WASHINGTON, D.C. – Attorney General Karl A. Racine, along with nine other attorneys general, filed an amicus brief arguing that criminal charges against two U.S. Park Police officers who shot and killed an unarmed driver in Virginia should not have been dismissed. The brief, filed in the U.S. Court of Appeals for the Fourth Circuit, argues that the lower court improperly granted immunity to the officers who killed Bijan Ghaisar. 

In the cases, Virginia v. Amaya and Virginia v. Vinyard, the Commonwealth of Virginia brought criminal charges seeking to hold federal officers accountable for pursuing, shooting, and ultimately killing a man in 2017. The trial court dismissed the charges, relying on a doctrine that federal officers can be immune from state criminal prosecutions for acts necessary to perform their federal duties. The Office of the Attorney General (OAG) urged the court to reverse the lower court’s dismissal and allow Virginia’s case to move forward. The District asserts that federal officers should not be treated as if they are above the law and that they should only be granted immunity from state prosecution in limited circumstances.

“We filed this brief to support of the Commonwealth of Virginia’s efforts to hold two U.S. Park Police Officers accountable for shooting and killing Bijan Ghaisar several years ago,” said AG Racine. “Mr. Ghaisar’s death was tragic and unnecessary—and that tragedy has been magnified by how long his family and community have already waited for justice. We need the court to clarify the standards for granting immunity to federal officers to ensure states can still seek justice when crimes are committed within their borders. This is particularly important to the District because so many federal law enforcement agencies operate here. And I hope Virginia’s new attorney general will continue to pursue this case. We will continue to protect our residents by making sure federal officers know they are not above the law and that they can be held accountable for their actions.” 

In 2017, two U.S. Park Police officers, who patrol the federal George Washington Parkway, pursued 25-year-old Bijan Ghaisar after he left the scene of a minor traffic accident in which he had been rear-ended. The pursuit ended in a residential neighborhood in Virginia, when the officers blocked Ghaisar between their cruiser and a ditch. The officers then approached Ghaisar’s car, and when it began to inch away from them at low speed, they fired multiple shots through the windshield from just feet away. Ghaisar sustained several gunshot wounds and later died of his injuries.

The fatal shooting of an unarmed driver, and federal government’s subsequent refusal to hold the officers accountable for their actions, sparked widespread and bipartisan outrage—including from editorial boards and the floor of the United States Senate. Seeking justice and accountability for the slaying, Virginia pursued criminal charges against the officers, and a grand jury returned indictments for involuntary manslaughter and reckless discharge of a firearm. However, the officers argued that as federal officials, they are immune from state prosecution under the Supremacy Clause, a provision of the Constitution that establishes that federal law takes precedence over state law when they are in conflict. The court agreed, noting that the officers had broad federal duties and determining that they acted “reasonably” in the circumstances. The court dismissed the indictments. Virginia appealed this decision.

In its amicus brief supporting Virginia’s appeal, the attorneys general urge the Court to reverse the lower court’s dismissal of criminal charges because:

• The states are primarily responsible for enforcing criminal laws: Historically and under the Constitution, the states are assigned the primary responsibility for enforcing criminal laws. To honor state sovereignty and foster respect for the rule of law, courts should only allow federal officers to avoid prosecutions in limited circumstances.  
   
• Federal officers should not be treated as if they are above the law: Treating federal workers as a special class of citizens who are largely immune from prosecution would threaten the ability of states to obtain justice when crimes are committed within their borders. Broad immunity would allow many defendants to escape prosecution for criminal acts that are only loosely related to their federal duties. It would also undermine public faith in the rule of law.
   
• There should be a high standard for granting immunity from state law to federal officers: In the brief, the states ask the court to clarify the standard for granting federal officers immunity from state prosecution. They argue that based on previous Supreme Court precedent, federal officers should only be granted immunity from state laws for acts that are specifically within their authority and that are truly necessary to perform their duties. They also argue that an action cannot be considered “necessary” if it violates the Constitution—for instance, if officers use excessive force in violation of the Fourth Amendment. 

The brief further argues that under these standards, the district court incorrectly concluded that the officers who fatally shot Ghaisar were immune from state prosecution. As a result, the states urge the Court of Appeals to reverse the lower court’s order dismissing the indictment.

AG Racine led the brief and was joined by the attorneys general of Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, Oregon, Vermont, and Washington.

A copy of the District’s amicus brief is available here.