By Erica C. Barnett

King County Prosecutor Leesa Manion will not prosecute Seattle Police Department officer Kevin Dave in the killing of 23-year-old international student Jaahnavi Kandula last year. Manion’s office informed Kandula’s family of the decision Wednesday morning and discussed it with reporters this afternoon.

According to senior deputy prosecutor Amy Freedheim, who deals with felony traffic cases, the office can prosecute people for vehicular homicide  only under three circumstances: If the person is impaired by drugs or alcohol, if the person is driving recklessly, or if the person is driving with a “disregard for the safety of others,” which requires a “conscious disregard for safety,” Freedheim said.

“In the case of a police officer on a legitimate call, using lights and sirens, they are authorized to exceed the speed limit,” Freedheim said, adding that in this case, that the officer was “on a legitimate, life-threatening call”—that is, an overdose call.

The police department initially claimed Dave was responding to an emergency “at the request of” Seattle Fire Department first responders; later, they said he was heading to the scene “alongside” SFD to provide backup because people coming out of opiate overdoses can be violent or unpredictable. Later still, Police Chief Adrian Diaz said Dave was responding “as an EMT” to a medical emergency.

In reality, the caller was lucid and standing outside his South Lake Union apartment when he called 911 to report that he might have used too much cocaine.

Dave was driving a police department SUV 74 miles an hour on Dexter Ave., which has a speed limit of 25 miles an hour, when he hit Kandula, who was entering a marked crosswalk when she saw Dave’s vehicle approaching and appeared to panic, running further into the crosswalk in an attempt to escape.

The three chairs of the Community Police Commission—Rev. Harriett Walden, Rev. Patricia Hunter, and Joel Merkel—issued a statement questioning the prosecuting attorney’s finding that Dave’s driving did not meet the legal standards for recklessness or disregard for others’ safety. “At what speed would Officer Dave have had to drive for his emergency response to be considered reckless or disregarding the safety of pedestrians in the area?” they wrote.

As we’ve reported, SPD’s emergency driving policy is vague, advising officers that they should engage in emergency driving when there is “legitimate concern for the preservation of life” and “only when the need outweighs the risk.” These policies, according to Manion, were not part of her office’s decision not to press charges; even if Dave was driving negligently, that would be a civil matter, not a potential felony.

Prosecutors said they also had to consider Kandula’s actions—that is, her decision to step into a part of the marked crosswalk that the office says was in the “lane of travel”—because “it is against the law to suddenly leave the curb and move into the path of a vehicle that is so close it is impossible for a driver to stop.”

In a jury trial, Freedheim said, “any defense attorney [for Dave] would be looking at the superceding cause”—that is, the fact that Kandula stepped into the street while a police officer was approaching. Manion added later that the office did not intend to blame Kandula for running, but “we would still have to look at her decision to run” in deciding whether to prosecute Dave.

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Three other witnesses reported hearing lights and sirens; in fact, Dave had “chirped” his siren at the intersection of Dexter and Thomas before accelerating to 74 miles an hour on Dexter.

SPD referred the felony traffic case to the prosecutor’s office last summer. Since then, the office has delayed making a decision repeatedly—most recently in October, when the office announced it was hiring an outside consultant to  to analyze in-car and body-worn video and other materials submitted by the Seattle Police Department as part of the investigation.

Prosecutors—highlighting the contrast between Dave’s behavior and that of Seattle Police Officers Guild vice president Daniel Auderer, who was caught on body camera footage joking with SPOG president Mike Solan about Kandula’s death—pointed to the fact that Dave was “appropriately upset” in the aftermath of the collision and immediately began administering CPR to Kandula.

“This has nothing to do with Auderer and his deplorable comments,” Freedheim said.

Manion said she was not authorized to comment on what Kandula’s family said to her when they spoke. “I do know that there are some people who will be disappointed in my decision,” she said.

Manion said she has scheduled a second call with Kandula’s family, including her mother, and would meet with members of the Community Police Commission and representatives from Indian American Community Services. Last month, members of IACS appeared at a CPC meeting to call for changes to SPD’s emergency driving policy, expressing outrage at the idea that any emergency would justify driving so fast on a city street.

In their statement, the CPC co-chairs said the commission is “currently finalizing recommendations to SPD regarding much-needed changes to
their vague emergency vehicle operation policy. SPD must adopt policies that protect life and do not put the community at further risk.” They also said the the CPC will continue looking into the “apparent policy of SPD responding to Seattle Fire Department responses to drug overdoses. The community deserves more answers from SPD and SFD as to why Officer Dave was responding to an overdose call in the first place.”

Dave is still employed by SPD. The Office of Police Accountability confirmed it will renew its own investigation of Dave, which has been on pause while the prosecutor decided whether to pursue felony charges. The formal complaint against Dave accuses him of behaving unprofessionally and violating the emergency driving policy, among other potential violations.