Judge rules on San Jose police K-9 biting man for over 2 minutes
SAN JOSE, Calif. - A San Jose police K-9 bit a man for 2 minutes and 40 seconds, which a federal judge ruled was an excessive use of force.
"The Court finds this intrusion severe," U.S. District Judge Edward Davila wrote in a 37-page ruling filed on Tuesday in San Jose. "A K-9 attack of this duration, while the suspect lay wounded and nearly motionless, is without precedent."
Davila added that the San Jose Police Department, being sued by the family of David Tovar Jr., "failed to cite a single case" where a police dog attacked anyone for that long, and especially after he had been shot.
Tovar died that day – Jan. 21, 2021. An autopsy reviewed by KTVU shows that he was killed by multiple police gunshot wounds, but his body was full of dog-bite lacerations.
The judge's ruling means that a jury won't 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 is representing Tovar's family. "The judge ruled that this bite was excessive and violated the law."
But Davila did rule that the family's wrongful death trial can move forward on whether police officers acted with excessive force when they shot the 27-year-old Tovar 15 times as he ran away from them.
While the judge denied the city's request to grant the officers' qualified immunity, he ruled that it should be left up to a jury to decide whether the officers' actions were reasonable with the information they had.
Siccing K-9 for long duration constitutes excessive force, judge rules in Brentwood police bite case
Ordering a police dog to bite a person doesn't necessarily constitute excessive force, but siccing a K-9 on a person for a long time does, a federal judge in San Francisco has ruled.
The city of San Jose has not yet responded to the judge's ruling and in court motions have argued that the officers' actions, including the K-9, were lawful and reasonable.
On the day in question, police were chasing Tovar as he was leaving the Villa Fairlane Apartment Complex, because they said he was a violent man who was a "person of interest" in a homicide and shootings in Gilroy, wanted for weapons violations in San Jose, and a shooting at Galvan Park in Morgan Hill on Jan. 5.
In addition, then-Acting Police Chief David Tindall said that an officer saw Tovar reach into his waistband pulling out what the officer "believed to be the butt of a handgun," even though it later turned out to be a screwdriver.
Tindall said police gave Tovar "multiple commands to show his hands," but he did not comply.
Tovar was also suspected of stealing a car that had a shotgun in it. His prior criminal history included arrests and convictions for evading an officer, weapons possession and burglary, court documents show.
Pointer told police he didn't have much evidence to pursue Tovar in connection to the homicide.
WARNING GRAPHIC: San Jose police shoot David Tovar Jr.
The judge reviewed both body camera and apartment surveillance video to make his ruling.
And he said that while the officers ended up shooting at Tovar with semiautomatic rifles, Davila said he didn't feel they needed to sic their K-9 on him, since he had already been down on the ground from bullets for two minutes before they told the dog to attack.
The K-9 was seen on the video "biting, tearing and dragging Tovar's body" with several officers standing by, with their rifles pointed at him, the judge noted.
The officers named in the suit are James Soh, Alvaro Lopez, Hans Jorgensen and Mauricio Jiminez, and the K-9 officer, Topui Fonua.
San Jose police said all the officers are still employed with the department and declined to say more.
The Santa Clara County District Attorney cleared all the officers of any criminal wrongdoing in July 2022.
Pointer said this ruling is also important as it shows a change in how the courts are looking at the use of K-9s.
Historically, Pointer said that police, and by extension, their K-9s, were granted a lot of leeway in their actions.
But recent rulings, including another case of his where a woman's scalp was torn off after she stole makeup from Ulta in Brentwood, show that police can be held responsible for their dog's actions.
In May, another federal judge ruled that it was excessive to allow the police dog in that case to clamp down on the woman's head for more than a minute.
Lisa Fernandez is a reporter for KTVU. Email Lisa at lisa.fernandez@fox.com or call her at 510-874-0139. Or follow her on Twitter @ljfernandez