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No charges against Fairfax Co. officer who shot, killed Timothy Johnson near Tysons Corner Center

A grand jury in Fairfax County declined to charge a Fairfax County police officer who reportedly shot and killed Johnson, who was accused of shoplifting.

FAIRFAX COUNTY, Va. — A grand jury in Fairfax County says there is not enough probable cause to charge Sgt. Wesley Shifflett, who was terminated about a month after 37-year-old Timothy McCree Johnson was shot and killed outside Tysons Corner Mall.

On Monday, the jurors returned with a ‘No True Bill,’ meaning they decided not to indict Shifflett, who reportedly chased after Johnson after he was accused of shoplifting.

The Fairfax County Commonwealth’s Attorney’s Office was wanting to charge Shifflett with involuntary manslaughter and reckless discharge of a firearm. 

Court documents reveal two other police officers from the Fairfax County Police Department testified in the case. 

The decision was a surprise for Commonwealth's Attorney Steve Descano who was expecting an indictment. 

The prosecution can still present the case to a second grand jury, although it is unclear if that will happen.

"I'm not surprised," Caleb Kershner, attorney for Shifflett, told WUSA9. " I think the grand jury seen the circumstances for what they are. The two charges were reckless handling of firearm and involuntary manslaughter, which suggests a reckless disregard in these circumstances. This was far from that. He [Shifflett] had to make a split second decision that could be life or death."

Officials said Shifflett chased after Johnson in late February over a pair of stolen sunglasses. Body camera video showed Shifflett running after Johnson from the mall, across the parking lot and into the nearby woods.

Chief Kevin Davis said he fired two rounds, one hitting Johnson in the chest. Despite an extensive search, investigators never found a weapon from Johnson at the scene.

Davis said Shifflett was "administratively separated" from the department.

"He will no longer be a Fairfax County Police officer," Davis said. “The officer's actions do not meet the expectations of our agency. There was a failure to live up to the expectations of our agency, in particular use of force policies, protocols, and procedures.”

Timothy Johnson’s family has called on the prosecution to pursue charges since he died. His mother Melissa Johnson said she was disappointed.

"It's disheartening," Melissa Johnson said. "I feel like I'm getting that 1 a.m. phone call all over again. However, we are not quitting. We are not allowing this to affect the continuation of what this is. Justice for Timothy. We'll keep going."

Commonwealth’s Attorney Steve Descano had set up a time to make an announcement on Monday but eventually canceled amid the grand jury decision. He released a statement shortly afterward:

"Earlier this morning I saw with Timothy Johnson's family and I told them I expected an indictment to come today in the killing of their son, so I can only imagine their pain and shock when they received the news that the officer - who shot and killed their unarmed son - was not indicted. Since, by law, no prosecutors were permitted to be present in the room when the investigating officers made their presentation to the grand jury, I can't say for sure what information was conveyed to the grand jurors. In light of this outcome, I am evaluating all options on the path forward and continue to grieve Timothy's loss."

Officer James Sadler also fired his gun but unlike Shifflett, he remains on restricted duty status.

“If Officer Shifflett did not follow police procedures, how did Sadler?" Crews said in a recent gathering to call for more accountability. "Use of force policies apply to him. He does not get a pass. He's not going to pass here. He needs to be fired and charged as well.”

Kershner added his client was following the law when the shots were fired. He claimed Shifflett felt his safety was in danger.

“The law on this point is clear. A police officer is authorized—and trained—to use lethal force when he reasonably believes that he is in jeopardy of serious bodily harm or death. And that is exactly what happened in this incident,” Kershner said.

Kershner said given the circumstances he faced, Shifflett's actions were reasonable. He says Shifflett's firing could have a broader impact on the department as a whole.

“A police officer should never be forced to be shot or seriously injured before he takes action to protect himself or others,” Kershner said. “The law does not require him to be shot at or to see a gun before he responds. Any trained and certified officer faced with these circumstances would be entirely justified in responding in this manner. These Monday morning quarterbacking actions by the Fairfax County Police Department are not justified by the law, and they will have a chilling effect on public safety and on the other police officers within the Department.”

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