David Tovar Sr. speaks to media gathered at San Jose City hall on April 7, 2021 while his brothers Elliot Tovar (right) and Jose Tovar support him. Photo: Jana Kadah, Bay City News
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The family of David Tovar Jr., an unarmed Gilroy man who was fatally shot by San Jose police in January, is suing the San Jose Police Department.

On Wednesday, attorneys Adante Pointer and Patrick Buelna were joined by Tovar’s relatives to detail the federal civil rights lawsuit that seeks justice for what they said was Tovar’s extrajudicial death. 

The plaintiffs claim due-process violations as well as violations of the Fourth Amendment that protects citizens from excessive use of force. 

On the morning of Jan. 21, three undercover San Jose officers spotted Tovar at an apartment complex in the city’s east foothills.

Tovar was running away from police and after officers saw what they believed to be the butt of a gun on Tovar—later confirmed to be a cellphone or screwdriver found at the scene—they shot at least a dozen rounds from the ground floor as Tovar tried to escape on the second-floor walkway. 

The confrontation in the Villa Fairlane apartment complex came after a 10-month investigation and multiple attempts to arrest Tovar in connection with several offenses, including a homicide and two other shootings in southern Santa Clara County.

But attorneys and his family said his alleged track record does not justify his death for a number of reasons. 

The first is that Tovar was never given the opportunity to be proven innocent or guilty. 

Pointer said police “decided to be not only investigator … but they played the judge, the jury and tragically, the executioner,” which is unlawful and unjust. 

The second reason is that Tovar did not pose a threat to officers, attorneys contended. 

Tovar was unarmed and body-worn camera footage released by San Jose police showed that Tovar was shot in the back while he was running away. 

“You’re not permitted to shoot somebody (in the back) as an act of war,” Pointer said. “You certainly shouldn’t be permitted to shoot somebody in the back on the streets of San Jose.” 

To make matters worse, Pointer said, officers unleashed a K-9 police dog “to bite, to chew and maul his body as he lay there defenseless,” instead of attempting life-saving measures on Tovar after he was shot. 

Photos taken of Tovar’s body at the coroner’s office show bruising and bite marks on his left leg because of the police dog. 

As attorneys showed images of the confrontation with police and Tovar’s body, his family wept and embraced each other.  

Tovar’s father, David Tovar Sr. was joined by his extended family as well as other San Jose community members who have had loved ones fatally shot by San Jose police.

At the Wednesday news conference, Tovar Sr. struggled to muster up words to describe his grief. 

“I keep expecting to see my son drive up, or walk up,” Tovar Sr. said. “I hope nobody has to go through what I have to go through, ever.”

Tovar’s uncle, Jose Tovar, said it has been a living nightmare for his family. 

Silicon Valley De-Bug, a local civil rights advocacy group that supports at least 14 families whose loved ones were victims of police violence, extended the same support to Tovar’s family.  

Rosie Chavez, an organizer with Silicon Valley De-Bug, said the excess force used by police was not only cruel in that it took Tovar’s life, but also because it put families in the apartment complex at risk of death. 

“These types of officers, and these hit squad types of units should not be policing our communities,” Chavez said. “They placed other families in a life-threatening, dangerous situation by shooting into a complex where families were home with children during a pandemic.”

Chavez visited the site of the shooting a day after the confrontation and found at least eight bullet holes in the walls and windows of residences. 

San Jose Police and the City of San Jose, which has been named a defendant in the lawsuit, did not provide comment as they do not comment on pending litigation. 

However, in a news conference days after the shooting, police said Tovar was a suspect in the Jan 3. shooting of 35-year-old San Benito County resident Russel Anthony Lewis on Fairview Drive in Gilroy, and an earlier shooting on the same street.

He was also a suspect in a Jan. 5 shooting that seriously injured an unhoused man in Morgan Hill. 

Police said Tovar was also under investigation by Gilroy and Morgan Hill police as well as the California Highway Patrol in connection with a dozen robberies and auto thefts between April in October of last year. 

San Jose police have not identified the three officers involved in Tovar’s death, but attorneys said once that information is known, those officers will personally be listed as defendants. 

The plaintiffs also said they hope to see Santa Clara County’s District Attorney Jeff Rosen file criminal charges against the officers involved and “move just as swiftly bringing justice against police officers as if it were you or I who had been blamed or supposedly said to have taken somebody’s life.” 

The District Attorney’s Office is currently reviewing the shooting and is set to make a decision whether to bring forth criminal charges against the officers within two to three months. 

The Tovar family’s attorneys said they are hopeful that justice will be served, especially since they have seen it happen before. 

In 2019, Pointer and Buelna won a $2.6 million jury award against the city of San Jose over the fatal shooting of Anthony Nunez on July 4, 2016.

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