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.


Advocating Overthrow of Government: What is it?

Advocating Overthrow of Government: What is it?
by Sue Basko

In some of the Occupy groups, the question has come up as to whether a stated commitment to nonviolence is needed, and if the groups can be open to those espousing force or violence.   To help form an answer, please read the law below and then consult with a lawyer about your group's situation and who might be in it.  The federal penal code statute on Advocating Overthrow of Government seems self-explanatory, and here it is below.  (and CLICK to read what Violence is under federal law.)
Important - also read about Conspiracy.

TITLE 18  PART I  CHAPTER 115   § 2385


Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.

Conspiracy: What is it?

Conspiracy- What is it?
by Sue Basko

Conspiracy is when two or more people plan to commit a crime and at least one of them takes some step toward the furtherance of that crime.  If the plan is to overthrow the government, there does not need to be any step taken, just the plan is enough for conspiracy to exist.   CLICK HERE to read what it means to “advocate the overthrow of government.”  

There are federal conspiracy laws and most states have state conspiracy laws. 

Conspiracy charges can turn a small incident into a major crime.  Sometimes police recklessly use conspiracy charges to harass protesters.  For example, Occupy San  Diego protesters planned to heckle a speech by the mayor, and then they did interrupt the speech.  They were charged with a misdemeanor of disturbing a public assembly and also with felony conspiracy charges.  Apparently these charges were later dropped, but such high charges lead to high bail demands, often spending many days in jail until the bail is lowered,  expenses, and fear. 

Federal conspiracy charges are often lodged against people allegedly planning domestic terrorism.  There has been a whole string of these cases lately and they go something like this:  the FBI sends in a person who befriends the subjects.  The FBI agent becomes whatever the subjects need – a sexy female neighbor, a friend to go out with to a pancake house, a confidant.  The agent lays the groundwork so the subjects open up and talk about their interest in breaking some law – for example, their interest in battling the police, or their desire to put bombs someplace.  The agent also helps them take some step in furtherance of that goal.  Bam!  – they are arrested and charged with felony conspiracy to commit domestic terrorism.

For conspiracy to exist, the plan does not have to be completed, and never is, if there is an agent involved.  The subjects are arrested so the act cannot be completed. 

For conspiracy to exist, the plan does not even have to be possible for the subject to complete.  

If a person joins a conspiracy after certain statements are made, they can be held accountable for those statements.  If you join up with a group of two or more planning to commit a crime, you may be inheriting their prior statements.

You can leave a conspiracy before any act is committed, but the withdrawal must be clearly stated.  This is interesting because I think in most instances where a person has become involved in a criminal plan and wants to get out, they will not announce this to the other members, but will merely shy away.  Perhaps it would be wise for such a person to make a clear statement to someone else.  If there is actually a serious plan to harm any person or property, it may be wise either to report this to the police, or wiser still, to tell a lawyer and ask them to help you officially withdraw from the conspiracy.

CLICK HERE to see a concise write-up on federal Conspiracy law.


18 U.S.C. § 371 : US Code - Section 371: Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.


What's Really Wrong with SOPA and PIPA?

What’s Really Wrong with SOPA and PIPA?
by Sue Basko

What’s really wrong with SOPA and PIPA or any laws that propose to broaden punishment for small time individual users for online copyright infringement is that people do not understand Copyright law. Also, online users expect anything that is available or usable to be free.

During the recent SOPA/ PIPA drama, it became apparent that many peoples’ relationship to copyright law is like the ancients’ relationship to science: They do not understand it, and so they fear it, make up strange theories about it, demonize it, and go on witchhunts about it. I would not be surprised to see people wearing amulets to ward off the Copyright Monster.

Copyright law is so complex. Even many of those online users who seem to want to follow Copyright law appear clueless.

Let’s take youtube, for example. I often see videos that use others’ copyrighted songs (intellectual property), recordings, or film or video footage. Often, the youtube user will post some sort of disclaimer, such as: “No Copyright Intended.” They are clueless that copyright is about COPYING, not about their intention to claim the work as their own – although that is a more obscure form of copyright infringement.

I work with independent songwriters, musicians, studios, and little record labels. These are people in the music industry. Most of them seem to have only the slightest grasp on Copyright law.

When Copyright law was established, it was much more difficult for everyday people to violate it. Photocopy machines did not exist. The internet did not exist. Home computers did not exist. All of the digital means of copying and distributing songs, photos, videos, and written works that are now at the disposal of any 8 year old were not yet invented.

Not too long ago, making copies of a work was an expensive enterprise, and one for which a lawyer would be consulted. Not very long ago, to make a copy of a recording, one had to own the “master,” which was a big deal. The master was an expensive mold from which more identical records could be pressed. Old timey record label and recording studio contracts still talk about the master, as if a digital file could not be replicated a thousand generations with no quality loss.

Most of the Copyright laws have quite a bit of catching up to do so they comport with reality. I think most people want to reward songwriters, photographers, filmmakers, and writers. They also want to instantly share their works at no cost. Therein lies the quandary.

What’s the solution? I do not know, but whatever it is, it must be very simple and very user-friendly.

One of my favorite companies, Rights Flow, has made it easy to file for copyright on creative works. Under Limelight, they have also made it easy to obtain a compulsory license to record a cover song. This is the wave of the future.

It is fair for creative content creators to be able to earn money from their work. How to do so? Some say to offer a selection online for free and then offer premium items for sale. These are the musicians offering a few songs for free, in hope people will buy their other downloads or CDs. These are also photographers and graphic artists, sharing their photos and pictures freely online, but selling high quality prints. These are the bloggers, hoping that allowing readers to read their writing for free online will entice them to purchase books – either ebooks or the ones made of paper.

The least workable solution, in my opinion, is to go backwards in time. Today, violating copyright law is easy and quick and inexpensive (or free) and usually fun, so it becomes important to find solutions where following copyright law is also easy and quick and inexpensive (or free) and at least somewhat fun. User friendly is the key.

Crowd Management and Civil Disobedience

Crowd Management and Civil Disobedience
by Sue Basko

Back in 2003,  police in some major California counties and cities used this manual to learn how to respond to civil disobedience (an unlawful event with a demonstration), unlawful assemblies, and riots.   The booklet is a little old, but it is still useful to see how these things are planned.   Actually, this is golden, and anyone planning to run or participate in a big protest in California should read it.

Topics include chemical agents, dispersal orders, and use of force.  The booklet also gives a very comprehensive list of Penal Code sections that are often used in crowd or riot situations, which includes the now infamous Lynching section.

Needless to say, but I am saying it anyway, recent video out of the Oakland and San Francisco areas show police whacking people with bully clubs just because they can, and firing weapons at people who are standing around doing nothing.  Someone sign them up for a course in crowd management, please.  The West Coast is starting to look way too much like a scene out of a despot-run nation.

Protesters should also learn from these booklets that if they want to avoid turning demonstrations into meaningless "police vs protesters" dramas,  they can actually conduct protests in such a way that they follow the law.  Imagine that!  Being peaceful and law-abiding does not give the same adrenaline rush as starting things on fire or laying down in traffic, but it might be more effective protest.  It is normal boring people who are usually in positions of power to change things, so you may want to appeal to their sensibilities.

For more information about what police do in protest situations, please see:

Anonymous vs PERF, where you can download the PERF report.  
This gives useful information on police best practices nationwide.

Detailed, comprehensive, well-written.   A must-read for the protest planner.