March 26, 2021
Both the criminal and civil cases against the pair of US Park Police officers who shot and killed Bijan Ghaisar are stalled and going nowhere 3-1/2 years after the Iranian-American died in a hail of bullets near Washington, DC, The Washington Post reported in mid-March.
But just eight days later, perhaps because of the Post news report, the judge in the case scheduled the first hearing.
The Ghaisar family has filed a civil suit against the two officers, while Fairfax County, Virginia, where he was shot November 17, 2017, has filed manslaughter charges against them.
The criminal case is expected to be difficult, as the officers have applied to invoke the “supremacy clause” of the US Constitution to remove the case from the jurisdiction of the Virginia county. The supremacy clause says that federal law, which gives the federal government jurisdiction over Park Police officers, is superior to state law.
The supremacy clause case was assigned last November to US District Judge Claude M. Hilton, who is also overseeing the Ghaisars’ civil lawsuit. The newly scheduled hearing is on the surpremacy clause issue.
The Washington Post reported March 15 that Hilton had done nothing in four months. “Hilton has made no moves to hold any hearings on the cases or provide a pretrial briefing and discovery schedule,” the newspaper reported. “It’s another inexplicable delay for the Ghaisar family.”
The family waited two years for the US Justice Department to decide it would not charge officers Lucas Vinyard and Alejandro Amaya for the slaying, opening the door for Fairfax County to get involved. 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 County.
“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 [the US Department of Justice] 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 faces no deadline on when he must rule, and then appeals to his ruling could further delay the case.
A state criminal case being removed to a federal court is not a frequent occurrence, but federal law specifies that if a federal court receives such an appeal, the court “shall examine the notice promptly.”
But Hilton has not done that. Hilton, 80, was nominated to the bench by President Ronald Reagan in 1985.
The two officers were transferred from patrol duties to administrative tasks in Park Police headquarters after the shooting and were kept there three years. They were put on paid leave after their indictment by Fairfax County.