SAN JOSE — A federal civil-rights lawsuit is being filed against the city of San Jose over the January death of an unarmed man who was shot and killed by officers looking to arrest him in a South County homicide, according to attorneys and the man’s family.
Attorneys Adante Pointer and Patrick Buelna were joined by David Tovar Jr.’s relatives at a Wednesday afternoon news conference at San Jose City Hall to detail the lawsuit, which names the city of San Jose as a defendant and claims due-process violations and wrongful death from the Jan. 21 shooting.
Besides looking to keep a spotlight on the assertion that Tovar, a 27-year-old Gilroy resident, did not pose a deadly threat to the officers pursuing him, the plaintiffs want more attention paid to how a police dog was sent after a mortally wounded Tovar.
“They made a conscious decision to release a police K-9 on his dying body,” Buelna said.
After an officer described what looked like a butt of a gun, three other officers shot at least a dozen rounds at Tovar as he ran along a second-floor walkway of the Villa Fairlane apartments in the city’s east foothills.
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.
In announcing the suit, the attorneys reiterated community concerns that the officers’ gunfire threatened the lives of residents inside their apartments just footsteps away from where Tovar was shot.
“Officers recklessly fired these assault weapons, and struck and riddled this apartment complex with bullets,” Pointer said. “They could have easily took the life of many more innocent people.”
The shooting happened so quickly that the body cameras of two of the officers did not capture sound of the shooting because audio recording starts 30 seconds after activation.
Tovar’s father, David Tovar Sr., appeared at the news conference surrounded by family and relatives of several other people who were fatally shot by San Jose police, who have galvanized under the social-justice organization Silicon Valley De-Bug.
“I keep expecting to see my son drive up, or walk up,” he said. “I hope nobody has to go through what I have to go through. Ever.”
Tovar’s uncle Elliot said, “We want justice for him … and we want to put a stop to this.”
San Jose police deferred comment on the lawsuit to the City Attorney’s Office, citing the pending litigation. The City Attorney’s Office declined comment Wednesday on the same grounds.
Police tracked Tovar to the 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 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.
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.
Lewis’ mother, Teri Bronder-Lewis, told this news organization Wednesday that she doesn’t want her son treated as a collateral issue in the broader discussion over Tovar’s shooting. She said investigators told her that Lewis was an innocent victim targeted in an apparent case of mistaken identity.
“My son had a wrongful death,” Bronder-Lewis said. “He was loved and grieved tremendously. We’re devastated. Our life has turned upside down.”
Tovar’s father and the plaintiff attorneys don’t dispute her sentiment, but maintain that Tovar, a father of three, was entitled to due process and the chance to defend himself.
“If you’re wanted or suspected … you’re entitled to your day in court,” Pointer said. “That was something that was denied David.”
He added that he wants to see the officers face more than the civil accountability they’re pursuing, saying he wants to see the Santa Clara County District Attorney’s Office “move just as swiftly bringing justice against these police officers as if it were you or I” in similar circumstances.
Pointer and Buelna won a $2.6 million jury award against the city of San Jose over another fatal police shooting. 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.