Removal Upheld For Firearm-Brandishing Judge

The New York Court of Appeals upheld the removal of a pistol-packing town court justice

Petitioner has been a Justice of the Whitehall Town Court since 2014. He took office as a Justice of the Whitehall Village Court in 2018, having served in that office in an acting capacity since 2014. One day in late 2015, while presiding over Whitehall Village Court, petitioner brandished a loaded firearm at a litigant who was waiting for his case to be called. In 2020, the Commission served petitioner with a formal written complaint containing a single charge arising from that incident (Charge I). In 2021, the Commission served petitioner with a second formal written complaint containing an additional charge, which alleged that he had engaged in improper fundraising (Charge II). In lieu of a hearing, petitioner entered into an agreed statement of facts (see Judiciary Law § 44 [5]). 

The firearm incident involved a litigant

The litigant, a six-foot, 165-pound Black man, had been in Whitehall Village Court earlier in the year on a felony charge based on allegations that he brandished a knife at his wife and another man while they sat in a parked car. The felony charge was dismissed on consent of the prosecution, and the litigant pleaded guilty to a misdemeanor charge in exchange for a one-year conditional discharge and fines and surcharges totaling $555. The litigant was later jailed for failing to pay the fine; however, his wife told petitioner that the litigant could not afford to pay the fine. In response, petitioner went to the courthouse on his lunch hour from his other employment, reduced the fine to community service, and released the litigant. It was at a later appearance that petitioner brandished the firearm.

Although petitioner claims that he “subjectively feared for his safety,” he admits that he had “no reasonable basis” to believe that the litigant “was about to use imminent deadly force,” and that he was “not justified” in brandishing the firearm.

Petitioner repeatedly recounted his story of the incident to others, at least once in an apparently boastful manner. In fall 2015, he recounted the incident to his cousin, a Hofstra University journalism student, for an article that was eventually published in a Long Island news source. During the interview, he described his practice of carrying a firearm on the bench and said that he once brandished his firearm at “ ‘someone’ who came running up to him at the bench and to whom he said, ‘whoa, whoa, whoa, slow down.’ ” As petitioner stipulated, however, neither the police officer nor an assistant district attorney who petitioner claimed had been present at the time would have corroborated this version of events if called to testify at a hearing.

In early 2016, petitioner showed the article to another judge, telling her about a time he drew his firearm on an “ ‘agitated’ ‘big Black man’ ” when the man approached the bench too quickly. From petitioner’s “manner and tone,” the judge had the “impression” that petitioner “was bragging about his actions and that he was expressing pride about being featured in the article.” The judge also overheard petitioner tell other judges about the article and incident at a 2016 Washington County Magistrates Association meeting.

At another Association meeting in 2018, while seeking advice about courtroom security, petitioner told the judges in attendance, including his supervising judge, that he once pointed his firearm at a “ ‘large [B]lack man’ ” who had passed the stop line and came within “a couple” feet of the bench while a police officer was standing at the bench. Petitioner recounted that the litigant stated that he “just wanted to talk,” and he added that the officer made a joke about how quickly petitioner had been able to draw the gun.

Fundraising

Petitioner engaged with eight Facebook posts promoting nonprofit fundraising events during the period October 2019 through November 2020—after he had become aware that the Commission was investigating the misconduct that resulted in Charge I. During that period, petitioner’s page was viewable by the public, and he had over 1,300 “friends,” many of whom knew he was a judge. These included the Washington County District Attorney, other attorneys, and police officers.

Expression of racial bias

Despite these conclusive admissions, petitioner now argues that he was not acting with racial bias and that his repeated reference to the litigant as a “ ‘big Black man’ ” was meant merely to describe him. But this is not a mere physical  description of the litigant. By repeatedly referring to the litigant in the manner that he did, petitioner exploited a classic and common racist trope that Black men are inherently threatening or dangerous, exhibiting bias or, at least, implicit bias* (see Mikah K. Thompson, Bias on Trial: Toward an Open Discussion of Racial Stereotypes in the Courtroom, 2018 Mich St L Rev 1243, 1249-1250). For these reasons, we see no basis to set aside the finding of racial bias.

Removal is appropriate

While presiding over his courtroom, petitioner brandished a loaded firearm at a litigant who presented no threat to anyone. Rather than show remorse, he described his conduct in a press interview and boasted about it to his colleagues, while repeatedly, and gratuitously, referring to the litigant’s race. Also troubling is petitioner’s denial in this Court of facts to which he previously stipulated. Petitioner’s unfitness for office is further demonstrated by his improper use of social media to solicit donations. Although the improper fundraising would not by itself warrant removal, its timing and the circumstances under which it occurred—while petitioner was under investigation on Charge I—evince an unwillingness or inability to abide by the Rules of Judicial Conduct.

For these reasons, “the record amply supports the conclusion that petitioner’s misconduct ‘transcends poor judgment’ and warrants removal”

(Mike Frisch)