THE SAN DIEGO BIOTECHNICAL CONVENTION
Legal Tools for Maintaining the Peace
Robert C. Phillips
Deputy District Attorney
May, 2021
Introduction:
Between June 24 and 27, 2001, the City of San Diego will be hosting a convention of delegates and dignitaries from around the world, here to discuss the “New Biotechnology; the use of the cellular and molecular processes to solve problems and make products.” Some 15,000 people are expected to attend, including the heads-of-state from numerous countries, many governors, and possibly even representatives from the White House.
However, the convention is also expected to attract protestors from around the world numbering in the thousands or even tens of thousands, from a wide variety of unrelated organizations. And, based upon recent history, it must also be expected that a significant number of these protestors are planning unlawful acts, including some serious acts of violence, as a means of attracting attention to their respective causes.
It is the purpose of this memorandum, as a part of the planning by law enforcement which is underway in preparation for the Convention, to review the legal tools available to law enforcement in its efforts to eliminate, minimize, or at least properly react to, any planned unlawful and/or violent demonstrations while, at the same time, allow for the lawful and peaceful expression of contrary viewpoints by demonstrators or anyone else seeking to exercise their First Amendment rights.
Information Sources:
In the writing of this memorandum, I have had made available to me and have reviewed the following documents:
- “Legal Issues Involving Crowd Management and Civil Disobedience;” by Carol Ann Rohr.
- “The New Age of Civil Disturbance Tactics:” An FBI summary of strategy, communication, intelligence, operations, offensive tactics, defensive tactics, transportation assets, jail and courthouse tactics, logistics, and potential tactics.
- “Violence on the Protest Line!” An article published in the January 2001 edition of Law Enforcement Technology, by Dale Yeager.
- “The Battle of Seattle;” Newsweek, December 13, 1999, by Kenneth Klee.
- “The New Radicals;” Newsweek, December 13, 1999, by Michael Elliott.
- “After the Storm Passes;” Newsweek, December 13, 1999, by Fareed Zakaria.
- “BioJustice Action Camp;” an Internet notification by “The Ruckus Society.”
- “Legal Rights and Solidarity Tactics Workshops:” by the “Just Cause Law Collective.”
- “Solidarity Tactics in Seattle, Washington D.C., and Los Angeles;” by the “Just Cause Law Collective.”
- “Handbook for Activists:” by the “Just Cause Law Collective,” written by Katya Komisaruk.
- “Judi Bari:” a historical description of an activist’s activities, by “Earth First.”
- “Civil Disobedience Training:” by “Act Up; Aids Coalition to Unleash Power.”
- “Government Misconduct Timeline:” by the “R2K Legal Collective.”
- “Handbook for Nonviolent Action:” by “War Resisters League.”
- The Maldon Institute analyses of, and other follow-up reports concerning:
- “Battle in Seattle; Strategy and Tactics behind the World Trade Protests” in Seattle, Washington; November-December, 1999
- “Spring Rites Return: Protests Against the International Monetary Fund/World Bank; April, 2000.
- “R2K: Philadelphia’s Convention Protests:” The Republican National Convention; August, 2000.
- “World Social Forum: Revitalizing Anti-Global Action” in Davos, Switzerland; January, 2001.
- “Quebec’s Lessons; Summit of the Americas;” April, 2001.
The first thing that struck me as I reviewed the above materials is that we are not dealing with a bunch of disorganized misfits who, without a war to protest, are merely seeking something to do. To the contrary, most of the protestors involved in the above incidents are in fact highly motivated, organized, trained, and well-equipped professional activists who know exactly what they are doing, and when to push the right buttons to obtain the results that they want.
For instance, in preparation for San Diego’s convention, a “BioJustice Action Camp” was held in San Diego from May 13 to May 20, sponsored by “The Ruckus Society,” for the purpose of “bring(ing) together the various arms of the existing movement to ban genetically engineered foods with those concerned over moral, legal, and biological dilemmas resulting from the manipulation and patenting of the very fabric of life.” The Action Camp was touted as “a unique week-long intensive training in the strategies and tactics of nonviolent direct action.” Participants from “Asia, Europe, and from throughout South and North America” were expected. A complete schedule of workshops and presentations were planned. (See www.ruckus.org)
The second thing I noticed is that resisting modern biotechnology is just the type of cause that has long occupied the interests and efforts of a strong and militant central core of the activists. Combine this goal with their belief that international cooperation on such technology is some sort of capitalist conspiracy meant to pull down the poor farmers and workers of Third World countries, and you can just about guarantee a strong, activist interest in June’s “BioTech” convention in San Diego.
The unprecedented nature of such protests, at least locally, should not be allowed to give San Diegan’s a false sense of security. Seattle’s World Trade Conference, where they also had never experienced any really militant protests, drew an estimated 40,000 to 80,000 (depending upon who’s doing the estimating) protestors from some 500-odd separate organizations. The four-day convention produced little or no progress in the delegates’ goals, at least partially due to the disruptions. The resulting riots left the City of Seattle with some 631 arrests, 56 injured police officers, $3 million in property damage, $17 million in lost revenue to business owners, and a $9.3 million in direct costs to the city. The police chief has since resigned and the mayor battles criticism from numerous fronts on his handling of the demonstrations.
Probably the main difficulty experienced by law enforcement in their efforts to maintain the peace in Seattle, as well as other convention sites (See #15, the Maldon Institute analyses, above), was that in each of the above instances the many activists, bent on violence, were able to hide themselves among those protestors who either intended no violence, or at the worst, planned on participating in no more than non-violent civil disobedience. Violent activists have discovered, and effectively use, the tactic of using the exercise of others’ First Amendment rights as a shield for advancing their own violent, illegal, battle plans.
In comparing the experiences of, and the relative damage suffered by, each of the above governmental entities, it became obvious that the degree and extent of prior planning by law enforcement was, in each case, inversely proportional to the damage done to property and personnel. That is to say; the more control exerted, and the earlier it is exerted, over the planned illegal activities of the demonstrators, the more difficult those who planned on breaking the law and inflicting violence found it to achieve their goals. The problem is, as indicated below (see Legal Analysis, below), law enforcement is constitutionally limited in its attempts at restraining demonstrations until they become unlawful.
But, with this philosophy in mind, it is helpful to know what the demonstrators are planning and how they intend to achieve their goals. When it does come time for law enforcement to act, this knowledge can help form the basis for building and supporting probable cause (to arrest and or search) determinations, thus allowing for aggressive, yet lawful, law enforcement action targeted towards defusing illegal acts before they result in any property damage or personal injury.
Demonstrators’ Goals:
Propaganda from the various activist groups and other intelligence sources indicate the following general goals of the demonstrators as a whole:
- To drain law enforcement resources.
- To strain local infrastructure.
- To impede/block the flow of pedestrian and vehicle traffic.
- To prevent access to venue sites by delegates.
- To “close down” the event.
- To give the appearance of law enforcement misconduct.
- To gain media attention.
- To tie up the legal system.
Demonstrators’ Structural Groups:
Understanding that the demonstrators will be representative of anywhere up to some 500 separate organizations, the following are some of the general categories of demonstrators likely to be involved in San Diego.
- “Affinity Groups:” Leaderless teams of 5 to 15 or 20 individuals who have previously reached a consensus as to what their group hopes to achieve, and the means by which they hope to achieve it. Affinity groups commonly are of the same type of people (i.e., male, female, juveniles, etc.) increasing the likelihood that they will be kept together if arrested.
- “Anarchists:” Typically dressed in black, and/or carrying black or black and red flags. These are the demonstrators who tend to attempt violent acts.
