Riots: Legal Aspects
RIOTS: LEGAL ASPECTS
In dealing with riotous or potentially riotous conduct, the common law developed several crimes, including breach of the peace, unlawful assembly, rout, riot, and disorderly conduct. Numerous statutory prohibitions exist today as well. For example, the California Penal Code offenses invoked in the Watts riots of 1965 included resisting officers (§ 69), riot (§ 404), unlawful assembly (§ 407), riot-rout-unlawful assembly (§ 415), remaining present after warning to disperse (§ 409), disturbing the peace (§ 415), drawing or exhibiting firearms (§ 417), arson (§§ 447(a), 448(a)), burglary (§ 459), theft (§§ 484–485), and malicious mischief (§ 594). The curfew provisions of the California Military and Veterans Code (Cal. Mil. & Vet. Code § 1600 (1955) (repealed 1970)) were invoked as well (Note, 1967, p. 122 n. 17).
Unlawful assembly. At common law an unlawful assembly was defined as a gathering together of three or more persons with the common intent to achieve a purpose, lawful or unlawful, in a riotous or tumultuous manner. The common purpose or intent could be formed either before assembling or after the gathering took place. A meeting could therefore start out as a lawful assembly but change into an unlawful one.
The states are divided as to whether there must be an intent to perform the planned activity in a violent manner. Many jurisdictions require the presence or threat of force or violence disruptive of public order. Other jurisdictions consider the nature of the assembly. If the purpose is unlawful, then an unlawful assembly exists.
Rout. Rout is generally defined as the moving forward of an unlawful assembly toward the execution of its unlawful design (Follis v. State, 37 Tex. Crim. 535, 537, 40 S.W. 277 (1987)). A rout is essentially an attempt to commit a riot. It requires a specific intent to riot and a situation that ultimately falls short of actual riot. Thus, if two or more persons have the intent to riot and if they commit an act that threatens further acts of force or violence, they could be guilty of rout. The crime of rout has usually been abandoned or merged with that of unlawful assembly.
Riot. The generally accepted common law definition of riot is the following: "A riot seems to be a tumultuous disturbance of the peace, by three persons or more assembling together of their own authority, with an intent mutually to assist one another, against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful" (Hawkins, p. 243).
Several elements are generally required for the crime of riot: there must be at least three persons participating in a common riotous purpose, although only one need perform the objectionable act; there must be an unlawful assembly and overt acts committed without authority of law; and there must be use of force and violence. For the necessary purpose or intent, there must be some evidence of concerted action toward the furtherance of a common goal. The requisite concert of action may be inferred from the manner in which the unlawful acts of violence are committed.
Since a common law riot was committed when those who were unlawfully assembled began the perpetration of their unlawful design, most states held an unlawful assembly to be a prerequisite to the offense of riot. Riot was committed under the common law when a mob employed force or violence to accomplish its illegal purpose. "Unlawful force or violence" is interpreted broadly, but is generally viewed as conduct more serious than loud noise or disturbance. Riot could occur even though the objective were lawful if the defendants' actions were carried out or attempted in a violent and turbulent manner to the terror of the people. Persons charged with riot had to be present at the scene of the unlawful act.
In a few states, riot remains a common law crime (Cohen v. State, 173 Md. 216, 195 A. 532 (1937)). Most states have statutory definitions that follow the common law. Several states maintain the common law crimes as a supplement to their statutory enactments.
Statutory riot crimes
The first statutory riot act was the famous British Riot Act (An Act for preventing Tumults and Riotous Assemblies and for the more speedy and effectual punishing the Rioters, 1 Geo. 1, Stat. 2, c. 5 (1714) (Great Britain) (repealed 1973)), according to which a justice of the peace or other officer, when confronted with an "unlawful, riotous, or tumultuous assembly," was to approach as close as safety permitted and read with a loud voice the prescribed language: "Our Sovereign lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves and peaceably to depart to their habitations or to their lawful business, upon the pains contained in the Act made in the first year of King George, for the prevention of tumults and riotous assemblies. God save the King" (143). The statute further provided that if twelve or more of the assembled persons failed to disperse within an hour, they were guilty of a felony.
Several American jurisdictions still have statutes requiring a command to disperse before local officials may move in to quell a riot. However, even under the British Riot Act, an unlawful assembly could be dispersed and arrests made for breach of the peace without the requirements for the act being fulfilled, since riot is a common law offense and so exists independently of the statute (Commonwealth v. Frishman, 235 Mass. 449, 126 N.E. 838 (1920)).
Three general approaches are followed in defining riot. The first is not to define it statutorily but simply to incorporate terms such as riot, riotous, or persons unlawfully, riotously, or tumultuously assembled into the statute. The second approach essentially codifies the common law definitions of riot or violent and tumultuous activity. A third categorization defines riot broadly as any use of, or threat to use, force or violence by a specified number of people. During the riots of the 1960s several states updated their own riot statutes, reflecting changes in social behavior and constitutional law. For example, one modern statutory definition of riot is "any unlawful use, by three or more persons acting together, of force or violence which seriously jeopardizes the public safety, peace or order" (Va. Code Ann. § 18. 2-405 (1999)).
