“I hope that would be an example of how these cases should be handled,” Ghaisar’s mother, Kelly Ghaisar, said Friday.
Kelly Ghaisar spoke outside federal court in Alexandria, where a judge had just ordered the manslaughter case against the officers accused of killing her son be heard, rather than in Fairfax County, where the officers were indicted last year. No date was set for a trial or pretrial motions, in which the officers’ lawyers said they will invoke the immunity of federal officers from state prosecution and move to dismiss the case.
“Here we are, 3 ½ years later,” Kelly Ghaisar said, “and all we have is a hearing to see if they have immunity. The judicial system, everything, has failed Bijan.”
The hearing Friday in front of Senior U.S. District Judge Claude M. Hilton was the first time the Ghaisars had come face-to-face with Park Police officers Lucas Vinyard, 39, and Alejandro Amaya, 41, who were indicted by a Fairfax grand jury last October. The officers sat quietly with their lawyers and declined to comment after the hearing. Both are on paid leave from the Park Police, whose commanders have never publicly discussed the case.
The Ghaisars sat directly behind the officers. “My chest was so heavy, it was about to burst,” Kelly Ghaisar said. James Ghaisar, Bijan Ghaisar’s father, said, “I believe if the officers were local, with all the support we’ve received from Congress and local officials, we would have had much, much faster results. But because they’re federal officers, it’s been 1,253 days since they killed my son. This is so sad, how unbelievable this bureaucracy is.”
After Ghaisar’s Jeep Grand Cherokee was rear-ended by a Toyota Corolla on the George Washington Memorial Parkway on the evening of Nov. 17, 2017, Vinyard and Amaya pursued him with lights and siren on down the parkway in Fairfax County. Twice Ghaisar stopped, then drove off as the officers ran at his Jeep with guns drawn, a video recorded by a Fairfax County police in-car camera shows. A Fairfax lieutenant had joined the pursuit. The Park Police do not have in-car or body-worn cameras.
At a third stop, after Ghaisar had pulled off the parkway and into the Fort Hunt neighborhood of Fairfax, the officers again emerged with guns drawn and Ghaisar again started to slowly drive off. Both officers fired five times, an FBI investigation found, and Ghaisar, 25, was killed. He was unarmed.
Two years after the shooting, in 2019, the Justice Department decided not to pursue federal criminal civil rights charges against Amaya and Vinyard, saying it could not prove they acted with willful use of unreasonable force. In 2020, Fairfax Commonwealth’s Attorney Steve Descano presented the case to a special grand jury, which indicted the officers on charges of involuntary manslaughter and reckless use of a firearm.
Federal law allows federal officers, being prosecuted by state officials, to remove the case to federal court. The lawyers for Vinyard and Amaya made such a motion in November. Descano enlisted the Virginia Attorney General’s Office to litigate the case in federal court, and they opposed the removal to federal court, but Hilton granted it.
“I do find that this case has been properly removed to district court,” Hilton said. “The defendants have a right to present a defense of immunity.”
The lawyers for the officers, Jonathan Fahey and Daniel Crowley, said they would file motions seeking to have the case dismissed. Federal case law has held that if federal officers wereacting in their official capacities, and their actions were “necessary and proper,” they may not be prosecuted in state court, under the supremacy clause of the U.S. Constitution. The Constitution also states that state authorities must defer to federal law.
Hilton did not set a date to hear those motions, or for a trial if he were to deny the officers immunity. Instead, he set May 14 as a date for an initial appearance and to set conditions of bond. Hilton is also presiding over the Ghaisars’ lawsuit against the Park Police and has postponed it indefinitely pending the outcome of the criminal case.
When a hearing is held on the issue of immunity, it is likely to be a mini-trial of the officers’ thoughts and actions, lawyers in the case have said. And after Hilton rules, the losing side is likely to appeal, which will further delay the case.
Descano and Virginia Attorney General Mark R. Herring (D) issued a statement after the hearing that said they were disappointed in the judge’s ruling. “We believe that the Commonwealth must be able to hold people accountable for crimes that they commit in Virginia,” they said in the statement. “That being said, today’s decision will keep this case moving forward toward finally getting justice for Bijan Ghaisar and his family.”