The motions were filed around the three-year anniversary of the shooting of Ghaisar, 25, as he sat behind the wheel of his Jeep Grand Cherokee in the Fort Hunt area of Fairfax. The officers claim in their motions that they fired in self-defense as Ghaisar attempted to drive away from a traffic stop, though a video recorded by Fairfax police seems to show them on the side of or behind the Jeep for at least the first volley of shots.
Ghaisar was shot on Nov. 17, 2017, and survived in a coma until he was removed from life support on Nov. 27, 2017. The officers were placed on administrative duty with pay while the FBI and the Justice Department investigated the shooting. In November 2019, the Justice Department announced it would not file federal civil rights charges against the officers but said its decision did not preclude other authorities from seeking charges.
In August, Descano requested a special grand jury be empaneled in Fairfax. The grand jury met three times before charging both officers with one count of involuntary manslaughter and reckless use of a firearm, Descano said. Vinyard and Amaya were then placed on administrative leave with pay, the Park Police said. No internal investigation has been conducted, pending the outcome of the criminal case, the Park Police said.
In motions filed in federal court in Alexandria, lawyers for both Vinyard and Amaya noted federal law states that any state civil or criminal action filed against a federal officer “may be removed by them to the district court of the United States.” The defendants only need to show that they were acting “under color of such office” and that they can raise a “colorable federal defense.”
Once in federal court, the officers can file motions to dismiss the Fairfax charges under the supremacy clause, in which federal law takes priority over state law. The officers must show that they reasonably believed that their actions were “necessary and proper,” according to case law dating to the 19th century. Descano and the state attorney general are anticipating such motions, which Descano said could amount to a mini-trial of the case.
After Ghaisar left the scene of a fender bender in Alexandria, he was pursued down the George Washington Memorial Parkway by Vinyard and Amaya in a marked Park Police sport-utility vehicle. A Fairfax police lieutenant joined the pursuit and recorded it with an in-car camera.
Twice, the Fairfax video shows, Ghaisar stopped for the Park Police and then drove off as the officers approached with guns drawn. During a third stop, when Ghaisar’s Jeep started to move slowly away from the officers again, Amaya and Vinyard began shooting, the video shows. After the initial round of shots, Amaya is seen holstering his gun and moving toward the front of the Jeep. Twice more the Jeep rolled forward, and twice more shots were fired into it, the video shows. Two Fairfax officers at the scene did not fire their weapons. Federal authorities said 10 total shots were fired, five by each officer, though only nine can be heard on the video.
Amaya’s motion, by attorney Travis Tull, states that the officer “was in between the police cruiser he exited and the front of Ghaisar’s vehicle.” As Amaya approached the Jeep, Tull wrote, “it moved forward endangering not only him but his fellow officer.” The circumstances “led the officers to believe that the use of deadly force was necessary and proper to prevent the escape of a fleeing criminal,” Tull said.
Vinyard, the driver, came around from behind the Park Police vehicle as Amaya began shooting. “He saw the Jeep move toward Officer Amaya,” attorney Daniel S. Crowley wrote. “He then acted to prevent Ghaisar from striking Officer Amaya with his Jeep.” Vinyard “reasonably believed that his actions were justified in carrying out his federal duties,” Crowley said.
The lawyers for Ghaisar’s family, who have a pending wrongful death civil suit against the Park Police, have said that neither officer was in any danger and that the shooting was unnecessary. The suit was scheduled for trial this week, but Senior U.S. District Judge Claude M. Hilton postponed it at the government’s request after the officers were indicted in Fairfax.
Interestingly, both of the officers’ motions to remove the case to federal court were assigned to Hilton. If he grants the removal, which both sides expect, he would then hear the officers’ motions to dismiss the criminal case, and his ruling would have an impact on the Ghaisars’ civil case.
“It’s been three years since the death of Bijan Ghaisar,” Descano said in a statement. “Today should be a day for the Ghaisar family to reflect and celebrate the memory of their son. Instead, they have to hear the news that there’s yet another development standing in the way of seeking justice for Bijan. Last month I was proud we were finally able to overcome so many obstacles to deliver those indictments. Today, although this is yet another obstacle, I want to reassure the Ghaisar family, our community, and everyone following this case that I will not give up and I am committed to pursuing justice for Bijan — my office and I stand ready for trial.”