Malcom Burks and Felicia Hodges went to the Newburgh police in person to get the arrest report related to the incident that began with state police trying to pull over their son, Marcus Burks, on New Year’s Day and ended with his death. That was after they did not get a response to their Freedom of Information Law request.
Hodges says they received the report, which they shared with WAMC, 118 days after Marcus’s death.
Malcolm Burks says he’s disturbed by the report, which describes officers punching, pepper-spraying and tasing his son while he was on the ground following the crash.
According to the report, Newburgh police arrived after New York State Police, while Burks was already on the ground.
Sgt. Francis Quinn describes in his report, dated five days after the incident, that Burks was sweating and resisting arrest while on his stomach. He says, “I believed him to be under the influence of some sort of narcotic. I then administered approximately 3 strikes with a closed right fist to the suspects’ right face area to gain compliance, which had zero effect.”
Malcolm Burks was taken aback by the narrative.
“So he had the, not just a right, but authority to strike him three times, punch him three times in the head after a car accident, so that that stuck out. And then another officer said he tased him three times in the back,” Burks said.
Officer Abagayle Baker says in her report, “I struck the male with a closed right [fist] in his right side of his middle back in an attempt to decrease resistance.”
According to the autopsy report, Burks' death was ruled a homicide. He died from cardiac arrest because of the police’s arrest and use of pepper spray and tasers while in the prone position.
In 2022, a study in the Journal of Forensic Sciences says prone restraint can lead to cardiac arrest, and is worsened by drugs, stress and physical exertion.
In 2024, the Associated Press found dozens of cases in which prone restraint or positional asphyxia – when someone’s physical position means they cannot breathe properly – contributed to someone’s death after they were subdued by police.
Attorney Michael Sussman, who is representing the family, shared video of the incident with the Times Union. In it, Burks says, “I can’t breathe” at least five times after he is pepper-sprayed and stops moving shortly after. It also shows that officers turned Burks on his side after he became quiet and stopped moving.
The police report says, according to the dispatches, there was a motor vehicle rollover due to a failure to comply with state police at 10:40 p.m. Three minutes later, a male was taken out of the vehicle and detained. Four minutes after that, pepper spray was used. The report says at 1:05 a.m., a taser was used and just before 2 a.m. pepper spray was used again.
The city of Newburgh, Newburgh police, state police and the state attorney general’s office all declined to comment on an ongoing investigation. The attorney general’s office investigates all deaths in New York state caused by police officers.
Malcolm Burks says he wants the officers involved to be held accountable.
“Had this been reversed and my son had murdered… depending on how it plays out in court, he would be in jail awaiting a trial, he wouldn't be walking free,” Burks said.
Burks says he and his wife were also upset that the city of Newburgh posted a message on Facebook about their son’s death sharing condolences but never reached out directly.
“When we went through that the AGs office, they offered us counseling and services. We were offered nothing from the City of Newburgh. It was almost to the point where they said, you know, ‘deal with it on your own,’” said Burks.
Burks says his son was getting ready to leave Newburgh and move south. He wonders what could have been different.
“That really made it hard to me, knowing that had we planned earlier, we wouldn't be in this situation. But he was he was a great son. I couldn't asked for a better son. I mean, we spent numerous hours talking about life, and his career, and finances. Everyone, pretty much in the community, knew him. He was very polite and cordial to everyone,” Burks said.
Burks says he still plans to march in Newburgh, and he is also asking for the full bodycam footage to be released.
