Penal Code § 416 PC – “Failure to Disperse” – California Law

California Penal Code § 416 PC makes it a crime for

1. two or more people to assemble or gather, for the purpose of disturbing the public and
2. then fail to disperse after being ordered to do so by the police.

A conviction is a misdemeanor punishable by

• up to 6 months in jail and
• fines of up to $1000.00.

The statute is one of two California laws that make the “failure to disperse” a crime.

The language of the statute reads as follows:

416. (a) If two or more persons assemble for the purpose of disturbing the public peace, or committing any unlawful act, and do not disperse on being desired or commanded so to do by a public officer, the persons so offending are severally guilty of a misdemeanor.

(b) Any person who, as a result of violating subdivision (a), personally causes damage to real or personal property, which is either publicly or privately owned, shall make restitution for the damage he or she caused, including, but not limited to, the costs of cleaning up, repairing, replacing, or restoring the property. Any restitution required to be paid pursuant to this subdivision shall be paid directly to the victim. If the court determines that the defendant is unable to pay restitution, the court shall order the defendant to perform community service, as the court deems appropriate, in lieu of the direct restitution payment.

(c) This section shall not preclude the court from imposing restitution in the form of a penalty assessment pursuant to Section 1464 if the court, in its discretion, deems that additional restitution appropriate.

(d) The burden of proof on the issue of whether any defendant or defendants personally caused any property damage shall rest with the prosecuting agency or claimant. In no event shall the burden of proof on this issue shift to the defendant or any of several defendants to prove that he or she was not responsible for the property damage.

Examples

• Jerome challenges another guy to a fight in the street and then he does not leave after the authorities tell him to go home.
• Marcos and his friends taunt another group of guys by throwing rocks at them, and then they refuse to leave after the police tell them to “get lost.”
• Kelly takes part in a violent political protest and does not disperse after being told to do so by the authorities.

Defenses

Luckily, there are several legal defenses that a defendant can raise if accused of a crime under Penal Code 416. These include showing that:

• the assembly was not “unlawful,”
• the defendant was arrested after giving a coerced confession, and/or
• the defendant was arrested without probable cause.

Penalties

A violation of this law is charged as a misdemeanor (as opposed to an infraction or a California felony). The offense is punishable by:

• imprisonment in county jail for up to six months,
• a maximum fine of $1,000, and
• possible restitution, or payment for any damages caused by the crime.

Please note that in lieu of jail time a judge may award a defendant with summary (or informal) probation.

Our California criminal defense attorneys will explain the following in this article:

• 1. When is “failure to disperse” a crime in California?
• 2. What are the legal defenses?
  • 2.1. No unlawful assembly
  • 2.2. Coerced confession
  • 2.3. No probable cause
• 3. Penalties, punishment, and sentencing
• 4. Are there related offenses?
  • 4.1. Failure to disperse at the scene of a riot – PC 409
  • 4.2. Disturbing the peace – PC 415
  • 4.3. Unlawful assembly – PC 408

1. When is “failure to disperse” a crime in California?

Penal Code 416 PC is the California statute that makes it a crime for a person to:

1. assemble, or gather, for the purpose of disturbing the public, and then
2. fail to leave after being ordered to do so by the police.¹

This offense is sometimes referred to as

• “failure to disperse,” or
• “refusal to disperse.”

Please note that a defendant is only guilty under this statute if the authorities give a general proclamation to a group to disperse. It is not enough if the police only tell a few defendants, individually and separately, to leave.²

Also note because freedom of assembly is a Constitutional right protected by the First Amendment, courts have said that these laws can apply only to unlawful assembly, not to assembly itself:

“We construe Penal Code section 416 as empowering a public official to demand dispersal only where there is probable cause to believe that the purpose of an assembly is unlawful, according to the facts and circumstances of each individual case.”³

To be an “unlawful assembly,” the acts of the crowd must be either violent or tending to incite others to violence.⁴

2. Are there legal defenses?

A person accused of violating this statute can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed.

Three common defenses to this crime are:

1. no unlawful assembly
2. coerced confession, and/or
3. no probable cause.

2.1. No unlawful assembly

Recall that PC 416 only requires people to disperse from an “unlawful” assembly. This means it is always a legal defense for an accused to show that, while he may have been present at a gathering, it was a legal assembly and the group did nothing wrong.

2.2. Coerced confession

California law states that police may not use overbearing measures to coerce a confession.

If a party can show that the police coerced him into a confession, then:

1. the judge may exclude the confession from evidence, or
2. the case could get dropped altogether if the party got pressured into confessing to a crime he didn’t commit.

2.3. No probable cause

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest a suspect of a crime.

If a person was stopped or arrested for violating this statute, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction of the charges.

3. What is the punishment for Penal Code 416?

A violation of Penal Code 416 is charged as a misdemeanor.⁵ The offense is punishable by:

• imprisonment in county jail for up to six months,
• a maximum fine of $1,000, and
• possible restitution, or payment for any damages caused by the crime.⁶

Restitution may be for damage caused to either public or private property and it may be for the costs of:

• cleaning up,
• repairing,
• replacing, or
• restoring the property.⁷

Please note that in lieu of jail time a judge may award a defendant with summary (or informal) probation.

4. Are there related offenses?

There are three crimes related to failing to disperse at a public disturbance. These are:

1. failure to disperse at the scene of a riot – PC 409,
2. disturbing the peace – PC 415, and
3. unlawful assembly – PC 408.

4.1. Failure to disperse at the scene of a riot – PC 409

Penal Code 409 PC is the California statute that makes it a crime for a person to remain at a riot, or an unlawful assembly, after having been ordered by the police to leave.⁸

A violation of Penal Code 409 is charged as a misdemeanor.⁹ The offense is punishable by:

• imprisonment in county jail for up to six months, and/or
• a maximum fine of $1,000.¹⁰

4.2. Disturbing the peace – PC 415

Penal Code 415 PC is the California statute that defines the crime of “disturbing the peace.”

A person can commit this offense by:

• unlawfully fighting, or challenging another person to fight, in a public place,
• disturbing another person by loud and unreasonable noise; if this is done willfully and maliciously, and
• using offensive words in a public place, if the words are likely to provoke an immediate violent reaction.¹¹

A violation of PC 415 is a wobbler offense. This means it can be charged as either a misdemeanor or as a less serious infraction.¹²

The maximum potential penalties are:

• up to 90 days in county jail,
• a fine of up to $400, or
• both county jail time and a fine.¹³

4.3. Unlawful Assembly – PC 408

Penal Code 408 is the California statute that makes it a crime for a person to engage in unlawful assembly.

PC 408 defines “unlawful assembly” as two or more people assembling together for the purpose of:

• doing something illegal, or
• doing something legal, but in a violent, boisterous or tumultuous manner.¹⁴

To be convicted, the defendant must:

1. willingly participate in the unlawful assembly (in other words, do so on purpose), and
2. do so knowing that it is unlawful.¹⁵

Unlawful assembly is a misdemeanor offense in California. The crime is punishable by up to six months in county jail.¹⁶

---

Legal References: