Former Seattle Police Chief Jim Pugel has been retained as a key witness in the murder prosecution of Auburn police Officer Jeffrey Nelson, ready to testify that Nelson repeatedly escalated minor incidents into violent confrontations then used unnecessary or excessive force to make an arrest.
Pugel, a 37-year law enforcement veteran who served as interim chief of the Seattle department and then as undersheriff in King County, was brought on by prosecutors to review more than 70 instances in which Nelson, an Auburn K-9 officer and Iraq War combat veteran, reported or was investigated for using force on the job, dating to 2013. According to his report, Pugel reviewed more than 70 Auburn police use-of-force, internal affairs and officer reports, along with eyewitness accounts and dash-camera video.
Pugel, in a detailed 20-page report, identified 17 instances when he considered the use of force "at best unnecessary and often excessive or unconstitutional."
In pleadings, prosecutors detailed 10 of those instances in an attempt to convince the court that Nelson regularly "seize[d] opportunities to use violence against people in routine encounters and often to concoct excuses afterward." The state says it will use video and "his own words and actions" to demonstrate.
Nelson, 42, with the Auburn police for 14 years, was charged in 2020 with second-degree murder and first-degree assault after he confronted Jesse Sarey, 26, sitting on a curb on May 31, 2019, outside an Auburn convenience store.
Nelson was responding to reports of disorderly conduct involving a man, Sarey, acting strangely and throwing items at cars and kicking buildings. Nelson got into a physical fight with Sarey, and has said Sarey tried to grab a folding knife out of his uniform vest and tried to get his gun.
Nelson fatally shot Sarey. Nelson was injured, but not shot.
Prosecutors want to submit evidence to a jury, through Pugel, that they say shows Nelson has a pattern of escalating simple, nonthreatening stops or investigations into incidents when he used significant force, including releasing his police dog to detain and maul people suspected of crimes such as theft or jaywalking before making an arrest.
Nelson is the first officer charged under a new police deadly force law passed by the Washington Legislature that did away with the need to prove "actual malice" by an officer in order to charge him with homicide.
Trial is expected next spring.
King County Superior Court Judge Nicole Gaines Phelps has taken the prosecution's motion under advisement. She is also considering a request by defense lawyers to submit evidence of Sarey's past run-ins with police and extensive drug use to the jury.
Pugel's report details several occasions of Nelson using a "lateral vascular neck restraint" to subdue suspects wanted for minor crimes or showing passive resistance to arrest. Pugel points out that most departments consider use of that technique, which cuts off blood flow to the brain and renders an individual unconscious, as an application of deadly force, the same as shooting someone.
The Washington Legislature last year banned the use of LVNRs and chokeholds.
Pugel's report is intended to bolster the state's contention that Nelson "had a commonly used plan to create opportunities and excuses to use violence during routine, unthreatening situations," according to pleadings filed in King County Superior Court.
Among the instances detailed was the May 22, 2018, K-9 mauling of a juvenile suspect in a robbery and car theft. According to Pugel's report, gleaned from dash-camera video and Auburn police and use-of-force reports, Nelson fist-bumped another officer and yelled "[expletive] Yeah! Woo Hoo!" after the dog attacked the suspect, who had surrendered to other officers and was lying prone on the ground. The dog had been let off its leash and attacked the juvenile for nearly 30 seconds until Nelson caught up with it and called it off, according to Pugel's report. The suspect was treated at a hospital for bites and lacerations.
Pugel called the instance an "outrageous use of force." According to his report, Koen, the police dog, was used to attack several suspects already in custody or who were not actively resisting, and in one case was used to maul a jaywalker.
In another episode, Nelson — while working off-duty in uniform as security at an Auburn casino — used an LVNR to choke a man into unconsciousness after the man "shoulder bumped" Nelson after having been expelled from the venue. Pugel noted that Nelson used potentially lethal force while enforcing casino policy — no law had been broken.
