San Jose will pay $1 million to the family of David Tovar, who was fatally shot by police four years ago while being sought in connection with several violent crimes, a death that stirred controversy because he was unarmed, a bystander’s apartment was shot up, and a police dog was sicced on him after he was mortally wounded.
SAN JOSE, CALIFORNIA – APRIL 07: Pictures of David Tovar Jr. are seen during a press conference on Wednesday, April 7, 2021, in San Jose, Calif. David Tovar Jr., who was sought by police in a South County homicide, was unarmed when San Jose officers fatally shot him at an apartment complex in the east foothills in January. (Dai Sugano/Bay Area News Group)
The seven-figure settlement — which was given final approval by the City Council on Tuesday — ends an excessive force lawsuit from Tovar’s children and father that alleged police’s actions on Jan. 21, 2021 at an East Foothills apartment courtyard made “certain that Mr. Tovar’s last moments were a painful, agonizing and torturous death.”
One of the major points of the lawsuit, filed by the Oakland-based law firm Lawyers for the People, zeroed in on how after Tovar was lying severely wounded on a second-floor walkway, Officer Topui Fonua had his police dog bite and drag Tovar for two minutes and 40 seconds. Once officers got to Tovar, they determined that what one officer thought might have been the butt of a gun was actually a cell phone.
In a ruling last September, federal District Court Judge Edward Davila found the use of the police dog constituted excessive force as a matter of law, effectively declaring it indisputable in a prospective trial. City Attorney Nora Frimann cited that pretrial ruling in a memo to the City Council recommending approval of the settlement.
Frimann declined comment on the settlement beyond the memo, which largely outlined the background and terms of the monetary agreement.
The incident eventually led to the issuing of an unusual shooting report by the Santa Clara County District Attorney’s Office, which cleared officers Hans Jorgensen, Alvaro Lopez and James Soh of criminal liability for shooting Tovar. But the report, through analysis provided by third-party law enforcement experts, admonished the tactics and actions surrounding the shooting.
One expert called the shooting “awful but lawful” in concluding it was legally justified, but said the covert response unit’s decisions “were not the preferred course of action” and criticized the unit’s training as emphasizing “tactics and techniques more than strategy and thorough planning.” Another expert cited in the report agreed that the shooting was within police department policy but questioned whether the officers needed to engage him directly, sparking a foot chase, rather than monitoring him from a distance.
Those assessments inflamed controversy over the shooting, especially after officers’ body camera footage showed the three officers who shot at Tovar opened fire within seconds of seeing him. Critics of the shooting also pointed out the collateral damage to an apartment next to Tovar that was riddled with bullets, and argued police narrowly avoided having more casualties from the encounter.
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Tovar, 27, was a suspect in the Jan. 3, 2021 fatal shooting of a San Benito County man in Gilroy and in an earlier shootout on the same street, and in a shooting two days later in Morgan Hill that seriously injured a man. Authorities say he had also been linked to a dozen robberies and auto thefts between April and October 2020 and the recovery of guns in at least two stolen vehicles.
There were several prior attempts to arrest Tovar, including after police say he reportedly told someone he wanted to kill a police officer. Covert response unit officers tracked Tovar to an apartment complex on La Pala Drive off McKee Road and said they were wary of Tovar’s elevated position, and officers contend he was reaching into his waistband as he ran along a second-floor walkway.
Jorgensen shot at Tovar six times with a police rifle, followed by nine shots fired between Lopez and Soh. That was followed by Fonua sending his police dog to restrain Tovar, who later was pronounced dead at a hospital. In the aftermath, investigators found a black-and-silver cell phone on the floor next to where Tovar was shot, and a screwdriver in his pocket, but no gun.
This is a developing story. Check back for updates.