Failure to Disperse and Bail Amounts in California: Squelching Protest

Failure to Disperse and Bail Amounts in California
Squelching Protest  
by Sue Basko

The Los Angeles Police Department has been using the protest-squelching technique of calling unlawful assemblies with an order to disperse.  Those not dispersing are subject to arrest under Section 409 of the Penal Code, which makes it a misdemeanor to fail to disperse from a riot, rout, or unlawful assembly.

The Oakland Police Department Policy includes information on how and why an unlawful assembly may be called.  CLICK to see an older policy used by Los Angeles, "Civil Disobedience and Crowd Management."    An unlawful assembly is not supposed to be called unless there is actual criminal activity or if there has been violence.  Mere failure to have a permit or such thing is not supposed to trigger calling an unlawful assembly and order to disperse.

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. 

Section 409.  Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to disperse the same, is guilty of a misdemeanor.

It looks like the LAPD is using this technique to squelch protest and chill Free Speech, because the bail amounts in Los Angeles County on Section 409 have been set extremely high – at $5,000.  Very few protesters – indeed, very few people of any sort, have $5,000 handy.  This means many protesters sit in jail for 2 days until they are arraigned and released on their own recognizance. 

Protest arrests in most places result in minor infractions or citations for violation of municipal  ordinances.  So do most simple street arrests.  For example,  when street people in Los Angeles are arrested for staying overnight in a park or on the lawn of a public building, they are charged with illegal camping, a minor violation under State or City law.  When the Occupy LA camp was raided, an unlawful assembly was called even though it was a peaceful protest, and those not dispersing were charged with 409 failure to disperse and charged $5,000 bail.  Calling that unlawful assembly was probably not legal since there were no crimes or violence taking place and the only thing happening was failure to have a permit to protest in that way.  I expect to see this come up in court in the coming weeks..

Also, at the Occupy LA raids, many people trying to disperse from the park were prevented by the police from leaving.  From various accounts, it sounds as if about 30 people were arrested in park when they failed to disperse.  The other 260, or most of them, appear to have been trapped, kettled, or tricked.  There are many accounts of this.  

There is one video where a group of three people is trying to leave the street area, which was walled off by police, and they are told by a police officer to wait to be escorted out of the area.  They wait and are then arrested.  The video shows they are trying to leave, and wary of the officer’s lies.  They were on the sidewalk and committing no crimes of any sort.  This video scared me terribly because this is the kind of trickery that was used by the Nazis to get Jews to follow along with them to death camps.  Out of everything I have seen of the raid, this one thing scared me the most for the future of our nation.  There could be no excuse or justification for arresting people standing peacefully on the sidewalk requesting information on how to leave.  There are many similar accounts.

Let’s compare the BAIL SCHEDULES for several California counties with major protest sites: Click on the County name to download the bail schedule.

SAN FRANCISCO COUNTY: In San Francisco County, 409 is not listed on the schedule.  For all unscheduled misdemeanors, the bail is $3,000 (three thousand).

ALAMEDA COUNTY: (includes Oakland): Schedule lists 409 Failure to Disperse when Ordered with Bail of $2,500 (two thousand five hundred).

SAN DIEGO COUNTY: 409 is not scheduled.  Bail for all California State Code misdemeanors not listed in the schedule is $500 (five hundred), with mandatory court appearance.  The Schedule does list 408 Participating in Rout or Unlawful Assembly with bail of $250 (two hundred fifty) and a mandatory court appearance.

LOS ANGELES COUNTY:  Schedule lists 409 Failure to Disperse from Riot, with $5,000 (five thousand) bail and a mandatory court appearance.  The Schedule does not list the other two things that are in the 409 law – failure to disperse from a rout or unlawful assemblyThe law in general treats unlawful assembly very differently from riot.  Riot is where violence is taking place.  Is $5000 bail supposed to apply to Failure to Disperse from an Unlawful Assembly, even though it is not listed that way in the Schedule?  The Schedule states:

Unlisted Misdemeanors
For all offenses chargeable as straight misdemeanors for which there is no uniform bail and which are not otherwise provided for in this schedule, including unlisted subdivisions, the bail is $500, except that if the minimum fine for the offense (not including any penalty assessments) is greater than $500, then the bail is the amount of the minimum fine.

To me, it looks like L.A. County is supposed to be charging  $500 bail on a 409 Failure to Disperse from an Unlawful Assembly.  The reality is they are charging $5,000.  This excessively high bail, combined with the police routinely calling unlawful assemblies, rather than engaging in cooperation and friendly crowd control, results in criminalizing and punishing protest, which is one of our basic Constitutional rights.    

What Can Be Done on the Protesters' Side:  Protest leaders should be trained in the law and in how to conduct protests legally and peacefully: Stay out of the street.  Keep off private property. March in an organized style so it does not look like a riot about to break out.  Train protesters not to heckle the police. If a person does not know the law and/or does not intend to follow it, do not let such person lead or participate in your protest.  Hold training sessions for protesters before each march, where they learn how to stay on the sidewalk, how to respond courteously to police presence.  Do not allow others to bring megaphones to your protest, because such people can quickly overtake your protest and turn it into something you do not want. Train protesters to be aware of agents provocateurs and agitators in a crowd. Consider training and certifying protest leaders to ensure they know the law and lead protests in safe and legal manner.

What Can Be Done By the County and LAPD: Do not use calling an Unlawful Assembly as a  pre-planned crowd control technique.  Do not send in ridiculous amounts of police or police in riot gear when there is no riot.  Patrol protests in relaxed and friendly stance, rather than as ranks of stormtroopers. Avoid physical attacks on protesters, especially for simple things such as stepping into the street.  Arrest based on what is actually happening, rather than routinely calling Unlawful Assembly.  Clarify the Bail schedule so excessive bail is not charged for failure to disperse from an unlawful assembly.  Some ideas can be found in the PERF REPORT.  Other ideas can be seen in the Oakland Police Department Crowd Management Policy.