2nd grand jury indicts officer for involuntary manslaughter in Virginia mall shooting

A special grand jury in Virginia indicted a former police officer on Thursday for involuntary manslaughter in the fatal shooting of an unarmed shoplifting suspect outside a suburban shopping mall.

Wesley Shifflett, a Fairfax County police officer assigned to patrol the busy Tysons Corner Center shopping mall at the time of the shooting in February, was also charged with reckless discharge of a weapon.

Timothy McCree Johnson, 37, was shot and killed outside the mall after two officers chased him when a security guard said he had stolen sunglasses from a Nordstrom department store.

While both officers shot at Johnson, an investigation determined Shifflett fired the fatal shot, police said.

In April, a grand jury declined to indict Shifflett. It was then that Fairfax County Commonwealth's Attorney Steve Descano initiated a special grand jury to reinvestigate. Descano said Virginia law gives him greater ability to oversee the investigation. When the initial grand jury declined to indict Shifflett, Descano issued a statement noting that Virginia law prevented him from being in the room when police officers gave their testimony to the grand jury.

In a phone interview Thursday, Descano said he believes involuntary manslaughter is the appropriate charge given the evidence. He said the law allows for an involuntary manslaughter charge when a killing is based on “gross or wanton conduct” that lacks malice.

In a written statement, Descano, who has made prosecution of police misconduct allegations a priority, said, "The work of public safety includes charging officers for crimes when such actions are legally warranted. ... Our nation’s justice system has historically been stacked in favor of protecting powerful institutions and individuals, and it is no small feat that the grand jurors returned a true bill after reviewing this matter.”

Police Chief Kevin Davis fired Shifflett weeks after the shooting, saying he exhibited “a failure to live up to the expectations of our agency, in particular use of force policies."

The chief also released dimly lit video showing the nighttime foot chase that lasted less than two minutes. In a slow-motion version of the video, it sounds as though two shots were fired after an officer yelled “get on the ground.”

At the time, Davis said the video itself was not definitive in determining whether the officers acted properly.

“More often than not the police body camera footage speaks for itself,” Davis said. “This time, it does not.”

After the shooting, the body camera video records Shifflett telling another officer he saw Johnson “continually reaching in his waistband” and that he told Johnson, “Let me see your hands.” That command cannot be heard on the video.

Police searched for a weapon, but none was found.

Shifflett's lawyer, Caleb Kershner, said Thursday that Descano should have respected the first grand jury's decision refusing an indictment.

“That wasn't good enough for this commonwealth's attorney. He had to assemble a special grand jury so he could control the process,” Kershner said in a text message. “Few people understand what it's like to have a gun pulled on you and regularly being put in risk of death. These men and women in uniform serve by putting their lives on the line every day.”

Carl Crews, an attorney representing Johnson's family, said Thursday that he believes the charges are appropriate based on the evidence and the law.

The use of special grand juries is rare. In Fairfax County, the only other time Descano sought a special grand jury was in the case of another fatal police shooting — the 2017 shooting of Bijan Ghaisar by U.S. Park Police officers after a stop-and-go highway chase. The charges in that case were ultimately dismissed by a federal judge.