Man With Toy Gun, Shot by SJ Police Files Suit

A man dressed in scrubs and carrying a toy gun who was shot by San Jose police after a Halloween party has filed a lawsuit against the city of San Jose and four officers.

View Comments ()



    San Jose Police Department
    This is a photo of the item a man was holding when shot multiple times by San Jose police.

    A man dressed in scrubs and carrying a toy gun who was shot by San Jose police after a Halloween party has filed a lawsuit against the city of San Jose and four officers.

    Javier Gonzales-Guerrero, 25, said he was asleep in the stairwell of the Extended Stay Deluxe Hotel on Brokaw Road in San Jose on Oct. 23, when officers shot him 20 times after he did not respond to their verbal commands, according to the lawsuit. (PDF)

    The number of times he was shot was never publicly revealed before this lawsuit was filed Friday in U.S. District Court in San Jose.

    Gonzales-Guerrero, who did not immediately respond to a request for an interview, has undergone several surgeries, according to the suit, and he still has one bullet permanently lodged in his spine.

    In previous statements, San Jose police have said that "the suspect came to and reached for the gun in his waist band. Four officers, believing the suspect was about to try and shoot them, fired at the suspect, striking him multiple times."

    Gonzales-Guerrero's lawsuit makes no mention of him reaching for his gun.

    The suit claims unspecified damages for the "deprivation of civil rights," as well as battery and assault.

    The officers  named in the suit are: Sgt. Brian Johst, Officer Mark Stephens, Officer Gary Petrakovitz and Officer Tim Stephens. Each had at least 13 years of experience on the force.

    Sgt. Jason Dwyer, a spokesman for the police department, declined comment Tuesday, referring questions to the city attorney's office. City spokesman David Vossbrink said in an email on Tuesday that the city had not yet been served and when it is, "we will be evaluating the complaint and the City Attorney's Office will determine how the City will respond."

    According to his claim against the city, Gonzales-Guerrero had been visiting a friend at the hotel after a Halloween party when he "fell asleep" on the landing in the stairwell. A guest at the hotel spotting him sleeping and notified the front desk. A housekeeper couldn't wake Gonzales-Guerrero up, "despite talking to him and shaking his legs," the lawsuit states. Aside from noting the fact that he was wearing green scrubs with a hat over his head, the housekeeper also saw a gold gun in his waistband; the gun turned out to be a toy, but she didn't know that then.

    She called police and told them that a "man was passed out, asleep" in the hotel stairway. She said she didn't think he needed medical attention, according to the suit.

    The officers arrived and noted the gun in the waistband, the suit states. They shouted at Gonzales-Guerrero "who was not responding to their verbal commands," according to the suit. Eventually, the suit states,  Gonzales-Guerrero "awoke to threats, screaming, and chaos" created by the police officers who were "above and below" him with guns drawn, pointed directly at him.

    "Terrified and while lying on the ground utterly defenseless," the suit states, Gonzales-Guerrero pleaded with police "not to shoot." 

    But, the suit continues: "His pleas were ignored and shots were fired at his legs, pelvis, chest and entire body," which was "riddled with over 20 bullets."

    Contact Lisa Fernandez at 408-432-4758 or

    Follow NBC BAY AREA for the latest news, weather, and events: iPad App | iPhone App | Android App | Facebook | Twitter | Google+ | RSS | Text Alerts | Email Alerts