DA blames driver for 'failure to yield' when he was killed by cop speeding without lights, siren

This report has been updated with additional information from Knox County 911: Knoxville Police responded to an in-progress burglary at S&S Cafeteria after someone called police when they noticed two people — one possibly with a crowbar — attempting to break into the business.

Mauricio Luna never had a chance.

Three Knoxville police officers were blazing down Kingston Pike after 3 a.m. last August on their way to a burglary call at speeds reaching 90 mph. None of them had their emergency lights and sirens on, which is against the law and against department policy.

Luna wouldn't have known what was approaching until it was too late. He was turning left across Kingston Pike as officer Cody Klingmann bore down on him in the darkness.

Even though Klingmann braked at the last instant, he slammed into Luna’s driver-side door traveling 81 mph, according to a report from the Knox County District Attorney’s office.

Luna likely died instantly, pronounced dead at the scene.

Yet, in the aftermath of the wreck, the DA’s office declined to charge the officer who was breaking state law, saying instead Luna was partly to blame for his own death.

Mauricio Luna: Knoxville cop was speeding at more than 80 mph without lights and siren when he killed a driver

Cody Klingmann: Knoxville police officer who hit and killed driver last fall will not face charges

Knox News reviewed the Knox County District Attorney’s declination memo – the report that explains why no criminal charges were filed. It justifies the actions of officers Klingmann, Jasmine Reed and Adam Rosenbaum, all three of whom were racing to the scene of the call with no warning they were barreling down a city street.

Luna's family filed a wrongful death lawsuit Friday.

The following account was taken from the district attorney’s report, obtained by Knox News, which cited information from a Tennessee Highway Patrol investigation that has not been released.

What happened that morning?

At 3:04 a.m. Aug. 13, Klingmann, Reed and Rosenbaum were near West Town Mall when an in-progress burglary was reported at S&S Cafeteria. They began to race over, traveling eastbound along Kingston Pike. The report notes that there were “virtually no other cars in the area.”

The speed limit on Kingston Pike is 45 mph. The officers reached speeds as high as 90 mph. Reed was in front, followed by Klingmann. Rosenbaum brought up the rear.

As they approached the Morrell Road intersection – with Chick-fil-A on their right – they flashed their emergency lights and briefly turned on their sirens to “clear the intersection,” but then immediately turned them off.

Luna was stopped in the early morning dark at the stop sign on Cheshire and Kingston Pike, with Olive Garden on his right. A left-hand turn onto Kingston Pike is nearly a blind turn, even in broad daylight, as the road bends right before the intersection atop a slight hill.

Sitting there, Luna saw Reed speed past him, but Klingmann was 100 yards behind. Neither officer “cleared the intersection” by turning on their lights and siren.

Luna pulled out after Reed left the intersection.

Klingmann was still traveling 90 mph half a second before impact, according to the memo. When he hit Luna he had slowed to 81 mph.

“The reality is (Klingmann) is going so far above the speed limit that (Luna) never would have seen him,” Attorney T. Scott Jones said. “You lose right of way at that point. Any action by Mr. Luna was reasonable in the circumstances.

“Poor Mr. Luna and his Honda Accord never had a chance. He just never had a chance.”

Dennis Kenney, a former police officer and a professor at the John Jay College of Criminal Justice in New York, reviewed the DA's memo for Knox News. He said most police departments prohibit what he called "police caravanning" for precisely this reason.

"Once the first unit passes, vehicles that have yielded to it have every reason to believe that they can proceed safely," he told Knox News in an email. "Such restrictions exist even if the trailing vehicles are driving in proper emergency mode."

'A real stretch' to not prosecute

Deputy District Attorney Leland Price wrote the memo clearing the officers of charges, saying essentially it was partially Luna’s fault.

“Because Luna’s failure to yield was determined to be one of the primary contributing factors, it is my opinion that homicide charges against Klingmann cannot be sustained.”

The report mentions that, yes, Klingmann was traveling exceptionally fast and, yes, he didn’t have his lights or siren on, but those two factors “did not create a risk of such nature and degree that injury or death was likely and foreseeable ... it took the intervening actions of Luna when he failed to yield and pulled out directly in Klingmann’s path to create the likely and foreseeable risk of death.”

Kenney said he finds the district attorney's decision not to charge Klingmann a "real stretch."

"Had the approaching police car been obeying the laws as required and as Luna had every expectation to believe, he would have had plenty of time to safely complete his left turn," Kenney wrote in an email to Knox News.

"As such, it is reasonable to conclude that Klingman’s negligent operation of his police unit was, in fact, the proximate cause of the accident."

The report also mentions Klingmann had his headlights on and there is a streetlight at the intersection, calling it “well-lit.”

Neither Klingmann nor Luna were impaired, the report states.

Knoxville police do not have an incident report for a burglary at S&S Cafeteria and David Johnson, Chief Financial Officer of S&S Cafeteria, which is headquartered in Georgia, told Knox News he was not aware of any such event.

Tyler Whetstone is a Knox News politics reporter focusing on Knoxville and Knox County.
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This article originally appeared on Knoxville News Sentinel: Mauricio Luna 'failed to yield' when killed by speeding cop, DA says