- Animal rights groups.
- Student groups.
- Community activists.
- Farmers.
- Religious leaders.
- Environmental groups.
- World Socialist organizations.
- Marxists groups.
- Labor organizations and Trade Unions.
- Minority Rights organizations.
- Gay Rights organizations.
- The American Civil Liberties Union and the National Lawyer’s Guild (primarily helping by providing legal advice and assistance).
- The organizations most likely to commit violent acts are listed as:
- Earth Liberation Front (ELF)
- Rainforest Action Network (www.ran.org)
c. ACT UP (www.actupny.org)
d. Direct Action Network (www.directactionnetwork.org)
- Earth First! (www.earthfirstjournal.org)
- The Ruckus Society (www.ruckus.org)
- Confédération Paysanne (Farmer’s Union): An ultra-radical group, headed by a French sheep farmer, Jose Bové, is one of the more militant organizations opposed to the biotechnical industry.
Demonstrators’ Communications Capabilities:
- Internet web pages, used to promote causes and generate interest in protesting certain conferences.
- Illegal, low-power FM radio station, used to communicate police movements, protest plans, and other tactical movements.
- Nextel telephones, used to communicate police movements, protest plans, and other tactical movements.
- Two-way radios, used to communicate police movements, protest plans, and other tactical movements.
- Laser Pointers, used to communicate in Morse Code or divert the attention of law enforcement officers.
- Messengers, on bicycles or foot, used to pass along information and plans to protestors.
Demonstrators’ Offensive Tactics:
- Hanging banners, on sides of building or over freeway overpasses.
- Kryptonite Locks, used to lock protestors to a fixed object. (The subject will usually have a key on him despite his denials.)
- Human chains, interlocking of arms, legs, and bodies, to block streets and intersections.
- Concrete sleeves (or “sleeping dragons”), which consists of metal or PVC pipe, sometimes with concrete in the center, and with some type of securing device anchored in the middle. The subject will wrap a flexible rope around his arm and, with his arm in the pipe, secure it to the securing device. The pipe may be covered in tar, masking tape, and/or barbed wire, making it difficult to cut off.
- “Black Bear:” A 10 to 25 pound steel cylinder with a rod or post welded into the center. Two protesters link themselves together by placing an arm into the cylinder and hooking a rock climber’s carabiner to the rod, the other end of which is attached to a steel bracelet worn on the protestor’s wrist. The protester can be separated from the cylinder only when he or she unhooks the carabiner from inside, or the cylinder is cut apart from the outside.
- Tripods and Bipods; used to suspend a protestor, making it difficult and dangerous to remove.
- Hammers and crowbars, used to smash windows and vandalize.
- Body-blocking/human wall, placed in front a vehicle to keep the vehicle from moving.
- Squirt bottles filled with ammonia, bleach, urine, or other hazardous substances to squirt on police.
- Water balloons or bags filled with paint, urine, etc., to throw on police.
- Graffiti, with spray paint, etc.
- Hassling delegates, by physically surrounding and/or manhandling of delegates, their vehicles, or their entourage, used to block hotel exists and otherwise impede a delegate’s ability to attend conference meetings, etc.
- Wrist rockets (slingshots) used to shoot marbles, BBs, jacks and similar items, or to shoot CS canisters back at police.
- Anti-horse activities, using a combination of vegetable oil and marbles, placed at the feet of police horses, preventing them from moving without risk of falling.
- Pepper spray, or tear gas, used in a manner to create the impression of police use.
- Anti-police obstacles, such as fuel drums filled with water or cement, that are rolled into police lines, used to hinder foot and motorcycle response. Clear cord, piano wire or fishing line may also be used to trip police or stop police bicycle patrols.
- Trojan horses; large puppets to conceal sleeping dragons and tripods.
- “Focal point” tactic: Identification of a central site with the pie-shaped sectors around it divided up and designated for civil disturbances or direct action.
- Police look-alike: Demonstrators dressed in attire similar to that of a police officer who attacks other demonstrators to give the appearance of police over-reaction.
- Bonfires and/or trash fires, used to mark rallying points, draw media attention, and tax police and fire resources.
- Jersey barriers: Barriers, fencing, dumpsters or other materials used to redirect or impede traffic. Police barriers will be moved by the protestors to impede the movement of law enforcement vehicles and officers.
- Projectiles: Rocks, bottles, or other objects used as projectiles to aggravate or injure police.
- Pyrotechnics: Smoke bombs, M70s, M80s, and other fireworks are used to cause distractions and to agitate police.
- Marching Bands: Used to interfere with communication among police officers.
- Runners, to transport supplies (water, food, fresh cell phones batteries, etc.).
- Bomb Threats: An anonymous call that an explosive device or chemical/biological material has been placed at a venue could close the entire location down until it has been thoroughly searched.
- Suspicious Packages: Placement of backpacks, small cardboard boxes or other packages, drawing the suspicion of law enforcement, requiring the closing of an area until the container is checked for explosives.
- Incapacitating sound waves: The use of sound waves to disperse or disrupt speeches, demonstrations and crowd dynamics.
- Animals and Insects: Transporting small animals and insects to be let loose in conference locations.
- Taking over Abandoned Buildings, out of which a protest group will operate and coordinate for the duration of the convention, and stockpile supplies.
- Assaulting and Vandalizing particular businesses which represent international trade or are known to use sweatshops, etc. (McDonalds, the Gap, and Nike, have been targets in the past.)
Demonstrators’ Defensive Tactics:
- Passive resistance: Non-violent opposition to the lawful directions of law enforcement during arrest situations. For example: Going limp, making arrest as difficult as possible without physically resisting; the “in-your-face” tactic where the protestor stands in the officer’s space and refuses to move, attempting to provoke the officer into using force; chaining to immovable objects at locations where the mere presence of the demonstrator’s body creates problems; or merely submitting to an “arrest-a-thon,” where, as many protestors as possible submit to arrest.
- Unarrest: Lynching (P.C. § 405a, 405b) or rescuing (P.C. § 4550.2) prisoners.
- Complete Non-Cooperation: Not carrying any form of identification and refuse to supply any information at all, accompanied by passive resistance.
- Protective Masks: Use of protective masks and tear gas resistant clothing.
- Squirt bottles, filed with a solution to neutralize the effects of tear gas.
- Document Production: May have the ability to create and reproduce their own documents, including law enforcement credentials and convention passes.
Demonstrators’ Transportation Assets:
- Vehicle Obstruction: Leaving vehicles in intersections, requiring the use of tow trucks to remove.
- Public Transportation: Taking over public transportation by flooding the system and taxing its operational capabilities.
- Bike Riders: Used to impede and slow the flow of traffic.
- Dumping: Depositing sand, rocks, coal, hazardous waste, etc., in view of high-visibility venues or at key roads or intersections.
Demonstrators’ Jail and Courtroom Tactics:
- Solidarity: Group cohesion enabling members to be supportive of each other psychologically, better allowing them to endure the unpleasant effects of jail and allowing them to devise new tactics.
- Hunger Strikes, to draw attention to their cause.
- Gassing, or throwing body waste at correctional officers.
- Refusal to be Released: By refusing to identify themselves, and refusing to accept an “O.R.” release until and unless everyone is released, preferably with no charges, protestors can coerce plea bargains and cause jail over-crowding.
- Refusal to promise to appear, requiring their retention in jail thus over-crowding the jails.
- Refusing to plead guilty and to waive speedy trial rights, taxing the prosecution and the courts.
