$1 million settlement reached after man killed by San Jose police, mauled by K9

(KRON) — The City of San Jose will pay $1 million to a homicide suspect’s family after he was fatally shot by police and mauled by a K9, according to reports. The homicide suspect, David Tovar, Jr., was a fugitive and unarmed at the time of his death on January 21, 2021, investigators said.

The Tovar family’s attorney, Adante Pointer, wrote Wednesday, “Too many folks are shot and killed by police for supposedly reaching for a gun we later find out they never had! The phantom gun excuse is weak and wore out! Period.”

San Jose’s $1-million settlement, reached Tuesday by the city council, resolves a wrongful death lawsuit filed by Pointer’s law firm on behalf of Tovar’s children, the Mercury News reported.

The lawsuit states, “Officers recklessly opened fire. After two minutes of Mr. Tovar laying motionless and bleeding on the ground, officers shockingly released a canine to attack and maul Mr. Tovar’s defenseless and dying body.”

On the morning of January 21, 2021, officers attempted to arrest Tovar in the Villa Fairlane apartment complex’s carport on La Pala Drive. The fugitive, who was wanted for a homicide in Gilroy and had an extensive criminal history, bolted on foot, investigators said.

Tovar, 27, was running along the apartment building’s second-story balcony when San Jose Police Department tactical officers opened fire, body camera video shows.

Two officers erroneously believed Tovar had a gun because they heard gunshots fired by a third officer, and they feared a shootout was happening, according to a Santa Clara County District Attorney’s Office investigation.

The DA’s independent expert found that the SJPD’s tactics were flawed, including when they fired rounds that struck occupied apartments.

Officers were cleared of criminal charges, however, because they are allowed to use deadly force “when there is a reasonable need to protect themselves from an apparent, imminent threat of death or great bodily injury,” the DA’s office wrote.

Prosecutor Robert Baker wrote in an investigation report, “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.”

Tovar was shot six times, prosecutors said. As he was bleeding to death on the ground, a K9 officer deployed his police dog to attack Tovar. A coroner determined that he died from gunshot wounds and not the dog bites, the DA’s report states.

Attorneys wrote in the civil lawsuit that officers’ actions “shocked the conscience when they shot him in the back and released a police dog to attack and maul him.”

Attorney claim that the SJPD officers failed to make any reasonable efforts to bring Tovar into custody without using deadly force.

DA investigators said the K9 was deployed by Officer Topui Fonua to determine if Tovar “was still a threat.” As the dog was biting Tovar, he “did not respond,” the report states.

Pointer previously told KRON4 that SJPD officers’ mission on January 21, 2021 was not to arrest Tovar and bring him to justice in court. Their mission was to execute him, the attorney said.

Pointer wrote Wednesday, “While I’m proud of the work my firm put in to get the truth of what actually happened to David Tovar, Jr. out to the public and managed to secure David’s kids and parents a more stable financial future – his family would rather have David in their life.”