This story was updated at 2:40 p.m. Aug. 24.
UPDATE: Auburn police officer Jeff Nelson pleaded not guilty to charges of second-degree murder and first-degree assault during his arraignment Monday. Bail was set at $500,000 for Nelson, who shot and killed 26-year old Jesse Saray during an arrest in May last year.
King County Superior Court Judge Veronica Galván took issue with the assessment that Nelson should be released without bail. The prosecutor argued that the officer didn’t pose a threat since he was no longer on duty.
“The fact of the matter is he’s charged with intentional murder,” Galván said during the arraignment. “We cannot escape that no matter what his profession is. And the idea that merely wearing a uniform means that somehow he cannot be violent in any other circumstance is not an argument that sits well with this court.”
Galván also is requiring electronic monitoring of Nelson if he’s released on bail.
For the first time, the voter-approved Initiative 940 is being used to criminally prosecute an officer over use of force.
Auburn police officer Jeff Nelson, 41, has been charged with second-degree murder and first-degree assault — both felonies — for fatally shooting 26-year-old Jesse Sarey during an arrest last year. His arraignment is scheduled for Monday.
King County Prosecutor Dan Satterberg announced the charges against Nelson in a news conference Thursday morning. Satterberg says the timing has to do with the investigation into the shooting and the change in the law, not recent protests against police brutality.
“The law now removes the prohibitive element of malice and has created a new standard of what a reasonable officer would do under similar circumstance,” Satterberg said. “So there isn’t a larger message from anybody other than we have a new law and this is the first time we have used it.”
Voters approved I-940 in 2018. Among other changes, it aims to make it easier to prosecute officers when they use deadly force. “I don’t think this means there will be a lot more of these cases,” Satterberg said. “It went from being impossible to merely difficult."
Surveillance videos from neighboring businesses on May 31 last year, the night of the incident, show officer Nelson confronting Sarey, who was reportedly kicking and throwing things. The two struggle, then Nelson punches Sarey seven times before pinning him against a freezer box and shooting him twice.
Satterberg argues Nelson’s conduct was unreasonable because the officer failed to wait for backup or use less-lethal force, and because Sarey was not a threat when Nelson shot him. The prosecutor also said Nelson failed to use proper de-escalation techniques.
Elaine Simons was Sarey's foster mother and remained close to him and his family when he moved out. She described Thursday's announcement like a weight being lifted from the family's shoulders.
"We're going to watch how a justice system works, and we've got the eyes pretty much of the nation watching," Simons told KNKX. "We believe that in itself is a way of saying to Jesse that he matters."
But a criminal trial is a long road, and Simons is prepared to maintain pressure on local leaders.
Nelson's first court appearance is expected Monday. Prosecutors are not seeking bail or for Nelson to be detained, arguing that the request is not appropriate given that Nelson isn't currently working as an officer who may have to decide whether to use deadly force. Nelson is on paid administrative leave from the Auburn police department, where he's worked since 2008.
Simons, 60, challenges that analysis, saying she hopes to be able to ask a judge to hold Nelson on bail.
"My concern is that if he were anyone else who was not a police officer, he wouldn’t be out without having a bail hearing, so there’s something really inequitable about that," Simons said.
Only one officer was prosecuted under the old standard established in the 1980s. Everett police officer Troy Meade faced murder and manslaughter charges, but was acquitted by a jury in 2010.
Nelson could face up to 18 years in prison if convicted on both counts.
Correction: This story was updated at 5:23 a.m. Friday to correct Sarey's age. He was 26 at the time of his death.
KNKX reporter Paula Wissel reported on the arraignment hearing Aug. 24, 2020.