Civil-rights suit announced in fatal January shooting of unarmed man by San Jose police

SAN JOSE — A federal civil-rights lawsuit is being filed against the San Jose Police Department and city over the January death of an unarmed man who was shot and killed by officers looking to arrest him in connection with a South County homicide, according to attorneys and the man’s family.

After an officer described what looked like a butt of a gun, three other officers shot at least a dozen rounds at 27-year-old Gilroy resident David Tovar Jr. as he ran along a second-floor apartment walkway in the city’s east foothills on Jan. 21.

About five minutes of footage excerpted from four body cameras — a K-9 officer was also present — and released last month by police show a rapidly unfolding scene in which the three officers who shot at Tovar opened fire within seconds of seeing him.

WARNING: Graphic content; viewer discretion advised. Click here if you are having trouble viewing the video on your mobile device.

Attorneys Adante Pointer and Patrick Buelna are holding a Wednesday afternoon news conference to detail the lawsuit. In a statement announcing the suit, they reiterated community concerns at the time that the officers’ gunfire threatened the lives of apartment residents who lived footsteps away from where Tovar was shot.

“The officers needlessly fired multiple assault rifles in an occupied apartment building,” Buelna said in the statement. “The community is fortunate they didn’t hurt any other people with their reckless conduct. We could easily be grieving the loss of more innocent lives, not just Mr. Tovar’s.”

The shooting happened so quickly that the body cameras of two of the officers did not capture sound of the shooting. While buffering systems in the devices ensure 30 seconds of video is captured prior to an officer activating their camera, the first 30 seconds of recorded video does not contain audio.

San Jose police deferred comment on the lawsuit to the City Attorney’s Office, citing the pending litigation. The City Attorney’s Office did not immediately respond to a message sent Wednesday.

Police tracked Tovar to an apartment complex on La Pala Drive near McKee Road in San Jose’s east foothills. Police said officers were wary of Tovar’s elevated position and contend that he was reaching into his waistband when they shot him.

After Tovar was shot — he later died at a local hospital — investigators found a black-and-silver cellphone on the floor next to where he was wounded, and a screwdriver in his pocket, but no gun.

The three SJPD officers who opened fire at Tovar have not been publicly identified by the department, which cited the officers’ ongoing undercover assignments. At a January news conference, acting Chief David Tindall described said the officers had between 13 and 15 years of police experience.

Authorities say Tovar was being investigated by police in San Jose, Gilroy, Morgan Hill, and by the California Highway Patrol in connection with a dozen robberies and auto thefts between April and October last year, and the recovery of guns in at least two stolen vehicles linked to Tovar.

Tovar was also a suspect in the Jan. 3 fatal shooting of 35-year-old San Benito County resident Russell Anthony Lewis on Fairview Drive in Gilroy, and in an earlier shootout on the same street. Tovar was also suspected in a Jan. 5 shotgun shooting in Morgan Hill that seriously injured an unhoused man.

Even so, Tovar’s father and civil-rights advocates said Tovar was entitled to due process and that by virtue of being unarmed, did not pose a mortal threat.

Pointer and Buelna have successfully sued the city of San Jose over a fatal police shooting before. In 2019, when they were working in the law firm of prominent civil-rights attorney John Burris, a federal civil jury found two SJPD officers liable for excessive force when they shot and killed Anthony Nunez on July 4, 2016.

Nunez had been experiencing a mental-health crisis and had already shot himself in the head with an heirloom revolver. Jurors were not convinced that his behavior posed a threat to officers — staged across the street from Nunez’s Feller avenue home — despite the police contention that he twirled the gun while facing them.

Check back later for updates to this story.

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Author: Robert Salonga


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