Rioting and protesting are often used interchangeably, however they are not the same. The right to peacefully protest is legally protected by the first amendment and for good reason– the ability to stand up for injustice is exactly what the framers of the constitution had in mind. However, when protesting turns into a violent riot is when your legal rights end and criminal charges begin.
Despite many protests beginning and remaining peaceful we are aware of situations where they turn into angry mobs with looting and destruction of public and private property. From the Detroit Riots, which is considered the bloodiest riot in American history, to the more recent riots protesting the death of George Floyd during an arrest by police.
Federal and State Jurisdiction Regarding Rioting
States typically have their own laws concerning rioting, from participating in a riot to being the instigator on one. An interesting point to mention is someone who has been charged or acquitted for crimes related to a riot under state law cannot be held accountable for the same charges under federal law.
Federal jurisdiction is somewhat more limited in that the accused must have traveled between state lines or into another country. Or if they used interstate or foreign commerce including telephone, mail, radio or television to broadcast or communicate their acts.
California Penal Code Related to Rioting
A riot is define under California Penal Code as:
(a) Every person who with the intent to cause a riot does an act or engages in conduct that urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property, and at a time and place and under circumstances that produce a clear and present and immediate danger of acts of force or violence or the burning or destroying of property, is guilty of incitement to riot.
(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.
(c) Every person who incites any riot in the state prison or a county jail that results in serious bodily injury, shall be punished by either imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.
(d) The existence of any fact that would bring a person under subdivision (c) shall be alleged in the complaint, information, or indictment and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt, by the court where guilt is established by a plea of guilty or nolo contendere, or by trial by the court sitting without a jury.
Penalties for a Riot
Penalties for participating in a riot is a misdemeanor in California and can trigger up to one year in county jail and a fine up to $1000. Though a judge may grant probation with little or no jail time.
Naturally, when a riot occurs not every single person there is culpable, therefore to be guilty of a riot it must be proven beyond a reasonable doubt that the accused was participating in the violent activities and not merely a spectator. An exception to this would be unlawful assembly.
Unlawful assembly is when two or more people assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner. In this situation, merely being a bystander in a situation deemed unlawful assembly is a crime.
So now that we’ve talked about protests, rioting and unlawful assembly, you may be thinking what separates a legal act from an illegal act? As the law defines, violence or the provocation of violence.