California Penal Code Section 409 PC and 416 PC: Refusal To Disperse

California Penal Code Section 409 PC and 416 PC: Refusal To Disperse

Riots, unlawful assemblies, and other situations where a large and unruly crowd has formed can pose a serious threat to life and property. In California, the laws regarding the refusal to disperse from such dangerous gatherings are covered under Penal Code Section 409 PC and 416 PC. These laws make it a crime to refuse to disperse after police have ordered a crowd to leave an unlawful assembly or riot.

While the right to free speech and assembly is protected under the First Amendment, there are limits when public safety is at risk. Police need to have the authority to order dangerous crowds to disperse for everyone’s protection. However, these laws are also controversial, as they can be misused to suppress legitimate protests. There are often debates around where to draw the line between protecting public order and allowing free expression.

In this article, we’ll break down California Penal Code Section 409 and 416, looking at the key elements of each offense, penalties, and legal defenses. We’ll also discuss some of the controversies around these laws and their implications for public protests and demonstrations in California.

California Penal Code Section 409 – Unlawful Assembly

Penal Code Section 409 PC covers the failure to disperse when an “unlawful assembly” has been declared. This law states that:

Every person remaining 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, is guilty of a misdemeanor.

So what exactly constitutes an “unlawful assembly” under California law? An unlawful assembly is a gathering of two or more people with the intent to commit a criminal act, or take action in a way that will disturb the public peace. Some examples of unlawful assemblies include:

• A group that gathers with the intent to commit acts of violence against people or property
• A group that gathers to disturb the peace in a violent or threatening manner
• A group that gathers with the intent to commit illegal acts such as looting or rioting

The key elements of an unlawful assembly are the group aspect and the intent to disturb the peace or commit criminal acts. Just having a peaceful protest or gathering does not constitute an unlawful assembly. Police can declare an unlawful assembly if a peaceful protest turns violent or extremely disruptive.

If police declare an unlawful assembly, they are required to give a clear order for the crowd to disperse and provide a reasonable opportunity to comply. Those who remain after the order face charges under Penal Code 409 PC.

A violation of PC 409 is a misdemeanor offense in California. This can be punished by:

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

While PC 409 covers failing to disperse an unlawful assembly, other related crimes can lead to additional charges, such as:

• Riot (PC 404)
• Resisting arrest (PC 148)
• Assault on a peace officer

So anyone who engages in violence or refuses to follow lawful police orders could face multiple misdemeanor or felony charges under California law.

California Penal Code Section 416 – Remaining at Riot

Penal Code Section 416 PC covers the failure to disperse after police have ordered an unlawful assembly or riot to disperse. This law states that:

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.

PC 416 is very similar to PC 409, but covers the broader categories of unlawful assemblies and riots. Police can order a gathering to disperse if it poses a threat to public safety or order, even if violence or criminal acts have not yet occurred.

Some key notes on PC 416:

• It applies to gatherings of 2 or more people who have assembled with the intent to disturb the peace or commit illegal acts
• Police must give a clear order to disperse and allow a reasonable time to comply
• Those who remain in the gathering after the order face misdemeanor charges

Riot is defined as a disturbance of the peace by an unlawful assembly that uses force or violence against persons or property. An unlawful assembly that turns violent would become a riot under California law.

Like PC 409, a violation of PC 416 is a misdemeanor offense. Convictions can result in:

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

Defendants may also face related charges like rioting, resisting arrest, assault, arson, or looting if applicable to their case.

Legal Defenses

There are several legal defenses that can be raised if you are charged under PC 409 or 416 for failing to disperse:

• No unlawful assembly/riot: If the gathering was peaceful and lawful, there were no grounds to declare an unlawful assembly or riot.
• No order to disperse: If police did not properly order the crowd to disperse and provide an opportunity to comply, the charges could be challenged.
• Didn’t hear order: If you were not able to hear the police order to disperse, you cannot be expected to comply with it.
• Didn’t have chance to comply: If you were in the process of complying with the order but were arrested immediately, you may not be guilty of failure to disperse.
• Self-defense: If police used excessive force and you were defending yourself, you may have valid legal defenses.
• Misidentification: If police mistakenly identified you as a participant when you were not actually part of the unlawful gathering.

An experienced criminal defense attorney can evaluate the details of your case and advise you on the best legal strategies. They can challenge the charges if police overstepped their authority or violated your rights.

Controversies Around Failure to Disperse Laws

While laws like PC 409 and 416 serve an important public safety purpose, there are also controversies around their application. These laws have been criticized at times for their use in suppressing legitimate protests protected by the First Amendment.

Some civil liberties advocates argue that these statutes give police overly broad discretion to declare protests as unlawful assemblies. There are concerns that these laws have been used unfairly against certain groups and viewpoints engaged in peaceful demonstrations. Their use against controversial groups like Black Lives Matter, Occupy Wall Street, and anti-Trump protests has sparked debate.

There have also been many instances where police have been accused of declaring an unlawful assembly and ordering crowds to disperse without giving them adequate time or opportunity to comply with the orders. The indiscriminate use of tear gas, pepper spray, batons, and riot gear against non-violent protesters has been controversial.

Supporters of these laws say they are necessary for police to maintain public order and safety. But there are delicate balances between security and liberty that require thoughtfulness in their application. There is an ongoing discussion around reforms and limits that could prevent misuse while preserving the ability to disperse truly dangerous gatherings.

In recent years, California has passed laws aimed at increasing oversight and accountability for crowd control tactics. AB 48 requires agencies to have clear policies for crowd management and the use of tear gas and projectiles. SB 480 mandates that officers have their badges visible and identify themselves when policing protests.

While failure to disperse laws remain contentious, these reforms show progress toward addressing concerns over rights violations. With improved policies and training, police may be able to enforce public order while respecting free speech in the process. But further open dialogues between law enforcement, lawmakers, and community members are still needed.

Conclusion

California Penal Code Section 409 PC and 416 PC make it a crime to fail to disperse after police have ordered a riot, unlawful assembly, or other dangerous gathering to leave. These laws aim to allow officers to maintain public safety in chaotic situations. But they are also controversial for their potential to infringe on free speech and assembly rights.

Those charged under these statutes do have legal defenses to challenge violations of their rights or misapplications of the law. Ultimately, preserving both security and liberty requires thoughtful policies and practices around crowd dispersal. With improved training and accountability, police may be able to appropriately enforce these laws while protecting First Amendment freedoms.

The issues around unlawful assemblies, riots, protests, and crowd control are complex with reasonable arguments on all sides. As with any laws restricting civil liberties for public good, there are delicate balances involved that require an ongoing public discussion.

References

• California Penal Code 409 PC – Failure to Disperse at the Scene of a Riot
• California Penal Code 416 PC – Failure to Disperse
• California Penal Code Section 409 and 416: Refusal to Disperse | Simmrin Law Group
• California Penal Codes 409 PC and 416 PC: Refusal To Disperse – Esfandi Law
• Failure to Disperse Law & Defense PC 409 & 416