Penal Code 416 PC – Failing to Disperse at a Public Disturbance


Penal Code 416 PC
is the California statute that makes it a crime for a person to:

  1. assemble, or gather, for the purpose of disturbing the public, and then
  2. fail to leave after being ordered to do so by the police.

The statute is one of two California laws that make the “failure to disperse” a crime.

PC 416 states:

“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 officer, the persons so offending are severally guilty of a misdemeanor.”

Examples of illegal acts under this code section include:

  • Jerome challenges another guy to a fight in the street and then he does not leave after the authorities tell him to go home.
  • Marcos and his friends taunt another group of guys by throwing rocks at them, and then they refuse to leave after the police tell them to “get lost.”
  • Kelly takes part in a violent political protest and does not disperse after being told to do so by the authorities.

Defenses

Luckily, there are several legal defenses that a defendant can raise if accused of a crime under Penal Code 416. 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,
  • a maximum fine of $1,000, and
  • possible restitution, or payment for any damages caused by the crime.

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 highlight the following in this article:

angry protesters

1. What is prohibited under California Penal Code 416 PC?

Penal Code 416 PC is the California statute that makes it a crime for a person to:

  1. assemble, or gather, for the purpose of disturbing the public, and then
  2. fail to leave after being ordered to do so by the police.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 group 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. coerced confession, and/or
  3. no probable cause.

2.1. No unlawful assembly

Recall that PC 416 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 and the group did nothing wrong.

2.2. Coerced confession

California law states that police may not use overbearing measures to coerce a confession.

If a party can show that the police coerced him into a confession, then:

  1. the judge may exclude the confession from evidence, or
  2. the case could get dropped altogether if the party got pressured into confessing to a crime he didn't commit.

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.

prisoner in jail

3. Penalties, punishment, and sentencing

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,
  • a maximum fine of $1,000, and
  • possible restitution, or payment for any damages caused by the crime.6

Restitution may be for damage caused to either public or private property and it may be for the costs of:

  • cleaning up,
  • repairing,
  • replacing, or
  • restoring the property.7

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

4. Related Offenses

There are three crimes related to failing to disperse at a public disturbance. These are:

  1. failure to disperse at the scene of a riot – PC 409,
  2. disturbing the peace – PC 415, and
  3. unlawful assembly – PC 408.

4.1. Failure to disperse at the scene of a riot – PC 409

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.8

A violation of Penal Code 409 is charged as a misdemeanor.9 The offense is punishable by:

  • imprisonment in county jail for up to six months, and/or
  • a maximum fine of $1,000.10

4.2. Disturbing the peace – PC 415

Penal Code 415 PC is the California statute that defines the crime of "disturbing the peace." A person can commit this offense by:

  • unlawfully fighting, or challenging another person to fight, in a public place,
  • disturbing another person by loud and unreasonable noise; if this is done willfully and maliciously, and
  • using offensive words in a public place, if the words are likely to provoke an immediate violent reaction.11

A violation of PC 415 is a woblette offense. This means it can be charged as either a misdemeanor or as a less serious infraction.12

The maximum potential penalties are:

  • up to 90 days in county jail,
  • a fine of up to $400, or
  • both county jail time and a fine.13

4.3. Unlawful Assembly – PC 408

Penal Code 408 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.14

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.15

Unlawful assembly is a misdemeanor offense in California. The crime is punishable by up to six months in county jail.16

Were you accused of failing to disperse at a public disturbance in California? Call us for help…

california attorneys
Call us for help at (855) LAW-FIRM

If you or someone you know has been accused of a crime under Penal Code 416, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.


Legal References:

  1. California Penal Code 416 PC. This code section states: “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 officer, the persons so offending are severally guilty of a misdemeanor.”

  2. People v. Sklar (1930), 292 P. 1068.

  3. See Chambers v. Municipal Court, 65 Cal. App. 3d 904.

  4. See same.

  5. California Penal Code 416 PC.

  6. See same and see California Penal Code 19.

  7. California Penal Code 416b.

  8. California Penal Code 409.

  9. See same.

  10. California Penal Code 19.

  11. California Penal Code 415.

  12. See same.

  13. See same.

  14. California Penal Code 408.

  15. See CALCRIM Jury Instruction 2685.

  16. California Penal Code 408.

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