Unlawful Assembly at Protest: Legal Info

Unlawful Assembly at Protest:  Legal Info
(Failure to disperse)
by Sue Basko

UPDATES WEDNESDAY NOVEMBER 30/ - DEC. 2, 2011: Police raided Occupy L.A. just after midnight this morning (November 30, 2011).  Many people had been saying for days prior that the eviction was scheduled to allow Sean Penn and Ryan Gosling to shoot a movie on the City Hall site.   There has been credible evidence for days to think this is likely.  

The raid on Occupy L.A. was horrifying.  An unlawful assembly was declared and people were given 10 minutes to clear the area.   This announcement followed the script that is given below.  The announcement was made several times by an officer walking around in the crowd with a megaphone, and was repeated in several languages.   People in the camp were given ample opportunity to leave and not be arrested.  Those who stayed were opting to be arrested for their political  purposes.

However, people who were trying to leave the area after the dispersal order, and after a second dispersal order was given several blocks away later in the night, were kettled, beaten, and arrested.  People are reporting that many protesters were chased down and arrested as they attempted to leave the perimeter area.  Photos and videos are  emerging, taken after people have been released from jail today (Dec. 2) showing serious injuries to hands and arms.

All of the arrestees thus far that I have seen interviewed have complained of being driven around for hours, not being allowed to use the bathroom, that people had zip-ties on much too tight, that people were denied medical care and medicines, that people were not given water for many hours or at all, that some people were not allowed to make phone calls, that some people were not allowed to see their lawyers, that most of the prisoners were fed little (such as two meals in 3 days), that officers denied them the right to use a toilet and so people had to urinate in their clothing and then had officers mocking them, that several women were placed in isolation for no valid reason, and that dangerous medical conditions were ignored and untreated, and other things.

Monday November 28, 2011: Last night at Occupy L.A., a police officer declared an unlawful assembly at First and Main Streets and issued an order to disperse.  What this means is that there were people in the intersection, they would not get out after being asked nicely repeatedly, and so an unlawful assembly was declared so anyone in the intersection could be arrested.  Keep in mind that the police had closed off the streets, so walkers felt comfortable using the space.   

After the dispersal order, the only ones left in the street were lines of police in riot gear, and a funny man named Juan riding a bicycle back and forth wearing some kind of big headdress made of palm tree husks.  That’s L.A.!  There was also a man who had climbed high onto a light pole, with an Anonymous mask on the back of his head, shouting through a megaphone.  The crowd was comprised of many media people with cameras, some protesters, and at least one very ardent provocateur woman.   

Unlawful assembly laws differ state to state, but most of them follow the same thread.  An assembly is a group of people who gather for some purpose or activity.  If that activity is illegal, it is an unlawful assembly. If the activity is legal, but turns unlawful or looks as if it might, it can be declared an unlawful assembly. 

California Penal Code Section 407.  Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.

Boisterous or tumultuous” means “conduct that poses a clear and present danger of
imminent violence” or when the crowd is gathered to do an unlawful act. 

For example, last night at First and Main, there probably was not any danger of imminent violence, although the mix of people in the group was definitely a tinderbox and anything could have happened.  Even if not likely to be imminently violent, the crowd was gathered for an unlawful act, namely, to stand in the street.  Note that the street was closed off by police, so there was no vehicle traffic.  The police did not declare an unlawful assembly until about 4:40 am, in anticipation that soon cars would be driving downtown with people going to work. 

First and Main is near the downtown Skid Row area, where many severely mentally ill people and drug addicts reside.  The street protest seemed to be a mix of many media reporters, out-of-towners in to show support for Occupy L.A., and a collection of Skid Row street people.  In addition to this, there were several members of the crowd who seemed to be agents provocateurs or highly irrational or unpredictable.

One scowling woman with dirty blonde hair  kept arguing with everyone and trying to provoke violence.  There were hints that she was a paid provocateur, because at one point she was arguing that the police should evict the camp since they announced they were going to.  She seemed disappointed that the raid had not gone down at the stated deadline hour.  (As of December 3, she is now seen at the GAs.)

A group was chanting about taking the street. Some whackos were making chalk drawings at the feet of the police. (I thought: They probably think of themselves as "peaceful," when in fact, they were so disrespectful.)  Meanwhile, an intense man seemed to be hallucinating and kept screaming at the police that they were the Syrian army.  He was really scary.  In short, it was time to get these people off the streets and up onto the sidewalk.  Once the order was issued, a man, who had previously been ranting and saying he was Jesus Christ, lay down on the street in a crucifixion position, but was finally coaxed up by a friendly man. 

The only actual LA Occupiers I saw in this crowd were the ones that came out to ask the people to please leave the street and go back to the park.  Sadly, the worldwide media may present Occupy L.A. as this mélange of troubled people out in the street.

DISPERSAL ORDER.  Last night, the LAPD made a loud announcement giving a declaration of an unlawful assembly and an order to disperse.  After the order was given, anyone stepping into the street, even those legitimately using the crosswalk to cross, was subject to arrest.  The police had to announce several times that this applied to the media people as well.  After the order, the only non-police person left in the street was the kooky man on the bicycle doing a parade style ride back and forth.  He provided much laughter, until a half hour later, when finally, a police officer on a motorcycle yelled at him to get up on the sidewalk.   The poor guy jumped as if he had been merrily in his own world the whole time.

