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    Criminal Defense Division

    California Penal Code § 409 PC – Failure to Disperse at the Scene of a Riot

    When is "failure to disperse" a crime at California protests? (Penal Code 409 & 416)

    California Penal Code § 409 PC makes it a crime to remain at a riot, or an unlawful assembly, after having been ordered by the police to disperse. A conviction is a misdemeanor punishable by up to 6 months in jail and a fine of up to $1000.00.

    This law has been particularly relevant considering the large-scale “No Kings” demonstrations in Los Angeles protesting recent ICE activities and the Trump administration’s policies. Police issued dispersal orders to crowds that, in some instances, resulted in clashes and arrests.

    The language of the statute reads:

    409. Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to disperse the same, is guilty of a misdemeanor.

    Examples

    • remaining at the scene of an unlawful political protest, even after law enforcement officers tell the crowd to disperse
    • failing to leave the scene of a riot after being told by the authorities to “break it up”
    • taking part in a violent protest and not disengaging after being told to do so by the police

    Defenses

    Luckily, there are several legal defenses in California law that you can raise if accused of a crime under Penal Code 409. These include showing that:

    Penalties

    A violation of this law is charged as a misdemeanor (as opposed to an infraction or a California felony). The offense is punishable by:

    • imprisonment in county jail for up to six months, and/or
    • a maximum fine of $1,000.

    Please note that a judge may award you summary (or informal) probation in lieu of jail time.

    Our California criminal defense attorneys will answer the following questions article:

    police officer holding a riot shield - failing to disperse at the scene of a riot is a crime under California Penal Code 409 PC

    Failure to disperse at the scene of a riot can be a crime under Penal Code 409 PC.

    1. What is failure to disperse?

    Penal Code 409 PC is the California statute that makes it a crime to remain at a riot, or an unlawful assembly, after having been ordered by the police to leave.1

    This offense is sometimes referred to as

    • “failure to disperse,” or
    • “refusal to disperse.”

    Please note that you are only guilty under this statute if the authorities give a general proclamation to a crowd to disperse. It is not enough if the police officers only tell a few people, individually and separately, to leave.2

    Also note because freedom of assembly is a Constitutional right protected by the First Amendment, courts have said that these laws can apply only to unlawful assembly, not to assembly itself:

    “We construe Penal Code section 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.”3

    To be “unlawful assembly,” the acts of the crowd must be either violent or inciting others to act in a violent manner.4

    2. Are there legal defenses?

    Three common defenses to PC 409 allegations are:

    1. no unlawful assembly
    2. falsely accused, and/or
    3. no probable cause.

    No unlawful assembly

    Recall that PC 409 only requires people to disperse from an “unlawful” assembly. This means it is always a legal defense to show that, while you may have been present at a gathering, it was a legal assembly.

    Falsely accused

    Unfortunately, it is not at all uncommon to get prosecuted based on false allegations out of

    • jealousy,
    • revenge, and
    • anger.

    Thus, it is a valid defense for to say that a party falsely accused you of violating Penal Code 409.

    No probable cause

    The Fourth Amendment to the U.S. Constitution says that peace officers must have probable cause before they can detain or arrest you for a crime.

    If you were stopped or arrested for violating this statute, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction in charges.

    prisoner being led to a jail cell

    A 409 PC conviction can be punished with up to 6 months in jail.

    3. What is the punishment?

    A violation of Penal Code 409 is charged as a misdemeanor.5 The offense is punishable by:

    • imprisonment in county jail for up to six months, and/or
    • a maximum fine of $1,000.6

    Please note that in lieu of jail time a judge may award you with summary (or informal) probation.

    4. Are there similar laws in California?

    There are three crimes related to failing to disperse the scene of a riot. These are:

    1. failure to disperse at a public disturbance – PC 416,
    2. rioting – PC 404, and
    3. unlawful assembly – PC 408.

    Failure to disperse at a public disturbance – PC 416

    Penal Code 416 PC is the California statute that makes it a crime for two or more people to disturb the peace and then refuse to comply with a lawful order by police personnel to disperse.7

    A violation of PC 416 is charged as a misdemeanor. The offense is punishable by:

    • imprisonment in the county jail for up to six months, and/or
    • restitution, or payment for any damages caused by the crime.

    Rioting – PC 404

    Penal Code 404 PC is the California statute that makes it a crime to use, or threaten to use, unlawful force or violence in a public place.8

    A violation of PC 404 is charged as a misdemeanor. Penalties include:

    • imprisonment for up to one year in the county jail, and/or
    • a maximum fine of up to $1,000.9

    Unlawful Assembly – PC 408

    Penal Code 408 PC is the California statute that makes it a crime to engage in unlawful assembly.

    PC 408 defines “unlawful assembly” as two or more people assembling together for the purpose of:

    • doing something illegal (“unlawful act”), or
    • doing something legal, but in a violent, boisterous or tumultuous manner.10

    To be convicted, you must:

    1. willingly participate in the unlawful assembly (in other words, do so on purpose), and
    2. do so knowing that it is unlawful.11

    Unlawful assembly is a misdemeanor offense in California. The crime is punishable by up to six months in county jail.12

    Legal References:

    1. California Penal Code 409 PC. See also In re Brown (1973) 9 Cal.3d 612; Collins v. Jordan (9th Cir. 1996) 110 F.3d 1363; People v. Brown (1988) 46 Cal.3d 432; In re Bacon (1966) 240 Cal.App.2d 34; People v. Cipriani (1971) 18 Cal.App.3d 299; In re Wagner (1981) 119 Cal.App.3d 90; People v. Lara (1996) 44 Cal.App.4th 102; Dubner v. City and Co. of San Francisco (9th Cir. 2001) 266 F.3d 959.
    2. People v. Sklar (1930), 292 P. 1068.
    3. See Chambers v. Municipal Court (1977) 65 Cal. App. 3d 904.
    4. See same.
    5. California Penal Code 409 PC.
    6. California Penal Code 19 PC.
    7. California Penal Code 416 PC.
    8. California Penal Code 404 PC.
    9. California Penal Code 404 PC.
    10. California Penal Code 408 PC.
    11. See CALCRIM Jury Instruction 2686.
    12. California Penal Code 408 PC.

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