Court rejects petition from police officer fired after fatal Tysons shooting

(Updated at 4:30 p.m. on 8/3/2023) The former Fairfax County police officer who reportedly shot and killed D.C. resident Timothy Johnson on Feb. 22 in Tysons lost a court petition seeking reinstatment earlier this month.

Wesley Shifflett’s petition alleging that the county violated his due process rights and its own policies during a grievance review was rejected by Fairfax County Circuit Court Judge Stephen Shannon, who affirmed County Executive Bryan Hill’s conclusion that the Fairfax County Police Department had followed proper county procedures.

“The County Executive’s determination was neither arbitrary and capricious, nor made in bad faith,” Shannon wrote in a July 6 opinion letter. “In contrast, the determination was well-grounded in fact and proper.”

(This story has been updated to clarify that the petition was asking the court to review the grievance process, an administrative review that will determine whether Shifflett’s firing should be upheld.)

A seven-year veteran of the department, Shifflett was officially fired by the FCPD on April 14, a couple of weeks after Fairfax County Police Chief Kevin Davis informed both the officer and the public of his decision on March 23, according to court documents.

The FCPD identified Shifflett and James Sadler, an eight-year veteran of the department, as the two officers who fired their guns at Johnson during a foot chase outside Tysons Corner Center. The mall’s Nordstrom had called the police around 6:30 p.m., reporting that Johnson was attempting to shoplift sunglasses.

Video of the encounter shared by police showed the officers pursuing Johnson into a wooded area, where one of them trips and says, “Stop reaching.” Three gunshots were apparently fired, two before the officer tripped and one afterwards.

(An earlier version of this article incorrectly said that all three shots were fired after the officer tripped.)

Police said Shifflett was responsible for the fatal shots, the Washington Post previously reported. Sadler was put on modified restrictive duty during a criminal investigation into the shooting, but he retained his job.

In a pair of memos to Shifflett dated March 23 and 30, Davis said his “performance during this incident and personal conduct…have failed to meet the expected standards required for continued employment” with the FCPD.

Shifflett made “shifting and inconsistent statements” during interviews with Major Crimes Bureau and internal affairs detectives that left it unclear whether he fired his gun intentionally “in response to a perceived threat” or by accident, Davis wrote in the March 30 memo.

“Your demonstrated inability to definitively state whether or not you meant to intentionally fired [sic] your weapon at Mr. Johnson that evening diminishes your credibility in this case, and accordingly undermines your ability to be a law enforcement officer,” Davis said. “Therefore, looking at the totality of the circumstances in this case, I no longer have confidence in your abilities to serve and protect the Fairfax County community as an FCPD officer.”

In a petition filed in court on May 30, Shifflett argued that Davis didn’t sufficiently explain the reasons for his termination and that the subsequent grievance process challenging the decision had “procedural deficiencies.”

Recounting the shooting, the petition says Shifflett believed he was alone and “feared that his life was in imminent danger” when Johnson fell to the ground and allegedly “turned to [the] Petitioner in a defensive stance as his hand reached for his waistband.”

Johnson’s family asserted almost immediately after the shooting that he was unarmed, and the FCPD later confirmed that they didn’t find any weapon at the scene.

The petition contends that a lack of specific quotes cited as questionable in Davis’s memos, the absence of an immediate supervisor at Schifflett’s initial grievance meeting and “significant gaps” in an internal affairs investigation file at the time violate county personnel regulations, FCPD policy and Virginia law.

“[The] Petitioner is a now former law enforcement officer essentially being accused of murdering a man on the job, but he is being provided the procedural protections of a man who was found sleeping on the job,” the petition said, calling the FCPD’s process “statutorily and constitutionally deficient.”

Shifflett asked the court to reinstate him under paid administrative leave “until the FCPD is able to provide him with all of his procedural rights,” award him backpay, let him see all the information against him or close the disciplinary proceedings, and prohibit the county and police department from retaliation.

Shannon said Shifflett failed to prove that the county executive was “acting in bad faith or abusing its discretion” when deciding that the FCPD had complied with procedure, though he found that the circuit court didn’t have the authority to review Constitutional, statutory or police department policy questions.

Shifflett will get a grievance hearing before the Civil Service Commission later this year on his challenge to his firing, according to attorneys with Simms Showers LLP, the law firm representing Shifflett.

On April 17, a county grand jury declined to indict Shifflett on charges of involuntary manslaughter and reckless discharge of a firearm in Johnson’s death, prompting Fairfax County Commonwealth’s Attorney Steve Descano to request a second grand jury.

According to Descano’s office, it takes about 60 days to impanel a grand jury, and once they begin, details of the proceedings are kept secret until a decision on the charges is announced.