Please read these rules below, which are taken directly from the Oakland Police Department Crowd Control and Crowd Management Policy, a golden bit of information that any protester should download and read.  Please read the script that the police use to declare an unlawful assembly and issue an order to disperse.  It is the same announcement as that used last night by the LAPD.   

If you are ever at a protest where such an order is issued, pay special attention to how you are supposed to exit, and allow others to exit and not be kettled up.  Last night, a lot of people were trapped and unable to move away because they had a police riot line a few inches in front of them and a densely packed group of people behind them.  The people behind, many of  whom were reporters or photographers, were pushing forward to see what was happening, which, as already explained, was a funny man riding a bicycle.   

From:  Oakland Police Department Crowd Control and Crowd Management Policy
(I strongly recommend that you download and read this Oakland policy, no matter where you are. )

F. When an Unlawful Assembly May Be Declared

1. The definition of an unlawful assembly has been set forth in Penal Code Section 407 and interpreted by court decisions. The terms, “boisterous” and “tumultuous,” as written in Penal Code Section 407, have been interpreted as “conduct that poses a clear and present danger of imminent violence” or when the demonstration or crowd event is for the purpose of committing a criminal act.

The police may not disperse a demonstration or crowd event before demonstrators have
acted illegally or before the demonstrators pose a clear and present danger of imminent violence.

2. The mere failure to obtain a permit, such as a parade permit or sound permit, is not a sufficient basis to declare an unlawful assembly. There must be criminal activity or a clear and present danger of imminent violence.

3. The fact that some of the demonstrators or organizing groups have engaged in violent or unlawful acts on prior occasions or demonstrations is not grounds for declaring an assembly unlawful.

4. Unless emergency or dangerous circumstances prevent negotiation, crowd dispersal techniques shall not be initiated until after attempts have been made through contacts with the police liaisons and demonstration or crowd event leaders to negotiate a resolution of the situation so that the unlawful activity will cease and the First Amendment activity can continue.

5. If after a crowd disperses pursuant to a declaration of unlawful assembly and subsequently participants assemble at a different geographic location where the participants are engaged in non-violent and lawful First Amendment activity, such an assembly cannot be dispersed unless it has been determined that it is an unlawful assembly and the required official declaration has been adequately given.  

 G. Declaration of Unlawful Assembly

1. When the only violation present is unlawful assembly, the crowd should be given an opportunity to disperse rather than face arrest.

Crowd dispersal techniques shall not be initiated until OPD has made repeated announcements to the crowd, asking members of the crowd to voluntarily disperse and informing them that, if they do not disperse, they will be subject to arrest.

These announcements must be made using adequate sound amplification equipment in a
manner that will ensure that they are audible over a sufficient area. Announcements must be made from different locations when the demonstration is large and noisy. The dispersal orders should be repeated after commencement of the dispersal operation so that persons not present at the original broadcast will understand that they must leave the area.

The announcements shall also specify adequate egress or escape routes. Whenever possible, a minimum of two escape/egress routes shall be identified and announced.
It is the responsibility of the on-scene OPD commanders to ensure that all such announcements are made in such a way that they are clearly audible to the crowd.
2. Unless an immediate risk to public safety exists or significant property damage is occurring, sufficient time will be allowed for a crowd to comply with police commands before action is taken.

3. Dispersal orders should be given in English and in other languages that are appropriate for the audience.

4. The Incident Commander should ensure that the name of the individual making the dispersal order and the date/time each order was given is recorded.

5. Dispersal orders should not be given until officers are in position to support/direct crowd movement.

6. Personnel shall use the following Departmental dispersal order:

I am (rank/name), a peace officer for the City of Oakland. I hereby declare this to be an
unlawful assembly, and in the name of the people of the State of California, command all
those assembled at _____________ to immediately leave. If you do not do so, you may be arrested or subject to other police action, including the use of force which may result in serious injury.  Section 409 of the Penal Code prohibits remaining present at an unlawful assembly. If you remain in the area just described, regardless of your purpose, you will be in violation of Section 409. The following routes of dispersal are available (routes). You have _______ minutes to leave. If you refuse to move, you will be arrested. *If you refuse to move, chemical agents will be used. (Provide the chemical warning only if use is anticipated).

7. When a command decision is made to employ crowd dispersal techniques, attempts to obtain voluntary compliance through announcements and attempts to obtain cooperation through negotiation shall both be continued. At any point at which a crowd is dispersing, whether as a reaction to police dispersal techniques, through voluntary compliance, or as a result of discussion or negotiation with crowd leaders, OPD dispersal techniques shall be suspended and the crowd shall be allowed to disperse voluntarily. This directive does not preclude a command decision by OPD to reinstate dispersal techniques if crowd compliance ceases.

*   *   *   *   *   *   *

What happens:
1) an unlawful assembly is declared.
2) an order to disperse is announced according to above script.
3) you have to leave or face arrest;
4) you  have to leave by the route they are telling you.  It is most likely going to be hard to hear that or understand that.
5) It is possible that kettling may take place.  This is very dangerous and do whatever you can to avoid situations where the police are kettling.