Former FCPD officer seeks to get charges in fatal Tysons shooting dismissed
By Angela Woolsey
Published September 9, 2024 at 2:30PM|Updated September 10, 2024 at 12:51AM
The Fairfax County Courthouse (staff photo by Angela Woolsey)
The former Fairfax County Police Department officer who fatally shot a D.C. man suspected of shoplifting two pairs of sunglasses from Nordstrom at Tysons Corner Center might not face a trial after all.
Defense attorneys for Wesley Shifflett filed a motion in Fairfax County Circuit Court on Friday (Sept. 6) seeking to “quash” the grand jury indictment that charged the former police sergeant with involuntary manslaughter and reckless discharge of a firearm for killing Timothy Johnson on Feb. 22, 2023.
Shifflett’s attorneys hope to convince a judge to dismiss the indictment at a hearing on Sept. 16, which would eliminate the need for a trial if the motion is granted.
“That’s going to be our case,” Simms Showers LLP partner Caleb Kershner confirmed to FFXnow, though he couldn’t share details of the argument since it contains information presented to the grand jury that’s sealed by a court order.
The defense team also filed motions on Friday that would exclude mentions of Johnson being unarmed, an expert witness called by prosecutors and evidence related to the police pursuit that preceded the shooting from the potential jury trial.
Previously scheduled for Sept. 16, the trial has been pushed back a day to allow for the additional hearing.
Per court records, the motions were filed around 2:45 p.m. after a roughly three-hour-long hearing where Judge Randy Bellows prohibited prior incidents of Shifflett drawing his gun from being discussed at the trial, while allowing evidence related to Johnson’s conviction of a misdemeanor assault in 2004.
Deputy Commonwealth’s Attorney Barry Zweig argued that the jury should know about three incidents on Feb. 17, 2022, Oct. 25, 2022 and Feb. 10, 2023 where Shifflett pointed his gun at an unarmed person while investigating shoplifting reports at Tysons Corner Center.
“These incidents highlight Shifflett’s attitude towards those who are suspected of committing non-violent, low-level crime at the Tyson’s Corner Mall,” Zweig wrote in his motion. “On at least one occasion Shifflett drew his firearm on an individual who had been engaged in absolutely no criminal conduct.”
On Feb. 10, 2023, Shifflett pointed his gun at a passenger in the vehicle of a man who allegedly took a pair of sunglasses from a store, tried them on and then returned them. Shifflett wrote in a July 6, 2023 incident report that he pulled his gun when the passenger “began reaching in her waistband when she was instructed not to.”
Prosecutors also brought up a Sept. 25, 2022 incident involving an alleged theft at Nordstrom, but according to Kershner’s team, the officer in question was a different sergeant with the last name of Shifflett.
In his motion, Zweig noted that all of the targeted individuals were Black. However, he said at Friday’s hearing that he would leave that information — and the implication that racism played a role in the shooting — out of a trial to avoid creating unfair prejudice.
Even if race isn’t mentioned, Bellows said the prior incidents had “negligible” value in helping prosecutors prove their case, noting that they didn’t involve use-of-force or criminal allegations against Shifflett.
“I can’t make the assumption the Commonwealth was making that an officer chasing a fleeing individual who’s engaged in shoplifting should not pull a gun on these individuals,” Bellows said, adding that “redacting race would reduce, not eliminate prejudice.”
Kershner welcomed the decision, calling prosecutors’ argument “largely speculative in nature.”
“I think the judge rightly pointed out that you would have to show all the good acts and all the times that force wasn’t showed on larceny victims,” he said. “Even the Commonwealth admitted when they got up to argue that race really shouldn’t be an issue here, and I was glad to see they said that, because I think that’s absolutely the right thing.”
A spokesperson for the Commonwealth’s Attorney’s Office said they’re unable to comment because the case is ongoing.
Prosecutors argued Johnson’s assault conviction in 2004 should be excluded from the trial because of “the substantial time gap and the lack of relevance in circumstances.”
According to Zweig, Johnson was attempting to steal a vehicle at the home of an ATF agent in Maryland on May 19, 2003. When the agent confronted him, drawing his gun while standing behind the vehicle, Johnson backed up. The agent jumped out of the vehicle’s way and fired his gun, hitting Johnson.
Johnson was initially charged with first-degree attempted murder, though it’s unclear why the charge was later reduced. He served three years in prison as a juvenile, Zweig confirmed at the hearing.
Prosecutors also sought to exclude a 2019 involuntary manslaughter conviction stemming from a crash in Maryland. Johnson was reportedly intoxicated and speeding when he hit another vehicle, killing the driver, Zweig told the court.
“DWI resulting in death…is an act of recklessness rather than intentional violence,” Zweig said in his motion. “As such, it does not involve the kind of deliberate, aggressive conduct that would typically characterize the victim’s behavior in a situation where self-defense might be justified.”
However, defense attorney Matthew Noel argued both cases showed a “propensity for violence” and a tendency to flee from situations involving the police, suggesting Shifflett’s claim that he shot Johnson out of fear for his own safety “was reasonable.”
Bellows deemed the circumstances of the 2004 assault conviction similar enough to justify inclusion in a trial, but he said the DWI posed more of a challenge, stating that he will issue a decision this week.
About the Author
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Angela Woolsey
Angela Woolsey is the site editor for FFXnow. A graduate of George Mason University, she worked as a general assignment reporter for the Fairfax County Times before joining Local News Now as the Tysons Reporter editor in 2020.