Santa Clara County DA Says San Jose PD Killing of Gilroy Murder Suspect Was Legal

Santa Clara County investigators determined that San Jose 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 the San Jose 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 San Jose Police Department’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.


  1. Good job SJPD!
    I always enjoy a story where Police ‘light-up a criminal like a Christmas tree with rifle-fire’ and then sic the K-9 in for a well-deserved snack.
    David S. Wall

  2. That the police dropped Tovar in his tracks was the right thing to do. But they need to be investigated for putting innocent people at risk. I hope they paid for the damage to the property. When Mrs Puente’s rented home was torn to bits by detectives looking for evidence, the city attorney blithely told the property owner “sue us”.

  3. I see the cops approve a shooting of a man in the back and not facilitating an arrest in an apartment building multiple shots hit other apartments.

  4. Here we go again. Cops’ well-rehearsed line: “We were afraid for our lives!” “We saw the suspect reaching for his waistband!” “We had to let loose with our AK-15s!” And now they are well qualified for immunity. Good thing nobody else in that tight apartment building courtyard was killed. SJPD, and the residents, got lucky. Really lucky.

  5. David Tovar Junior was a suspect who had a family and friends who loved him. He was a member of our community. He did not get a trial. I don’t care what corrupted district attorney Jeff Rose says, there was nothing legal about David Tovar Jr’s murder. Police behave like savages. They are sanctioned by the state to kill any of us for any reason. What is to stop them from coming for you?

  6. To MISHI ELLINGSON: What stops them from coming for me is that I don’t rob people, carry guns illegally, kill people, or run from the police. Easy peasy, lemon squeezey

    It’s not hard to stay alive when interacting with the police. Do not drive off at high speed, don’t flee on foot, don’t fight with the police, don’t shoot at them, obey their commands to stop and most of all, keep your hands where the police can see them. Oh yeah, one more thing: keep your mouth shut. Yelling, screaming, and carrying on about your rights and insulting and threatening the police should be reserved for another time — not on the street. They are just doing their job.

    All that said, the loss of anyone’s life is tragic, and I feel very sorry for his friends and family who loved him.

  7. Nice Job SJPD.
    No more $0 Bail and Revolving Door jails for David Tovar Jr.- he has earned justice his own way.

    As for MISHI ELLINGSON, maybe if the friends and relatives of David Tovar Jr. had more love for him, they would have helped him turn himself in to face justice for his crimes.

    The only person to blame for the death of David Tovar Jr. is David Tovar Jr.

    Truism: ” Don’t do the Crime, if you Can’t do the Time. ”
    “And dat’s the name of dat tune.”
    – Tony Baretta

  8. SJPD is an embarrassment. They have been caught masturbating in peoples homes, dealing fentanyl to the unhoused population, they speed through neighborhoods without using stop signs, and have kidnapped & beaten Black citizens in our community. They have a commemorative coin, the “Stinkin’ Lincoln” that celebrates their abuse of the Asian & poor communities in San Jose.

    SJPD never made me feel safe. They are over paid, under trained, and they shot their bias trainer, a Black man, Derrick Sanderlin in his testicles with rubber bullets. They have a PR department that cost taxpayers millions of dollars to reframe their behavior. I imagine the fluffy “good job SJPD!” replies to this article written in part by their PR dept. Christian Camarillo runs that department and he alone costs SJ taxpayers $420,000 a year.

    SJPD harassed David Tovar. Then they murdered him. They are shameful. Defund the police.

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