After a grand jury decided earlier this month not to indict a Fairfax County police officer who fatally shot an unarmed man outside Tyson’s Corner Mall, prosecutors have called on a special grand jury to probe the case again.

In February, Sgt. Wesley Shifflett and a second Fairfax officer, James Sadler, chased 37-year-old Timothy McCree Johnson through Tysons Corner Center, allegedly because they believed he had stolen a pair of sunglasses from a department store. The pair ran after Johnson into a wooded area outside the mall, where Shifflett fatally shot him, in what has been described as an “execution,” by Carl Crews, an attorney for Johnson’s family.

Johnson, described as an “avid creative spirit,” according to a GoFundMe to help cover burial expenses, was the father of a 9 and 12-year-old.

Fairfax County prosecutors pursued charges of involuntary manslaughter and reckless handling of a firearm against Shifflett, but earlier this month, a grand jury declined to indict the officer, deciding there was not enough evidence to move forward. The decision came as a surprise to Fairfax Commonwealth’s Attorney Steve Descano, who said he would be “evaluating all options on the path forward.”

Now, he has requested a special grand jury to probe Shifflett’s case again. Descano declined to comment further on the matter, citing its “sensitive nature,” in a written statement.

Shifflett’s case makes only the third special grand jury summoned in the county’s history, and the second by Descano. He also called on a special grand jury to investigate the 2017 fatal police shooting of Bijan Ghaisar by U.S. Park Police officers, but a federal judge ultimately dismissed the criminal charges against the two officers. (Ghaisar’s family reached a $5 million settlement with the U.S. government this week in a wrongful death lawsuit.)

In Virginia, unlike in a regular grand jury proceeding — in which prosecutors are not allowed in the room — in this special grand jury, Descano can call witnesses and influence the information that’s presented to the jurors. In a regular grand jury, evidence is presented by investigating officers, which in many cases are police officers; the family’s attorney suggested this compromised the results of the first grand jury because police would not want to indict a fellow officer.

“There’s just a sense of control that the commonwealth’s attorney can [now] assert over the case and the investigation,” Crews told DCist/WAMU Wednesday morning. “He gets to be in the room, and shape that evidence and be certain and satisfied in the matter in which its presented…so I do think you will get a different result.”

Crews said the family was “dejected” after hearing earlier this month that the grand jury had rejected charges against Shifflett. Johnson’s mother, Melissa Johnson, told DCist/WAMU after the decision came down that her son would still be with her were it not for racist policing. She added that if her son were not Black, Shifflett wouldn’t have been cleared by jurors. While it’s fairly rare for a grand jury not to indict, one notable example is a grand jury’s 2014 decision to not indict the white officer who fatally shot Michael Brown, an unarmed Black teenager in Ferguson, Missouri.

“Had it not been for the color of my son’s skin, we wouldn’t be even having this conversation, and we definitely would not have received the results that we received today,” she told DCist/WAMU in an interview following the grand jury’s decision.

Johnson could not be reached immediately on Wednesday morning, but Crews said the family is “invigorated” by the news that a special grand jury will be able to hear the case. Due to the secrecy under which special grand juries are conducted, he said it’s hard to know when proceedings will start or end, but he’s hoping to have resolution before the year’s end.

“We didn’t lose hope, we continue to persevere,” Crews said. “This tragedy is not going to go unpunished.”

Shifflett’s body-worn camera footage showed a long chase, which first began in a department store, then through a parking lot, before eventually ending in a wooded area. As Shifflett is chasing Johnson into the wooded area, he yells out “get on the ground,” before three shots ring out. Johnson, who was unarmed, was struck once in the chest and died at a local hospital.

Shifflett’s lawyer did not immediately return DCist/WAMU’s request for comment Wednesday morning. A seven-year veteran on the force, Shifflett was fired from the Fairfax County Police Department in March. Police Chief Kevin Davis said he had failed “to live up to the expectations of particular use of force policies, protocols, and procedure.” (Sadler, an eight-year veteran, was placed on “modified restricted duty assignment,” which means he cannot interface with the public.) Caleb Kershner, Shifflett’s attorney, previously told DCist and WAMU that he would be fighting to get his job back.

Previously:
Grand Jury Rejects Charges For Officer Who Fatally Shot Man Accused Of Stealing Sunglasses
Fairfax Police Officer Fired After Fatally Shooting Man Accused Of Stealing Sunglasses