Penal Code 409 PC | Failure to Disperse at a Riot

Penal Code 409 PC | Failure to Disperse at a Riot

Hey there! Today we’re gonna be talking about California Penal Code 409 PC, which is the law against failing to disperse when police declare an unlawful assembly. This charge comes up a lot around protests that get out of hand, so it’s good to understand what it is and how it works if your thinking about attending any rallies or demonstrations.

What is Penal Code 409 PC?

Penal Code 409 PC is the California statute that makes it a misdemeanor crime to remain present at a riot, rout, or unlawful assembly after police have ordered the crowd to disperse.1 Basically if the cops show up and say “this assembly is unlawful now everyone go home,” you gotta leave or else your breaking the law!

The police have to give people a chance to leave before they can get charged. They’ll usually issue a few warnings over loudspeakers or with megaphones telling people to leave the area. If you don’t listen, then you could get arrested and end up with a criminal record.2

What is an unlawful assembly?

For PC 409 to apply, the gathering you’re at needs to have been declared an unlawful assembly first. According to California Penal Code 407, an unlawful assembly is a gathering of two or more people with the intent to do any of the following:3

  • Commit acts of unlawful force or violence against another person or their property
  • Commit an unlawful act by tumultuous and violent conduct
  • Disturb the public peace

So basically any protest that starts getting rowdy with violence, vandalism, blocking roads, etc could potentially be declared an unlawful assembly. Police can make this declaration if they feel the gathering poses a threat to public safety.4

What are the penalties?

Failing to disperse when ordered is a misdemeanor offense in California.5 Potential penalties can include:6

  • Up to 6 months in county jail
  • A max $1,000 fine
  • Informal probation

Penal Code 409 is a “wobbler” offense, meaning prosecutors have the option to charge it as a misdemeanor or a felony in more serious cases. A felony conviction can lead to 16 months, 2 years, or 3 years in state prison.7

Legal Defenses

If your facing charges under PC 409, working with an experienced criminal defense attorney is highly recommended. They can evaluate the details of your case and build an aggressive defense to have the charges reduced or dismissed. Here are some common defenses:

You were not given adequate notice to disperse

In order for PC 409 charges to stick, police need to give people a reasonable opportunity to leave the area once an unlawful assembly has been declared. Shouting a dispersal order one time over a loudspeaker while deployment tear gas probably won’t cut it.

A skilled lawyer can argue the orders to disperse were inadequate or unclear, preventing you from having proper notice required by law. This can get the charges against you dropped.

The gathering was not an unlawful assembly

Prosecutors have to prove the event met the legal criteria for an unlawful assembly in order for PC 409 to apply. But peaceful protests—even those blocking roadways or disrupting business operations—are not automatically unlawful.8

If the protest was nonviolent, or police did not have reasonable grounds to declare it unlawful, an attorney can fight the charges on that basis.

You were trapped and unable to leave

Let’s say the scene got chaotic and you were boxed in by police lines with no way to disperse even though you wanted to. It wouldn’t be fair to punish you for failing to comply with orders when compliance was impossible.

A lawyer may be able to beat a PC 409 charge by arguing it was physically impossible for you to disperse from the area in time.

You were singled out for selective enforcement

Sometimes police selectively enforce dispersal orders against particular protesters they want to punish or remove from the scene. If attorneys can show you were singled out based on your race, gender, or political beliefs, they may be able to get charges dismissed on the grounds of discriminatory enforcement.9

Staying Safe at Protests

I hope this breakdown gives you a better understanding of California’s failure to disperse law and what to do if your ever accused of violating it. Protesting is an important way to exercise our First Amendment rights, but things can sometimes get hairy out there!

Here’s some tips to stay safe and avoid criminal charges if you decide to protest:

  • Follow police orders even if you disagree with them
  • Always have an exit route planned in case you need to leave
  • Avoid provoking or confronting officers
  • Document interactions with police
  • Cover identifying features if worried about getting profiled

And as always, reach out to a qualified lawyer right away if your arrested or accused of any crime during a protest or demonstration. They can advise you on the best defense strategy for your unique situation. Stay smart and stay safe!


California Penal Code 409 PC

409 PC – Failure to Disperse – California Penal Code 409

California Penal Code 407 PC

Your Right to Protest | American Civil Liberties Union of Northern CA

California Penal Code 19 PC

409 PC – Failure to Disperse – California Penal Code 409

409 PC – Failure to Disperse – California Penal Code 409

Your Right to Protest | American Civil Liberties Union of Northern CA

409 PC – Failure to Disperse – California Penal Code 409