Washington police officer accused of 'tombstone' tactics in rare murder trial


Auburn police Officer Jeff Nelson engaged in "tombstone" tactics when he moved to arrest Jesse Sarey without waiting for backup, and ignored his training and department policies, escalating a misdemeanor arrest into a fatal encounter, according to prosecutors seeking to convict him of murder.

After questioning 28 witnesses during more than three weeks of sputtering testimony, King County special prosecutors rested their case against Nelson last week, wrapping up with a nationally recognized police use-of-force expert who opined that Nelson's actions on May 31, 2019, that led to Sarey's death fell far short of those of a reasonable, well-trained, "similarly situated officer" — a legal standard the jury will apply in deciding whether Nelson is guilty of second-degree murder.

Before the case goes to the jury, Nelson, 44, and his attorneys will have a chance to present their defense.

He is the first police officer charged under new deadly force legal standards brought about by the passage of I-940 in 2018, which removed barriers to prosecuting officers in deadly force cases and emphasizes training in de-escalation and crisis intervention.

Nelson, a 12-year Auburn Police Department veteran and K-9 officer, shot Sarey twice after a brief struggle outside the Sunshine Grocery story in Auburn. The first shot was point-blank to Sarey's torso, and witnesses said Sarey fell back. Nelson cleared a malfunction in his handgun and then shot Sarey a second time in the head, about three seconds later.

The prosecution's expert, Scot Haug, a 32-year law enforcement veteran and former chief in Post Falls, Idaho, said a review of Nelson's years of training, Auburn policy and the law left him to conclude the shooting was unnecessary.

"Would a similarly situated officer use deadly force with respect to Mr. Sarey with respect to the first shot?" asked King County Special Prosecutor David Howard.

"No," responded Haug, a principal at Public Safety Insight, a consulting firm primarily used by police agencies.

"Would [that officer] have used deadly force with respect ... to the second shot?" Howard asked.

"Absolutely not," Haug said. "In my view, Mr. Sarey was incapacitated."

Law and police training mandate that an officer can resort to deadly force only when their life or the lives of others are imminently threatened, and that the force must end when the threat is no longer present.

Testimony in the trial at the Maleng Regional Justice Center in Kent, which began with jury selection on April 2, has been repeatedly interrupted by attorney objections and arguments. The bickering has stretched the patience of Judge Nicole Gaines Phelps, who has dressed down both sides for repeated delays and arguments.

The trial is anticipated to last into the first week of July.

It has been sparsely attended given its unique nature: It is the first time a police officer in King County has been prosecuted for an on-duty killing since 1971, when a Seattle officer was charged — and later acquitted — of manslaughter.

There was more interest in the first test of the law — the prosecution this past spring of three Tacoma officers for the suffocation death of Manuel "Manny" Ellis — which ended in acquittals.

Delays in the Nelson case have prompted anger and years of anguish among Sarey's friends and family while Nelson has been on house arrest, on leave and subject to an ankle monitor, continuing to collect his salary of more than $100,000 a year since the charges were filed in 2020.

The day of the encounter, Nelson claimed the 26-year-old Sarey had tried to grab his gun and then a knife from his utility vest, and feared he was going to be stabbed. The defense, in opening statements, called Sarey's death a tragic but justified "mistake of fact" during the heat of the struggle.

Nelson, in a written statement given weeks after the shooting, said he believed Sarey was going to stab him. The reality is the knife fell on the ground and was picked up by a witness — the "mistake of fact" key to the defense case.

Nelson's attorneys have said he will testify that he was afraid for his life and has "wished every day for the last five years" he hadn't made that mistake. They will present their own use-of-force and training experts.

Haug, the prosecution's expert, testified Nelson had "reasonably effective alternatives" to shooting Sarey, such as waiting for his backup — which was minutes away — or releasing his K-9 partner, Koen.

Instead, the prosecution's case has been intended to show the jury that Nelson rushed into the arrest, which escalated into a fight one witness likened to "Tasmanian devils" in which Sarey — according to the witness and Nelson — touched or grabbed at Nelson's gun.

Prosecutors have suggested that touch was "incidental" to the fight and presented evidence that Nelson was using a "retention" holster designed to discourage or defeat others from drawing the weapon.

Nelson had initially confronted Sarey outside a Walgreens drugstore, where he was dispatched to 911 reports of a man pounding on windows, throwing items at cars and kicking buildings.

Nelson warned Sarey to stop bothering people or he'd be arrested. Nelson went to leave while Sarey jaywalked through traffic to the Sunshine Grocery, according to the criminal charges.

Nelson circled around and parked, deciding to arrest Sarey for misdemeanor misconduct. He called for backup but then approached Sarey alone in front of the store, near an ice machine, and told him he was under arrest. Sarey, who was sitting, swore at him and ignored repeated orders to stand. That's when Nelson grabbed him and a brief but intense struggle ensued, according to witnesses and enhanced surveillance video from nearby businesses.

For Haug, it was a question of whether Nelson's actions were "reasonable" given these circumstances — another standard the jury must consider. In his opinion, they were not.

"Training and policy encourage us to have a backup, which reduces the risk to the officer and the citizen," Haug testified. It's particularly true when dealing with someone in crisis.

"Tombstone courage without waiting for backup many times ends in disaster," he said, adding that while police officers have a right to want to go home safely at night, the people they encounter every day have the same right.

Prosecutors have faced resistance from some police witnesses, and Special Prosecutor Patty Eakes subpoenaed Auburn's police chief for just five minutes of testimony on Nelson's training records after the department's training and designated records officer, Douglas Koch, repeatedly sidestepped her questions about the records' authenticity.

"We have been getting a lot of runaround from the Auburn Police Department," Eakes complained to the judge during one break and suggested the department was "colluding" with the defense, which raised a sharp objection and denial from Nelson's lead counsel, Emma Scanlan.

Phelps has limited evidence about Nelson's history as a police officer, focusing the jury's attention on the interaction with Sarey, which lasted just 67 seconds.

The jury has not heard that Nelson has been involved in two prior fatal shootings and has dozens of instances where he has used significant force during arrests, although prosecutors have argued they are relevant to Nelson's aggressive and violent approach to policing.

Nor have jurors been told the city of Auburn has paid $5.7 million to settle lawsuits resulting from Nelson's actions in the three fatal shootings, including a $4 million payout to Sarey's family.

Phelps has also ruled the defense will not be able to introduce evidence that Sarey was under the influence of methamphetamine when he was killed, stating Nelson could not have known that when he approached him.

Defense attorneys say Nelson is expected to take the stand in coming days, providing the first detailed testimony from the man at the center of this trial.


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