- Refusing to participate at all by refusing to enter a plea, to retain or accept a lawyer, to stand up in court, to speak to the judge as a symbol of court authority, to take the stand or question witnesses.
- Fighting the case vigorously before trial by submitting a large volume of written motions, thus taxing the courts.
- Surrounding the Jail or courthouse: A human chain around the jail and/or courthouse, calling for the release of arrestees, preferably without charges.
- Use of non-cooperation, forcing the prosecution to negotiate felony cases and dismiss less important cases.
Legal Analysis:
- Prior Restraints:
The ideal situation would be for law enforcement to be able to restrain demonstrations altogether, thus precluding the possibility of any embarrassing, unruly, or violent incidents during the BioTech Conference. Switzerland managed this at this year’s World Economic Forum in Davos by merely closing its borders to all potential demonstrators.
However, under our Constitution, such a tactic is not an option. The First Amendment to the United States Constitution guarantees to all “the freedom of speech . . . (and) the right of people peaceably to assemble, and petition the government for a redress of grievances.” Protestors have the right to express their opinions, no matter how unpopular or how inconvenient it might be to others.
Activities such as demonstrations and protest marches are clearly protected by the First Amendment. (Edwards v. South Carolina (1963) 372 U.S. 229 [9 L.Ed.2nd 697]; Western Region v. City of Richmond (9th Cir. 1984) 743 F.2nd 1346.) City streets and sidewalks are a public forum. (United States v. Grace (1983) 461 U.S. 171, 177 [75 L.E.2nd 736]; Gaudiya Vaishnava Society v. City and County of San Francisco (9th Cir. 1990) 952 F.2nd 1059, 1065.) Speech that stirs passions, resentment, or anger is fully protected by the First Amendment. (Terminiello v. Chicago (1949) 337 U.S. 1, 4 [93 L.Ed. 1131].)
The government may not prohibit angry or inflammatory speech in a public forum unless it is (1) “directed to inciting or producing eminent lawless action;” and (2) “likely to incite or produce such action.” (Brandenburg v. Ohio (1969) 395 U.S. 444 [23 L.Ed.2nd 430].) Federal and state law clearly provides that protests and assemblies cannot be dispersed on the ground they are unlawful unless they are “violent or . . . pose a clear and present danger of eminent violence” or they are violating some other law in the process. (Collins v. Jordan (9th Cir. 1996) 110 F.3rd 1363, 1371.)
Enjoining or preventing First Amendment activities before demonstrators have acted illegally or before the demonstration poses a “clear and present danger” is presumptively a First Amendment violation. (Collins v. Jordan, supra; Carroll v. President of Princess Anne (1968) 393 U.S. 175, 180-181 [21 L.Ed.2nd 325].) First Amendment activity may not be prevented before the fact in order to obviate possible unlawful conduct. And, the fact that those same demonstrators engaged in prior unlawful conduct does not justify an assumption that the next day’s activities will also be unlawful and warrant the enjoining of future demonstrations. (Collins v. Jordan, supra, at p. 1371.) It is generally accepted that unlawful conduct that involves First Amendment issues may be dealt with only after it occurs. (Kunz v. New York (1951) 340 U.S. 290, 294 [95 L.Ed. 280].)
After protestors demonstrated against President Bush at a campaign stop on a public street outside a restaurant, the Ninth Circuit determined that Secret Service agents were properly denied qualified immunity as to the protestors’ First Amendment claim where the protestors plausibly alleged that the agents acted with the sole intent to discriminate against them because of their viewpoint since, The protestors alleged that the agents engaged in viewpoint discrimination by requiring them to demonstrate at a distance because they were protesting, rather than supporting, the President's policies. Specifically, the protestors alleged that (1) at the direction of the agents, they were moved to a location where they had less opportunity than the pro-Bush demonstrators to communicate their message to the President, and (2) any security-based explanation for the differential treatment offered by the agents was pretextual and the agents’ directives accorded with a pattern of Secret Service action suppressing the speech of those opposed to the President. (Moss v. United States Secret Service (9th Cir. Feb. 26, 2013) __ F.3rd __ [U.S. App. LEXIS 4112].)
So what do we do? The proper response to potential and actual violence is for government to insure an adequate police presence (Cox v. Louisiana (1965) 379 U.S. 536 [13 L.Ed.2nd 471].) and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure. (Kunz v. New York, supra at pp. 294-295 [95 L.Ed. 280].)
This is not to say that law enforcement may not lawfully step in and act before a riot actually begins (e.g., an “unlawful assembly,” per P.C. §§ 407, 408, or rout, per P.C. §§ 406, 408). However, it is recognized that the line between a lawful assembly and an unlawful one, or even before the demonstration reaches the rout or riot stage, is indeed thin, and, in the heat of the moment, sometimes hard to find. Caution must be exercised to insure that law enforcement does not intervene before the demonstrators’ activities become illegal.
If, therefore, the leaders of an assembly are clearly inciting a riot (P.C. § 404.6(a), (b)), posing a “clear and present danger of eminent violence” and “likely to incite or produce such action (Collins v. Jordan, supra.), it may be declared unlawful, a dispersement order issued, and violators arrested. (P.C. §§ 409) Or, when a situation has degraded into an actual riot or any other criminal violation, aggressive (yet lawful) law enforcement action is certainly warranted. (P.C. § 410)
B. Limitations on First Amendment Rights:
The demonstrators’ First Amendment rights, however, are not without limitation. Under both state and federal law, it is recognized that governments have a strong interest in regulating the use of their streets and other places. (Walker v. City of Birmingham (1967) 388 U.S. 307, 315-316.) When protests take the form of mass demonstrations, parades or picketing of public streets or sidewalks, the free passage of traffic, protecting property rights, and the prevention of public disorder and violence become important objects of legitimate state concern. (Id.)
Balancing these important government interests with the demonstrators’ First Amendment rights, it has consistently been held that it is lawful to place reasonable “time, place, and manner” restrictions, even in the form of a prior-restraint (e.g., requiring permits, limiting the “free speech” locations, etc.) on the freedom of speech. (Ward v. Rock Against Racism (1989) 491 U.S. 781.)
In evaluating whether time, place and manner restrictions placed upon demonstrators are reasonable under the circumstances, the court will consider whether the speech restrictions:
- Are content neutral (i.e., non-discriminating);
- Are narrowly tailored to serve a specific governmental interest; and
- Left open ample alternative channels for communication. (Schenk v. Pro-Choice Network (1997) 519 U.S. 357.)
It is constitutionally permissible to limit the areas where protestors are allowed to exercise their First Amendment rights: During a political convention, protesters were arrested after they failed to comply with police instructions to move from an area where demonstrating was prohibited, a no-demonstration zone, to one designated for protesting, a demonstration area. The appellate court determined that the protesters’ First Amendment claims failed because the limitation on speech around the convention was a permissible time, place, and manner restriction on speech: (1) The restraint on expressive activity was content neutral; (2) the no-demonstration zone on a two-block strip of the avenue for four days was narrowly tailored to address the threats to sidewalk congestion and security created by the convention; and (3) a demonstration zone one avenue from the primary entrance to the convention location was an ample alternative channel for protesters. The protesters’ Fourth Amendment claims failed because the officers had probable cause to arrest them for obstruction of governmental administration under New York Penal Law § 195.05 (2010) since they rejected 17 directives to leave the no-demonstration zone, and an audio recording showed indisputably that they were neither courteous nor compliant. (Marcavage v. The City of New York (2012) 689 F.3rd 98.)
