May 14, 2021
A federal judge has ordered that the manslaughter case against two National Park Police officers for killing 25-year-old Bijan Ghaisar be transferred from a Virginia state court to the federal courts because they are federal police officers.
The officers’ lawyers have said they will next move to have the manslaughter charges dismissed.
Two years after the shooting, in 2019, the US Justice Department decided not to pursue federal charges against the two officers, saying it could not prove they acted with willful use of unreasonable force.
In 2020, Fairfax County Commonwealth’s Attorney Steve Descano presented the case to a special grand jury, which indicted the officers on state 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 the pair made such a motion in November and Senior US District Judge Claude M. Hilton has now granted the transfer.
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 were acting 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 US 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 Ghaisar family’s 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.
Bijan’s mother, Kelly Ghaisar, spoke outside the federal court in Alexandria, to complain about the slow pace of justice. “Here we are, 3-1/2 years later,” she said, “and all we have is a hearing to see if they have immunity. The judicial system, everything, has failed Bijan.”
The hearing April 23 was the first time the Ghaisars had come face-to-face with Park Police officers Lucas Vinyard, 39, and Alejandro Amaya, 41.
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.
