But make no mistake: The potential for justice, albeit delayed, remains intact.
The officers were indicted last fall by a Virginia special grand jury on charges of involuntary manslaughter and reckless use of weapons; last month, they managed to shift the case to federal court. There, they will argue that as federal officers, they are immune from state prosecution under the Constitution’s supremacy clause. To qualify for that immunity, they must show their conduct was necessary and proper, a standard set by the Supreme Court in the 19th century but never clearly defined.
For the officers, that’s the rub. Because as anyone who has watched the dash-cam video of the event can attest, it would be a titanic feat of legal illogic to conclude that their actions — chasing down an unthreatening driver whose vehicle had been rear-ended, rushing him with guns drawn and ultimately firing their service weapons at him 10 times — were a necessary and proper exercise of police powers. In fact, they were the opposite: a hotheaded, unwarranted overreaction that extinguished a promising 25-year-old man’s life.
A hearing on the immunity question has yet to be scheduled by senior U.S. District Judge Claude Hilton. When it takes place, it will be a sort of mini criminal trial, and a highly unusual one at that. The Virginia attorney general’s office will argue the case and, if it prevails — by showing the officers’ conduct fell short of the necessary and proper standard — Fairfax County prosecutors would then seek a conviction, a proceeding in which the state charges would be tested in federal court and under federal rules of procedure.
Precedents for such a prosecution are few, but there is no reason to think that justice would necessarily be more elusive in federal court than state court. In both instances, a jury would be impaneled and, in all likelihood, would watch the video of Ghaisar’s shooting. That piece of evidence would be as wrenching in one court as another, and as damning.
No matter which side prevails in the immunity hearing, an appeal is probable and could conceivably reach the Supreme Court. Judge Hilton, who has postponed the Ghaisar family’s civil lawsuit pending resolution of the criminal case, would also have the option of staying a criminal trial until the appeals are exhausted. All this in a case that already languished during a two-year FBI investigation, after which the Justice Department declined to bring federal criminal civil rights charges against the officers.
To date, justice in the Ghaisar case has been deferred. It has not yet been denied.