- Use of Force:
The issue dealing with the degree, or extent, of force used in enforcing the law and allowable under any particular set of circumstances will be analyzed under the Fourth Amendment and its “objective reasonableness standard.” (Graham v. Connor (1989) 490 U.S. 386, 396 [104 L.Ed.2nd 443].) At page 388, the Court noted that:
“The Fourth Amendment ‘reasonableness’ inquiry is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police offices are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
When evaluating the reasonableness of the use of force, a court will consider:
- The severity of the crime at issue;
- Whether the suspect poses any immediate threat to the safety of the officers or others; and
- Whether the suspect is actively resisting arrest or attempting to evade arrest by flight. (Bell v. Wolfish (1979) 441 U.S. 520, 559; Tennessee v. Garner (1985) 471 U.S. 1, 7-22.)
In situations involving non-violent, yet illegal demonstrations, it is commonly a misdemeanor trespass violation at issue. Passively resisting demonstrators do not usually pose any danger to the officers or anyone else, and do not involve any active resistance or attempt to evade arrest by flight. It should be apparent, therefore, that although a law enforcement officer is not necessarily required to employ the least intrusive form of force available under the circumstances (Scott v. Henrich (9th Cir. 1994) 39 F.3rd 912, 915.), the force used to arrest such demonstrators is not without limitation.
For instance, it has been held that separating non-violent demonstrators who have connected themselves together through the use of locking devices may not be accomplished by placing pepper spray under their eyes without potentially subjecting the officers to civil liability. (Headwaters Forest Defense v. The County of Humbolt (9th Cir. 2001) 240 F.3rd 1185.) In Headwaters, it was noted that where there is no need for force, any force is constitutionally unreasonable. Use of a grinder to saw the pipes in half, negotiations, physically removing the protestors while they were still attached, and/or waiting them out, were all viable alternatives indicating that there was no need to use any force, and that the use of pepper spray was not actually needed under the circumstances.
It has also been held that the use of pepper spray squirted randomly into a crowd of demonstrators where there was insufficient cause to believe the demonstrators posed an immediate threat to the safety of the officers or others, might expose the offending police officers to civil liability. (Lamb v. Decatur (C.D.Ill 1996) 947 F.Supp. 1261.)
Compare Headwaters and Lamb with Forrester v. City of San Diego (9th Cir. 1994) 25 F.3rd 804, where the use of “pain compliance” to arrest passively resistant demonstrators was upheld as reasonable. Among the significant relevant factors differentiating the cases was that “pain compliance” was used only after the demonstrators were warned, was not applied any more than necessary to gain compliance, and was something that could be ended instantaneously when the protestor submitted. In Headwaters, the pain was severe and long lasting irrespective of the demonstrator’s willingness to comply.
As with any use of force in any law enforcement situation, the rule is that only that amount of force which is reasonably necessary under the circumstances, with “deadly force” being limited to those situations involving the threat of death or great bodily injury, may be used. (Tennessee v. Garner, supra.) Remembering that most situations involving the illegal activities of protestors are no more than non-violent misdemeanors, the use of force must necessarily be limited accordingly. Felony arrests, of course, warrant the use of more force, depending upon the circumstances
Police/Citizen Contacts:
As in any more “normal” setting, police/citizen contacts are limited by some very specific rules. For instance:
- Consensual Encounter: A law enforcement officer may contact anyone in a public setting, at any time, without the need to justify such contact, so long as the contact is handled by the officer in a manner which, under the circumstances, would cause a reasonable person to believe that he or she is not detained or arrested, and that he or she is free to leave and break off the contact at will. (Florida v. Royer (1983) 460 U.S. 491 [75 L.Ed.2nd 229]; United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2nd 497, 509]; Wilson v. Superior Court (1983) 34 Cal.3rd 777, 790.)
- Detention: An articulable “reasonable suspicion” to believe that a person may be, was, or is about to be, involved in criminal activity, will justify a temporary detention for investigation. (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2nd 889]; In re Tony C. (1978) 21 Cal.3rd 888.)
- Arrest: With “probable cause” to believe a particular person has committed a criminal offense, a person is subject to arrest. “Probable cause” to make an arrest exists if, at the moment of arrest, facts and circumstances within the knowledge of arresting officers and of which they have reasonably trustworthy information “are sufficient to warrant a (reasonably) prudent (person) in believing that the arrested person has committed or was committing an offense.” (United States v. Howard (9th Cir. 1985) 758 F.2nd 1318, 1320.)
Commonly Used Criminal Statutes:
A. Disturbing the Peace: Penal Code § 415:
Penal Code § 415 is divided into three distinct crimes:
- Unlawfully fighting or challenging another to fight, in a public place. (P.C. § 415(1))
- Maliciously and willfully disturbing another person by loud and unreasonable noise (P.C. § 415(2)) and
- Using offensive words in a public place which are inherently likely to provoke an immediate violent reaction. (P.C. § 415(3))
Publicly “fighting and challenging to fight” is not difficult to interpret, which means there is little if any case law to discuss. You can use this section as it appears on its face, remembering, however, the requirement that the offense must occur in a public place.
A “public place,” by the way, is any area, including private property, which is readily accessible to the public. (People v. Jimenez (1995) 33 Cal.App.4th 54.) This includes public buildings, private businesses open to the public, and even those places “open to ‘common’ or ‘general use’” by those wishing to contact the resident of a house, such as the driveway, lawn or front porch. (People v. Olson (1971) 18 Cal.App.3rd 592, 598.)
The restriction on “loud and unreasonable” noise, at least when we attempt to attach some criminal liability, is not so easily applied. What is loud and unreasonable under one set of circumstances is perfectly legal and acceptable under a different set of circumstances. And, of course, the First Amendment only tends to complicate the determination of what is loud and unreasonable under any particular set of circumstances.
A protestor using a public address system turned up to full volume, expressing unpopular or unusual ideas, even if “loud and unreasonable” to one applying a common sense standard, is not when the First Amendment is stirred into the mix. The fact that you and I may have some objection to the manner these ideas are being communicated, or even to the content of the communication, does not mean we have a right to stop it. However, none of the constitutional protections, including those contained in the First Amendment, are absolute. One’s right to express his or her ideas must be balanced with the problems caused to others because of the time, place and manner the person chooses to exercise his freedom of expression. (In re Brown (1973) 9 Cal.3rd 612, 621.)
The courts tell us that; “(t)here is a fundamental difference between loud communications (which are protected) and the use of loud shouting and cheering, not to inform or persuade, but to disrupt lawful endeavors (which is not).” (Id., at p. 620.) In attempting to determine into which category a particular communication falls, we need to understand that there are but two situations where noise is considered to be “loud and unreasonable” under the law:
- Where the communication causes a clear and present danger of imminent violence; and
- Where the purported communication is used as a guise, not to inform or persuade, but to disrupt someone else’s lawful endeavors. (Id. at p. 621.)
If a person is charged under Penal Code § 415(2), based upon an accusation that he or she engaged in some loud and unreasonable disruption of someone’s peace, the jury will be instructed as follows:
“’Loud and unreasonable noise’ does not mean all loud shouting or cheering, such as at an athletic event or political rally. Nor does it include all loud speech which disturbs others even if intended to do so. What the term does mean is loud shouting and cheering where there is a clear and present danger of its giving rise to immediate violence or where such loud shouting and cheering is not intended as a means of communication to inform or persuade but is used as a guise to disrupt lawful endeavors.” (CALJIC 16.261.1)
Participating in mass demonstrations in city streets involving picketing and noisy singing and chanting that undoubtedly disturbs some peaceful enjoyment of property is at least presumptively protected under the First Amendment. Such loud and boisterous conduct is criminal only when it comes within one or both of the two categories listed above; a clear and present danger of imminent violence (Edwards v. South Carolina (1963) 372 U.S. 229, 235-238; Cox v. Louisiana (1965) 379 U.S. 536, 546-550.) or where the demonstrators’ real intent is to disrupt someone else’s lawful activities. (In re Brown, supra, at p. 621.)
