San Jose PD Named in Fed Civil Rights Lawsuit After Officers Fatally Shot Unarmed Man

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.

Civil rights attorney Adante Pointer speaks to media gathered at San Jose City Hall on April 7, 2021 as David Tovar Jr.'s family stands behind and comforts each other. (Photo by Jana Kadah/Bay City News)

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 residents.

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.


  1. This guy was a piece of garbage. Why should the family get anything, the police should get a reward for getting rid of him. He was a menace to society.
    It’s getting so the police have to get shot first to make sure the guy has a gun. So sick of all the thugs or their families getting rewarded. All they really care about is the payday.

  2. “I keep expecting to see my son drive up, or walk up,” David Tovar Sr. said.

    With his son wanted for murder, numerous assaults, multiple robberies, and on the run from police, the fact that his father still expected to have him come home and enjoy the family may help explain why junior turned out the way he did. The only thing worse than an absent father is having one in the home who is averse to personal accountability, civility, and consequence.

    Of course I could be wrong, maybe Senior never imagined Junior coming home and the quote is just scripted lie to try to get more out of a community from which the one-man crime spree he called a son has already taken so much.

  3. David Tovar was allegedly accused and deserved a dah in court like all the others did. We are not here to judge any man and what happened was negligent and wrong. The community suffered and were out at risk with all the shots fired into apartments. Compensate the community for that too. David family deserve justice if he did it or not we will never know now.

  4. The officers should not have, in my opinion, shot Mr. Tovar from the ground floor while he was running. In an ideal world, no one would shot/kill another person for any reason. With that said, it’s hard to step in the shoes of officers who are pursuing some suspected of two murders. Clearly, that person is also a danger to the community, and part of a “hit squad,” as DeBug puts it.

    But even-though I can’t step into the officers shoes – I do believe that any officer that fired their weapon that day should not be part of the police force any longer, starting now.

  5. “David Tovar was allegedly accused and deserved a dah in court like all the others did.” — Justice For People

    I guess you missed the part about Tovar being on the run, or are unable to realize that what he was on the run from was his day in court. Try thinking sometime, it can be illuminating.

    “I do believe that any officer that fired their weapon that day should not be part of the police force any longer, starting now.” — Transparency and Accountability…

    Although it may be hard for you to see, let me make it transparent for you: those officers were chasing a killer whose next victim might very well have been one of them. A killer running from officers is not exactly signalling that he’s no longer a danger to others; quite the contrary, had Tovar been allowed another minute, or another hundred feet, maybe he would’ve taken a hostage, or worse. The officers that took down that rotten murderer should be thanked and congratulated for a job well done. Tovar kills no more, or don’t you think that’s a good thing?

  6. You mention a lot of “what ifs.” The facts (of that day) are the man was unarmed, running in the other direction on the second floor of a large multi-family apartment community. A lot of innocent people were put at risk. I’m not saying Mr. Tovar was a saint – or didn’t belong in prison if found guilty of the alleged crimes. I’m just saying on that day, with this particular officer involved shooting, it wasn’t justified, and those officers should not be on the force, in my opinion. What should’ve happened is an arrest – then press charges for the alleged murders, and let a jury of his peers handle the matter.

  7. “What should’ve happened is an arrest – then press charges for the alleged murders, and let a jury of his peers handle the matter.” — Transparency and Accountability…

    What should’ve happened was that Tovar:
    — shouldn’t have gone on the run in the first place and added a huge layer of concern to law enforcement whose obligation (and intent) was to bring him to justice.
    — shouldn’t have ignored the police when commanded to submit to arrest.
    — shouldn’t have ignored the fact that he was, in the wake of his crime spree, viewed by police as an armed and dangerous man.
    — shouldn’t have behaved in such a way as to make his arrest, prosecution, and jury trial IMPOSSIBLE.

    You write as if the police can avoid use of force situations by simply not using force. But as enforcers of the law their job is to compel compliance, not chase, wait, and hope for it. You criticized my perspective for its “what ifs,” but the what if of your reasoning is the only one that is absurd, for it is the suppositional: what if the police just waited for Tovar to have a change of heart, stop murdering and robbing innocent people, and turn himself in?

    You ought to stop fooling yourself into believing it is transparency and accountability you seek when what you (and many others) really want is obfuscation and vengeance. Your primary concern about the shooting environment (the risks of which require comprehensive information to properly assess) was based solely on the statement of an obfuscating De-Bugger who referred to the arrest team as a “hit squad.” Your kind doesn’t want accountability, you want to see cops ruined.

  8. I watched the video, and made my own judgment – and I would bet my bottom dollar that when there is an internal investigation, this shooting will be determined to have not followed proper protocol. If a bunch of officers can’t apprehend one unarmed suspect without shooting him in the back – well, that is an issue in my eyes.

    I am in no way a fan of DeBug, and feel they are just as much a part of the problem as those they speak out against…but in this case, I feel the officers didn’t need to fire their weapons. It was unjustified when looking at the facts. I don’t think it was murder, I don’t think it was systemic racism – I think it was officers who could’ve handled this situation in a less lethal manner. You have your view-point, and that is fine. The real transparency here, is that the incident was caught on film – that is the highest level of transparency, which will lead to accountability, I hope.

  9. “If a bunch of officers can’t apprehend one unarmed suspect without shooting him in the back…” — Transparency and Accountability…

    Okay, I now understand the source of our disagreement. You favor hiring only hiring police officers who possess the clairvoyant powers necessary to know that which can only be known after the fact, while I favor hiring police officers who were born on planet Earth.

  10. Wait – i’m ahead, yet was owned? You’re a confusing person.

  11. Unbelievable this family expects damages from the San Jose Police Department after they shot their son, the SOB. David Tovar Jr., who murdered my friend’s husband; he was a suspect in other murders, numerous assaults, and multiple robberies. David Tovar Jr. was a KILLER and an overall bad player. To add insult to injury, this family is receiving donations from innocent people that have no idea what their son has done to harm society.

    Here is a podcast from one of the wives of David Tovar Jr’s victims.

Leave a Reply

Your email address will not be published. Required fields are marked *