would error on the side of protecting myself rather than the error of thinking it was a fake gun and it turned out real.

  5. > Just do a Google search for “Real guns painted to look like toys” and you’ll get hundreds of images along with news items and intelligence briefs from various law enforcement agencies.

    Very interesting.

    Looks like we’re getting at least a little payback for all of that National Endowment for the Arts funding.

    It’s puzzling that neither Dianne Feinstein nor President for Life Obamamama have ever called attention to this.

  6. Officer anonymous.  I greatly respect the challenge that being a police officer requires.  It really is an impossible task given the demands of society these days.  However the fact that someone can, and apparently does, paint their real guns with the Hello Kitty logo does not really answer the question here. I am not second guessing the conduct of SJPD, however that real guns can look fake and fake guns can look real tells me nothing about whether this was a tragic accident, or could have been avoided through better training or existing procedure. Citizens, and police, have a moral duty to use deadly force only in the most narrow circumstances precisely because of situations like these.  We both have a duty to be trained and proficient.

    The fact is that with a reinvigorated interpretation of the 2nd Amendment, CA law enforcement is going to have to start learning to deal with more armed citizens without shooting them.  TX and AZ are doing it.  We can too.

  7. thetruthplease,

    Thank you for your reasoned and non-reactionary response. Although I, personally, was there, there are legal limitations in terms of how much I can answer those questions in detail. I will say this, though: I am familiar with the hotel in question and it would be very hard to ascertain, given the typical lighting conditions in the stairwell, that the pistol in question was, in fact, a toy. I will also add that, in the set of circumstances in question, there were NO good solutions. In my heart of hearts, I truly believe that the only person who could have changed the outcome of that situation was the deceased. Had he not passed out in that stairwell, had he not made that unfortunate – and, it must be added, incongruous – choice in costume accessory, he almost certainly would be alive having, at worst, spent a few hours either in a hospital or in jail, sobering up.

    That being said, it may have escaped your notice, but laws in CA re: firearm (and ammunition) purchase and ownership are becoming vastly more restrictive, not less. What you describe as a ‘reinvigorated interpretation of the 2nd Amendment’ is most certainly NOT occurring in California. Rather, it would appear that, with a Democratic supermajority in the state legislature and a Democrat Governor in office, California is traveling the path of New York, Chicago, Detroit, DC and New Orleans. Empirical evidence derived from these various jurisdictions suggests that the outcome of this new legislation will be not much different in the long term from the outcomes in those other jurisdictions. Time will tell.

  8. I’m feeling a lot safer now that I know that 4 officers at close range, could not dispatch a dead drunk. Has anyone called the number on the bus for the Police Auditor? This reminds me of the key Stone Cops. That was a hell of a Trick or Treat 5 Million Bucks.
    Almost as much as Reed gave to McKinerry, for his garage at San Pedro Square, With out a single shot fired. drank maybe?
    Everyone is back to normal, Right? These guys need to attend a 6 month Target Practice, at the Firing Range. What did the guy drink, that allowed him to survive 20 big bullet holes. So many questions and no answers. We are so focused on a stamp that was supposedly licked my George JR. Score, 3 judges , no convictions. Lenard McKay, you are missing out on these great stories of Our Garden of Hearts Delight
    This put San Jose on the Map! I am not dressing up for Holloween! No Way!!!!!!!

      Nake in San Jose

    • Lou, while you call this deadly malfeasance, this is not what the District Attorney called it. In point of fact, DA Rosen has discontinued using the grand jury process as part of the process of handling officer involved shootings. Rather, he has waited for the full investigation, his office has conducted its own investigation on top of that and then released a report detailing whether the shooting was justified under the law.

      It would be nice if our civil courts were structured in such a way that the decision of the civil courts hinged on the outcome of the DA’s investigation or a criminal trial. IF that were the case, the DA having determined (publicly, I might add) that the officers involved did no wrong, there would have been no settlement.

      Lastly, let’s not conflate dissimilar issues. The book to which you link is nothing like the situation in this article.

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