King County Prosecutor Dan Satterberg announced Thursday morning that his office is charging Auburn police Officer Jeffrey Nelson with second-degree murder and first-degree assault in the May 2019 fatal shooting of 26-year-old Jesse Sarey.

The case marks only the third time in 40 years a police officer in Washington has been charged for killing someone in the line of duty, and the first time under new police-accountability legal standards approved by voters in 2018. Nelson has an extensive history of using force and has shot and killed two other people in the line of duty, with one of those cases reaching a $1.25 million settlement just days before he was charged in Sarey’s death.

Nelson killed Sarey on May 31, 2019, after Nelson responded to a disorderly conduct call in the 1400 block of Auburn Way North around 6 p.m. He encountered Sarey, who had reportedly been throwing items at cars and kicking buildings.

 Jesse Sarey was shot and killed by Auburn police Officer Jeffrey Nelson on May 31, 2019. (Courtesy of Elaine Simons)
Jesse Sarey was shot and killed by Auburn police Officer Jeffrey Nelson on May 31, 2019. (Courtesy of Elaine Simons)

Nelson and Sarey got into a physical fight before Nelson shot Sarey, who died later that night at Seattle’s Harborview Medical Center.

Nelson, now 41, was also injured but was not shot.

Auburn police Officer Jeffrey Nelson, 41, pleaded not guilty Monday to charges of murder and assault in connection with the May 31, 2019, shooting death of 26-year-old Jesse Sarey. (Auburn Police Department)

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The fatal shooting was investigated by the Valley Independent Investigation Team, made up of detectives from the Tukwila, Auburn, Des Moines, Federal Way, Kent, Renton and the Port of Seattle police departments.

A video forensics expert hired by the prosecutor’s office later concluded Nelson’s written statement of events were inconsistent with video-surveillance footage from the scene.

Additionally, two police use-of-force experts — Jeff Noble, a former deputy police chief in Irvine, California, and Scott Haug, a former Post Falls, Idaho, police chief — agreed Nelson did not follow his training in a number of ways: Nelson had no reason to believe Sarey was armed and there was clear evidence Sarey was suffering a mental-health crisis or under the influence of drugs; Nelson should have waited for backup; he failed to use less-lethal options, including deploying a Taser that was strapped to his thigh; and failed to use any de-escalation techniques, according to the charges.

“Both experts label what occurred as a police-created emergency,” the charges say. “That is, by failing to employ reasonable, proper tactics and de-escalation techniques common to modern policing and part of the Auburn Police Department’s policy and training, Officer Nelson created the very situation that brought about his use of force.”

Auburn police officer Jeffrey Nelson. (Auburn Police Department)
Auburn police officer Jeffrey Nelson. (Auburn Police Department)

Nelson has not been arrested; Satterberg said his office won’t be seeking to detain Nelson or request bail but will ask a judge to bar Nelson from possessing firearms.

Under Superior Court criminal rules, a summons to appear must be issued instead of an arrest warrant unless the court finds there is reasonable cause to believe the defendant won’t appear in response to a summons, will commit a violent offense, will interfere with witnesses or the administration of justice or the defendant is in custody.

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“There is no evidence to support a request for bail under this rule, provided that Officer Nelson is not working in law enforcement as an officer,” charging papers say.

Nelson’s attorney, Alan E. Harvey of Northwest Legal Advocates in Vancouver, said Thursday night that based on the information he has so far, “we’re clearly going to be seeking self-defense” and that the defense will hire its own experts to review the evidence.

“I think my client’s actions were reasonable under the circumstances,” he said.

According to Harvey, Nelson returned to work with Auburn police at the end of August 2019 but did not return to patrol duties working the streets. He said now that charges have been filed, the Auburn Police Department plans to put Nelson on administrative leave while the case is adjudicated but didn’t know if that had happened yet.

Nelson, who was a “rover” rather than assigned to a beat in Auburn, frequently found himself in situations where he was one-on-one with suspects and needed to use force, but he has never been found to have done so unlawfully, Harvey told the Associated Press. “My client has been a member in good standing of the Auburn Police Department for 11 years,” he said.

