The stay granted by Senior U.S. District Judge Claude M. Hilton for the civil trial in Alexandria, which was scheduled to begin Nov. 16, means that three years will have passed with no judge or jury hearing the case of Ghaisar’s shooting death on Nov. 17, 2017. A video recorded by Fairfax County police shows Ghaisar, 25, repeatedly driving away from Park Police Officers Lucas Vinyard, 39, and Alejandro Amaya, 41, during traffic stops on or near the George Washington Memorial Parkway. As he slowly pulled away a third time, Vinyard and Amaya both opened fire. Ghaisar, who was struck four times in the head, was unarmed.
During an FBI investigation that lasted two years, both officers said they believed Ghaisar was driving toward Amaya, forcing them to shoot in self-defense, according to documents released in the civil case. The Justice Department declined to file federal criminal civil rights charges in November 2019. Earlier this month, a Fairfax special grand jury indicted both officers on charges of involuntary manslaughter and reckless use of a firearm. Fairfax prosecutors expect attorneys for the officers to move the case to federal court and seek its dismissal on the grounds that federal officers may not be prosecuted under state law for “necessary and proper” actions performed in the line of duty. That process, and possible appeals, could delay the criminal case for many months if not years.
Meanwhile, a civil suit filed by Ghaisar’s parents against the Park Police in 2018 has slowly moved forward, with both officers declining to answer any questions about the shooting in depositions earlier this year, while Fairfax prosecutors were considering a criminal case, court filings show. Government lawyers argued that they needed the officers’ testimony to defend the Park Police against the claims of wrongful death and negligence.
“This is a situation courts face time and again,” government attorney Meghan Loftus said in arguing for a postponement in the case. “The officers’ testimony is essential.”
“We are never going to hear the testimony of these officers,” Thomas Connolly, an attorney for the Ghaisars, responded in arguing against postponement. “Ever.”
Vinyard did sit for an interview with FBI agents last year, court records show, and Amaya provided a statement with his version of events to federal prosecutors considering criminal charges. Both repeatedly invoked their Fifth Amendment right not to incriminate themselves in depositions in the civil case last summer, while a possible Fairfax prosecution was pending.
Even if the Fairfax case is dismissed, Connolly said in court that the possibility of a federal prosecution remains if Democratic nominee Joe Biden wins the presidential election.
Connolly said in court that “if there’s a change in administration,” he and co-counsel Roy Austin “will be going back to the Justice Department” to push for federal criminal charges. Connolly said he believed that “line prosecutors wanted to prosecute [Vinyard and Amaya], but they were barred by the Department of Justice.” He declined to elaborate after the hearing. A Justice Department spokeswoman did not immediately respond to a request for comment.
“Under those circumstances,” Connolly said, “there’s no chance a competent defense attorney will allow them to testify.”
FBI agents initially cooperated with Fairfax prosecutors last year and turned over their investigative file to Fairfax, until they were suddenly barred from testifying before a grand jury in December as prosecutors prepared to seek indictments then.
“I believe the government is entitled to have the testimony of the officers,” Hilton said. “I think they’re entitled to a reasonable stay to figure out how this is going to turn out.” He told the parties to return March 26 for a status conference.
“The officers had three years to testify and say their piece,” Ghaisar’s mother, Kelly Ghaisar, said afterward. “They chose to take the Fifth. I don’t know that they’ll ever come to court and testify, ever. And that’s unfair.”