Every situation is going to be different. Law enforcement’s job is to evaluate each situation as it arises, taking into account the time, place and manner the defendants are purporting to exercise their First Amendment rights, and whether there is a clear and present danger of imminent violence or whether the offending noise is really no more than an attempt to disrupt the lawful endeavors of others.
The third and final category under the “disturbing the peace” statute involves the use of “offensive words in a public place which are inherently likely to provoke an immediate violent reaction;” sometimes referred to as “fighting words.”
“Fighting words” are those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke an immediate violent reaction. (Cohen v. California (1971) 403 U.S. 15, 23.) They are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (In re John V. (1985) 157 Cal.App.3rd 761, 767-768; Chaplinski v. New Hampshire (1942) 315 U.S. 568, 571-572.)
The offensive words used must involve more than the mere use of “vulgar, profane, indecorous, scurrilous, opprobrious epithet” or otherwise offensive words. “(I)t is not enough that the auditor violently react to the words in the abstract because he does not approve of profanity. The context in which the words are used must be considered, and there must be a showing that the words were uttered in a provocative manner, so that there was a clear and present danger violence would erupt.” (Jefferson v. Superior Court (1975) 51 Cal.App.3rd 721, 724-725.)
The landmark case decision on this topic arose at the height of the Vietnam buildup. On April 26, 1968, a young man named Paul Robert Cohen wore a jacket in the Los Angeles courthouse in view of women and children with “Fuck the Draft” displayed boldly on his back. Cohen was later to testify that he wore the jacket knowingly, attempting to express the depth of his feelings against the Vietnam War and the draft.
Those were the days when support for American involvement in the Vietnam War was “in,” and people like Cohen were nothing more than “draft dodgers” and “trouble makers.” Arrested and convicted for “disturbing the peace,” his conviction was eventually overturned by the United States Supreme Court. (Cohen v. California, supra, at p. 26.)
The Court’s reasoning was simple, although maybe novel at the time. The First Amendment right to communicate one’s ideas, even if through the use of offensive words, precludes charging someone with disturbing the peace for using four-letter (or other offensive) words no matter how offensive those words may be to particular persons. States may not regulate the communication of a message just because it represents an unpopular view, or is communicated by the use of words that tend to be offensive to others. We cannot “forbid particular words without also running a substantial risk of suppressing ideas in the process.” (Ibid.)
In charging someone with using “fighting words,” the defendant’s language must involve more than offensive words which merely have a “tendency to provoke” others to violence. The defendant’s speech must have created a situation where there is a “clear and present danger of provoking others to immediate violence.” (See CALJIC 16.261.2) It is not a defense, however, that the defendant him or herself did not specifically intend the violent results of his or her statements. (Cantwell v. Connecticut (1940) 310 U.S. 296.)
Case law does not hesitate to dictate what actions are insufficient to warrant an arrest and prosecution for fighting words. But there are few, if any cases which tell us what is enough. We can say, however, that a purposeful attempt to provoke someone by directing selected epithets at that person, usually constituting a personal insult or challenge, under circumstances creating a clear and present danger that a reasonable person would naturally react with violence, constitutes fighting words. (See In re John V., supra, at p. 769.)
Peace officers often become the target of such “fighting words.” Many feel that peace officers should be immune to such language, and not make arrests even if personally offended or angered. At least one other state has held that calling a police officer a “son of a bitch” and a “pig,” without any other overt act, does not amount to a breach of the peace. (See City of Chicago v. Blakemore (1973) 15 Ill.app.3rd 994.)
San Diego’s own Fourth Appellate District, however, has shown some recognition that police officers are human beings, too. In a recent case, fighting words directed to a peace officer (involving an actual challenge to fight which might have more appropriately been charged under subdivision (1) of section 415) were held to be a violation of Penal Code § 415(3). (In re Alejandro G. (1995) 37 Cal.App.4th 44.) While holding that peace officers may be victims, the court also noted, however, that the fact that the officer is trained and obligated to exercise a higher degree of restraint than the average citizen is a factor the jury will be allowed to consider along with all the other attendant circumstances in determining whether a violation occurred. (Id., at pp. 47-50.)
It must be recognized that the First Amendment protects a significant amount of verbal criticism and challenge directed at officers. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state. (Houston v. Hill (1987) 482 U.S. 451, 461, 462-463.) While police may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment. (Duran v. City of Douglass (1987) 940 F.2nd 1372.)
B. Unlawful Assembly, Rout and Riot: Penal Code §§ 404 et seq:
Stopping a problem early with individual arrests for disturbing the peace, despite its constitutional restrictions, is still preferable (at least from a tactical standpoint) to having to make mass arrests after the disturbance has degenerated into an unlawful assembly, rout or riot. However, it is a fact of human nature that most people are not brave enough to do something warranting arrest until they have the security of a crowd giving them anonymity.
“The right to assemble peaceably, like freedom of speech, is guaranteed by the First Amendment.” (In re Brown, supra, at p. 623.) But an otherwise lawful assembly can become unlawful, as described in Penal Code § 407, when two or more people assemble together to do an unlawful act, or to do a lawful act in a violent, boisterous, or tumultuous manner.
Participating in an unlawful assembly is a misdemeanor chargeable under § 408. A person “participates” in an unlawful assembly when he or she knowingly joins in, or remains with, the group after it has become unlawful, even though he does not himself actually commit a violent act or any act which poses a clear and present danger of violence. (In re Wagner (1981) 119 Cal.App.3rd 90, 103-104.)
Because a suspect’s constitutional rights are involved, the unlawful assembly statutes are given a restrictive meaning in order to protect their constitutionality, particularly where the intended goal of the assembly is otherwise lawful. “(T)he proscriptions of sections 407 and 408 on assemblies to do a lawful act (by unlawful means) must be limited to assemblies which are violent or which pose a clear and present danger of imminent violence.” (In re Brown, supra.)
Just because an assembly is large, noisy, and espouses an unpopular idea does not warrant restraint on the participant’s First Amendment right to assemble. Police intervention is not warranted unless and until the assembly is in fact violent or poses a clear and present danger of imminent violence. (Ibid.)
“Not every meeting where violent, boisterous, and tumultuous conduct occurs may be denominated an unlawful assembly. . . . The statute was intended to prevent ‘any tumultuous disturbance of the public peace by’ two or more persons ‘having no avowed, ostensible, legal or constitutional object, assembled under such circumstances, and deporting themselves as to produce danger to the public peace and tranquility, and which excites terror, alarm and consternation in the neighborhood.’” (People v. Kerrick (1927) 86 Cal.App. 542, 552.)
The original intent of the assembly may have been lawful. But the section is violated when the intent to do the lawful act in an unlawful manner is formed, whether before or during the assembly. (Id., at p. 551.) The difficulty, of course, is being able to determine from the circumstances as they occur when that intent is formed.
When the unlawful assembly begins to move toward the unlawful act, or a lawful act in a violent, boisterous, tumultuous manner, it transforms into what is known as a “rout.” A “rout” is legally defined as when two or more people, assembled and acting together, make any attempt or advance toward the commission of an act which would be a riot if actually committed. (P.C. § 406) Participating in a rout is a misdemeanor, pursuant to Penal Code § 408.
