Penal Code 408 PC - "Unlawful Assembly" Law in California

California Penal Code 407 PC 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 1
Police in front of an unlawful assembly of people
Penal Code 408 makes "unlawful assembly" a misdemeanor, punishable by up to six months of county jail

To be convicted, the defendant must (a) willingly participate in the unlawful assembly (in other words, do so on purpose) and (b) do so knowing that it is unlawful. 2

Penal Code 408 makes this crime a misdemeanor, punishable by up to six months of county jail.3

This language sounds broad and would appear to give the authorities wide discretion to arrest protesters and peaceful but loud gatherers by deeming it an "unlawful assembly."

To curb this authority and comply with the First Amendment freedom of assembly protections, the California Supreme Court narrowly construes the law to prohibit only "assemblies which are violent or which pose a clear and present danger of imminent violence."4 Specifically, the court has said:

Although the public may fear a large, noisy assembly, particularly an assembly that espouses an unpopular idea, such an apprehension does not warrant restraints on the right to assemble unless the apprehension is justifiable and reasonable and the assembly poses a threat of violence.5

With this definition in mind, examples of genuine unlawful assembly would include situations such as these:

  • angry at a televised police beating, a group of protesters takes to the street with lighters and butane, planning to torch cars and building
  • angry at a jury verdict, a group of protesters marches to the courthouse with bats and clubs, shouting "let's get these mother fuckers!"
police in riot gear
A lawful assembly can become an unlawful one if what starts out as a peaceful protest later turns violent

Whereas this would not amount to an unlawful assembly:

  • angry over tuition hikes, a group of students marches to the city plaza, carrying signs and chanting

Of course, a lawful assembly can become an unlawful one if what starts out as a peaceful protest later turns violent. Courts have explained that "It is immaterial at what time the intent to do the lawful act in an unlawful manner is formed-whether prior to or during the assembly."6

Mere Presence in the Group Can Constitute a Crime

Simply remaining in a group that has become violent or otherwise unlawful is sufficient to constitute an unlawful assembly. As the court has said:

The statutory denunciation pertains to the assembly at large...Not every member of the assembly must individually commit unlawful acts to render the assembly unlawful...If a person is a participant in a lawful assembly which becomes unlawful he has an immediate duty upon learning of the unlawful conduct to disassociate himself from the group.7

Of course, situations arise where some factions in a protest become violent and unruly, while others remain peaceful. Courts have said that a jury must ultimately determine which group a defendant was in. "The extent of the group and the membership therein are merely questions of fact."8

Defenses to an "Unlawful Assembly" Charge

Arrests for Penal Code 407 and 408 tend to occur in chaotic situations where it's hard for police officers to discern exactly "who did what." This can make the charges difficult for the prosecution to prove in court. Typical defenses that we've had success with include:

  • The group was not perpetrating violence, nor was there a clear threat of imminent violence
  • Even if some in the assembly had become violent, our client was part of a peaceful faction that was acting lawfully
  • Our client was not given time and opportunity to leave the group before getting arrested
Penalties, Punishment and Sentencing for Penal Code 408 Unlawful Assembly

Penal Code 408 makes unlawful assembly a misdemeanor in California. As such, it is punishable by up to 6 months of incarceration in the county jail.

"6 months" is a maximum sentence, and judges rarely impose the maximum unless the circumstances are particularly egregious. More often, judges grant probation and impose much less, if any, actual jail time.

Related Crimes

A number of other offenses tend to get charged in connection with an "Unlawful Assembly" case. Some of them include:

California "Rioting" Laws

Based in Penal Code 404 and 405, California "rioting" laws make it a crime for two or more people to gather together in order to

  • commit acts of violence
  • threaten violence, or
  • cause a disturbance 9

If a crowd is actively engaged in rioting, then by definition they are also engaged in an unlawful assembly. In that scenario, prosecutors are more likely to charge rioting under Penal Code 404 and Penal Code 405, as rioting carries a one-year maximum sentence. Unlawful assembly carries a six-month maximum sentence.10

man in front of fire cheering people on
"Inciting a riot" is where someone (who intends to start a riot) urges other people to engage in rioting
Incitement to Riot

Based in Penal Code 404.6, "inciting a riot" is where someone (who intends to start a riot) urges other people to engage in rioting, violence or property destruction.11 The person need not actively engage in rioting to commit this crime, so long as he encourages others to do under circumstances where rioting is likely to happen.