“The loss of life is tragic, and we extend our sympathy to the Sarey family and the community,” Auburn police said in a statement, adding that they would not comment further since it is a pending legal matter. “We, the City of Auburn, acknowledge that this is an important time to do internal work and reflection coupled with community engagement.”

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Elaine Simons, who fostered Sarey and his younger brother, said the prosecutor’s office told her and Sarey’s family of their intent to bring charges Wednesday.

“We all just turned to each other, and it was like this weight was taken off our shoulders,” Simons said. “But now a new weight has been put on our shoulders, going through the entire court case. It’s going to be a long process for us.”

Simons said she believes the decision was the result of “built-up momentum” from recent protests against police violence that came after the killing of George Floyd in Minneapolis and previous efforts in the state, like the push to pass Initiative 940, which implemented new legal standards for prosecutions in police use-of-force cases.

Charging documents did not indicate Nelson’s race but the AP reported he was white; Sarey’s mother was from Cambodia. (Satterberg said the charges against Nelson were not in response to political pressure and that the police investigation was completed in November. Further review was slowed down by the coronavirus pandemic).

“This is giving hope not just to the Sarey family but other families who have been waiting for justice,” Simons said.

Sarey’s family described him at a vigil last year as a fun-loving person who had fallen upon hard times, and Simons said she saw his death as the result of broken-down support systems.

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Sarey’s mother fled the Cambodian genocide of the latter half of the 1970s with her parents and siblings for the United States. Sarey, who had four brothers, lived with Simons for about six months when he was 11, then was placed in a residential program for adolescents with mental health issues, Simons said. He had struggled with addiction and was living homeless before he was killed.

On the May evening when Sarey died, police said they received multiple reports that Sarey had thrown garbage at cars, banged on windows and kicked walls outside of businesses in the area. Nelson responded and told Sarey he had received complaints about his behavior. Sarey walked away across Harvey Road and went to Sunshine Grocery, according to police documents and charging papers.

Nelson drove to Sunshine Grocery and radioed for backup. Within a second of his call, two other Auburn police officers responded that they were on their way, the charges say.

Instead of waiting for other officers to arrive, prosecutors say Nelson left his patrol vehicle and approached Sarey, who was sitting on the ground in front of the store and engaged him in a brief conversation. Nelson then announced he was arresting Sarey on suspicion of disorderly conduct, a nonviolent, misdemeanor offense.

Nelson told Sarey to put his hands behind his back, and Sarey said he hadn’t done anything. Nelson told Sarey he was under arrest and the two fought as Nelson tried take him into custody, with Sarey telling Nelson to take his hands off him, according to investigative documents and video obtained from the Auburn Police Department by The Seattle Times.

Within 38 seconds of contacting Sarey, Nelson “went hands-on,” delivering seven punches to Sarey’s head and upper body, Satterberg said.

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Nelson later told investigators he sustained an injury to his rib while attempting a hip throw and believed he sprained his wrist.

A witness who had been sitting in his car jumped out and told Sarey to stop resisting. The man later told police it looked like Sarey touched the officer’s gun, according to charges and video of a police interview with the witness. He said a folding knife flew over toward him, so he grabbed it and put it on top of his car.

After punching and grappling with Sarey, Nelson shot Sarey, whose back was to an ice machine, in the abdomen. Sarey fell to the ground. Nelson’s gun jammed so he cleared the slide and shot Sarey a second time in the forehead, 3.4 seconds after firing the first shot, the charges say.

Nelson later said in his July 2, 2019, written statement that he believed Sarey had a knife and posed a threat before firing the first shot, and that Sarey was on his knees in a “squatting fashion… ready to spring forward” before he fired again.

But video footage and witness accounts indicated the witness picked up Nelson’s closed, folding knife, which had fallen to the ground in the struggle, two seconds before the first shot was fired. After being shot in the abdomen, Sarey slid to the ground with his legs extended in front of him and his head slumped toward the pavement when Nelson fired the second round from 7 feet away, according to the charges.

The witness who saw the shooting disputed Nelson’s account, telling officers, “After the first shot, he was done.”

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“I understand being an officer, you just shot somebody and your adrenaline is going and maybe you’re scared or something and  you don’t know what’s going to happen so you shoot him. But I don’t know, man, I just don’t know about that one,” the witness said in a recorded interview with an officer who responded to the shooting.

