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Virginia prosecutors ask Justice Department to reconsider decision to not prosecute Park Police killing of Bijan Ghaisar

Feds under Barr declined charges and refused to allow FBI to cooperate with Fairfax prosecutors, who indicted the officers anyway

Bijan Ghaisar, pictured in April 2015, was shot dead by two U.S. Park Police officers in November 2017. (Sima Marvastian)

The Virginia attorney general and the Fairfax County prosecutor on Wednesday asked the Justice Department to reconsider its 2019 decision not to charge two U.S. Park Police officers with the fatal shooting of Bijan Ghaisar in 2017, now that a new administration controls the department.

And if the Justice Department is unwilling to prosecute the two officers, the Virginia officialsasked the Justice Department to allow the FBI agents who investigated the case to participate and testify in the current state manslaughter case now pending against officers Lucas Vinyard and Alejandro Amaya. The Justice Department told Fairfax prosecutors last year that it would not permit FBI agents to participate in the state case because the Justice Department is also defending a civil lawsuit against the Park Police filed by Ghaisar’s family, and allowing them to testify in the criminal case would create a conflict of interest.

In a letter to Attorney General Merrick Garland, Virginia Attorney General Mark R. Herring and Fairfax Commonwealth’s Attorney Steve Descano wrote that “the dash camera footage showing yet another young person of color being killed by law enforcement resulted in a cry for answers and justice” nationwide.

“Sadly, the most significant impediment to answering that cry was the Trump Administration,” Herring and Descano wrote, saying that the Justice Department headed at the time by William P. Barr as attorney general “refused to seriously explore the prosecution of these officers for their actions and further stood in this case’s way” by refusing to allow FBI agents to cooperate with the local case.

Read the letter from the Va. prosecutors to the Justice Department

“This administration has expressed a genuine commitment to criminal justice reform, accountability, and racial equity,” the Virginia prosecutors wrote of the Biden administration. “Few cases touch on these issues as squarely as this case does ... We are asking the Department to re-examine the decisions made by the Trump Administration with respect to this case.”

The letter is one of the first to depict Ghaisar as a person of color. Ghaisar’s parents were both born in Iran, although he was born and raised in Fairfax. His family organized multiple protests at the Justice Department; at the Interior Department, which oversees the Park Police, and at the Lincoln Memorial, pushing for action or answers but without focusing on a racial angle to the shooting.

Video shows Park Police fired nine shots into Bijan Ghaisar’s Jeep at close range, killing him

A Justice Department spokeswoman said the department had received the letter but had no immediate comment. Ben Shnider, a spokesman for Descano, said the request was not expected to delay the pending federal case.

Thomas G. Connolly, the Ghaisars’ lawyer, said he sent a similar letter to the Justice Department last week, as he had promised to do in a court hearing last fall if Joe Biden were elected. Connolly’s letter noted the recent federal indictment of the four Minneapolis police officers for their alleged roles in the murder of George Floyd, three of them for failing to stop Officer Derek Chauvin. “If inaction is enough to establish a criminal violation of an individual’s civil rights,” Connolly wrote, “then Officers Vinyard’s and Amaya’s actions in this case — firing repeatedly at an unarmed man through the window of his vehicle after responding to a minor traffic accident — are certainly sufficient to support a prosecution here.”

“The family was devastated and utterly shocked when the Department initially declined to prosecute these officers,” Connolly said Wednesday, and “they hope the Department will reconsider its decisions.”

The lawyers for the officers did not immediately respond to a request for comment Wednesday.

Ghaisar, 25, was shot by Vinyard, 39, and Amaya, 41, in November 2017 as he slowly pulled his Jeep Grand Cherokee away from them in a residential neighborhood of Fairfax County, after stopping and pulling away from the officers twice previously. A video recorded by a Fairfax police cruiser captured all three stops and then Vinyard and Amaya firing 10 shots into the Jeep in three separate bursts. Ghaisar was unarmed, and died 10 days later.

The FBI took over the investigation, because the Park Police are federal officers. The U.S. Attorney’s Office in Washington and the civil rights division of the Justice Department declined to file federal criminal civil rights charges against Vinyard and Amaya in November 2019, saying that federal prosecutors could not prove, “beyond a reasonable doubt, that the two USPP officers committed willful violations” of federal civil rights laws.

The following month, Fairfax prosecutors sought to indict Vinyard and Amaya for murder, but the Justice Department refused to allow FBI agents to testify before a Fairfax grand jury. Descano took office in January 2020 and the Justice Department further affirmed that it would not assist him, because it was considering defending the officers in both the civil case and any possible criminal case. The Justice Department has since entered both cases on the officers’ behalf. The civil case has been postponed indefinitely while the criminal case is pending.

Justice Dept. will not allow FBI agents to testify in Fairfax investigation of Bijan Ghaisar killing

Descano enlisted the Fairfax police to help him build the case, and a special grand jury in Fairfax indicted Vinyard and Amaya in October for involuntary manslaughter and reckless use of a firearm. The charges were then removed last month to federal court, where federal officers are entitled to be tried, and a hearing is set for August on the officers’ motion to dismiss the case because they are entitled to immunity from state law. Descano recruited the Virginia Attorney General’s Office to help try the case in federal court.

“Reconsider the decision made by political appointees of the Trump Administration to decline federal prosecution of the case,” the Virginia prosecutors wrote to Garland. And if the Justice Department won’t reconsider, the prosecutors asked that the FBI agents be allowed to “speak freely” with state prosecutors, be called as witnesses and provide access to all physical evidence currently in federal control.

“This uncommon and important case,” the prosecutors wrote, “should not endure the risk of being dismissed before a jury gets to consider the full merits of the case.”