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September 27, 2022

DA says police killing of Gilroy murder suspect was legal

David Tovar, Jr., was shot by San Jose Police in 2021 arrest attempt

Santa Clara County investigators determined that police “lawfully shot and killed” David Tovar, Jr., an unarmed suspect who was wanted in a string of South County crimes when officers tried to arrest him in San Jose last year.

The Santa Clara County District Attorney’s Office conducted an investigation into the Jan. 21, 2021 shooting of Tovar on La Pala Drive, and released its findings this week. The DA’s report on the investigation found that officers thought Tovar was armed, and were justified in using deadly force out of a “reasonable need to protect themselves from an apparent, imminent threat of death or great bodily injury.”

At the time of the San Jose incident, Tovar was wanted for the Jan. 3, 2021 shooting death of San Benito County resident Russel Anthony Lewis in Gilroy, and a Jan. 5 shooting that seriously injured a homeless man in Morgan Hill, according to authorities. Police had been attempting to arrest Tovar for several months in relation to these crimes, as well as another shooting in Gilroy. He was also a suspect in about a dozen robberies and auto thefts throughout the South Bay between April and October of 2020.

“The officers were attempting to apprehend a murder suspect with a documented criminal history of putting innocent people at risk, who the officers reasonably believed to be armed, who they reasonably believed would attempt to kill police and escape ‘by any means possible,’ and who had previously escaped efforts to be captured,” Deputy DA Robert Baker concluded in his investigation report. “The ultimate question in this case is the following: ‘Can the DA’s Office disprove lawful self-defense, or defense of others, beyond a reasonable doubt?’ Based on the law and evidence in this case, the answer is ‘no.’”

One of two experts commissioned by the DA’s office to help investigate the incident determined that SJPD’s tactics were “flawed” because numerous bullets fired at the suspect hit occupied apartments, says the DA’s report. However, that expert agreed the shooting of Tovar was lawful.

Another expert was a Los Angeles Police sergeant who testified for the prosecution of Minneapolis Police Officer Derek Chauvin, who was convicted of murdering George Floyd.

The DA’s office investigates officer-involved shootings in Santa Clara County to determine if the force used by officers was legal, says the report. Under a recently adopted state law, the California Attorney General’s office determines if officer-involved incidents are lawful when the person killed was unarmed. In this case, the AG’s office left the investigation in the hands of the local DA’s office because it predated this law.

Officers from San Jose Police Department’s Covert Response Unit attempted to arrest Tovar about 10:20am Jan. 21, 2021 outside a two-story apartment complex in east San Jose, according to authorities. When Tovar saw the officers, he ran away from them through a courtyard and upstairs to a second-floor walkway.

Tovar continued to run as police told him to stop, and one of the officers thought he was reaching for a gun before shooting the suspect, according to the DA’s report.

Officer Hugh Jorgenson was at ground level when he shot Tovar, who was running in Jorgenson’s direction but one floor up, authorities said. Before shooting any rounds, Jorgenson ordered Tovar to put his hands up, but he continued to run. Tovar reached under his jacket and into his waistband.

“Knowing of Tovar’s criminal history and propensity to be armed with a firearm, Officer Jorgenson believed Tovar was reaching for a gun and was going to shoot him and other officers,” says the DA’s report. “Officer Jorgenson fired his rifle multiple times.”

Almost simultaneously, officers Alvaro Lopez and James Soh entered the courtyard and heard the gunshots, authorities said. Thinking Tovar was engaged in a shootout with Jorgenson, these two officers also fired their rifles at Tovar.

Immediately after that, as Tovar was lying unresponsive, officers deployed a SJPD K9 dog to bite and apprehend the suspect, authorities said.

Tovar was hit six times by the police gunfire, and later died of his wounds, according to the DA’s report.

No weapon was found on Tovar’s body. The item that Tovar may have been reaching for before he was shot was likely a cell phone or screwdriver that was found at the scene, authorities said.

The DA’s office released two short video clips from officers’ body cameras, showing the shots fired and the moments preceding the gunfire as Tovar ran along the second-floor walkway.

In April 2021, Tovar’s family filed a federal civil rights lawsuit against SJPD for violating Tovar’s due process rights and constitutional protections against excessive use of force. The family’s attorney, Adante Pointer, did not immediately return a phone call requesting comment.

Michael Moore
Michael Moore is an award-winning journalist who has worked as a reporter and editor for the Morgan Hill Times, Hollister Free Lance and Gilroy Dispatch since 2008. During that time, he has covered crime, breaking news, local government, education, entertainment and more.

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