By Olivia Anderson | [email protected]
A judge has ruled on the motion to dismiss a lawsuit filed by Judicial Watch on behalf of former magistrate Elizabeth Fuller, allowing part of it to proceed while denying another part. Fuller was terminated after speaking with the Times about her complaint that resulted in former bondsman Man Nguyen’s license removal.
Judicial Watch, a conservative activist group, filed the lawsuit against officials in the Office of the Executive Secretary of Magistrate Service, citing violations of Fuller’s First and Fourteenth Amendment rights. OES subsequently filed a motion to dismiss the lawsuit, which Judge Patricia Tolliver Giles denied in part and granted in part.
The court found that the lawsuit “sufficiently alleged” a First Amendment violation to survive a motion to dismiss, therefore denying the First Amendment claim in the OES motion. But it also found that OES is “entitled to qualified immunity in their personal capacities” and thus ruled that the Fourteenth Amendment portion of Fuller’s lawsuit cannot proceed. More specifically, Fuller claimed in the lawsuit that OES violated her right to free speech after firing her for allegedly violating Canon 3, Article B6 of the Canons of Conduct for Virginia Magistrates. The Cannons state that an employee can’t comment on a pending, impending or concluded proceeding in any court. Fuller’s lawsuit also contends that OES violated her due process rights, by stating in the termination letter that her firing was effective immediately and by not providing an opportunity for her to argue the allegations.
“Plaintiff enjoys the right to freedom of speech, as guaranteed by the First Amendment to the United States Constitution. This includes the right to comment to the Alexandria Times on Plaintiff’s public complaint filed in her personal capacity about the misconduct of a bondsman and its outcome, and the system’s failure to protect a rape victim,” the lawsuit states. “Plaintiff also enjoys the right to due process, as guaranteed by the Fourteenth Amendment to the U.S. Constitution.”
But OES claimed that Fuller’s free speech was not protected because she was not speaking as a private citizen on a matter of public concern when she commented to the Times, and that even if Fuller states a plausible claim for relief, the office is entitled to qualified immunity in their individual capacities. OES also contested that Fuller’s due process claim fails because Fuller “is an at-will employee of OES and does not have a property interest in her continued employment as a magistrate.”
Commonwealth’s Attorney Bryan Porter declined to comment on the ruling due to the active nature of the case.
Tom Fitton, president of Judicial Watch, said he is pleased that part of Fuller’s case will move forward.
“This case is a big deal. Now the litigation will go on to probe the fact that she was retaliated against for blowing the whistle on the various misconduct that led to a murder,” he said. “There’s someone dead who didn’t have to be dead, who would have been kept alive if certain parties had done what they were supposed to do under the law.”
In October 2019, Ibrahim Bouaichi was arrested when Karla Dominguez accused him of several felonies, including rape and sodomy. A grand jury indicted Bouaichi for five felonies and his trial was set for March 2020. However, then-Judge Nolan Dawkins released Bouaichi on bond after the COVID-19 pandemic hit. Bouaichi’s lawyers argued at the April 8, 2020 bond hearing, of which the Times obtained a transcript, that in addition to dangers posed by the pandemic there was not enough evidence for Bouaichi to be held in jail.
Dawkins set Bouaichi’s bond at $25,000, or $5,000 for each felony charge. Bail bondsman Man Nguyen posted the bond to release Bouaichi, who would later use Nguyen’s gun and car to drive to Dominguez’ apartment and allegedly murder her. Bouaichi later died from a self-inflicted gunshot wound.
Fuller, who was an Alexandria magistrate at the time, filed a complaint with the Virginia Department of Criminal Justice Services that Nguyen had violated several statutes and regulations of his licensure as a bondsman. DCJS proceeded to hold an investigation that ultimately resulted in the revocation of Nguyen’s bail bondsman license in September 2020.
Then, in October 2021, Fuller provided a comment to the Times about her decision to report Nguyen. She was fired shortly after. In the termination letter, Magistrate Regional Supervisor Elizabeth Edwards disparaged Fuller’s judgment as a magistrate.
“You have demonstrated a flagrant disregard of your responsibility … which has resulted in a public and widespread decimation [sic] of your inappropriate conclusory commentary,” Edwards wrote.
Judicial Watch announced several months later that it filed a lawsuit on Fuller’s behalf. Fitton said the significance of Judicial Watch’s lawsuit is twofold: it touches on both constitutional issues and public safety issues.
“There was a collapse in the system that led to the death of an innocent woman. And someone who, as a citizen, tried to call attention to it was fired improperly,” Fitton said. “It’s bad enough that public safety was harmed, but then you’ve got the attack on [Liz Fuller], for expressing the concern that any citizen would have about what happened.”
Nguyen was convicted for contempt of court in January 2022. Though he was sentenced in March 2022 to a year in jail with 11 months suspended for good behavior, Nguyen was released in April 2022 after serving less than a week in jail.
Fuller stated in a press release from Judicial Watch that she is appreciative of both Judicial Watch’s representation and the fight for First Amendment rights. Yet she also noted in the release that the case is not just about her, but symbolic of a much larger story.
“This is ultimately not simply about whether or not I have a job, but about an innocent rape victim who unjustly and needlessly lost her life,” Fuller said. “It gives me hope that her story continues to be heard through this case independent of the outcome.”
CORRECTION: An earlier version of this article incorrectly stated the grand jury’s decision. In fact, the grand jury indicted Ibrahim Bouaichi for five felonies.