SAN JOSE — Three San Jose police officers have been cleared of criminal liability in the 2021 fatal shooting of David Tovar Jr. — who was unarmed and being sought in a homicide and other violent crimes — but experts criticized police tactics and suggested the death could have been avoided with better training.
Tovar’s death on Jan. 21, 2021, prompted outcry from community activists and leaders after it was learned after the shooting that he was unarmed while running from the police officers seeking to arrest him in connection with a deadly shooting in Gilroy and at least one other shooting.
The shooting also elicited criticism because some of the bullets fired at Tovar went into occupied apartments along a second-floor walkway of the Villa Fairlane apartments on La Pala Drive in the city’s east foothills. The controversy was inflamed after body-camera video footage of the shooting was released and showed that the three officers who shot at Tovar opened fire within seconds of seeing him.
Ultimately, the Santa Clara County District Attorney’s Office stated in a formal shooting report that considering the violence for which Tovar was suspected, the officers “reasonably believed him to be armed and intent on killing police and would ‘do anything’ to avoid arrest, and they believed it likely they were going to get into a shootout with him.”
Retired Los Angeles County Sheriff’s Lt. Sid Heal, a pioneer of the SWAT team concept and use-of-force consultant, called the shooting “awful but lawful” in concluding it was legally justified, according to the report. But he said the covert unit’s decisions “were not the preferred course of action” and went on to describe the unit’s training as emphasizing “tactics and techniques more than strategy and thorough planning.”
Heal further criticized a seeming lack of clarity in command and roles in the unit, saying if the issues persist, “the reoccurrence of a similar Tovar situation is not just possible but likely.”
Those admonitions, included in the report released Thursday, stand out given that these reviews focus mostly on whether officers’ actions meet the legal threshold for criminal prosecution. No police officer has been charged for an on-duty shooting in modern Santa Clara County history.
Los Angeles Police Department Sgt. Jody Stiger, the second expert consulted for the DA report who also provided expert testimony in the trial of former Minneapolis police officer Derek Chauvin for the killing of George Floyd, stated that Tovar’s shooting was reasonable and within SJPD policy. But he also questioned whether the officers needed to engage him directly, sparking a foot chase, rather than monitoring him from a distance.
Prosecutor Robert Baker concluded the report by writing that “there is insufficient evidence to prove beyond a reasonable doubt” that the shooting was unlawful or grossly negligent. But he also referenced the experts’ criticism of officers’ decision to chase Tovar into an occupied apartment complex that “put the lives of innocent residents of the La Pala apartments at unnecessary risk.”
“Any policy violations do not support charging the involved officers with a crime, but they require careful internal review among appropriate personnel within the San Jose Police Department,” Baker wrote.
After an inquiry by this news organization, the police department issued a general statement about the criticisms described in the report.
“We accept and acknowledge the District Attorney’s report,” the statement reads. “As an agency, we continually evaluate and examine our tactics and procedures to ensure that we are always improving and providing the best police response to dangerous and critical incidents.”
Authorities have said Tovar was being investigated by police in San Jose, Gilroy, Morgan Hill and by the California Highway Patrol in connection with a dozen robberies and auto thefts between April and October 2020 and the recovery of guns in at least two stolen vehicles linked to Tovar.
Tovar was also a suspect in the Jan. 3 fatal shooting of 35-year-old San Benito County resident Russell Anthony Lewis Gilroy and in an earlier shootout on the same street. Tovar was also suspected in a Jan. 5 shooting in Morgan Hill that seriously injured an unhoused man. There were several prior attempts to arrest Tovar, including after police say he reportedly told someone he wanted to kill a police officer.
The SJPD covert response unit tracked Tovar to the apartment complex on La Pala Drive off McKee Road and said they were wary of Tovar’s elevated position, and officers contend he was reaching into his waistband as he ran along the elevated walkway.
The DA report states that Officer Hans Jorgenson, a 13-year police veteran, and another officer yelled at Tovar to surrender as they followed him into the complex, and that Jorgenson fired one shot at Tovar. Jorgenson fired again as officers Alvaro Lopez and James Soh were making their way into the courtyard, believing the two officers were vulnerable. Lopez and Soh, both 14-year veterans, then fired at Tovar, reportedly thinking that Jorgenson was in a firefight with Tovar.
Soon after, after not being certain that Tovar was still alive or armed, another officer ordered his police dog to bite Tovar, the report states. Tovar died at a local hospital; investigators found a black-and-silver cellphone on the floor next to where he was wounded and a screwdriver in his pocket, but no gun.
Patrick Buelna, an attorney representing the Tovar family in civil litigation against the police department and city, said the shooting was another instance of police referencing “the phantom weapon that criminals or suspects are always reaching for. He doesn’t have a gun. It seems almost preplanned.”
Buelna also objected to the absence of any analysis, in the report or elsewhere, of the police dog being used on a mortally wounded Tovar.
“This is someone they shot several times,” Buelna said. “It’s one of the most disgusting uses of a K-9 I’ve ever seen.”
Soh was involved in another police shooting in February 2015 when he and Officer Ryan Dote fatally shot 23-year-old Phillip Watkins as he was experiencing a mental-health crisis while holding a folding knife, which was followed by his family and friends acknowledging he needed help and questioning the use of lethal force.
Source: www.mercurynews.com