Last week, a Manhattan jury found an Occupy Wall Street protestor guilty of Assault in the Second Degree. Cecilly McMillan now faces up to 7 years in prison for elbowing a police officer during a protest. Ms. McMillan’s defense was that the officer grabbed her breast and she acted instinctively when she threw the elbow. There was video of the incident. There was also a photograph that showed Ms. McMillan’s injuries. The jury convicted Ms. McMillan of Assault in less than three hours. Judge Zweibel ordered her to be held without bail pending sentencing. Although Ms. McMillan could legally be sentenced to no jail for this crime, the fact that the judge ordered Ms. McMillan to be held in jail pending sentencing, means it is highly likely that he will sentence her to at least some period of incarceration. Many people are upset about the fact that Ms. McMillan could be sentenced to jail. Apparently even the jury is unhappy about learning that she is likely going to go to jail. But what is it exactly that she is accused of doing?
In New York, there are numerous subsections for Assault in the Second Degree. One of the more common arrests for this crime fall under subsection three. This subsection is often referred to as the “cop assault subsection.” New York City Police Officers love charging this crime whenever they make an arrest and get injured during the arrest process. Prosecutors are sometimes wary of bringing these charges because the charges are often misunderstood by the individual officers. However, the prosecutors are often too scared to omit them because they don’t want to offend the police. As a result, you have situations where people are accused of this crime and they shouldn’t be.
Basically, the legislature made it a class D violent felony to intentionally prevent a police officer from performing a lawful duty and in doing so, the police officer suffers from some physical injury as a result. The classic example is when a police officer tries to arrest someone for another crime and the person punches the officer in the face to get away and the officer suffers a broken nose. Here, the officer is performing a lawful duty (arresting someone for a crime), the arrestee is trying to prevent the officer from arresting him (by punching him in the face), and the officer suffers physical injury as a result (the broken nose). Most people agree that this would be an appropriate situation to charge this crime.
But what happens when a person is protesting the government with other people and they refuse to comply with orders by the police to disperse. By law, this can be disorderly conduct- a violation of New York law. Further suppose that the police officer tries to arrest the protester. The protester tries to run away from the arrest because he thinks he’s about to get beat up by the officer. The officer then chases after the protestor, but trips and falls to the ground and brings the protester down too. The officer then suffers a bruise to his knee. Meanwhile, the protestor has a broken rib. Under these set of circumstances, the protestor could be just as guilty of assaulting the officer as he would be in the previous example. Here, the officer gave a lawful order for the protestor to disperse, which the protestor refused. Then the officer decided to place the person under arrest for breaking the law (disorderly conduct), the protestor then tried to run away and the officer chased him (a lawful duty), and the officer injures his knee in the process (physical injury). Here, the protester is guilty of Assault 2. Is the officer guilty of anything? As long as the force he used in effecting the arrest was legally necessary, he’s not guilty of anything and any suit against him or the city is unlikely to prevail.
When I was a prosecutor, I routinely saw situations in which the police made an arrest and they wanted me to charge this crime. Sometimes it appeared legitimate. However, when a criminal defendant suffered a fractured skull as a result of a fight with an officer and the officer suffered a twisted ankle, the request often seemed absurd. The bottom line though is that these are fact-specific situations that really depend on what actually happened. What’s interesting about the McMillian case is that she was apparently willing to plead to a misdemeanor and the DA’s Office refused.