The Crime of Peaceful Protest

NEW YORK--Cecily McMillan, wearing a red dress and high heels, her dark, shoulder-length hair stylishly curled, sat behind a table with her two lawyers Friday morning facing Judge Ronald A. Zweibel in Room 1116 at the Manhattan Criminal Court. The judge seems to have alternated between boredom and rage throughout the trial, now three weeks old. He has repeatedly thrown caustic barbs at her lawyers and arbitrarily shut down many of the avenues of defense. Friday was no exception.

The silver-haired Zweibel curtly dismissed a request by defense lawyers Martin Stolar and Rebecca Heinegg for a motion to dismiss the case. The lawyers had attempted to argue that testimony from the officer who arrested McMillan violated Fifth Amendment restrictions against the use of comments made by a defendant at the time of arrest. But the judge, who has issued an unusual gag order that bars McMillan's lawyers from speaking to the press, was visibly impatient, snapping, "This debate is going to end." He then went on to uphold his earlier decision to heavily censor videos taken during the arrest, a decision Stolar said "is cutting the heart out of my ability to refute" the prosecution's charge that McMillan faked a medical seizure in an attempt to avoid being arrested. "I'm totally handicapped," Stolar lamented to Zweibel.

The trial of McMillan, 25, is one of the last criminal cases originating from the Occupy protest movement. It is also one of the most emblematic. The state, after the coordinated nationwide eradication of Occupy encampments, has relentlessly used the courts to harass and neutralize Occupy activists, often handing out long probation terms that come with activists' forced acceptance of felony charges. A felony charge makes it harder to find employment and bars those with such convictions from serving on juries or working for law enforcement. Most important, the long probation terms effectively prohibit further activism.

The Occupy Wall Street movement was not only about battling back against the rise of a corporate oligarchy that has sabotaged our democracy and made war on the poor and the working class. It was also about our right to peaceful protest. The police in cities across the country have been used to short-circuit this right. I watched New York City police during the Occupy protests yank people from sidewalks into the street, where they would be arrested. I saw police routinely shove protesters and beat them with batons. I saw activists slammed against police cars. I saw groups of protesters suddenly herded like sheep to be confined within police barricades. I saw, and was caught up in, mass arrests in which those around me were handcuffed and then thrown violently onto the sidewalk. 

The police often blasted pepper spray into faces from inches away, temporarily blinding the victims. This violence, carried out against nonviolent protesters, came amid draconian city ordinances that effectively outlawed protest and banned demonstrators from public spaces. It was buttressed by heavy police infiltration and surveillance of the movement. When the press or activists attempted to document the abuse by police they often were assaulted or otherwise blocked from taking photographs or videos. The message the state delivered is clear: Do not dissent. And the McMillan trial is part of the process.

McMillan, who spent part of her childhood living in a trailer park in rural Texas and who now is a graduate student at The New School for Social Research in New York, found herself with several hundred other activists at Zuccotti Park in Manhattan in March 2012 to mark the six-month anniversary of the start of Occupy Wall Street. The city, fearing the re-establishment of an encampment, deployed large numbers of police officers to clear the park just before midnight of that March 17. The police, heavily shielded, stormed into the gathering in fast-moving lines. Activists were shoved, hit, knocked to the ground. Some ran for safety. More than 100 people were arrested on the anniversary. After the violence, numerous activists would call the police aggression perhaps the worst experienced by the Occupy movement. In the mayhem McMillan -- whose bruises were photographed and subsequently were displayed to Amy Goodman on the "Democracy Now!" radio, television and Internet program -- was manhandled by a police officer later identified as Grantley Bovell. [Click here to see McMillan interviewed on "Democracy Now!" She appears in the last 10 minutes of the program.]

Bovell, who was in plainclothes and who, according to McMillan, did not identify himself as a policeman, allegedly came up from behind and grabbed McMillan's breast--a perverse form of assault by New York City police that other female activists, too, suffered during Occupy protests. McMillan's elbow made contact with his face, just below the eye, in what she says appeared to be a reaction to the grope; she says she has no memory of the incident. By the end of the confrontation she was lying on the ground bruised, beaten and convulsing. She was taken to a hospital emergency room, where police handcuffed her to a bed.

Had McMillan not been an Occupy activist, the trial that came out of this beating would have been about her receiving restitution from New York City for police abuse. Instead, she is charged with felony assault in the second degree and facing up to seven years in prison. She is expected to take the witness stand this week.

McMillan's journey from a rural Texas backwater to a courtroom in New York is a journey of political awakening. Her parents, divorced when she was small, had little money. At times she lived with her mother, who had jobs at a Dillard's department store, as an accountant for a pool hall and later, after earning a degree, as a registered nurse doing shifts of 60 to 70 hours in hospitals and nursing homes. There were also painful stretches of unemployment. Her mother, from Mexico, was circumspect about revealing her ethnicity in the deeply white conservative community, one in which blacks and other minorities were not welcome. She never taught her son and daughter Spanish. As a girl McMillan saw her mother struggle with severe depression and, in one terrifying instance, taken to a hospital after she passed out from an overdose of prescription pills. For periods, McMillan, her brother and her mother survived on welfare, and they moved often; she attended 13 schools, including five high schools. Her father worked at a Domino's Pizza shop, striving in vain to become a manager.

Racism was endemic in the area. There was a sign in the nearby town of Vidor, not far from the Louisiana state line, that read: "If you are dark get out before dark." It had replaced an earlier sign that said: "Don't let the sun set on your ass n-word."

The families around the McMillans struggled with all the problems that come with poverty -- alcoholism, drug abuse, domestic and sexual violence and despair. Cecily's brother is serving a seven-year sentence for drug possession in Texas.

"I grew up around the violence of poverty," she told me as she lit another cigarette while I interviewed her Thursday night in an apartment in Harlem. She smoked nearly nonstop during our conversation. "It was normative."

Her parents worked hard to fit into the culture of rural Texas. She said she competed as a child in a beauty pageant called Tiny Miss Valentines of Texas. She was on a cheerleading team. She ran track.

"My parents tried," McMillan said...

"They wanted to give us everything. They wanted us to have a lifestyle we could be proud of. My parents, because we were ... at times poor, were ashamed of who we were. I asked my mother to buy Tommy Hilfiger clothes at the Salvation Army and cut off the insignias and sew them onto my old clothes. I was afraid of being made fun of at school. My mother got up at 5 in the morning before work and made us pigs in a blanket, putting the little sausages into croissants. She wanted my brother and myself to be proud of her. She really did a lot with so very little."

McMillan spent most of her summers with her paternal grandparents in Atlanta. They opened her to another world. She attended a Spanish-language camp. She went to blues and jazz festivals. She attended a theater summer camp called Seven Stages that focused on cultural and political perspectives. When she was a teenager she wrote collective theater pieces, including one in which she wore the American flag as a burka and sang "The Star-Spangled Banner" as a character dressed as Darth Vader walked onto the stage. "My father was horrified," she said. "He walked out of the theater."

As a 13-year-old she was in a play called "I Hate Anne Frank." "It was about American sensationalism," she said. "It asked how the entire experience of the Holocaust could be turned for many people into a girl's positive narrative, a disgusting false optimism. It was not well received."