SAN JOSE (KCBS)— The City of San Jose has agreed to pay nearly $5 million to a man who was shot more than a dozen times by police in 2011. Officers apparently mistook the man’s gold-colored toy gun for a weapon.

Following a Halloween party, Javier Gonzales Guerrero fell asleep in a hotel stairwell and guests became concerned and called 911. In a tape released by the San Jose Police Department, responding officers reported that the man appeared to be armed.

On the tape the officer can be heard saying his gun is visible and that the suspect appeared to be breathing as he was laying down. Officers said they shouted for Guerrero to get up at which point he reached for the toy gun, causing the responding officers to open fire on him. Guerrero was struck by bullets at least 20 times.

The weapon in question was later determined to be a toy gun used as an accessory for Guerrero’s Halloween costume.

Legal Analyst Steven Clark said the settlement was probably a wise move by the city.

“It can be very difficult to get a large jury award from a governmental agency like a city because the jurors essentially are paying the award out of the tax dollars out of the community, but this case was so egregious that the city saw the writing on the wall,” Clark said.

The settlement still has to be approved by the city council later in September. According to the lawsuit, Guerrero, a 25-year-old construction worker at the time of the incident, still has a bullet lodged in his spine.

(Copyright 2013 by CBS San Francisco. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)


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