Eventually, if allowed to continue, the rout turns into a riot. A riot is defined in Penal Code § 404(a) as the unlawful use of force or violence, disturbing the public peace, or any threat to use force or violence, when accompanied by the immediate power of execution, by two or more persons acting together. Disturbing the “public peace,” for purposes of the riot section, may also occur within any jail, prison, juvenile hall, or other place of confinement. (P.C. § 404(b))
When possible, identifying and arresting those few people who actively work to incite a riot can save a lot of people a lot of grief by defusing the explosive situation before it ever really gets started. This is a tactic which has proven very effective in some of the situations described earlier in this memo. (E.g., see “R2K: Philadelphia’s Convention Protests:” The Republican National Convention; August, 2000.)
A person is guilty of inciting a riot under Penal Code § 404.6 when, with the specific intent to cause a riot, he or she does an act or engages in conduct which urges a riot, or urges others to commit acts of force or violence or the burning or destroying of property, at a time and place and under circumstances which produce a clear and present and immediate danger of acts of force or violence or the burning or destroying of property.
Participating in a riot, chargeable under a different section, warrants the same punishment as for the one who incited the riot in the first place. (P.C. § 405) It is a misdemeanor either to incite or participate in a riot. (P.C. § 404.6(b)) Inciting a riot in a state prison or a county jail that results in serious bodily injury is punishable as a felony. (P.C. § 404.6(c))
An unlawful assembly, rout, or riot, is subject to a dispersal order, the responsibility for which, as you can guess, will fall upon law enforcement. In fact, the Penal Code requires law enforcement, whether or not the rioters are armed, to “go among the persons (unlawfully or riotously) assembled, or as near to them as possible, and command them, in the name of the people of the State, immediately to disperse.” (P.C. § 726) It is even a misdemeanor for a “magistrate or officer,” which presumably includes a peace officer, to fail to attempt to suppress an “unlawful or riotous assembly” which he or she knows about, and arrest the offenders.” (P.C. § 410)
This does not mean, however, that law enforcement officers must attempt suicide by commingling with angry, violent rioters while demanding that they disperse. The section was written by legislators who never had to face a charging mob, and before electronic amplification systems were invented. The use of loud speakers and megaphones from a reasonably safe distance, when necessary, is certainly appropriate if not prudent. (In re Wagner, supra, at p. 105.)
The method or manner a dispersal order is given is up to the discretion of the law enforcement agencies involved, but should be given in such a way as to reasonably assure that the persons involved heard the command to disperse and were made aware of the order. (People v. Cipriani (1971) 18 Cal.App.3rd 299, 307; see also CALJIC 16.254.) The courts, which will make the final determination on the sufficiency of the notice given to demonstrators, have some suggestions. (See In re Wagner, supra, at pp. 100-101.)
- Use a public address system or bullhorns.
- Repeat the dispersement order in English, Spanish, and in any other language relevant to the audience.
- Place witnesses at the rear of the crowd to provide proof of the ability of everyone in the crowd to hear the dispersement order.
- Insure there are no distracting influences, such as noisy helicopters overhead.
- Videotape and note in police reports the circumstances of the dispersement order and the crowd’s reaction to it, or lack thereof.
Refusing to disperse after being commanded to do so is a misdemeanor. (P.C. § 416(a)) If the persons assembled do not immediately disperse, the Penal Code mandates they be arrested. (P.C. § 727) Failing to disperse while causing damage to real or personal property makes the offender liable directly to the victim for the costs of the damage, including the expenses involved in cleaning in addition to any other lawfully imposed penalty assessment. (P.C. § 416(b))
When determining whether to disperse an unlawful assembly, remember that lawful assemblies are protected by the First Amendment. Statutory authority to disperse an unlawful assembly, therefore, is narrowly drawn.
A prosecution for failing to disperse, per Penal Code § 416(a), is proper only when there is proof of an intention to commit overt acts that are themselves violent or that tend to incite others to violence. (Chambers v. Municipal Court (1977) 65 Cal.App.3rd 904, 909.) The courts “construe Penal Code § 416 as empowering a public official to demand dispersal only where there is probable cause to believe that the purpose of an assembly is unlawful, according to the facts and circumstances of each individual case.” (Id., at p. 911.) When an assembly has developed into a rout or riot, the unlawfulness is no longer subject to debate. There is no constitutional right to riot.
Anyone else, whether a participant in the unlawful assembly or not, except for public officers and persons assisting in attempting to disperse the crowd, who remain at the place of any riot, rout, or unlawful assembly after being warned to disperse, are also guilty of a misdemeanor. (P.C. § 409; see also People v. Sklar (1930) 111 Cal.App.Supp. 776; and In re Bacon (1966) 240 Cal.App.2nd 34, 50.) An attorney is not an “officer” who is entitled to remain at the scene, despite what he or she may try to tell you. (Hoffman v. Superior Court (1970) 3 Cal.App.3rd 621, 627.)
In handling unruly crowds, the Penal Code authorizes a law enforcement agency to cordon off the immediate area around a field command post at the scene of a riot or other civil disturbance. (P.C. § 409.5(b)) It is a misdemeanor to enter such a cordoned off area, or to remain in the cordoned off area after receiving notice to leave. (P.C. § 409.5(c)) The news media is exempt from the restrictions of this section. (P.C. § 409.5(d))
C. Disturbing a Meeting: Penal Code § 403:
A related section is Penal Code § 403: Anyone who willfully and unlawfully disturbs or breaks up any lawfully conducted assembly or meeting (except meetings listed in P.C. § 302, a church assembly; and Elect. Code, § 18340, an assembly of electors), is guilty of a misdemeanor. One person alone may be guilty of this offense. It need not be by means of a riot. (See CALJIC 16.225)
Again, the right of anyone to express his or her ideas at any meeting or assembly necessarily involves constitutional protections. In order to preserve the constitutionality of this section, therefore, the courts have narrowly construed its provisions, balancing the First Amendment rights of a defendant to express his or her views with the right of the assemblers to conduct their meetings without unnecessary interference from others. (In re Kay (1970) 1 Cal.3rd 930, 939.)
“Audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment.” (Id., at p. 938.) Such activities, therefore, are not necessarily illegal.
“(S)ection 403 authorizes the imposition of criminal sanctions only when the defendant’s activity itself—and not the content of the activity’s expression—substantially impairs the effective conduct of a meeting.” (Id., at p. 942.) It’s not what the defendant says. It’s the manner and circumstances under which he chooses to say it that is subject to regulation.
For instance, dumping garbage on the floor of a school board meeting room, at least when the defendant refused to stop when ordered to do so, was held not to be protected speech and sufficient probable cause to justify an arrest for violation P.C. § 403. (McMahon v. Albany Unified School District (2002) 104 Cal.App.4th 1275.)
The nature of the meeting being disrupted must be taken into account. In order to hold a defendant criminally liable, it must be shown “the defendant substantially impaired the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known.” (In re Kay, supra, at p. 943.)
The courts have suggested strongly that in close cases, the persons causing the disruption be verbally warned once and only arrested or cited if the offending activity continues after the warning. (Id., at p. 945.) However, the need for a warning depends upon the circumstances. Where the illegality of the disruptive act or acts is “self-evident,” a warning may not be necessary. (McMahon v. Albany Unified School District, supra, at pp. 1287-1288.)
D. Lynching: Penal Code §§ 405a, 405b:
“Lynching” conjures up an image of an angry mob dragging some poor slob out of the jailhouse to the nearest tree and administering a little “street justice.” No court-appointed attorney filing frivolous motions. No expensive trial. No appeals. But no proper determination of guilt or innocence, either. And no real justice we have a right to expect in a civilized society.
