Former Occupy Wall Street activist Cecily McMillan, who was previously convicted of assaulting a police officer during a 2012 protest, returned to a much smaller courtroom this week. This time she’s accused of a misdemeanor, interfering with two police officers as they tried to question a couple suspected of turnstile-jumping in the Union Square subway station in December. She faces a maximum of a year in jail. During pre-trial arguments yesterday, McMillan’s attorney argued that while McMillan tried to speak to the couple as they were being questioned, telling them not to talk to the police officers, she hadn’t actually prevented the arrest from taking place. The judge, Anthony Ferrara, wasn’t so sure.
“There’s a line between what’s free speech and what’s not,” he told attorney Martin Stolar. “And this case presents it, frankly.”
As we previously told you, McMillan’s second arrest happened after the Occupy Wall Street demonstration where she elbowed Police Officer Grantley Bovell, but before the case went to trial. (McMillan maintains that she elbowed Bovell after he grabbed her breast from behind, not knowing he was a police officer. Her defense team showed a photo of her bruised breast in court, the shape of a handprint clearly visible, which failed to sway the jury.) This second arrest became a piece of the prosecution’s case against her, with Assistant District Attorney Erin Choi suggesting that it showed McMillan had a pattern of combative behavior toward the police.
According to a police report and testimony during pre-trial arguments on Monday, on December 7, 2013, NYPD officer Luis Castillo and his partner, Brian Rothermel, dressed in plain clothes, were attempting to question two people, Abril Chamorro and Martin Delcanizo, after seeing them walk through an open emergency exit in the Union Square subway station around 1 in the morning. They stopped the pair on the L train platform and started to question them; the report says McMillan intervened at that point, telling the couple, “Don’t pay attention to them. They didn’t identify themselves.”
Castillo also said in the report that McMillan prevented Delcanizo from handing over his ID, knocking it out of his hand and to the ground as he tried to give it to the officer. Then, the officer added, McMillan got in the way as he tried to walk the couple to the precinct office, which is located in the subway station, to check if they had warrants.
Officer Castillo testified during pre-trial arguments yesterday, saying he’d had to “race” McMillan to the door of the precinct. He made it inside first, slamming it shut, then watched as she shook the door, demanding to be let inside. Eventually, he said, a sergeant decided he’d had enough, let McMillan in, and arrested her for obstruction of governmental administration.
McMillan had previously denied the allegations without going into much detail. Yesterday, her support team sent out a statement saying she’d been trying to film the arrests on her cell phone and was unjustly arrested for trying to do so. The statement said, in part, “The U.S. Constitution protects the right to film police activity, as confirmed in a recent internal memo to all NYPD officers in response to public outrage over video evidence showing a police officer fatally choking Eric Garner this summer. Police officers continue to harass or arrest activists and bystanders that record police misconduct.”
But the prosecutor, Assistant District Attorney Leah Saxtein, said that McMillan’s filming the officers “is not part of the people’s theory,” adding that filming the police doesn’t constitute obstruction of governmental administration.
McMillan’s attorney, Martin Stolar, argued that no part of McMillan’s behavior reached the level of obstruction. “Her conduct, according to the officer’s testimony, may be obnoxious, but it is not criminally proscribed under the statute,” he said.
Judge Ferrara replied that that will be for a jury to decide. He also ruled that the jury won’t be allowed to hear anything about her previous trial or conviction. (At one point, during a brief discussion about her previous dealings with the police, the judge cracked, “She’s not a virgin.”)
McMillan’s supporters say that the police forced her to delete the video she’d shot of them with her cell phone. Officers Castillo and Rothermel took three videos of their own during the confrontation, which the prosecution also said they won’t introduce. Additionally, the jury won’t hear about several remarks McMillan allegedly made, which the judge deemed too prejudicial to be admitted. After she was arrested and placed in a cell, McMillan allegedly said to Rothermel, “You don’t know who I am — wait till you figure it out. You probably don’t have a wife or kids, but if you do, I’ll kill them.”
At another point, McMillan, who was in a dress and heels, asked for a change of clothing, allegedly saying, “You must supply me with clothing. It’s the law. You’re a male chauvinist pig. I want sweatpants and a T-shirt.”
McMillan’s support team says those statements are “absurd fabrications” and didn’t happen. They also say that the videos the officers took, if they were introduced, would show the police taunting and antagonizing McMillan in her cell. The jury probably also won’t hear that the officers took McMillan’s glasses after arresting her. The police say her glasses were only taken to protect her from hurting herself with them.
McMillan was previously offered 10 days’ community service in exchange for a guilty plea in the case, which she declined. Jury selection will continue today, and opening arguments will likely begin this afternoon.