By The Vanguard Staff
SAN JOSE, CA — Although the tactics of police were questioned by experts, three San Jose police officers this week were cleared of criminal liability by the district attorney in the 2021 fatal shooting of David Tovar, Jr.—who was unarmed and was sought for a homicide and other violent crimes, according to a report in the San Jose Mercury News.
Tovar’s death on Jan. 21, 2021, resulted in protests by social justice activists when they were told Tovar was not armed when he ran from officers trying arrest him in connection with several shootings.
Some of the bullets, said a Merc-News story, that were 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. Body-cam footage also showed officers shot at Tovar within only a few seconds of spotting him.
The Santa Clara County District Attorney’s Office said, in a formal shooting report, that 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.”
An early SWAT Team proponent, retired Los Angeles County Sheriff’s Lt. Sid Heal, described the police shooting “awful but lawful” in the DA report, judging it legally justified.
But he said, according to the Merc-News, the police 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 also suggested “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, said the Mercury News, which said no Santa Clara County police officer has been charged for an on-duty shooting in modern history.
The Mercury News also reported that 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 Tovar’s shooting was reasonable and within SJPD policy.
However, Sgt Stiger also questioned whether the officers needed to engage Tovar directly, sparking a foot chase, rather than monitoring him from a distance.
Prosecutor Robert Baker said, in the report’s conclusion, “there is insufficient evidence to prove beyond a reasonable doubt” the shooting was unlawful or grossly negligent, but noted 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.
The DA report noted 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.
The DA report added 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 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 in a hospital; investigators admitted they found no gun—only a cellphone and screwdriver.
The Mercury News said Patrick Buelna, representing the Tovar family in civil litigation against the police department and city, said the shooting was an example of law enforcement citing “the phantom weapon that criminals or suspects are always reaching for. He doesn’t have a gun. It seems almost preplanned.”
Officer 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.
