The Constitution protects the right of its citizens to assemble peacefully for protest. But when an assembly is deemed unlawful, most notably, when violence or the threat of violence occurs, police have the authority to disperse the crowd.
If you are told by law enforcement to leave the scene of an assembly that has been deemed unlawful and fail to do so, you may be arrested and charged with failure to disperse under either Penal Code 409 PC or 416 PC. If convicted, you could face up to 6 months in jail.
Penal Code 409 PC says, “anyone remaining present at the place of any riot or unlawful assembly after the same has been lawfully warned to disperse, except public officers and people assisting them in attempting to disperse the same, is guilty of a misdemeanor crime.”
Penal Code 416 says, “(a) if two or more people assemble to disturb the public peace, or to commit any unlawful act, and do not disperse on being commanded so to do by a public officer, the persons so offending are severally guilty of a misdemeanor crime.”
PC 416 also says that any person who causes damage to the property will be required to pay restitution directly to the victim for the damage they caused, including all costs of cleaning up, repairing, replacing, or restoring the property.
If the defendant is financially unable to pay the victim restitution, the court can order them to perform community service hours rather than direct restitution payment. Let's review these laws in greater detail below.
Failure or Refusal to Disperse - Explained
In California, the crime of failure to disperse falls under one of two similar laws: Penal Code 409 PC and Penal Code 416 PC. Let's look at these separately.
Penal Code 409 PC makes it a crime for an individual to knowingly fail or refuse to obey a lawful order given by a law enforcement officer to disperse from a "riot, rout, or unlawful assembly."
An "unlawful assembly" is an assembly of two or more people that the police reasonably believe are disturbing the peace, engaging in violence, about to do so, or inciting others to violence.
In other words, this statute makes it a crime for someone to remain at a riot, or an unlawful assembly, after being ordered by the police to leave.
This crime is called either “failure to disperse” or “refusal to disperse.” A perpetrator can only be guilty under this law if the authorities give a general proclamation to a crowd to disperse. This means if not sufficient for a police officer to tell only a couple of people to leave the scene.
Penal Code 416 PC makes it a crime for two or more people to assemble with the intent of "disturbing the public peace or committing any unlawful act" and then fail to disperse when ordered to do so by law enforcement.
While these laws seem pretty similar, there are some nuances between them. It helps to think of PC 409 as focusing on individuals attending a riot or unlawful assembly and PC 416 as focusing on the instigators of an unlawful assembly. Other related crimes include:
- Penal Code 404 PC - rioting,
- Penal Code 408 PC - unlawful assembly,
- Penal Code 415 PC - disturbing the peace,
- Penal Code 404.6 PC - inciting a riot.
What Are Some Examples?
EXAMPLE 1: Ted is notified of a group meeting in the local park to protest the treatment of prisoners at a jail. While the protest was going on, some protesters started throwing rocks at police cars, making it an "unlawful assembly."
Law enforcement orders everyone to leave the park immediately via megaphone, but Ted hangs around, trying to get a glimpse of the protest organizers. Ted could be arrested and charged under PC 409.
EXAMPLE 2: John and Jay believe the only way to raise public awareness of police corruption is to stage a violent protest. So they gather a group armed with Molotov cocktails with the intent of throwing them at the local police station. Before they can follow through, however, they are intercepted by police in riot gear and ordered to disperse.
They refuse. John and Jay, in particular, could be charged under PC 419 for instigating an unlawful assembly and refusing to leave when ordered.
What Are the Penalties?
PC 409 and PC 416 are both misdemeanor offenses under California law. If you're convicted of either crime:
- the maximum sentence is six months in county jail, and
- $1,000 in fines.
You may also face mandated community service, and you may be required to make restitution for any damage done during the unlawful assembly.
What Are the Common Defenses?
Depending on the circumstances, defense attorneys may implement several defenses against PC 409 and PC 416, which are discussed below.
Perhaps we can argue that the assembly was not unlawful. If attorneys can make the case that the assembly was not disturbing the peace or about to engage in violence, then the inference is that police made improper arrests, and the charges should not stand.
Perhaps we can argue that the order to disperse was unlawful. If the police did not have probable cause to deem the assembly illegal or if they did not give attendees enough time to leave before arresting them, charges may be dropped.
Maybe you didn't know an order to disperse had been given. To convict you of failure to disperse, prosecutors must prove you willfully ignored orders to leave the scene. If, for example, you didn't hear the order to disperse, you should not be convicted of a crime.
Perhaps we can argue that you were not a participant in the unlawful assembly. For example, maybe you happened to be walking by the protest after police ordered the crowd to disperse, and you happened to get caught in a group of participants that were arrested en masse.
Maybe you did not assemble with the intent to disturb the peace or commit a crime. If, for example, you are charged under PC 416, if you can demonstrate you were not among the instigators of a violent assembly or that you had no such intent, the charges against you may be dismissed.
Perhaps we can negotiate with the prosecutor to persuade them not to file formal criminal charges in the first place, called a “DA reject.” The Los Angeles-based criminal defense law firm of Eisner Gorin LLP can be reached for an initial case review by phone or use the contact form.