Last Updated on April 10, 2025
Unlawful assembly is a little-understood charge that many peaceful protesters face at one point or another. If you are accused of unlawful assembly in Vista or the rest of San Diego County, your criminal defense attorney can help you fight the accusations and protect your First Amendment rights.
What is Unlawful Assembly?
In California, unlawful assembly is defined under Penal Code section 407 (PC) as two or more people assembling for the purpose of doing something illegal or participating in a lawful act in a violent, boisterous, or tumultuous manner. Someone does not personally need to act in violently to be guilty of the crime.
While this sounds reasonably broad, the courts have widely protected the public’s First Amendment rights against charges of unlawful assembly, ruling that this law can only be used to prohibit violent gatherings or assemblies that pose a clear and present danger of imminent violence. Because the court has held such a narrow definition of what is or is not unlawful assembly, many persons arrested for this charge are never brought up on charges. When the charges are actually filed, criminal defense lawyers can frequently get the charges dropped.
Fighting the Charges
For someone to be convicted of this crime under 408 (PC), the prosecutors must be able to show they were a willing participant in the unlawful assembly. In California, that means that if you are part of a peaceful protest that begins to turn violent, you must have a chance to leave the gathering before you are considered a part of the unlawful assembly.
If some small fringe groups break off to commit violent acts while an otherwise peaceful group continues their assembly, those who remain in the peaceful factions should not be arrested. Unfortunately, when violence occurs, or there is a strong threat of violence, police often make quick and rash decisions to get people off the street and prevent further acts of violence. For this reason, many innocent people are arrested for unlawful assembly charges in California without police taking the time to evaluate what is actually happening and who is responsible.
In the rare instance that the prosecution insists on filing charges of 408 (PC) against all persons arrested, they must be able to prove that you were part of the group that turned violent and unruly and were given a chance to leave the group before you were arrested.
The defense for these cases often comes down to your lawyer arguing that you:
- were not part of a violent group or a group threatening violence
- you were part of a peaceful faction acting within the law
- you were unable to disperse from a violent group before you were arrested.
What are the Penalties for 408 (PC)?
Unlawful assembly is a misdemeanor in California. While few convictions for unlawful assembly carry the maximum sentence, if you were a leader or had a significant role in the violence, the judge may choose to make an example out of you. In these cases, you could be sentenced to up to six months in county jail. More commonly, convictions result only in summary probation.
Similar Criminal Offenses
Those accused of unlawful assembly under 408 (PC) are frequently charged with other offenses as well. Frequent charges filed simultaneously include disturbing the peace, disturbing a public meeting, looting, and rioting. Similar defenses work for these charges, but it’s always best to work with skilled criminal attorneys when fighting these types of charges so you do not end up saying something that could harm your case.
If you have been accused of unlawful assembly or a related offense, please contact criminal defense lawyer Peter M. Liss to discuss your case in a free, no-obligation consultation. You can schedule an appointment any time by calling (760) 643-4050.
