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

Updated September 18, 2020

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

PC 409 states that “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.”

California has seen more arrests and prosecutions under this section stemming from protests over the George Floyd killing and racial injustice.

Examples

• John remains at the scene of an unlawful political protest, even after the police tell the crowd to disperse.
• Juanita is one of several rioters that fail to leave after being told by the authorities to “break it up.”
• Nick takes part in a violent anti-immigration protest and does not disengage after being told to do so by the police.

Defenses

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

• the assembly was not “unlawful,”
• the defendant was falsely accused, and/or
• the defendant was arrested without probable cause.

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 in lieu of jail time a judge may award a defendant with summary (or informal) probation.

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

• 1. What is prohibited under California Penal Code 409 PC?
• 2. What are the legal defenses?
  • 2.1. No unlawful assembly
  • 2.2. Falsely accused
  • 2.3. No probable cause
• 3. What is the punishment?
• 4. Are there similar laws in California?
  • 4.1. Failure to disperse at a public disturbance – PC 416
  • 4.2. Rioting – PC 404
  • 4.3. Unlawful assembly – PC 408

1. What is prohibited under California Penal Code 409 PC?

Penal Code 409 PC is the California statute that makes it a crime for a person 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 a defendant is only guilty under this statute if the authorities give a general proclamation to a crowd to disperse. It is not enough if the police only tell a few defendants, 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 tending to incite others to violence.⁴

2. Are there legal defenses?

A person accused of violating this statute can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed.

Three common defenses to this crime are:

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

2.1. No unlawful assembly

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

2.2. Falsely accused

Unfortunately, it is not at all uncommon for people to get prosecuted based on false allegations. People get falsely accused out of

• jealousy,
• revenge, and
• anger.

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

2.3. No probable cause

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest a suspect of a crime.

If a person was 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.

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 a defendant 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.

4.1. 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.

4.2. Rioting – PC 404

Penal Code 404 PC is the California statute that makes it a crime for a person 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

4.3. Unlawful Assembly – PC 408

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

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

• doing something illegal, or
• doing something legal, but in a violent, boisterous or tumultuous manner.¹⁰

To be convicted, the defendant 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

Contact us for help…

If you or someone you know has been accused of a crime under Penal Code 409, we invite you to contact us for a free consultation. We can be reached 24/7.

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