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Defending a Protest Charge in California

Posted by Dmitry Gorin | Jan 20, 2021

Review of How To Defend California Charges Related to Protesting

In California, there are several different statutes that could be charged related to protesting. Obviously, it's illegal to participate in a riot, but the majority of protesters are peaceful.

Penal Code 407 PC describes an unlawful assembly as when two or more people gathered together to do an unlawful act, or a lawful act in a violent boisterous manner.

Defending a Protest Charge in California
California has several different statutes related to protesting charges, such as PC 408 unlawful assembly.

The most common California charges related to protesting include:

  • Penal Code 408 PC – unlawful assembly,
  • Penal Code 404 PC – participation in a riot,
  • Penal Code 404.6 PC – inciting a riot,
  • Penal Code 409 PC – failure to disperse at scene of riot,
  • Penal Code 416 PC – failure to disperse,
  • Penal Code 415 PC – disturbing the peace,
  • Penal Code 148 PC – resisting arrest.

These laws were closely scrutinized after the mass protest in California over the killing of George Floyd by the Minneapolis Police Department.

Most of these offenses are charged as a misdemeanor crime punishable by up to six months in county jail and a fine up to $1,000.

Our Los Angeles criminal defense lawyers are providing a more detailed review below.

History of Civil Disobedience

Civil disobedience stimulating government or other reform is both an ancient and modern symbol of high principles and acute personal commitment.

From Socrates, Thoreau, and Gandhi, to Martin Luther King Jr., Rosa Parks, and the Tiananmen protesters, we celebrate the courage of those who place their freedom at risk to challenge unjust governance and laws.

Civil disobedience defines not only the protester but also the community in which it occurs.

Protesters know that the public response to their actions can mean more to their public cause than their actions mean in themselves.

Protests often occur specifically to trigger a government response, whether armed and violent, or passive and even welcoming.

When public buildings get occupied and statues torn down, government officials may cheer or call out the National Guard.

What are the Protest Rights?

Protesters in America have significant constitutional protections.

Protesters have the greatest protection to exercise their First Amendment rights of free speech and association when in a traditional public forum like a:

  • public park,
  • sidewalk,
  • square, or
  • street.

Police and other officials may only place content-neutral, narrowly drawn time-place-and-manner restrictions on public-forum protests.

For instance, officials may require a permit for a march that will block streets but must not deny a permit based on the marchers' message.

Officials must not silence speakers for arousing a crowd, only for speech inciting imminent violence or crime.

The Los Angeles Human Rights Commission distributes a summary of demonstration and protest rights, including the use of public forums like parks, squares, and streets, and not to have content-specific restrictions placed on speech.

First Amendment Law

First Amendment law permits greater restrictions on limited public forums, such as:

First Amendment Law
While peaceful protesters are legally protected, there are restrictions on where they can demonstrate.
  • schools,
  • theaters,
  • museums, and
  • meetings of public bodies.

Protests in those locations must not interfere with their operation.

And some public buildings and spaces, like military facilities, police facilities, airport runways, and prisons, may, for safety and security reasons, prohibit any protest activity.

Private property 

Protesters generally have no right to enter private property to conduct a protest.

However, the law may treat some private properties, like a shopping mall, as a public forum or limited public forum.

The three rules for protest rights are like the rule for real-property values: location, location, location.

Constitutional Rights of Protesters

Protesters also retain their other constitutional rights ensuring fair criminal procedures.

Simply because the government makes mass arrests, or because following charges involve a public demonstration, does not mean that the police and courts may suspend the due process that the Constitution guarantees.  

To the contrary, your legal rights remain secure:

  • against unreasonable search and seizure,
  • self-incrimination,
  • timely and meaningful access to legal counsel,
  • a prompt arraignment on any charges,
  • freedom on reasonable security while charges are pending, and
  • a trial before a jury of your peers and a fair judge.

Protester Criminal Charges in California

A protester's constitutional rights, though, do not give absolute immunity to violent, injurious, and destructive forms of protest, such as:

Peaceful protest is one thing, hooliganism another. Protesters must also obey when local authorities issue a lawful curfew or other emergency order because of rioting or other public threats.

Los Angeles County Municipal Code 2.68.320, for instance, makes it a misdemeanor to violate such an order.

Resisting Arrest Charges – Penal Code 148 PC 

Interfering with a police officer is another common protest charge when, as often happens, police are present during a protest march.

Resisting Arrest Charges – Penal Code 148 PC
Penal Code 148 PC resisting arrest is a common charge related to protesting punishable by jail time and a fine.

California Penal Code 148 PC makes it a misdemeanor, punishable with a fine of up to $1,000 and jail for up to one year for a protester or any other person to:

  • resist,
  • delay, or
  • obstruct a police officer.

LA municipal code 55.07 

Content-neutral criminal laws may even regulate conduct during a protest, such as Los Angeles Municipal Code 55.07, making it a public assembly misdemeanor to carry a wood stick or bat except for thin lath supporting a sign.

Actions that cause substantial property damage, serious injury, or death around protests can result in serious criminal charges.

For example, there is a media report alleging that police charged a Caravan4Justice protester in Yorba Linda with attempted murder and assault with a deadly weapon when she drove her car into the crowd during the protest and counter protests. Peaceful protest is one thing, attempted murder another.

Criminal Defense for Protest Charges in California

Protesters facing charges should retain our skilled Los Angeles criminal defense attorneys as special opportunities exist around protests to avoid criminal charges or convictions.

A protest arrest does not necessarily mean that a charge will follow. Press reports indicate that the City of Los Angeles did not charge peaceful protesters after mass arrests in June 2020, even though Beverly Hills did prosecute curfew violating protesters later that same summer.

Criminal Defense for Protest Charges in California
Contact Eisner Gorin LLP if you were charged with a protest related crime in California.

We might be able to may advocate with prosecutors not to issue any charges, given public support for the protesters and the value of the protesters' cause.

When prosecutors do issue charges, they must be able to prove protest charges beyond a reasonable doubt, just like any other criminal charges.

You can Increase your chances to avoid or defeat a charge relating to a protest or other demonstration.

Eisner Gorin LLP is a top-ranked criminal defense law firm serving clients in Southern California, including Los Angeles County, Orange County, Ventura County, Pasadena, Hollywood, Riverside, and San Bernardino.

Our office is located at 1999 Avenue of the Stars, 11th Fl., Los Angeles, CA 90067.

Our main office is in the San Fernando Valley next to the Van Nuys Superior Court at 14401 Sylvan St #112 Van Nuys, CA 91401.

Contact our firm for an initial consultation at (877) 781-1570.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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