“Lynch” originally came from the name of a judicial officer in Pottsylvania, Virginia, during the Revolutionary War, who unilaterally administered justice locally rather than some 200 miles away in Williamsburg, as the law at the time required. This was an illegal change of forum, but one which was felt to be justified at the time.
Eventually, the word began to refer to any group of persons usurping ordinary government powers and exercising correctional authority over others. (Zmunt v. Lexa 37 Ohio App. 479.) Later, as popularized by the motion picture industry, lynching someone came to include any infliction of summary punishment without benefit of a trial or legal authority of law, (See Green v. Greenville County 176 S.C. 433.) or “mob vengeance on persons suspected of crime.” (Barnes v. City of Chicago 237 Ill.App. 464.)
California extended the definition of a lynching by including any taking by means of a riot, any person from the lawful custody of any peace officer. (P.C. § 405a) It eliminated the element of harm to the one lynched.
In a riot situation, sometimes holding onto a prisoner becomes a major task. Rioters feel no compunction in pulling an arrestee from one side of a patrol car just as fast as new prisoners are put into the other side by the arresting officer. Such an action in California is a “lynching.” The fact that California has sought to define “lynching” differently than its traditional or dictionary meaning does not make the offense unconstitutionally vague. (People v. Jones (1971) 19 Cal.App.3rd 437, 443-445.)
Participating in a lynching is a serous felony offense with a maximum 4-year prison sentence. (P.C. § 405b)
“Rescuing a prisoner,” also a felony (P.C. § 4550.1) may be charged instead of lynching. The main difference between the two sections is that rescuing can be accomplished by only one person, where lynching requires two or more while participating in a riot; arguably, the later being the more dangerous situation. (P.C. § 4550.2)
E. Paramilitary Organizations: Penal Code § 111460:
We may possible expect varied organizations, with political views ranging from the extreme left to the extreme right, to take advantage of the unique occasion of the BioTech Conference to make a statement, or to create some media attention for their respective cause. It should not be any surprise to find among the celebrating throngs various paramilitary, or militia-style organizations. Some of the actions of these organizations may fall within the proscriptions of the Penal Code.
A “paramilitary organization” is legally defined as an organization which engages in instruction or training in guerilla warfare or sabotage, or which as an organization engages in rioting, or engages in the violent disruption of or interference with school activities. The section specifically excludes agencies of the United States or California governments and private schools as listed in Education Code § 12154.
When two or more people assemble as a paramilitary organization for the purpose of practicing with weapons, they are guilty of a misdemeanor. (P.C. § 11460(a)) The section does not specify, or attempt to limit, the type of weapons necessary to constitute a violation of this section.
When a person teaches or demonstrates to any other person the use, application, or making of any firearm, explosive, or destructive device, or technique capable of causing injury or death to persons, knowing or having reason to know, or intending that such objects or techniques will be unlawfully employed for use in, or in the furtherance of a civil disorder, the teacher is guilty of a misdemeanor. (P.C. § 11460(a))
We may also charge the student with the related provision which says that anyone who assembles with one or more other persons for the purpose of training with, practicing with, or being instructed in, the use of any firearm, explosive, or destructive device, or technique capable of causing injury or death to persons, with the intent to cause or further a civil disorder, is guilty of a misdemeanor. (P.C. § 11460(b)(1))
A “civil disorder,” for purposes of these sections, is defined as any disturbance involving acts of violence which cause an immediate danger of, or results in damage or injury to, the property or person of any other individual. (P.C. § 11460(b)(1)) Peace officers and state and federal military forces, acting in the performance of their lawful duties, are exempted. (P.C. § 11460(b)(2)(A))
F. Curfews: Government Code § 8634:
If total control is lost, and an unlawful assembly/rout/riot degenerates into a full-blown social insurrection, with burning, looting and killing, Government Code § 8634 allows local governments to enact general curfew orders and regulations “when necessary to preserve the public order and safety.” This, of course, is a drastic step, the decision for which will be made at much higher levels of authority than you and I are used to inhabiting.
A county curfew ordinance based upon a county-proclaimed local emergency, the geographical area of which includes both unincorporated and incorporated territory of the county, binds municipalities which are in the included area even when the concerned city did not also declare the existence of a local emergency. (62 Ops.Cal.Atty.Gen. 701 (1979))
Curfew ordinances, enacted for the purpose of protecting lives and property during local emergencies, have been upheld as valid. They commonly forbid anyone from being on the street during nighttime hours as long as the state of emergency exists. (People v. Richardson (1994) 33 Cal.App.4th Supp. 11, 15-16; In re Juan C. (1994) 28 Cal.App.4th 1093.) The only legal difficulties such ordinances have had is because of poor draftsmanship; not constitutionality. (See People v. Continola (1993) 15 Cal.App.4th Supp. 20.)
G. Miscellaneous Statutes:
Various trespass and loitering violations are listed in somewhat incomprehensible order under a multitude of Penal Code sections, including 369i (trespass on railroad or county rail transit property), 418 (forcible trespass to land), 419 (reentry upon land after court-ordered removal), 555.2 (loitering on posted industrial property), 602 (trespass), 602.1(a) (interfering with operation of a private business), 602.1(b) (interfering with operation of a public agency), and 602.8 (trespass on cultivated, enclosed or posted land).
Vandalism statutes which may become useful are listed in Penal Code §§ 594 et seq., remembering that the monetary cutoff between a felony and misdemeanor has recently been lowered to $400. The City of San Diego also has a municipal ordinance dealing with noise abatement contained within municipal code §§ 59.5.0501 and 59.5.0502. Although difficult to decipher and apply in some cases, these provisions should be considered as specific problems arise.
Other random statutes which may or may not be applicable to any particular situation are attached in a separate table.
Conclusion:
The nation, and even the world, will be watching San Diego during the BioTech Conference if for no other reason than that they know their city might be next. We owe it to the citizens of San Diego, not to mention the delegates at the convention, to keep the peace to the extent possible while at the same time respecting the constitutional rights of anyone and everyone who wishes to use the convention as a vehicle to advance their respective causes. But the convention should not be allowed to supply an excuse to ignore the laws of the land and to hurt others or destroy property. Use of the above legal tools will give law enforcement the ability to ensure the BioTech Conference is allowed to proceed while, being open to new and novel ideas and political thoughts, recognizing that we are still a society of laws which must also be respected.
