Cecily McMillan Acquitted on ‘Obstruction’ Charges

Maxine Phillips

By Maxine Phillips

After deliberating for about an hour and a half and asking that the charge to them be re-read, a six-person jury today acquitted DSA member Cecily McMillan of “attempting to obstruct the administration of government, second degree.” The acquittal came after a week in which McMillan’s lawyer, Martin Stolar, focused on discrediting the testimony of two Transit Authority plainclothes officers who arrested McMillan on December 7, 2013, after she allegedly interfered with their detention of a young couple who had entered the Union Square subway station in New York City without paying the fare.

McMillan attempted to tell the Spanish-speaking couple, whom she feared might be undocumented immigrants, that they did not have to give information to the officers, who, she said, had not shown any identification. She began to film the encounter with her cell phone. When the officers took the couple to the precinct office located within the subway station, McMillan followed them and continued to attempt to film the arrest from outside the precinct office door. According to one arresting officer, the supervising officer finally told him to let her in so that she could be arrested. When the police ran the requisite warrant check and turned up her arrest for alleged assault on a police officer (a felony charge for which she was later convicted and is appealing), they handcuffed her and detained her. The two people who had gone through the emergency gate without paying received a summons and were released.

Speaking to jubilant supporters outside the courthouse in lower Manhattan after the verdict came down, McMillan said that one of the officers, seeing what she was charged with, commented that the District Attorney would have a “field day.” McMillan’s phone was taken, and when it was returned, there was no footage of the couple’s encounter with the police that would have corroborated McMillan’s account of the episode. Even though NYC subways carry numerous warnings that “If you see something, say something” and are supposed to be equipped with video cameras, testimony was given that none of the platform cameras were working that night, nor were cameras in the corridor leading to the precinct office.

The Union Square Station is a major hub in the largest city in the country,. causing McMillan’s supporters and others to wonder about the state of Homeland Security. The camera above the door of the precinct house was reported during the trial as having been obstructed so that no image of McMillan entering the station was available. When testimony revealed that one of the officers had filmed her with his own cell phone, at least one portion of it was admitted as evidence. Although she was described by both arresting officers as “hysterical” and “obnoxious,” the video showed her crying softly when her glasses were removed during a search. She has extremely bad eyesight and asked to have them back. The video shows an officer refusing to return them.

To her supporters and to McMillan, the fact that the misdemeanor charges were never dropped (she was offered ten days of community service for a guilty plea vs. up to a year in jail if a jury found her guilty) seemed proof that the D.A. was indeed having a field day.

Under Police Chief William Bratton’s “broken window” theory of policing, the same theory that led to Eric Garner’s death this past summer, NYC police officers spend a lot of time arresting people for minor infractions, such as fare avoidance. One of the arresting officers stated that of the 400 arrests he’d made on his own during his nine years with the Transit Police, at least 75% were for fare avoidance.  The fines are hefty, the crimes nonviolent.

At issue for McMillan and her supporters was the right of citizenry in a democracy to film or photograph police officers.

Stolar repeatedly brought out discrepancies in the two arresting officers’ testimony, pointing out that  “being obnoxious is not a crime–yet.”  They could not prove that she either actually obstructed or attempted to obstruct the officers in the course of their duty.

McMillan, almost in tears, hugged Stolar silently after the verdict. Her supporters filed out to the street, where she thanked all who have stood by her over the past two and a half years and reminded them that most people who are harassed by the New York Police Department or who try to bring police abuse of power to light do not have support or jury trials. 

As some Occupy Wall Street comrades spread a large OWS banner behind her, McMillan urged everyone to be vigilant about police abuse of power and to support Noche Diaz, scheduled to appear in court on October 14 on six misdemeanor charges related to a Ferguson solidarity rally in August.

Stressing that it was the duty of everyone to guard against abuse of power, she remarked that she was just doing what the subway signs say: “If you see something, say something.”  But, she added wryly, “not to a cop.”

For more information and to contribute to the legal defense for the appeal of the felony conviction, visit justiceforcecily.com/

Maxine Phillips is editor of Democratic Left. She thanks Itzhak Epstein, who contributed to the reporting for this article.

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