One afternoon last October, the family of Bijan Ghaisar walked out of the Fairfax County courthouse with a glimmer of hope. The new county prosecutor, Steve Descano (D), had just told them that he had obtained manslaughter indictments against the two U.S. Park Police officers who shot Ghaisar to death as he sat behind the wheel of his Jeep Grand Cherokee in November 2017.
Minutes later, Descano emerged for a news conference. He said the case would unfold rapidly and probably end up in a different courthouse before a federal judge. Descano expected that the defendants would seek to dismiss the indictments, raising the supremacy clause of the U.S. Constitution that federal officers may not be prosecuted under state law.
Virginia was prepared to defend its decision to charge, Descano said Oct. 15. The Fairfax prosecutor enlisted the Virginia attorney general’s office to help with the anticipated federal case, and the lawyers for Officers Lucas W. Vinyard and Alejandro Amaya did, in fact, seek to move their cases to federal court in mid-November. Various lawyers entered their appearances, including the Justice Department as an “interested party” for the officers.
Then the case stopped. Senior U.S. District Judge Claude M. Hilton has been assigned the case and is also overseeing the Ghaisar family’s lawsuit against the Park Police. Despite sitting on a court that takes pride in being the “rocket docket,” and a local court rule that says the judge shall schedule cases “as promptly as possible,” Hilton has made no moves to hold any hearings on the cases or provide a pretrial briefing and discovery schedule.
It’s another inexplicable delay for the Ghaisar family, who waited two years for the Justice Department to decide it would not charge Vinyard and Amaya for the slaying of the unarmed motorist. In 2018, the family filed a wrongful-death suit against the Park Police, but on the eve of trial last fall, Hilton postponed that case indefinitely after the officers were indicted in Fairfax.
“We have faced endless delays, obstruction and stonewalling in our pursuit of justice for Bijan,” the Ghaisars said in a statement. It took “over a year to make the names of the officers’ public, almost two years for DOJ to decline to bring charges without any transparency into its investigation and nearly three years before any criminal charges were filed against them in the Commonwealth of Virginia.”
The criminal case against the officers seems headed to a showdown over whether the supremacy clause shields the two Park Police officers from being charged in Virginia. Hilton must decide whether their actions were “necessary and proper” to perform their duties, according to legal precedent, which is likely to require a full hearing with witnesses describing the events surrounding the shooting. Hilton would have no deadline on when he must rule, and then appeals could further delay the case.
A state criminal case being removed to federal court is not a frequent occurrence, but federal law specifies that if the court receives such a notice, the court “shall examine the notice promptly.” Fairfax prosecutors have not filed any objection to removal. And if the notice of removal appears to include the proper elements, the court “shall order an evidentiary hearing to be held promptly” on whether the case should be heard in federal court.
But Hilton has done neither. He did not respond to a request for comment. Judges generally are prohibited from speaking about cases pending before them. Hilton, 80, was nominated to the bench by President Ronald Reagan in 1985, and he assumed senior status in 2005.
The lawyers in the case spoke cautiously, if at all, aware that Hilton holds the fate of the civil and criminal cases in his hands.
“I am acutely aware of how long the community has waited for answers,” Descano said, “and no one is more eager to see this case move forward than I am.”
“We continue to pursue the case vigorously,” a spokeswoman for Virginia Attorney General Mark R. Herring (D) said in an email, declining to elaborate.
Amaya’s lawyer, Travis D. Tull said, “We are working diligently to move the case forward and expect it to happen shortly.”
Vinyard’s lawyer, Daniel Crowley, declined to comment.
Thomas G. Connolly, the lawyer for the Ghaisars, also declined to comment. But at the hearing last October when Hilton decided to postpone the civil trial so that the officers might testify in their own defense when the criminal case is finished, Connolly told the judge, “There will never be testimony by the officers in this case.” He said the possibility that Justice Department officials could change their decision about charging them meant the officers would continue to invoke their Fifth Amendment right against self-incrimination, as they did in depositions for the civil suit. Connolly said he would ask the Justice Department to reconsider federal charges if a new administration took over in 2021. A new Democratic U.S. attorney general, Merrick Garland, was sworn in Thursday.
Connolly also warned that if the criminal case was removed to federal court, a ruling on the officers’ motion to dismiss under the supremacy clause would probably be appealed by the losing side, possibly all the way to the Supreme Court.
“This is, once again, justice delayed and justice denied,” said Rep. Don Beyer (D-Va.), the congressman representing the district where the shooting happened, who has tried to help the Ghaisars. “We’re pushing 3½ years here. Not just for the family, but for the citizens of Northern Virginia. And people across the country I’ve spoken to know about this case. It’s just a poor reflection on the American judicial system.”
Ghaisar, 25, was an accountant from McLean with no criminal record when he drove down the George Washington Memorial Parkway on the evening of Nov. 17, 2017. In Alexandria, he stopped his Jeep suddenly in a lane of traffic and was struck from behind by a Toyota Corolla. Ghaisar drove off without speaking to the Corolla driver, who was working for Uber, a police report shows.
Vinyard and Amaya spotted Ghaisar’s Jeep in Old Town Alexandria, followed it to the G.W. Parkway, and turned on their lights and siren to pull him over. Twice Ghaisar stopped, and twice he drove away as the officers ran at his Jeep with their guns drawn, a police video shows.
The third time he stopped and then began to drive away in the Fort Hunt neighborhood of Fairfax County, and both Amaya and Vinyard opened fire, the video shows. Ghaisar was shot four times in the head. He was not armed. He died 10 days later.
Vinyard and Amaya gave statements to the FBI in 2019 stating they believed Ghaisar’s Jeep was headed toward Amaya and they fired to protect the officer.
The FBI took over the investigation, because the Park Police are federal officers. For the next two years, no one from the government spoke to the Ghaisars while the Justice Department pondered whether to charge Vinyard and Amaya with federal criminal civil rights charges. In November 2019, the Justice Department declined charges, again not speaking with the Ghaisars before the announcement.
Fairfax prosecutors then picked up the case. But the Justice Department decided not to cooperate with Fairfax, in part because it was defending against the wrongful death suit filed by the Ghaisars. Last September, Descano requested a special grand jury be impaneled, which handed up indictments for involuntary manslaughter and reckless use of a firearm.
On Nov. 16, lawyers for Vinyard and Amaya filed motions to remove the case to federal court, where it was assigned to Hilton.
Though courts throughout the country have been upended by the coronavirus pandemic, that did not affect Hilton as he oversaw pretrial proceedings in the Ghaisars’ civil case. Depositions of witnesses were conducted virtually, briefs were filed and several hearings were conducted in Hilton’s courtroom. Due to the nature of the civil case, no jury will be needed — the judge will decide whether the United States is liable for the actions of the officers.
Technically the manslaughter case remains in Fairfax. On Monday, Vinyard was in court asking Fairfax Circuit Court Judge Penney Azcarate for permission to visit a sick relative in Pennsylvania. As a condition of his bond, he and Amaya are not allowed to leave Virginia. Azcarate granted the request. Then Crowley, Vinyard’s lawyer, asked whether Vinyard could travel to Pennsylvania next month for an annual family trip. Azcarate, citing the serious nature of the case, said no.
Vinyard and Amaya were on paid administrative duty for nearly three years, until their indictment last fall, at which time they were placed on paid leave and their service weapons were taken away, the Park Police said.
“We are, again, facing another year of countless days, birthdays and holidays without Bijan’s killers being held accountable,” the Ghaisars said. “The delays are cruel, but no matter how long it takes, we will keep fighting.”