Prosecutors for the Virginia Attorney General’s Office and the Fairfax County commonwealth’s attorney said they would appeal the ruling.
“Today is another affirmation that the system is built to cover up wrongdoing by police in our country,” Ghaisar’s family said in a statement Friday evening. “These officers shot at Bijan ten times, including several times as his car rolled away from them into a ditch. That’s not fearing for their lives, that’s murder.” The family agreed with the decision to appeal the case, saying, “We will not stop fighting for justice for Bijan.”
Ghaisar, 25, was an accountant from McLean who was driving south on the George Washington Memorial Parkway in Alexandria on Nov. 17, 2017, when he suddenly stopped in a lane of traffic and was hit from behind by a Toyota Corolla, court records show. Ghaisar then drove away, the Corolla driver said, and the Corolla’s passenger called 911 to report the crash.
Park Police officers Lucas Vinyard, 40, and Alejandro Amaya, 42, soon spotted Ghaisar’s Jeep Grand Cherokee in Alexandria and signaled him to pull over, but he drove off. On the parkway, Ghaisar stopped, was approached by Amaya with his gun drawn, and drove off. He did the same thing a second time after pulling off the parkway in Fairfax County. A Fairfax police lieutenant who joined the pursuit recorded the sequence of events on his in-car video camera.
Ghaisar stopped a third time in a residential neighborhood in the Fort Hunt area. Vinyard pulled his marked Park Police vehicle in front of Ghaisar to block him from driving away again, but as Amaya stood at the front of Ghaisar’s Jeep with his gun drawn, Ghaisar slowly rolled forward. Amaya and Vinyard began firing, the Fairfax police video shows. As the Jeep moved twice more, each officer fired again. Ghaisar was mortally wounded and died 10 days later.
After two years, the Justice Department declined to charge the officers. Last year, Fairfax prosecutor Steve Descano took the case to a special grand jury that indicted Vinyard and Amaya on charges of involuntary manslaughter and reckless use of a firearm.
But the Constitution holds that states must defer to federal law, and federal officers generally have “supremacy clause” immunity from state prosecution if their actions are “necessary and proper” and undertaken as part of their duties. Vinyard and Amaya removed the case to federal court, and argued to Senior U.S. District Judge Claude M. Hilton that he should grant the immunity and dismiss the case. The officers did not testify at a hearing in August and have spoken only through court filings.
Hilton agreed the officers were entitled to immunity. He cited “Ghaisar’s dangerous driving behavior and refusal to pull over” as creating the context for what happened at the intersection of Fort Hunt Road and Alexandria Avenue. “Ghaisar appeared intoxicated while continually engaging in extremely reckless behavior and unusual driving,” Hilton wrote. Marijuana was found in the car and in Ghaisar’s blood, court records show, and the officers said they smelled pot smoke in the vehicle after the shooting.
“Considering the circumstances,” the judge opined, “the officers were reasonable to fear for Officer Amaya’s life and discharge their weapons when Ghaisar’s Jeep lurched forward while Officer Amaya was standing in front of Ghaisar’s vehicle. The officers’ decision to discharge their firearms was necessary and proper under the circumstances and there is no evidence that the officers acted with malice, criminal intent, or any improper motivation.”
Hilton, 80, was appointed to the federal bench by President Ronald Reagan in 1985 and took senior status in 2005 but continued to take a full caseload. He spent a year as an assistant prosecutor in Arlington soon after his graduation from American University law school, and another year as the commonwealth’s attorney of Arlington in 1974, when the previous prosecutor stepped down. He handled a variety of types of law in private practice, according to a 2018 profile of him in the Federal Lawyer, including representing the Arlington sheriff in federal civil rights cases and serving on the Arlington police trial board, which hears officer discipline cases.
Lawyers for Vinyard and Amaya declined to comment Friday. The two officers have been on paid leave since their indictment in October 2020, and on paid administrative duty before that. The Park Police have said that no internal affairs investigation would be launched until the criminal case was concluded. Park Police officials did not respond to a request for comment on whether that investigation would begin now, or wait for appeals to be concluded.
“We intend to appeal this decision to the Fourth Circuit Court of Appeals,” Descano and Virginia Attorney General Mark Herring said in a statement Friday, “because we do not believe the law allows an individual to circumvent the accountability of the criminal justice system simply because of who their employer is. We believe that a jury should have the opportunity to hear all the evidence and determine whether these men committed a crime when they shot and killed Bijan Ghaisar.”
A lawsuit filed by the Ghaisar family against the Park Police was placed on hold by Hilton last year, and its status remains unclear. The case was on the verge of trial last year when the Fairfax indictments were handed up, and Hilton granted the government’s request for a postponement because the officers would not be able to testify in civil court while facing criminal prosecution.
When the Fairfax criminal cases against Vinyard and Amaya were removed to federal court last November, they were incorrectly classified as civil cases and then assigned to Hilton as related cases. When Hilton held his first hearing on the cases in May, he reclassified them as criminal cases, but kept them in his court.
Thomas Connolly, the Ghaisars’ lawyer in the civil case, declined to comment on Hilton’s ruling Friday.
After the shooting, as the investigation dragged on for years, members of Congress tried to help the Ghaisars by questioning federal officials and holding up federal appointments. Sen. Mark R. Warner (D-Va.) said Friday: “My heart is with Bijan’s parents, Kelly and James, and with all of his family and friends. Bijan’s death was a senseless tragedy and it never should have happened. It has been almost four years since Bijan was killed and his family still doesn’t have justice with which to carry on, or closure about what happened that night.”