NY POLICE, GUARDS WHO MURDERED ROBERT BROOKS, ENTITLED TO COVER-UP THEIR CRIMES, APPEALS COURT RULES
RULING BY ALBANY-BASED COURT ALSO STRIPS 2.6 MILLION NEW YORKERS OF RIGHT TO SUE TO STOP CONSTITUTIONAL VIOLATIONS
Minnesota police arresting journalists during protests outside the Republican National Convention in St. Paul in 2008. Seconds after he took this photograph, cops shot the camera out of the hands of the news photographer who captured it with a 40mm round. Photo credit: JB Nicholas.
MALONE, NEW YORK Jan. 21, 2025
Police are supposed to expose law-breakers, not cover-up for them.
Not when the law-breakers are fellow cops, according to a stunning Jan. 15 decision from a New York appeals court. The decision shrouds law-breaking by police and prison guards in official secrecy.
To keep the public in the dark about police misconduct, the court ruling effectively strips 2.6 million New Yorkers of their constitutional rights.
Those are the far-reaching consequences of the Appellate Division, Third Department's decision in Nicholas v Martuscello.
The immediate impact of the decision is to keep the public from knowing how, if at all, the prison guards who murdered inmate Robert Brooks were disciplined by the state agency that manages the state's prison system, the Department of Corrections and Community Supervision, commonly known as "DOCCS."
The appeals court's decision also rubber-stamps official censorship of the guards' disciplinary records. It keeps the public from knowing if the guards who murdered Brooks were accused or found guilty of using excessive or unjustified force against other prisoners before they killed Brooks.
While a New York City law requires public hearings for NYPD officers accused of misconduct, there is no comparable state law mandating public hearings for law enforcement officers. That means police and prison guards accused of misconduct outside of the City can have secret hearings if the state agency, county, city or town they work for allows it.
The lawsuit was brought by The Free Lance News against DOCCS' Commissioner Daniel F. Martuscello III last February.
We sought a court order requiring DOCCS to allow this reporter to witness the administrative disciplinary hearings it claimed to be holding for the guards and employees who killed Robert Brooks, who failed to stop it or who tried to cover it up.
We also asked for a court order requiring DOCCS to give us copies of the guards' disciplinary records—so we could report whether they had been accused of misconduct in the past.
Although the lawsuit dealt specifically with state prison guards, the legal principles involved in the case equally apply to all law enforcement officers. A ruling in The Free Lance's favor would have set legal precedent for opening all law enforcement disciplinary hearings in New York to the public.
Despite being filed in State Supreme Court in Albany County, the case was given to a judge in Sullivan County to decide. That judge, James R. Farrell, is likely the only judge in the state who is the son of a state prison guard. Farrell dismissed the suit on April 8, 2025.
The Free Lance appealed—to the Appellate Division in Albany. The court heard oral argument on Nov. 13.
Letitia James, New York's Attorney General, aggressively defended secret administrative disciplinary hearings for police from the start.
Beezly Kiernan, a lawyer in James's office, told a four-judge panel of the Third Department the "proceedings" DOCCS uses to discipline prison guards are not really "hearings" at all. They are only "private arbitrations."
"They are conducted by a private arbitrator, resolving a dispute between an employer and an employee," Kiernan argued, "pursuant to the terms of a collective bargaining agreement not pursuant to statute or court rules."
"Arbitrations are quintessentially private proceedings," Kiernan added.
But The Free Lance News' publisher, JB Nicholas, answered Kiernan's claim by pointing to state laws requiring DOCCS to maintain discipline among its guards, to ensure they don't sadistically beat and kill prisoners for sport—like they tortured and killed Brooks.
Nicholas also pointed to the contract between DOCCS and the state prison guard union, which does not require secret hearings.
"I'm sorry I thought cops were supposed to expose law-breakers," Nicholas told the appeals court. "Not cover up for them."
In its decision, the appeals court ducked deciding whether the public has a constitutional right to view law enforcement disciplinary hearings. Instead, the court ruled it lacked the legal power to decide the issue because resolving it required it to balance the public's constitutional rights against the guards' rights.
"Application of these rights necessarily entails 'the balancing of competing interests," the court's opinion says, "an inquiry which obviously involves a measure of discretion and precludes mandamus."
Mandamus was the kind of lawsuit The Free Lance News filed.
Mandamus suits date back to Medieval England. A state law—Article 78 of New York's Civil Practice Law and Rules—specifically authorizes mandamus suits to enforce the public's constitutional rights regardless whether the specific constitutional right at issue must pass a "balancing test."
Under controlling Supreme Court precedent, many if not most constitutional rights are subject to some kind of balancing test before a court can order a Government official or agency to not interfere with exercise of the right.
Because almost all First Amendment rights and many other constitutional rights are subject to some kind of balancing test, the Appellate Division's decision effectively strips the New Yorkers who live in the 22 counties covered by the Third Department of their right to sue to stop the Government from violating their constitutional rights.
There were more than 2.6 million people living in those 22 Third Department counties in 2024, according to the latest Census data.
On paper, these 2.6 million New Yorkers maintain the constitutional rights, but they lack the right to sue to enforce them. Under the Third Department's ruling, there is no lawsuit they could file in a court of their own state to obtain a court order to stop a violation of those rights.
The Third Department's decision is contrary to a 1983 decision from New York's highest court, the Court of Appeals. Judges in New York, including those in the Appellate Division, are supposed to follow decisions by the Court of Appeals.
The 1983 case is Herald Co. v Weisenberg. There the Court of Appeals specifically ruled journalists have the right to attend and cover administrative hearings that are quasi-judicial in nature—like disciplinary hearings.
The decision in Weisenberg also held that Article 78 mandamus suits are the correct lawsuits for journalists to file if they're asking a judge to order a state agency to allow them to witness a hearing the agency is holding—even if that judge must "balance" the public's rights against the rights of the person subject to the hearing.
The Third Department's decision in Nicholas v Martuscello inexplicably fails to account for Weisenberg, let alone explain why it doesn't require public access to the disciplinary hearings and records of the prison guards who killed Robert Brooks.
The Free Lance News is appealing the Third Department's decision to the Court of Appeals.
Send tips or corrections to jasonbnicholas@gmail.com or, if you prefer, thefreelancenews@proton.me