Penal Code 409 and 416 both address situations where people remain at the scene of a riot or unlawful assembly after having been ordered by the authorities to leave. We sometimes call this offense "failure to disperse," "refusal to disperse," or "remaining at the place of a riot."
Penal Code 409 makes it a misdemeanor to remain "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."1
Penal Code 416 makes it a misdemeanor "if two or more persons assemble for the purpose of disturbing the public peace, or committing any unlawful act, and do not disperse on being desired or commanded so to do by a public office."2
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 an unlawful assembly, the acts of the crowd must either be violent or tending to incite others to violence.4
Participants vs Bystanders
The "offense of 'remaining at the place of riot' does not necessarily involve participation in a riot or unlawful assembly."5 Bystanders can be ordered to leave as well, and arrested for refusing to do so, if public safety requires.
However, mere bystanders can only be arrested if the gathering constitutes a clear and present danger of imminent violence. Absent these circumstances, police are required to differentiate between participants and mere bystanders, and mere bystanders should not be arrested.6
Defenses to Penal Code 409 & 416 Charges
Arrests for refusal to disperse tend to arise out of very chaotic situations. It can be very difficult for police to discern (and remember) exactly who was in what group, who did what, and who were active participants as opposed to mere bystanders. Typical defenses that we've found successful in these cases include:
- The assembly itself was neither violent nor unlawful, and police overstepped their authority in ordering the crowd to disperse
- Our client was a mere hapless bystander, and not part of the unlawful assembly
- Our client did not hear or become aware of any order to disperse
- Police arrested our client before he / she even had an opportunity to comply with the order to disperse
Penalties for Failure to Disperse
Both Penal Code 409 and 416 are misdemeanors carrying a maximum sentence of 6 months in jail. In most cases, however, a judge will grant informal (misdemeanor) probation and impose much less jail time, sometimes even no jail time. The terms of probation will require the defendant to stay away from the location of the incident, and to obey all laws while on probation.
Failure to disperse is often charged in connection with other, related offenses. Some of these include:
Defined in Penal Code 407 and 408 PC, an "unlawful assembly" in California is where a group of people is gathered for the purpose of:
- doing something illegal, or
- doing something legal, but in a violent, boisterous or tumultuous manner7
Viewed this way, an unlawful assembly is a requisite for a legitimate "refusal to disperse" charge. It is the existence of the unlawful assembly that gives the police the authority to issue a dispersal order, the defiance of which becomes a crime.
But like refusal to disperse, an unlawful assembly charge triggers Constitutional considerations. Both have the potential to infringe on the First Amendment right to assemble peacefully. To address this problem, courts limit the application of the law to situations where the crowd is engaged in violence or there is a danger of imminent violence.8
Participation in a Riot
Defined in Penal Code 404 and Penal Code 405, participation in a riot is where two are more people gather to commit violence, threaten violence or disturb the peace. If someone participates in a riot, and refuses to heed a police order to disperse, he could be charged with both offenses. The rioting charge is more serious, however, in that it carries a maximum sentence of up to one year in jail, whereas failure to disperse carries only up to six months of jail.10
Inciting a Riot
Defined in Penal Code 404.6, incitation to riot is where a person is trying to start or spread a riot by urging others to engage in rioting, violence or the destruction of property.11 One can be charged with inciting a riot even if he himself does not actively participate in the rioting, so long as circumstances are such that his incitation is likely to induce actual rioting.12
A person trying to incite a riot, who refuses to comply with an order to disperse, could be charged with both offenses. Here too, the incitation to rioting charge is more serious (than failure to disperse) in that it can trigger up to a year in jail. Penal Code 409 and 416 trigger only up to six months potential jail time.
Penal Code 409.5: Entering or Refusing to Leave a Disaster Area
Penal Code 409.5 deals with situations where the authorities cordon off an area, including a field command post, in response to a natural disaster, riot or other public hazard. Anyone who enters the closed-off area, or remains there after receiving notice to evacuate, can be charged with a misdemeanor punishable by up to six months in jail.13
Penal Code 402(a): Sightseeing at an Emergency
Penal Code 402(a) sightseeing at an emergency is the crime of going to or stopping at the scene of an emergency, if by doing so you prevent police officers, firefighters, emergency medical or military personnel, etc., from performing their duties.14
Sightseeing at the scene of an emergency is a misdemeanor punishable by up to six (6) months of jail.15
Penal Code 409.5(c): Unauthorized Entry into a Closed Emergency Area
If a person knowingly enters an area that has been closed by law enforcement because of an emergency (earthquake, flood, accident, etc.) and refuses to leave even after being told to do so, s/he can be charged with Penal Code 409.5(c) PC unauthorized entry into a closed emergency area.16
This misdemeanor offense also can lead to up to six (6) months in county jail.17
Call us for help.
If you or loved one is charged with Penal Code 409 & 416 PC failure to disperse and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. Our California criminal defense lawyers provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. We also invite you to watch our video on "failure to disperse" in California (Penal Code 409 .
1 Penal Code 409
2 Penal Code 416
3 See Chambers v. Municipal Court (1977) 65 C.A.3d 904, 911.
4 Chambers v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (App. 1 Dist. 1977) 65 Cal.App.3d 904.
5 See People v. Sklar (Super. 1930) 111 Cal.App.Supp. 776.
7 Penal Code 407 "Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly."
8 In re Brown (1973) 9 Cal.3d 612, 623.
9 Penal Code 404, defining rioting as "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."
10 Penal Code 405 "Every person who participates in any riot is punishable by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment."
11 Penal Code 404.6 (a) "Every person who with the intent to cause a riot does an act or engages in conduct that urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property, and at a time and place and under circumstances that produce a clear and present and immediate danger of acts of force or violence or the burning or destroying of property, is guilty of incitement to riot."
12 See CALJIC 16.230, the California Jury Instruction for "Incitement to Riot":
In order to prove this crime, each of the following elements must be proved:
1 The defendant specifically intended to cause a riot;
2 With the intent to cause a riot, [he] [she] committed an act or engaged in conduct which urged a riot, or [he] [she] urged others [to commit violent acts] [or] [to burn or destroy property]; and
3 This conduct took place under circumstances which produced a clear and present and immediate danger that [force or violence] [, or] [the burning or destruction of property] would take place.
To constitute the crime charged, no actual force need be used or violence occur, nor need there be any actual burning or destruction of property.
13 Penal Code 409.5 (a) Whenever a menace to the public health or safety is created by a calamity including a flood, storm, fire, earthquake, explosion, accident, or other disaster, officers of the Department of the California Highway Patrol, police departments, marshal's office or sheriff's office, any officer or employee of the Department of Forestry and Fire Protection..."
(c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within the area after receiving notice to evacuate or leave shall be guilty of a misdemeanor.
(d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.
14 Penal Code 402(a) PC - Sightseeing at an emergency [related offense to failure to disperse].
16 Penal Code 409.5 PC - Unauthorized entry into an emergency area [may be charged instead of failure to disperse].