Judge rules on case of San Jose police dog that bit man for over 2 minutes

SAN JOSE, California. – A court ruling states that a San Jose police dog bit a man for 2 minutes and 40 seconds, which a federal judge ruled constituted excessive use of force.

“The court finds this intrusion to be serious,” wrote U.S. District Judge Edward Davila in a 37-page ruling filed Tuesday in federal court in San Jose. “An attack by a police dog of this duration while the suspect lay wounded and nearly motionless is unprecedented.”

Davila added that the San Jose Police Department, against whom David Tovar Jr.’s family has filed a lawsuit, “could not cite a single instance” of a police dog attacking someone for that long, especially after being shot.

Tovar died that day, January 21, 2021. An autopsy reviewed by KTVU shows he was killed by numerous police gunshot wounds, but his body was covered in cuts from dog bites.

The judge’s decision means that a jury will not have to decide whether the dog’s bite was excessive; Davila has already done that.

“This is a big deal,” said civil rights attorney Adante Pointer, who represents Tovar’s family. “The judge ruled that this bite was excessive and violated the law.”

Davila, however, ruled that the family’s wrongful death trial could proceed, over whether police officers used excessive force when they shot 27-year-old Tovar 15 times as he fled from them.

While the judge denied the city’s request to grant the officers qualified immunity, he ruled that whether the officers’ actions were reasonable given the information they had should be left to a jury to decide.

The city of San Jose has not yet responded to the judge’s decision, arguing in court filings that the officers’ actions, including the police dog, were lawful and appropriate.

On the day in question, police pursued Tovar as he attempted to leave the Villa Fairlane apartment complex because they said he was a violent man and a “person of interest” in connection with a murder and shooting in Gilroy, and he was also wanted for weapons violations in San Jose and a shooting in Galvan Park in Morgan Hill on Jan. 5.

In addition, then-Deputy Police Chief David Tindall said an officer saw Tovar reach into his waistband and pull out something “that the officer thought was the handle of a gun,” although it later turned out to be a screwdriver.

Tindall said police “repeatedly asked Tovar to show his hands,” but he did not comply.

Tovar was also suspected of stealing a car that contained a shotgun. His previous criminal activities included arrestsAccording to court documents, there were convictions for fleeing from police, possession of weapons and burglary.

Pointer told police he did not have enough evidence to charge Tovar in connection with the murder.

WARNING: San Jose Police Shoot David Tovar Jr.

To reach his verdict, the judge examined both the body camera and the home surveillance video.

And he said that while officers ultimately shot Tovar with semi-automatic rifles, Davila did not believe they needed to send their sniffer dog after him because he had already been on the ground for two minutes from bullets before they gave the dog the order to attack.

The video shows the sniffer dog “biting, tearing and dragging Tovar’s body” while several police officers stand by and point their guns at him, the judge noted.

The officers named in the lawsuit are James Soh, Alvaro Lopez, Hans Jorgensen and Mauricio Jiminez, as well as police dog Topui Fonua.

KTVU reached out to San Jose police on Wednesday to determine if all officers were back on duty, but did not immediately receive a response.

The Santa Clara County District Attorney cleared all officers of any criminal wrongdoing in July 2022.

Pointer said the ruling was also important because it represented a change in the way courts viewed the use of police dogs.

Pointer said that the police, and therefore their police dogs, have been given a great deal of leeway in the past.

But recent rulings, including another case of his in which a woman had her scalp ripped off after she stole makeup from Ulta in Brentwood, show that police can be held accountable for their dog’s actions.

In May, another federal judge ruled that allowing the police dog to hold the woman’s head for more than a minute was excessive in this case.

Lisa Fernandez is a reporter at KTVU. Email Lisa at [email protected] or call her at 510-874-0139. Or follow her on Twitter @ljfernandez