This too is likely to constitute an unlawful assembly. If someone is inciting a riot, as the law defines it, then he's probably with a group of people in an explosive situation. And here too, prosecutors would generally prefer to file charges under Penal Code 404.6, since it carries a one year maximum sentence, whereas unlawful assembly only carries six months maximum sentence.12

Failure to Disperse

Found in Penal Code 409 PC & Penal Code 416 PC, California "failure to disperse" laws make it a crime to linger at the scene of a riot or unlawful assembly after the authorities have ordered the crowd to leave. Someone who participates in an unlawful assembly, and then refuses to disperse when ordered, could potentially be charged with either or both offenses.

Penal Code 409 and Penal Code 416 run into the same Constitutional hurdle as the "unlawful assembly" statute. That is, the authority of the state to prosecute these offenses must be balanced against the First Amendment freedom of assembly.

To this end, courts have said that one can only be prosecuted for failure to disperse if the dispersal itself had been necessary to prevent violence or alleviate the immediate threat of violence.13

Disturbing the Peace

Found in Penal Code 415 PC, California "disturbing the peace" laws make it a crime to fight in public, to instigate fights in public, or to make unreasonably offensive noise. 14 A crowd of people engaged in any of these activities would presumably also constitute and unlawful assembly.

But as with the other laws, the discretion of authorities to arrest people for Penal Code 415 is limited, especially with respect to unreasonable noise. The statute cannot be used to suppress peoples' expression, even if the message is loud and unpopular. It only becomes a crime if the purpose of the noise is to disrupt the lawful activity of others. 15

Creating a Public Nuisance

California's "public nuisance laws," Penal Code 372 and 373a PC, make it a crime to create a public nuisance that interferes with the public use of a street, highway, park or square.16

A public nuisance means an activity or situation that is offensive to the senses, injurious to health or indecent.17 Certain forms of assembly, such as those that involve provocative behavior or loud noise, could lead to charges of creating a public nuisance.

This crime is a misdemeanor with a maximum county jail sentence of six (6) months.18 

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If you or loved one is charged with Penal Code 407 & 408 PC unlawful assembly 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.

If you face charges in Nevada, please visit our page on Unlawful Assembly laws in Nevada (NRS 203.060).

1 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."

2 See CALCRIM Jury Instruction 2685: To prove that the defendant is guilty of this crime, the People must prove that:

1 The defendant willfully participated in an unlawful assembly;AND
2 The defendant knew that the assembly was unlawful when (he/she) participated.
Someone commits an act willfully when he or she does it willingly or on purpose.
An unlawful assembly occurs when two or more people assemble together (to commit a crime/ [or] to do a lawful act in a violent manner).
[When two or more people assemble to do a lawful act in a violent manner, the assembly is not unlawful unless violence actually occurs or there is a clear and present danger that violence will occur immediately.]

3 Penal Code 408 "Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor."

4 In re Brown (1973) 9 Cal.3d 612, 623.

5 See same

6 People v. Kerrick (1927) 86 C.A. 542, 551.

7 In re John Wagner, In re William Reid Parker, In re James T. Fauss (1981) 119 Cal.App.3d 90, 103.

8 In re Wagner, supra, 119. Cal.App.3d at 104.

9 See Penal Code 404 (a) "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, is a riot."

10 See 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 California Penal Code 404.6 (a) 

12 See Penal Code 404.6 (b) "Incitement to riot is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment."

13 Chambers v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (App. 1 Dist. 1977) 65 Cal.App.3d 904.

14 California Penal Code 415 

15 People v. Superior Court (Commons) (1982), 135 Cal.App.3d 812, 817. 

16 Penal Code 372 PC; Penal Code 373a PC; Penal Code 370 PC [definition of a public nuisance; related offense to unlawful assembly].

17 Same.

18 Same.

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