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Inciting a Riot in California - Penal Code 404.6 PC

Posted by Dmitry Gorin | Nov 30, 2022

The rights of freedom of speech and peaceable assembly are guaranteed under the U.S. Constitution for every citizen. However, when someone incites violence in an assembly in the name of free speech, the State of California considers it a crime.

Inciting a riot is a misdemeanor offense under Penal Code 404.6 PC. If you're convicted of this crime, you could face up to a year in county jail, a $1,000 fine, or both jail and a fine.

Inciting a Riot in California - Penal Code 404.6 PC
It's a crime to incite other people to riot, commit acts of violence, or destroy property.

Put simply, this statute legally defines the crime commonly known as inciting a riot, which means to cause, or attempt to cause, a riot by urging other people to engage in rioting or commit acts of force or violence or burn or destroy property.

PC 404.6 says, “anyone who with the intent to cause a riot does an act or engages in conduct urging a riot, or urges others to commit acts of force or violence, or the burning or destroying of property, and at a time and place and under circumstances that produce a clear and present and immediate danger of acts of violence or destroying of property, is guilty of incitement to riot.”

Subsection (c) says that anyone who incites any riot resulting in serious bodily injury will be punished by “either imprisonment in a county jail for up to one year or imprisonment pursuant to subdivision (h) of Section 1170.”

To violate this statute, a perpetrator does not have to engage in rioting or violence personally; instead, urging other people to do so is sufficient to support criminal charges. In other words, all that is necessary is that a perpetrator was trying to instigate this behavior.  

Of note, however, is that it's only incitement to riot if someone acts where there is a clear and present and immediate danger of these acts of rioting, violence, or burning. Let's review this state-level law in more detail below.

Overview of Penal Code 404.6 PC

As noted, Inciting a riot is defined under PC 404.6 as the act of urging other people to engage in rioting, to commit acts of force or violence, or to burn or destroy property, and to do so in such a way that it presents "a clear and present and immediate danger of acts of force or violence or the burning or destroying of property."

Some notable points about the language of this law:

  • You don't have to riot to be convicted of this crime. You only have to encourage others to do it, even if you abstain from the riotous behaviors yourself;
  • No actual rioting has to occur for you to be convicted of this crime. As long as you tried to incite rioting, and as long as there was a danger of a riot or violence breaking out, the prosecution may be able to get a conviction against you;
  • There doesn't have to be an organized assembly of people for you to be convicted of this crime. In other words, you can be charged with inciting a riot outside the context of a protest. As long as your words and actions produced a "clear and present danger," you can be charged and convicted under PC 404.6;
  • The prosecution must prove you had the intent to start a riot. Willful intent is a critical factor in inciting a riot. It's not enough to inadvertently say or do something that evokes violence; the law says you must have intended to start the riot by your behavior.

What Are Some Examples?

EXAMPLE 1: During an angry protest march where law enforcement is standing guard, Tom yells out for the people around him to pick up rocks and throw them at the cops. Tom could be charged with inciting a riot because his words could spark violence even if no one throws a rock.

EXAMPLE 2: Derek is complaining to his friends in a bar about being denied affordable housing by the HUD office.

He's overheard saying angrily, "Someone should set fire to the housing office."

Derek will likely not be charged under PC 404.6 PC because his words created no immediate threat of danger, so his free speech is protected.

What Are the Related Crimes?

Inciting a riot often is charged in tandem with other crimes, including, but not limited to, the following:

  • Unlawful assembly as defined under Penal Code 407 and 408 PC: Two or more people assembling for the purpose of committing either an unlawful act or a lawful act in a violent manner;
  • Participating in a riot as defined under Penal Code 404 PC: Taking part in a riot that results in violence or damage to property without being the instigator of it;
  • Refusal to disperse as defined under Penal Code 409 PC: Remaining at the scene of a riot or unlawful assembly after law enforcement has given orders to leave;
  • Failure to disperse as defined under Penal Code 416 PC;
  • Disturbing the peace as defined under Penal Code 415 PC;
  • Resisting arrest as defined under Penal Code 148 PC.

What Are the Penalties for Inciting a Riot?

Inciting a riot is a misdemeanor in California. If convicted, you could face a fine of up to $1000 and up to a year in jail. Judges can impose lesser penalties or summary probation instead of jail time if they feel the circumstances warrant it.

However, suppose the incitement to riot occurs inside a prison resulting in bodily injury. In that case, this crime becomes a "wobbler," meaning it may be charged as either a misdemeanor or a felony. If convicted of a felony, you could face three years in state prison.

What Are the Legal Defenses?

The following are some of the defenses your attorney could raise on your behalf if you've been charged with inciting a riot.

Legal Defenses for Inciting a Riot in California
Call our law firm for help.

Perhaps we can argue that you didn't willfully intend to start a riot. For example, maybe you spoke words of violence in the heat of passion, but you did not expect that people around you would act on those words.

Perhaps we can argue that you did not urge people to commit violence or destroy property. For example, you may have been encouraging people to protest but not to break the rules of peaceful protest.

Perhaps your speech or actions did not pose an immediate threat of violence or destruction of property. In other words, even if you spoke words that encouraged violence, you had little authority or clout to get others to do so. This defense is more compelling when no violence occurs.

If you need legal representation after being charged with inciting a riot, contact our law firm by phone or fill out the contact form. Eisner Gorin LLP is located in Los Angeles, California.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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