The defense argues that prosecutors' efforts to shoehorn Pugel's conclusions about Nelson's uses of force into this case are an attempt to sidestep rules of evidence that prohibit evidence of someone's "propensity" to commit an act by renaming it a "common scheme," which is admissible.
"Washington law unequivocally prohibits this tactic," Nelson's attorney, Emma Scanlan, wrote in court pleadings, "And the state's motion should be denied in its entirety."
The prosecution's motions, which await a ruling from the judge, also provide new details of Nelson's tattoos the state hopes to show a jury as "additional evidence of his adoption of a ... plan to employ violence in his policing," including photographs of tattoos Judge Phelps has previously ordered redacted for being potentially "inflammatory" and possibly impinging on Nelson's right to a fair trial.
They include tattoos around his lower legs, one reading "Protect the Innocent" and the other "Punish the Deserving." Another photo shows a large tattoo on Nelson's thigh, depicting a set of fanged jaws with the Latin phrase "Fortis Fortuna Adiuvat" arching over it. The translation: "Fortune Favors the Brave [or Bold]."
Vertical script between the two jaws spells "Koen," the name of Nelson's police dog, which Pugel concluded was released to bite people several times unnecessarily, sending several people to the hospital for treatment of bites and lacerations, including a 15-year-old car theft suspect.
Nelson's defense attorneys argue Pugel's opinions are irrelevant to Nelson's actions the day he shot Sarey, and say prosecutors are reading "nefarious" meaning into tattoos that are commonly seen on soldiers and police officers. Nelson was both, having served two combat tours in Iraq.
The King County Prosecuting Attorney's Office declined to comment.
"Officer Nelson has nothing to hide," Scanlan said Friday in a statement to The Seattle Times. "We asked the Court to go ahead and have an open court hearing about the tattoos and to release the tattoo images to the public."
She said the two tattoos on his legs — "Punish the Deserving, Protect the Innocent" is the motto of the Tomahawks, 23rd Infantry Regiment, in which Nelson served.
"It's a personal memorial to friends and fellow soldiers who didn't make it back home," Scanlan said.
She said the decision to use Pugel as a use-of-force expert is "perplexing." Pugel was a member of the command staff at the Seattle Police Department when the Department of Justice sued the SPD in 2012 over the routine use of unconstitutional and excessive force, resulting in a federal consent decree that remains in place today.
"The King County Prosecuting Attorney's Office seems to want to make this trial about everything but what happened on May 31, 2019," Scanlan said.
Nelson was charged by King County prosecutors after a review of surveillance video from a nearby business and statements from witnesses, including Steven Woodard, a bystander who according to court documents and the charging documents saw Nelson slug Sarey several times, then pin him against an ice freezer, draw his pistol and shoot him in the abdomen.
Initially, Woodard had jumped out of his car to help Nelson. He said he saw the knife fly out of Nelson's vest. It landed at Woodard's feet.
Woodard said that after the initial gunshot, Sarey slumped down the ice freezer and collapsed in a sitting position.
With Sarey apparently incapacitated and on the ground, the video shows and Woodard said he saw Nelson clearing a jammed round from his .45-caliber pistol and, according to court documents, "glanced around and seemed to look directly at Woodard. Then, 3.44 seconds after the first shot, Nelson extended his weapon, took aim at Sarey and fired a bullet into his forehead. "Woodard told arriving officers what he saw, describing the second shot as "bull[expletive]."
"He shot him in the stomach or wherever he shot him," Woodard is quoted in prosecution documents. "And then he looked at me and then he looked at him and he shot him in the head."
"So you're saying that the second shot was unnecessary?" he was asked.
"Yes, I'm saying," Woodard responded.
Nelson has been involved in two other fatal shootings: the May 7, 2011, death of Brian Scaman and the June 10, 2017, death of Isaiah Obet.
Auburn paid $1.25 million to settle a lawsuit filed by Obet's brother in 2020, just after Nelson was charged. Last year, the city paid $4 million to Sarey's family to settle their wrongful death claim.
