EVERETT — A Snohomish County Superior Court judge Friday declined to dismiss the criminal case against a Marysville police officer charged in the accidental shooting death of his daughter.

Seattle defense attorney David Allen said he will appeal the decision.

“We certainly are disappointed, but we felt this would end up with the Court of Appeals anyway,” Allen said after Friday’s ruling.

His client, Derek Carlile, was charged in May with second-degree manslaughter. Prosecutors allege that the off-duty officer failed to heed or be aware of the danger of leaving his four children, ages 1 to 7, alone in a van with a loaded handgun March 11.

Investigators believe Carlile’s 3-year-old son, who was known to be fascinated with guns, climbed out of his seat and grabbed a .38-caliber revolver from a cup holder. He reportedly fired once.

The bullet struck Jenna Carlile, 7, in her abdomen. She died within hours, despite emergency surgery.

Prosecutors allege that Carlile’s actions were negligent and the “proximate cause” of the girl’s death.

Allen had filed a “Knapstad” motion, asking Superior Court Judge Thomas Wynne to find that there is insufficient evidence to prove Carlile committed a crime.

The defense attorney argued that based on the manslaughter statute, prosecutors cannot prove that Carlile caused his daughter’s death. Carlile did not hand the gun to his son, or encourage the boy to fire the pistol, and he wasn’t even aware that the boy had picked up the weapon, Allen wrote.

“The record is therefore bereft of any evidence that Derek Carlile ‘caused’ the death of (Jenna Carlile), which is the crucial element at issue,” the Seattle defense attorney wrote.

Additionally, Allen pointed out that Washington, unlike some other states, has no specific law regarding potential criminal penalties for adults who make it possible for children to get their hands on guns.

Allen argued that prosecutors are “trying to stretch the manslaughter statute to criminalize this conduct. As has been shown, the manslaughter statute is not elastic enough to cover such ‘passive’ conduct.” Snohomish County deputy prosecutor Lisa Paul argued that it’s been well-established that a person can commit manslaughter by failing to act. That is the theory in the case against Carlile, she said.

Prosecutors allege that while Carlile didn’t shoot the girl, he failed to remove the loaded gun when he exited the van. He failed to lock up the gun in a compartment in the driver’s door and didn’t engage the safety on the gun, court papers said. Prosecutors allege that Carlile knew his son was fascinated with firearms and knew his son had a history of getting out of his seat.

“But for the defendant’s acts of putting the loaded, unsecured firearm in an open location in the van, (his son) would not have got the gun and shot (his daughter),” Paul wrote. “The defendant’s acts resulted in an unbroken chain of circumstances which led to (the girl’s) death.”

Wynne sided with the prosecutor. The judge said that proximate cause is the standard to determine culpability in case that hinges on allegations of negligence.

Allen told the judge he intended to appeal the decision.

Lawyers are expected to argue whether Wynne should certify his ruling, which could make it more likely that the Court of Appeals would look at the case before it goes to trial.

The defense pointed out that the state appellate judges already have agreed to review a pre-trial decision in an accidental shooting in Kitsap County that occurred a few weeks before Carlile’s daughter died.

In the Kitsap County case, an 8-year-old girl survived being shot by a classmate who brought a loaded handgun to school in his backpack.

The boy’s mother and her boyfriend were charged with felony assault. Prosecutors alleged that they were negligent in allowing the boy, 9, to get his hands on the .45-caliber gun.

The woman pleaded guilty to unlawful gun possession. Prosecutors dropped the assault charge.

The owner of the gun, Douglas Bauer, is fighting the assault charge against him. His lawyer asked a Kitsap County judge to dismiss the charge, arguing that his client didn’t cause the girl’s injuries and therefore can’t be convicted of assault.

The judge sided with prosecutors and agreed that the case against Bauer should go forward.

But the state Court of Appeals agreed to review the trial judge’s decision.

Prosecutors here argue that the facts of the two cases are substantially different. They will argue against Wynne certifying his decision. The judge said he likely will make a ruling on that issue by mid-October.

Allen told reporters after Friday’s hearing that his client has great faith in the criminal justice system. He and his family are enduring a terrible tragedy, but Carlile will “keep his chin up,” Allen said.

Carlile remains on paid administrative leave from his job with the Marysville Police Department. He was accompanied in the courtroom Friday by several off-duty officers.

Diana Hefley: 425-339-3463; hefley@heraldnet.com.