Legal Info: Sidewalk Chalk and Los Angeles

Legal Info: Sidewalk Chalk and Los Angeles
by Sue Basko

Writing with chalk on the public sidewalk is illegal in Los Angeles under California law as well as under the Los Angeles Municipal Code.  

Writing with chalk on a public sidewalk is a crime in the State of California under California Penal Code Section 594.  Some people have been citing an old court case from 1995 – but the California law was rewritten after that court ruling.   That is why it is so incredibly important to always read the law you are interpreting.  At the time of that old court case, Mackinney V. Nielsen, the law spoke of “graffiti” as “paint or any other liquid.”  Today, California Penal Code Section 594 is all-inclusive, to include any unauthorized mark on a surface you don’t own.  Read the full law here: California Penal Code Section 594 (Vandalism/ Graffiti).

Please note the word "maliciously" in this main section of 594:

594.  (a) Every person who maliciously commits any of the following
acts with respect to any real or personal property not his or her
own, in cases other than those specified by state law, is guilty of
   (1) Defaces with graffiti or other inscribed material.
   (2) Damages.
   (3) Destroys.

This may be why children playing hopscotch are not subject to arrest, because they are not acting maliciously, but rather to have a fun game and good exercise.  Is artistic chalking done "maliciously"?  Is political chalking done "maliciously"?

A criminal statute may list a state of mind that must be present for the act to be a crime.  This is called "mens rea." In California Penal Code Section 594, the mens rea required is that of maliciousness.   California Penal Code Section 7.4 defines "maliciously" as:
  4. The words
"malice" and "maliciously" import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law. 

 Do political chalkers wish to "vex, annoy, or injure another person"?  Usually their goal is a redress of grievances, and our laws generally give the right to do that, even if it does annoy someone.  If the chalk message is general and political and not defamation of a private person, it seems unlikely the intent would be to "injure another person."  And do political chalkers intend "to do a wrongful act," or do they intend to make a political statement, which is  our right?

Therefore, it may be that chalkers writing political messages on sidewalks in California are not in violation of this law, and though many have been arrested, they have solid arguments to make that they have been wrongfully arrested.  This  also makes it VERY important not to answer questioning about why you were chalking. 

IMPORTANT: Writing "political" messages is not usually "malicious."  

If someone were to argue the Constitutionality of California Penal Code Section 594 (and it looks as if several arrestees will soon have that opportunity), it may be that picking apart the types of surfaces and materials would make sense -- that chalking on a public sidewalk is very different from spray painting on someone's garage. The key in the law now is whether such a mark can be considered "defacement."  If a person "maliciously""defaces" with "graffiti," it is a crime.  Marking with chalk is "graffiti" under the current law, but the law does not define "defacement."  The dictionary defines "defacement" as to damage the surface or appearance of.  A real argument can be made that chalk does not do so, especially to a sidewalk made of standard materials.  Section 594 does not distinguish between public and private property, and lists only property that one does not own.  In Section 594, public sidewalk is lumped in with private sidewalk and private walls,  private buildings, and vehicles, etc.  There are good arguments to be made, but making them will require good legal help, money, and a long time spent in a court case.

As for right now, the law in California is that unauthorized malicious marking on surfaces you do not own, even writing with chalk on a sidewalk, is a crime.

The Los Angeles Municipal Code Article 14 specifically addresses chalking, but makes it a civil or administrative matter, not a crime.  Read the full law here: Los Angeles Municipal Code Article 14  on Chalking.

     (A)     It is unlawful for any person to write, paint, spray, chalk, etch, or otherwise apply graffiti on public or privately owned buildings, signs, walls, permanent or temporary structures, places, or other surfaces located on public or privately owned property within the City.

     (1)     A violation of this subsection shall be subject to enforcement only through civil action, administrative fine, or nuisance abatement lien.  

When you are in the City of Los Angeles, both laws apply -- the California Penal Code and the Los Angeles Municipal Code.  If a person has been arrested for chalking a public sidewalk in Los Angeles, a solid argument may be made that the Los Angeles Municipal Code should be applied and that it says a violation is “subject to enforcement ONLY through civil action, administrative fine, or nuisance abatement lien," not as a criminal matter.

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Please don't shoot the messenger! I am trying to explain the law accurately to you.  This does not mean I am anti-chalk. In fact, I am a big fan of political and artistic chalking and graffiti,  which is why I used a graffiti mural as the top photo for this blog entry, and for many other entries.