Unlawful Assembly, Rout, and Riot: 
Penal Code §§ 404 et seq.

R.C. Phillips
May, 2021

            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 (1973) 9 Cal.3rd 612, 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))

            Riots are not limited to public streets.  Participation in a riot is a criminal offense (P.C. § 405) no matter where it occurs, including within the walls of a prison or jail.  (See People v. Abelino (2021) 62 Cal.App.5th 563.)  “Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.” (P.C. § 404, subd. (a))  “[D]isturbing the public peace may occur in any place of confinement,” including a state prison. (P.C. § 404(b))  (Id., at p. 578.)

“It [is] not necessary that a previous agreement between the aggressors should have been alleged, or have existed, to bring such offenses within the inhibitions of section 404.” (People v. Bundte (1948) 87 Cal.App.2nd 735, 743.) “[I]t is the concurrence of unlawful action by individuals in the use, or threat to unlawfully use force or violence that constitutes the offense of riot.” (People v. Cipriani (1971) 18 Cal.App.3rd 299, 304.) The law prohibiting riots is based on the need to prevent the combined effect of concurring violent acts, not conspiracy. (Id. at pp. 306–307; affirming a riot conviction where the concurrence of the defendant’s act of throwing rocks at national guardsmen with the actions of other persons who were participating in a generalized riot in a specific location, as well as defendant’s knowledge of that concurrence, was clearly inferable from the circumstances.) All persons who encourage, incite, promote, give support to or countenance a riot are principals in a riot. (Bundte, at p. 746.)

            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))