Hilton is also overseeing the wrongful death lawsuit filed by Ghaisar’s family against the Park Police, which was on the verge of trial last fall until Hilton postponed it at the government’s request. A status hearing was scheduled for Friday. Hilton on Tuesday postponed that hearing, and the civil case, indefinitely.
Hilton’s move to set a hearing in the criminal case is a small step toward resolving the larger issue of whether Officers Lucas Vinyard, 39, and Alejandro Amaya, 41, can be criminally prosecuted by the state of Virginia for killing Ghaisar, or if they fall under amnesty for federal officers from state criminal laws.
Fairfax County prosecutor Steve Descano obtained involuntary manslaughter indictments against both officers in October. But the “supremacy clause” of the U.S. Constitution holds that states must defer to federal law, and a long line of cases has established that federal officers cannot be prosecuted if a court decides their actions were “necessary and proper.”
Federal prosecutors have already declined to charge the officers with federal criminal civil rights charges.
After his Jeep Grand Cherokee was struck from behind in traffic in Alexandria in November 2017, Ghaisar drove away and was soon pursued by Vinyard and Amaya, who signaled him to pull over on the George Washington Memorial Parkway. Twice, Ghaisar stopped, was approached by the officers with their guns drawn, and drove off. The third time Ghaisar stopped, in a residential neighborhood of Fairfax County, the officers again emerged with their guns out. Ghaisar’s Jeep started to move forward, and the officers opened fire, killing him, a video recorded by Fairfax County police shows.
The FBI took over the investigation, and the Justice Department took until November 2019 to decide that no federal charges were warranted. Fairfax prosecutors picked up the case and indicted Vinyard and Amaya in October 2020, expecting that their defense attorneys would seek to remove the case to federal court.
The defense filed their motions last November. Federal law states that the U.S. district court which receives a “notice of removal” from state court “shall examine the notice promptly.” But Hilton took no action. It wasn’t until Amaya’s lawyers filed a “notice of hearing” on Monday that Hilton took steps to start the case
If the notice is improper, the law states, the federal judge must send it back to state court. If the notice is proper, the judge “shall order an evidentiary hearing to be held promptly.” So Hilton has scheduled a status hearing for April 23, to determine a briefing and hearing schedule for the actual argument on removal, which could be weeks or months later even though the issue doesn’t appear to be contested. Fairfax County, which is being assisted by the Virginia Attorney General’s Office, has not indicated it opposes removing the case to the federal court in Alexandria, in part because federal law allows such removal without qualification if the defendant was “acting under the color of his office.”
If Hilton grants the removal, the lawyers for the officers have said the officers’ actions were “necessary and proper.” and the lawyers will seek to have the case dismissed. Descano has said that likely would lead to a “mini-trial,” because witnesses and experts would be called to scrutinize the particulars of the fatal shooting.
In 2019, court records show, both Vinyard and Amaya told the FBI that they believed Ghaisar was aiming his Jeep at Amaya in an attempt to run him over. “Both officers used their service weapons to prevent Ghaisar from striking them and/or escaping,” Amaya’s lawyer, Travis D. Tull, wrote in his notice of removal. “Officer Vinyard was clearly performing acts he was authorized to do as a federal police officer,” his lawyer, Daniel S. Crowley, wrote.
Former assistant U.S. attorney Jonathan Fahey, a longtime prosecutor in Alexandria until he ran for Fairfax County prosecutor against Descano in 2019, has joined Amaya’s defense and filed the notice.
“My team has been working closely with the attorney general’s office to move this case forward,” Descano said in a statement. “While I am pleased to see this first step taken by the court, I recognize that this is just the beginning of what is likely to be an extended pursuit of justice. As I have said in the past, no one is more eager to see progress in this case than I am because I am acutely aware of how long the community has waited for answers.”