Unlawful Assembly, Rout, and Riot:

Unlawful Assembly, Rout, and Riot: 
Penal Code §§ 404 et seq.

R.C. Phillips
May, 2021

            Stopping a problem early with individual arrests for disturbing the peace, despite its constitutional restrictions, is still preferable (at least from a tactical standpoint) to having to make mass arrests after the disturbance has degenerated into an unlawful assembly, rout or riot.  However, it is a fact of human nature that most people are not brave enough to do something warranting arrest until they have the security of a crowd giving them anonymity.

            “The right to assemble peaceably, like freedom of speech, is guaranteed by the First Amendment.”  (In re Brown (1973) 9 Cal.3rd 612, at p. 623.)  But an otherwise lawful assembly can become unlawful, as described in Penal Code § 407, when two or more people assemble together to do an unlawful act, or to do a lawful act in a violent, boisterous, or tumultuous manner.  

            Participating in an unlawful assembly is a misdemeanor chargeable under § 408.  A person “participates” in an unlawful assembly when he or she knowingly joins in, or remains with, the group after it has become unlawful, even though he does not himself actually commit a violent act or any act which poses a clear and present danger of violence.  (In re Wagner (1981) 119 Cal.App.3rd 90, ....

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