Another witness, who was in his car, told police Sarey went down and that it felt like minutes later when the “the officer just walked back up and popped him again.”

Noble and Haug, the police use-of-force experts hired by prosecutors, “found significant discrepancies” between the video evidence and Nelson’s written statement and said there was no evidence to support Nelson’s claim Sarey armed himself with Nelson’s knife or grabbed the officer’s gun in a way that would have defeated the officer’s “triple retention holster,” the charges say.

The experts concluded Sarey did not pose a threat of serious physical harm to the officer and that Nelson’s second shot was unreasonable, say the charges.

Nelson was charged with second-degree murder for the first round that pierced Sarey’s liver, mortally wounding him, Satterberg said.

Nelson was charged with first-degree assault for the gunshot to Sarey’s forehead.

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Evidence in the case showed after the shooting, Nelson radioed that shots had been fired, then sat on the curb near Sarey’s prone body and did not render aid, say the charges.

Other Auburn police units arrived just over two minutes after the second shot was fired and an officer immediately began lifesaving efforts. Medics arrived and found Sarey didn’t have a pulse but administered CPR and medications and restored his pulse. Sarey was taken to Harborview Medical Center.

Doctors performed emergency surgery but were unable to stop the bleeding from the gunshot that went through Sarey’s liver. He died in the operating room.

Toxicology tests on his blood came back positive for methamphetamines, the charges say.

The shooting occurred less than two weeks after another police shooting in Auburn that killed 26-year-old Enosa Strickland.

Nelson is the first police officer in the state to be charged with murder under the new legal standard that came into play after 60% of Washington voters approved Initiative 940 in November 2018.

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Under the prior 32-year-old law, county prosecutors had to be able to prove law-enforcement officers acted with “evil intent” — or so called “malice” — when bringing criminal charges. Washington was the only state with such restrictive language.

Satterberg said Thursday it was a virtually impossible standard to prove. It’s only resulted in one officer being charged: Everett Police Officer Troy Meade was charged in the shooting death of Niles Meservey but was acquitted by a Snohomish County jury in 2010.

Only a handful of Washington officers have faced criminal charges for taking someone’s life. In 2010, Spokane officer Karl Thompson Jr. was convicted on federal charges of violating the civil rights of Otto Zehm, who ended up in a coma and died after Thompson hit him multiple times with a baton and fired a Taser into his chest in 2006.

In 1938, three Seattle officers were charged and convicted in the beating death of Berry Lawson, a Black dishwasher. Two of the officers were pardoned and a third did prison time. In 1971, a Seattle officer was charged with manslaughter for killing Leslie Allen Black and was acquitted.

I-940 requires proof that a reasonable officer would have used deadly force in the same circumstance and sincerely believed the use of deadly force was warranted.

The initiative also requires de-escalation and mental-health training for police; requires officers to administer first aid to a victim of deadly force; and requires independent investigations into the use of deadly force.

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During Thursday’s video news conference, Satterberg explained a jury will likely be asked to consider the reasonableness of each shot and noted that under I-940, officers can use deadly force if an individual posed a serious risk of injury or death.

Mark Larson, the prosecutor’s longtime chief criminal deputy, who retired in January, has stayed on as a special deputy prosecutor and is prosecuting the case against Nelson alongside Senior Deputy Prosecutor Kathleen Van Olst, Satterberg said.

“While the defendant has no known criminal history, defendant Nelson’s discharge of his firearm in this case is of grave concern,” Larson and Van Olst wrote in charging papers. They requested Nelson be prohibited from possessing any firearms while the case is pending, “to ensure that until this case is adjudicated Officer Nelson is not in a position where he might have to decide whether to administer deadly force.”

Meanwhile, attorneys for the brother of Isaiah Obet, who was shot and killed by Nelson in 2017, confirmed that the city of Auburn settled a civil rights lawsuit filed in June for $1.25 million last week, likely in anticipation of the criminal charges filed against the officer on Thursday.

