For release on July 21, 2022
Deputy District Attorney
DA Report: SJPD’s Shooting of Wanted Murder Suspect Lawful
A San Jose police tactical team lawfully shot and killed David Tovar, Jr., an unarmed San Jose fugitive who was wanted for murder and multiple shootings, the Santa Clara County District Attorney’s Office has determined.
The DA’s Office asked two independent experts to evaluate the involved officers’ conduct, including a Los Angeles Police sergeant who testified for the prosecution of Minneapolis Police Officer Derek Chauvin, who was convicted of murdering George Floyd. Another expert found the SJPD tactics were flawed, especially because bullets fired at the suspect ended up hitting occupied apartments. Both experts, however, agreed that the shooting was lawful. Officers 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.
Prosecutor Robert Baker concluded in the 64-page public report: “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. …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.’”
The District Attorney’s Office investigates officer-involved shootings to determine if the force employed was lawful. Under current law, the state Attorney General’s Office determines if officer involved incidents are lawful when the decedent is unarmed. The AG’s Office determined that the Santa Clara County DA’s Office should handle this case because it predated the change in law.
At approximately 10:20 a.m. on January 21, 2021, officers from the Covert Response Unit planned to arrest Tovar in an apartment complex carport on La Pala Drive, but he saw one officer as he was returning to his car and escaped on foot into the courtyard. Officer body worn camera footage showed (Video 1 / Video 2) CRU officers pursued him into the enclosed courtyard. Officer Miguel Flores, positioned in the backyard of an adjoining property, saw Tovar on the second-floor walkway and ordered him to put his hands up or he would be shot. Tovar fled along that walkway toward Officer Hans Jorgenson, who was at ground level. Officer Jorgenson ordered Tovar to put his hands up, but Tovar continued to run and 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. Officer Jorgenson fired his rifle multiple times. As that occurred, Officers Alvaro Lopez and James Soh entered the courtyard, heard gunshots, and saw Tovar with his hand in his waistband. Fearing Tovar was engaged in a shootout with Officer Jorgenson, Officers Lopez and Soh also fired their rifles at him. Tovar was hit six times and later died from the gunshot wounds.