Over the past six weeks, we've all watched protesters clash with police in the streets of almost every major city in the US. Most have demonstrated peacefully. Many have resorted to various degrees of civil disobedience. Some have vented their frustrations toward the police, and a few have taken advantage of the opportunity to commit random acts of violence, vandalism and theft.
Of course, the First Amendment to the US Constitution assures the rights to assemble peacefully and to speak freely. When gatherings threaten to become destructive, though, protests often morph into "unlawful assemblies", "routs" or "riots".
An "unlawful assembly" is defined by section 407 of the California Penal Code as a group of 2 or more people who have assembled together to commit an unlawful act, OR to commit a lawful act in a manner that is "violent, boisterous or tumultuous". If a group of people, however small, gets together with the intent to commit a crime, they have formed an unlawful assembly. Even if the act they intend to commit is legal, they have still formed an unlawful assembly if they plan to commit the act in a manner that threatens public peace. These elements are usually difficult for a prosecutor to prove in court. It is fairly rare for the DA to actually prosecute the offense, but it may be a good excuse for police to clear the streets with mass arrests. Even if none of the detainees are ever charged or convicted of a crime, PC 407 gives police a tool to forcibly shut down protests.
A "riot" occurs when 2 or more people "disturb the public peace by using force or violence or by threatening to use force or violence with the immediate ability to carry out those threats" (PC 405). Prosecutors do not need to prove that the defendant or defendants had any previous plan or agreement to commit a crime, only that they they acted together in doing so.
A "rout" occurs when 2 or more people "make any attempt or advance toward the commission of an act which would be a riot if actually committed" (PC 406). Basically, a rout is an attempted riot.
"Participating in a riot or a rout" is a misdemeanor (PC 408), but a defendant's mere presence at the scene is not sufficient to convict him. It could make him guilty of violating section 409 of the California Penal Code, though, "refusing to disperse". This charge is pretty self-explanatory. If the police have determined that some gathering constitutes an "unlawful assembly", a "riot" or a "rout" and they order the congregants to disperse, any person who fails to do so may be charged with a misdemeanor. Again, though, this is trickier than it sounds. Prosecutors must prove that the defendant heard the order to disperse or somehow knew that the assembly was unlawful, and also that the defendant willfully refused to disperse. And again, these elements can be difficult for prosecutors to prove. If the police "kettle" a group of protesters into a confined area and block the escape routes, then the protesters have not "willfully" failed to disperse. On top of that, prosecutors need to prove that the gathering actually was unlawful. Just because the police declared it does not necessarily mean that their declaration will hold up in court.
All of these charges potentially carry significant fines ($1,000.00, plus various court fees, penalty assessments and restitution = $5,000+) and jail time (6 months to a year in local custody) if the defendant is convicted.
Allegations of illegal protesting can be complicated to defend against. If you or a loved one was arrested or cited for activities related to the recent protests, call us for a free attorney consultation. (714) 449-3335. Ask for John. We have experience defending against these charges and holding the police accountable.
Orange County Criminal Defense Attorney
