California "Lynching" Laws
Penal Code 405a & 405b PC

When we hear the term "lynching," we think of horrible old days in the South where mobs would kill people and leave them hanging from trees.

But in California law, the term "lynching" has a very different meaning. It refers to a situation where rioters force a detainee from police custody.

Specifically, Penal Code 405a provides the definition: "The taking by means of a riot of any person from the lawful custody of any peace officer is a lynching." Penal Code 405b provides the felony penalty: "Every person who participates in any lynching is punishable by imprisonment...for two, three or four years."

police attacked by pink smoke
In California, lynching refers to a situation where rioters force a detainee from police custody.

A Detainee Can Be Charged in His Own Lynching

When rioters take a person from police custody, not only can the mob of rioters be prosecuted. The detainee who gets freed can be prosecuted for lynching as well, if he instigated and encouraged the mob.

This was the issue in the 1999 court case In Re Anthony J.1San Francisco police attempted to arrest Anthony, a juvenile, on a warrant for auto theft. Anthony struggled, but the officers succeeded in handcuffing him. Then Anthony appealed to a nearby crowd of onlookers to help free him.

The crowd, swelling to several hundred people, charged the officers and Anthony broke free. He fled and eluded capture. He was later arrested at another location and charged with lynching under Penal Code 405a and 405b.

The issue in the case was whether the lynching statute could apply to the person getting freed by the rioters, rather than just to the rioters who freed him. The court held that Penal Code 405a applies to both, and upheld Anthony's conviction.

Attempted Lynching

What if someone tries to secure a lynching, but fails? They can still be charged with "attempted lynching."

This was the issue in another court case, In Re Maria D.2 Maria saw L.A. County Sheriffs deputies arresting her boyfriend. Maria approached the patrol car yelling "fuck you pigs...let him go!" She gestured to a nearby group of males to come over. Then she approached a deputy with her arms extended as if she was going to pull him away from the patrol car where her boyfriend was detained.

The deputies arrested Maria. Her boyfriend was never taken from police custody. Maria got charged with "attempted lynching" under Penal Code 504a and 504b. She contended that it was an illegitimate charge, since the actual "lynching" never occurred.

The court concluded that the charge was appropriate and sustained the conviction.

Relation to Rioting

Stated in Penal Code 404 and 405 PC, "participation in a riot" is a misdemeanor punishable by up to one year in jail. Stated in Penal Code 404.6, "incitement to riot" is likewise a misdemeanor with a one-year maximum sentence.

Since a lynching by definition happens in the context of a riot--or an attempted lynching amidst an incitement to riot--these crimes could alternatively be charged.

However, lynching is a much more serious crime. It's a felony punishable by up to four years prison, whereas the rioting crimes are misdemeanors carrying only up to one year of custody.

man in cuffs
lynching is a felony punishable by up to four years prison

Relation to Penal Code 4550 "Rescuing a Prisoner"

Stated in Penal Code 4550 PC, California "rescuing a prisoner" law makes it a crime to rescue, or to attempt to rescue, a prisoner from any jail or prison facility, or from law enforcement custody generally.3

The crime is a felony carrying up to four years in prison if the prisoner had been convicted of a crime punishable by death. Otherwise, the crime is a wobbler, meaning it could be punished as a misdemeanor or a felony. As a felony, it carries up to four years in state prison.

Here again, the lynching laws in Penal Code 405a and 405b are more serious. Lynching carries a 4-year max, whereas rescuing generally carries only a 3-year max. As the courts have explained, "Although both sections deal with the taking of persons from lawful custody, the anti-lynch law concerns only the taking by means of riot, which presents a greater danger to the officers and populace than a single act of only a few disciplined persons."4

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Call us for help...

If you or loved one is charged with Penal Code 405a & 405b PC lynching and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can 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.

Legal References

    1. In re Anthony J. (1999) 72 Cal.App.4th 1326, 85.
    2. In re Maria D. (2011) 199 Cal.App.4th 109.
    3. Penal Code 4550 (a) "Every person who rescues or attempts to rescue, or aids another person in rescuing or attempting to rescue any prisoner from any prison, or prison road camp or any jail or county road camp, or from any officer or person having him or her in lawful custody, is punishable as follows:
      (a) If the prisoner was in custody upon a conviction of a felony punishable with death, by imprisonment pursuant to subdivision (h) of Section 1170 for two, three or four years.
      (b) If the prisoner was in custody otherwise than as specified in subdivision (a), by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in the county jail not to exceed one year."
    4. People v. Jones (1971) 19 Cal.App.3d 437, 446.

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