CROWD CONTROL TABLE OF STATUTES
Statute: Offense: Max. Punish’t
P.C. § 69 Resisting Executive Officer 3 yrs/$10,000
P.C. § 148(a) Interfering with an Officer 1 yr/$1,000
P.C. § 148(b) Taking Weapon from Officer 3 yrs/$10,000
P.C. § 148(c) Taking Firearm from Officer 3 yrs/$10,000
P.C. § 148(d) Attempting to Remove Firearm from Officer 3 yrs/$10,000
P.C. § 148.1 False Report of a Bomb 3 yrs/$10,000
P.C. § 148.2 Interfering with Fireman or Emergency Rescue 1 yr/$1,000
P.C. § 148.3 Falsely Reporting Emergency 1 yr/$1,000;
3 yrs/$10,000 if death or GBI results
P.C. § 148.5 False Report of a Crime 6 mos/$1,000
P.C. § 148.9 Falsely Identifying Oneself 6 mos/$1,000
P.C. § 148.10 Resisting Officer Resulting in Death or GBI
To the Officer 4 yrs/$10,000
P.C. § 151(a) Advocating Death or Injury to Peace Officer 6 mos/$1,000;
3 yrs/$10,000 if death or injury results
P.C. § 182(a)(1) Conspiracy to Commit a Crime Felony; varies
P.C. § 182(a)(5) Conspiracy to Obstruct Justice 3 yrs/$10,000
P.C. § 185 Wearing Mask for Purpose of Evading
Identification 6 mos/$1,000
P.C. §§ 240/241 Assault Misd; varies
P.C. §§ 242/243 Battery Misd; varies;
3 or 4 yrs w/
qualifying injury
P.C. § 243.9 Gassing in Local Jail 4 yrs/$10,000
P.C. §§ 245 et seq. Assault/Deadly Weapon or Force Likely to
Produce Great Bodily Injury Felony; varies
P.C. § 244 Assault with a Caustic Chemical 4 yrs/$10,000
P.C. § 369i Trespass on Railroad or Rail Transit Property 6 mos/$1,000
P.C. §§ 370/372 Public Nuisance 6 mos/$1,000
P.C. § 374.4 Littering on Private or Public Property $1,000
P.C. § 375(a) Dropping Nauseous Materials 1 yr/$2,000
P.C. § 375(b) Possession of Nauseous Materials with Intent 1 yr/$2,000
P.C. § 375(d) Dropping Nauseous Materials or Tear Gas, or Acid
or Explosives, which may Produce Serious Illness
or Permanent Injury 3 yrs/$10,000
P.C. § 403 Disturbing a Meeting 6 mos/$1,000
P.C. § 404(a) Riot, defined
P.C. § 404(b) Riot in Place of Confinement
P.C. § 404.6(a), (b) Incitement to Riot 1 yr/$1,000
P.C. § 404.6(a), (c) Incitement to Riot in Jail w/ serious injury 3 yrs/$10,000
P.C. § 405 Participation in Riot 1 yr/$1,000
P.C. §§ 405a, 405b Lynching 4 yrs/$10,000
P.C. §§ 406, 408 Rout 6 mos/$1,000
P.C. §§ 407, 408 Unlawful Assembly 6 mos/$1,000
P.C. § 409 Remaining at Rout, Riot, Unlawful Assembly
after Order to Disperse 6 mos/$1,000
P.C. § 409.5(b) Emergency Command Post at Riot
P.C. § 409.5(c) Entering or Remaining in Area of Command
Post at Riot 6 mos/$1,000
P.C. § 409.5(d) Exemption for News Media
P.C. § 410 Duty of Officer to Suppress Riot 6 mos/$1,000
P.C. § 415(1) Fighting; Challenging to Fight 90 days/$400
P.C. § 415(2) Loud and Unreasonable Noise 90 days/$400
P.C. § 415(3) Offensive Words 90 days/$400
P.C. § 415.5 Disturbing the Peace on School Campus 90 days/$400
P.C. § 416(a) Failure to Disperse 6 mos/$1,000
P.C. § 416(b) Restitution for Damages for Failure to Disperse
P.C. § 418 Forcible Trespass to Land 6 mos/$1,000
P.C. § 417(a)(1) Brandishing, other than a Firearm 6 mos/$1,000
P.C. § 417.25(a) Pointing Laser Scope or Pointer w/Intent to Cause 6 mos/$1,000
Fear
P.C. § 417.27(c) Directing Laser Pointer Beam into Eyes $50
$100 w/prior
P.C. § 417.27(d) Directing Laser Pointer Beam into Dog’s Eyes $50
$100 w/prior
P.C. § 419 Re-entry Upon lands after Removal 6 mos/$1,000
P.C. § 422 Criminal Threats of Death or Great Bodily Injury 3 yrs/$10,000
P.C. §§ 450 et seq. Arson Felony; varies
P.C. §§ 555.2, 555.3 Loitering in Vicinity of Posted Property 6 mos/$1,000
P.C. § 594(a) Vandalism ($399-) 1 yr/$1,000
P.C. § 594(a) Vandalism ($400+) 3 yrs/$10,000
P.C. § 594(a) Vandalism ($10,000+) 3 yrs/$50,000
P.C. § 594.2 Possession of Marking Tools or Aerosol Paint
Container with Intent to Vandalize 6 mos/$1,000
P.C. § 594.4 Vandalism with Caustic Substances 3 yrs/Fine
varies
P.C. § 600(a) Abuse to Police Horse or Dog 1 yr/$1,000; 3 yrs/$10,000 if serious injury
P.C. § 600(b) Obstruction of Police Horse or Dog 1 yr/$10,000
P.C. § 601(a) Trespass to Cause Serious Injury 3 yrs/$10,000
P.C. § 602 Trespass to Land 6 mos/$1,000
P.C. § 602.1(a) Interfering with Operation of Private Business 90 days/$400
P.C. § 602.1(b) Interfering with Operation of Public Agency 90 days/$400
P.C. § 602.8 Trespass to Cultivated, Enclosed or Posted Land $10
1 prior; $250
2 priors; 6 mos/$1,000
P.C. § 647c Obstructing Movement on Street, Sidewalk or 6 mos/$1,000
Public Place
P.C. § 726 Officer’s Duty to Disperse Unlawful Assembly
P.C. § 727 Officer’s Duty to Arrest for Failing to Disperse
P.C. § 4550.1 Rescuing Prisoner Subject to Death Penalty 4 yrs/$10,000
P.C. § 4550.2 Rescuing Prisoner 3 yrs/$10,000
P.C. § 11413 Use of Explosives in Acts of Terrorism 7 yrs/$10,000
P.C. §§ 11415 et seq. Weapons of Mass Destruction Felony; varies
P.C. § 11460(a) Assembling as a Paramilitary Organization for 1 yr/$1,000
the Purpose of Practicing with Weapons
P.C. § 11460(a) Paramilitary Organization, Defined
P.C. § 11460(b)(1) Teaching Weapons to Further Civil Disorder 1 yr/$1,000
P.C. § 11460(b)(1) Assembling to Receive Instruction on Weapons 1 yr/$1,000
To Further Civil Disorder
P.C. § 11460(b)(2) Paramilitary Organizations; Relevant Definitions
P.C. § 12024 Possession of a Deadly Weapon with Intent
to Assault 6 mos/$1,000
P.C. § 12303 Possession of a Destructive Device 3 yrs/$10,000
P.C. § 12403.7(g) Illegal Use of Tear Gas Weapon 3 yrs/$10,000
H&S §§ 12500 et seq. Fireworks Violations 1 yr/$1,000
V.C. § 10852 Tampering with Vehicle 6 mos/$1,000
V.C. § 10853 Malicious Mischief to a Vehicle 6 mos/$1,000
V.C. § 23110(a) Throwing Substances at Vehicles 6 mos/$1,000
V.C. § 23110(b) Throwing Objects at Vehicles with
Intend to do GBI 3 yrs/$10,000
V.C. § 23112 Dumping Matter on Highway 6 mos/$1,000
Gov’t Code § 8634 Authority of Local Governments to Enact Curfew
Orders and Regulations
SDMC § 52.1001 Buffer Zone for places of worship, schools,
health care facilities. 6 mos/$1,000
SDMC § 52.80.01 Trespass on private business premises 6 mos/$1,000
SDMC § 53.30 Demonstrating with stake over ¼” x 2” thick 6 mos/$1,000
SDMC § 59.5.0501 Disturbing, Excessive or Offensive Noise 6 mos/$1,000
SDMC § 59.5.0502 Prima Facie Noise Violations
