A federal judge in Alexandria on Friday rejected the federal government’s motion to postpone the civil trial of the lawsuit filed by the family of Bijan Ghaisar, allowing it to proceed in November even though the two officers who fatally shot Ghaisar in 2017 likely will not testify.
The ruling by Senior U.S. District Judge Claude M. Hilton is the latest in a string of legal victories for Ghaisar’s family in civil court, even as no criminal charges have been filed against Officers Lucas Vinyard and Alejandro Amaya, who fired 10 shots into Ghaisar’s Jeep Grand Cherokee as he slowly drove away from them at a traffic stop. After two years, federal prosecutors declined to file civil rights charges against the officers, and though Fairfax County prosecutor Steve Descano has said he is investigating the case, he has given no time frame for a decision on when or if he will file state charges against them.
The specter of a criminal prosecution caused Vinyard, 38, and Amaya, 40, to invoke their Fifth Amendment rights against self-incrimination repeatedly during depositions in the civil case earlier in August, court records show. But the Ghaisars’ lawyers said that the officers likely would never testify because a new Justice Department regime might revisit the case if President Trump is not reelected, or Fairfax may decide later to prosecute a case with no statute of limitations.
The Justice Department declined to meet with the Ghaisar family during its two-year investigation of the killing; then according to the family broke a promise to meet with them before announcing its decision; and has refused to cooperate with the Fairfax probe. But the judges in the civil cases against the officers and the Park Police, first filed in 2018, have been more agreeable. A magistrate judge in 2019 ordered the government to release the officers’ names, which the Park Police and FBI had long withheld, and then in March ordered the Justice Department to turn over its investigative files to the Ghaisars’ lawyers, which the government wanted to release gradually over months.
Now, the government wanted to postpone the trial because its chief witnesses, Amaya and Vinyard, wouldn’t testify and couldn’t be compelled to answer questions. A video recorded by a camera in a Fairfax police lieutenant’s cruiser captured three traffic stops in which Ghaisar stopped, Amaya and Vinyard ran at him with guns drawn, and Ghaisar drove off.
During the third stop, the video shows, Amaya and Vinyard both fired their guns at the unarmed man, a 25-year-old Northern Virginia native with no criminal record. Ghaisar had left the scene of a fender bender in Alexandria minutes earlier, with no injuries or damage to the cars, but it’s not clear if the officers knew that Ghaisar was the victim in that collision.
“The video recording only goes so far,” Assistant U.S. Attorney Dennis C. Barghaan Jr. argued to Hilton. “It may not tell the whole story. It is no replacement for what was in the officers’ heads at the time in question. We are at the point where the prejudice to the United States is no longer speculative, it is real.”
Hilton responded, “You have no control over Fairfax County. They may be investigating this case for the next 10 years.” Descano’s office declined to comment Thursday on the status of their investigation.
Thomas G. Connolly, one of the Ghaisars’ lawyers, said in court that even if Fairfax indicted the officers immediately, the criminal case would take at least a year or more. He said the government has indicated it would remove a state case to federal court, argue for the immunity of federal officers from state prosecution under the supremacy clause, and whichever side lost would appeal that ruling before a trial began.
Connolly also said the government has an expert prepared to testify that Amaya and Vinyard would have been justified in shooting Ghaisar from the first traffic stop, “that Bijan deserved everything he got. That’s why they find themselves in the situation they’re in now … They have defended the conduct of the police officers to its core … These officers would never testify at a trial in this case even if Steve Descano’s office declined prosecution tomorrow.”
Connolly pointed to Ghaisar’s parents, sister and brother-in-law in the front row of the courtroom and asked Hilton, “Are we heeding the inscription on the front of this building? ‘Justice delayed, justice denied.’ ” He noted that both sides had been ordered to settle the case, but the government refused to negotiate while the issue of a stay in the case was pending. A lawsuit against the two officers was dismissed by the judge, at the Ghaisars’ request, in the past week, but the case against the government, as the entity overseeing the Park Police, continued.
“A stay might be appropriate if there was some information,” the judge said, “if there was any kind of explanation of what’s going on, or a time frame for a decision. In this situation I have really nothing to go on. There’s no indication there’s any urgency on the part of Fairfax County to do anything, or if they’re going to do anything. From what I can see, they’re just as likely to do nothing as something … I just don’t have any justification to issue a stay. There’s no indication of any action. For that reason, a stay is denied.”
The civil trial is set for Nov. 16 in the Alexandria federal courthouse. The case is set to be decided by a judge, not a jury, because federal law requires that suits against the government under the Federal Tort Claims Act must be heard by a judge.
Amaya and Vinyard have not spoken publicly about the case, and their lawyers, Kobie Flowers and David Schertler, did not respond to requests for comment Friday. The officers have been on paid administrative duty since April 2018. But the officers apparently have provided their version of events to federal authorities, after the FBI took over the investigation from the Park Police soon after the shooting.
According to a deposition of Amaya taken earlier in August, and filed in court by the government to demonstrate his refusal to answer questions from the Ghaisars, Vinyard gave a statement to the FBI in 2019 and Amaya provided a “proffer” of his version of events to federal prosecutors in the past year. Those statements have not been made public.
But the substance of their statements may become public next month when the Ghaisars’ lawyers file their motion for summary judgment, in which a plaintiff asks a judge to decide the case before a trial happens. In Amaya’s deposition, attorney Roy L. Austin Jr. asked the officer if it was true that he and Vinyard rode home together after the shooting, if it was true that the officers have worked together and discussed the case, and if it was true that Amaya believed Ghaisar to be “an Arab,” “a Muslim” and “foreign” before the officers shot him. Amaya invoked the Fifth Amendment in declining to answer each time.
“Every question that we asked in that deposition,” Austin said Friday after the hearing, “was based on evidence that we have received and that we have a good faith basis to believe is true.” He declined to elaborate.
The Ghaisars responded to Hilton’s ruling Friday, saying, “After years of federal stonewalling, the family is incredibly grateful that the court is allowing the case to move forward and they look forward to chance now, for themselves and the public, to fully learn what has happened and to receive justice for the murder of their son and brother.”