(READ) Judicial Watch wins ruling re: whistleblower's First Amendment rights

The following is an excerpt from Tom Fitton’s Judicial Watch Weekly Update.

Judicial Watch had a major First Amendment court win in an important case involving life and death.

A federal judge ruled that our lawsuit can go forward on behalf of former Virginia Magistrate Elizabeth Fuller against officials in the Office of the Executive Secretary of Magistrate Services for firing Fuller in violation of her First Amendment rights.

The ruling by U.S. District Judge Patricia Tolliver Giles of the U.S. District Court for the Eastern District of Virginia, Alexandria Division, came in the lawsuit we filed in March 2022. (Elizabeth Fuller v. Karl R. Hade, et al. (No. 1:22-cv-00218)).

On October 19, 2021, Fuller was fired from her position as magistrate after commenting to the Alexandria Times as part of a discussion about the publicly available outcome of her own 2020 complaint against a bondsman named Man Nguyen.

The judge’s order states that the court “finds that [Fuller] has sufficiently alleged a First Amendment violation to survive a motion to dismiss.”

[Fuller’s] comments to the Alexandria Times facially concern a matter of public interest. [Fuller’s] comments concerned the murder of Ms. Dominguez, which had received media attention and “fueled public debate about lenient law enforcement and bail practices in the Commonwealth of Virginia and nationwide.” Ms. Dominguez’s murder was even discussed by then-Virginia Delegate, now Virginia Attorney General, Jason Miyares during a floor debate on bail reform in the Virginia General Assembly. In her comments to the Alexandria Times, [Fuller] appeared to express her discontentment with the actions of Bouaichi, Nguyen, and the Circuit Court Judge, and her belief that Ms. Dominguez’s death was “entirely preventable if anybody in the process had been doing their job effectively.”

On or about January 13, 2020, Ibrahm Elkahi Bouaichi was arrested and indicted by a grand jury for burglary with the intent to commit murder, abduction, sodomy, strangulation, and rape of Karla Elizabeth Dominguez Gonzalez. Notwithstanding the seriousness of these charges, the Alexandria Circuit Court released Bouaichi on a $25,000 bond in April 2020. Less than four months after his release on bail, Bouaichi, on July 29, 2020, reportedly drove to Ms. Dominguez’ residence in Alexandria, Virginia and shot and killed her outside her apartment complex.

We pointed out in our initial complaint:

In the immediate days following the news reports about Ms. Dominguez’ murder, [Fuller] learned from a police officer in the citizen lobby of the magistrate’s office that the vehicle and gun reportedly used by Bouaichi to murder Ms. Dominquez belonged to the surety bail bondsman, Man Nguyen, who posted the $25,000 bond for Bouaichi’s release in April 2020. On information and belief, bondsman Nguyen and the officer struck casual conversation while they were waiting in the citizens lobby when Nguyen said it was his gun and car that Bouaichi used to murder Ms. Dominguez, and that he had let Bouaichi stay at his house while he was away on vacation. The officer subsequently relayed the information to Plaintiff as part of casual conversation among friendly colleagues, outside any hearing or proceeding.

On August 6, 2020, Fuller, in her personal capacity, filed a complaint with the Commonwealth of Virginia Department of Criminal Justice Services, alleging that Nguyen violated rules and regulations of his licensure as a surety bail bondsman. On September 1, 2020, Nguyen’s surety bail bond license was suspended and revoked as a result. Fuller understood that this concluded the matter.

More than a year later, the Alexandria Times disclosed the contents of Fuller’s complaint and other information obtained through a third party’s Freedom of Information Act request regarding Nguyen’s involvement and subsequently approached Fuller for comment about the complaint in October 2021. Fuller commented as follows:

Nguyen came to work in the days following the murder, nearly boasting and joking about the fact that the gun and car belonged to him and that Bouaichi had stayed at his home.
“[Bondsman Nguyen] was telling this officer about what happened and almost bragging about it. The officer said to me, ‘You will never believe what he just said to me.’” “So I said, ‘I’ve got to do something about it.’”

Five days after this story was published on October 7, Fuller was placed on administrative leave, and she was fired on October 19, 2021 for violating Canon 3, Section B(6), which states: “[a] magistrate shall abstain from public comment about a pending, impending or concluded proceeding in any court or magistrate’s office.”

In early November 2021, Fuller filed a grievance appealing her termination and asked for reinstatement, which was denied.

We argue that Fuller’s firing was retaliation for protected speech and that the judicial canon used to justify her firing doesn’t apply to comments made about a public filing made in her personal capacity:

At all relevant times, [Fuller] was engaged in constitutionally protected speech when she made the comments to the Alexandria Times, which undeniably addressed matters of public concern.

***

[Fuller] 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 [Fuller’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.

Simply put, Ms. Fuller embarrassed Virginia officials over their deadly soft-on-crime bail policies. As the court noted, our client commented on a serious public safety matter of widespread public interest. The lawsuit will now proceed to discovery and we hope, ultimately, to trial.

“I am so proud that Judicial Watch was so gracious to represent me before the federal court to secure this important victory for my First Amendment rights. This ultimately is not simply about whether or not I have a job, but about an innocent rape victim who unjustly and needlessly lost her life. It gives me hope that her story continues to be heard through this case independent of the outcome,” Fuller said.

Read more at following link: (Elizabeth Fuller v. Karl R. Hade, et al. (No. 1:22-cv-00218)).