Obet was shot by Nelson during a confrontation on June 10, 2017, after Nelson responded to a report of a man acting strangely, possibly armed with a small knife. Nelson confronted the man at a downtown intersection, where Nelson said the man ran from him and tried to open the door of a nearby vehicle.

The lawsuit alleged Nelson, an Auburn K-9 officer, released his police dog, which latched onto Obet’s arm, despite the fact Obet had been “exhibiting signs of mental distress.” Obet, the lawsuit said, was struggling with the dog and posed no threat to Nelson when the officer drew his .45-caliber service handgun and shot Obet in the chest. The lawsuit states Nelson had a Taser, but chose not to use it. The claim alleges that gunshot likely would not have been fatal. Obet, it says, fell to the ground with the dog still biting his arm.

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“Lying on the ground, with a bullet in his torso, and a K-9 having mauled him, Isaiah posed no threat to Defendant Nelson or anyone else,” the lawsuit alleged. “Nonetheless, as Isaiah lay on the ground, Defendant Nelson walked over to Isaiah, aimed his gun at him a second time, and fired a shot directly into Isaiah’s head as he stood above him.”

Nelson was awarded a department “medal of valor” for that shooting.

“The City’s record-breaking time in reaching this agreement with Obet’s family — before discovery began — illustrates how egregious Nelson’s actions were,” said Seattle attorney David Owens, who filed the lawsuit in June on behalf of Isaiah Obet’s brother, Slaughter Obet. Federal civil rights cases often take years to resolve through litigation.

But more than the money, Owens said, the family demands transparency and accountability in Isaiah Obet’s death and urged Auburn to drop its opposition to the stalled King County inquest process, which has been on hold almost since its implementation due to legal challenges from municipalities and their police departments.

“We alleged then [in the lawsuit] — and firmly believe — that Nelson’s ‘kill shot’ was a street execution,” with striking similarities to the Sarey shooting, he said.  Thursday’s homicide charge in that case “only confirms that the public needs to know what happened with Isaiah Obet.”

In 2011, Nelson shot and killed Brian Scaman, 48, during a traffic stop. Scaman threatened an officer with a knife, according to initial media reports.

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Nelson’s record of using force while with the Auburn Police Department also became an issue in the 2018 federal drug and gun prosecution of Joseph Loren Allen. Allen was arrested Aug. 24, 2018 in the parking lot of an Auburn motel after Nelson ran him down with his patrol car, shattering both his ankles and dislocating his shoulder.

During the case, Allen’s federal public defender argued that the arrest involved excessive use of force and that the case should be thrown out. While the judge did not agree — and Nelson was later cleared of wrongdoing by his department — the defense sought and obtained some information regarding what the lawyers called Nelson’s “penchant toward violence and not following procedure.”

The documents indicate that Nelson was hired by Auburn in 2008 after having served 12 years in the Army, including two tours in Iraq. The court documents indicate that Nelson has frequently and repeatedly used a “lateral vascular neck restraint,” which can cause unconsciousness, in making arrests.

The documents indicate Nelson was disciplined in 2014 for a comment he made that was picked up on another officer’s dash camera while trying to arrest an intoxicated man, who was using profanity and challenged Nelson to take off his badge and fight.

“Instead of deescalating the situation, Officer Nelson asked a fellow officer, ‘You want to (expletive) him up?’” according to government documents filed in the Allen case. A department review board found the comment unacceptable, and Nelson reportedly recognized this and took “full responsibility.” 

Allen’s attorneys were arguing that Nelson’s military experience may have colored his actions as a police officer and set him up with a “warrior mentality” that drove his aggressiveness. They quoted a guide issued jointly by the Department of Justice and the International Association of Chiefs of police, that warned:  “Sustained operations under combat circumstances may cause returning officers to mistakenly blur the lines between military combat situations and civilian crime situations, resulting in inappropriate decisions and actions — particularly in the use of less-lethal or lethal force.”

Court documents filed in Allen’s case indicate Nelson wears a tattoo “Judged by XII … Carried by VIII,” a reference to what attorneys in the case alleged is a “warrior mentality” and embraces the idea it is better to take a life and be judged by a jury of 12 than not take action and risk being carried by eight pallbearers.

CORRECTION: An earlier version of this story misstated the number of officers charged in Washington for the death of an individual.