SAN JOSE (CBS SF) — The family of a man shot to death by San Jose Police back in January announced Wednesday it is suing the department over the incident after body camera footage showed the victim was unarmed.

“They played the judge, the jury and tragically the executioner,” said Adante Pointer, a civil right attorney representing Tovar’s family.

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Officers shot and killed 27-year-old David Tovar Jr. on January 21, claiming the Gilroy parolee wanted for a string of violent crimes had a gun. But footage of the incident released last month showed officers shooting Tovar moments after they arrived on scene. A gun was never recovered from Tovar.

Tovar, who police characterized as a documented gang member, was wanted in connection with a homicide and other shootings in Gilroy and Morgan Hill and had arrest warrants for weapons charges in San Jose. He was also suspected of more than a dozen robberies and auto thefts, according to police.

San Jose Police never found a weapon on Tovar and now believe they mistook a cell phone he was carrying for a handgun.

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“I don’t see anyway that we can justify the shooting of a man who is leaving the scene or running from the scene,” said Rev. Jeff Moore, the President of the Silicon Valley Chapter of the NAACP.

On the day of the shooting, officers shot Tovar from the ground floor while he ran across the second-floor balcony of the Villa Fairlane apartment complex.

Reportedly Tovar reached into waistband for what they thought was a handgun, but what police later identified as either a cell phone or screwdriver, which were both on his person when he was apprehended.

“Officers failed to provide any warning before peppering Mr. Tovar and the Apartment Complex with bullets,” said a statement from the law firm Pointer and Buelna, who are represent Tovar’s family. “Inexplicably, Officers failed to make any attempts to de-escalate the situation or use less lethal force prior to opening fire with their military-style assault rifles.”

Tovar later died at the hospital, but not until after an officer set a police dog on Tovar as he suffered from his wounds.

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“We want justice for our nephew and we want to put a stop to this,” said his uncle, Elliot Tovar.