Riot is usually classified as a misdemeanor, although several jurisdictions provide for "aggravated riot," which is a felony. Other states provide for increased punishment if the accused committed certain acts during the rioting, such as carrying a weapon, encouraging or soliciting others to commit violence, or wearing a mask or disguise. Most statutory schemes are more stringent when the offender also commits acts destructive of person or property.
Several jurisdictions distinguish between classes of riots. Under the New York statute, a riot in the second degree occurs when five or more persons have intentionally or recklessly engaged in "tumultuous and violent conduct" that results, or tends to result, in public alarm. If over eleven are involved and if physical injury or substantial property damage results to one not participating, then the offense is riot in the first degree (N.Y. Penal Law (McKinney) §§ 240.05, 240.06 (1999)).
Second-degree riot is a misdemeanor and focuses on riotous conduct that is terminated before actual injury results. First-degree riot conforms more closely to what is popularly understood as an urban riot, and is committed when the proscribed conduct results in personal injury or property damage. The phrase "tumultuous and violent conduct" includes "frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts" (Hechtman, p. 251).
The number of persons necessary to constitute a riot varies among the states, some statutes requiring only two. Whereas the common law spoke in terms of three or more persons, modern statutes frequently require a larger minimum number. A few statutes specify "any number of persons" unlawfully or riotously assembled.
Related statutory offenses
Several statutory crimes exist that are offshoots of riot, including inciting riot, conspiracy to riot, failing to disperse upon command, and failing to render assistance upon lawful order. Under the British Riot Act, one who incited others to riot was guilty of simple riot, a felony with the same penalty as that attached to riot. Some jurisdictions make inciting to riot a felony, while treating simple riot as a misdemeanor.
The crime of inciting to riot, both at common law and by statute, deals with a critical stage of a riot. It is well known that the conditions for a riot may exist but need a spark to set them off. The inciting-to-riot statutes attempt to prevent the spark from being struck by focusing on the instigator of the disorder rather than on the potential participants. The statutes require a specific intent to cause a riot; an act or conduct that urges a riot; and a time, a place, and circumstances that constitute a clear, present, and immediate danger. A riot need not materialize for the violation to exist, nor need the defendant participate in the riot if it ensues.
A major problem with both inciting-to-riot statutes and riot statutes involves defining the crime so as to avoid offending the free-speech guarantees of the Constitution. The statute should be broad enough to encompass inflammatory conduct and specific enough to give warning to an offender of the nature of the violation, but it should also be narrow enough to survive constitutional attack.
Riot statutes have generally been upheld against constitutional attacks. It would seem that those statutes which adhere closely to the traditional common law definitions of riot are less susceptible to such attack. Moreover, most arrests for riot have been made during large-scale mass disorders in which little question arises about suppression of First Amendment rights.
Several jurisdictions, such as that of New York, have a separate offense of conspiracy to riot. For a conspiracy, only two or more persons are necessary, and the defendant need not cause or participate in the riots. A New York case upheld a conviction for conspiracy to incite riot (People v. Epton, 19 N.Y. 2d 496, 227 N.E. 2d 829 (1967)). Other frequently invoked statutory and common law crimes in riot situations are breach of the peace and disorderly conduct, but these have an application much broader than riot situations.
The federal Riot Act
On April 10, 1968, Congress enacted the Riot Act of 1968, 18 U.S.C. §§ 2101, 2102 (1999), which made it a federal crime "to use any facility of interstate commerce to incite or participate in a riot." The federal act thus focuses on the individual who crosses a state line for the purpose of creating public disorder. One of the underlying assumptions was that outside agitators play a role in causing modern urban disturbances. The act provides:
(1) Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent—
- (A) to incite a riot; or
- (B) to organize, promote, encourage, participate in, or carry on a riot; or
- (C) to commit any act of violence in furtherance of a riot; or
- (D) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph—
Shall be fined under this title, or imprisoned not more than five years, or both [§ 2101].
The act treats those who attempt to commit the offense, as well as aiders and abettors, as principals. Neither presence at (or participation in) a riot nor imminent threat or harm is required. In National Mobilization Committee to End War in Vietnam v. Foran, 411 F. 2d 934 (7th Cir. 1969) and United States v. Dellinger, 472 F. 2d 340 (7th Cir. 1972), the constitutionality of the act has been upheld on the ground that the First Amendment does not protect rioting or incitement to riot.
Dan M. Kahan
See also Justification: Law Enforcement; Riots: Behavioral Aspects.
Casenote. "Criminal Law—Riot: What Constitutes." Oregon Law Review 18 (1939): 254–259.
Comment. "The Michigan Revised Criminal Code and Offense against Public Order." Wayne Law Review 14 (1968): 986–1006.
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Ducharme, Gerald D., and Eickholt, Eugene H. "State Riot Laws: A Proposal." Journal of Urban Law 45 (1968): 713–734.
Hawkins, William. A Treatise of the Pleas of the Crown; or, A System of the Principal Matters Relating to That Subject, Digested under Proper Heads. 2 vols. 8th ed., rev. and enlarged by John Curwood. London: S. Sweet, 1824.
Hechtman, Arnold D. Practice Commentary on Section 240.04. New York Penal Law (McKinney). St. Paul: West, 1980, pp. 250–251.
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