Rioting and Inciting to Riot

The right to protest is among the oldest and most respected rights in the American democratic system. The right of citizens to peacefully protest is protected by the First Amendment of the U.S. Constitution. But there are limits to even the most important rights.

Most states have their own laws defining what constitutes a riot and incitement to riot. After the 2021 insurrection at the U.S. Capitol, hundreds of people faced charges under federal laws, including offenses based on their role in the riot that day.

What Are Rioting, Inciting to Riot, and Related Offenses?

Federal law defines what a riot is. It needs to have all the following criteria:

• A public disturbance
• Involve three or more people
• The group engages in acts of violence
• There is a clear and present danger of damage to property or injury to people

The law includes threats of violence if those involved could immediately act on the threat.

Under federal law, inciting a riot (18 U.S. Code Section 2101) includes acts of "organizing, promoting, encouraging, participating in a riot" and urging or instigating others to riot.

The criminal code clarifies that incitement is not the same as simply advocating ideas or expressing beliefs in speech or writing. To qualify as incitement, the speech must advocate violence, the rightness of violence, or the right to commit violent acts.

Federal riot crimes provide up to five years in prison upon conviction.

Protected Speech Versus Incitement

Citizens have a right to free speech in the First Amendment of the U.S. Constitution. The extent of that right has been continually tested. It has been strongly protected at all levels of government, but that right is not unlimited.

In the case of Brandenburg v. Ohio (1969), the Supreme Court found that speech is not constitutionally protected if it is:

• Intended to produce imminent violent conduct
• Likely to produce imminent violent conduct

However, the limits of free speech are still being defined in the courts. A Ninth Circuit decision found that statutory language was "overly broad" in the federal riot statute that criminalizes "promoting" or "encouraging" a riot.

Restrictions on Unlawful Assembly

The First Amendment's right to freedom of assembly is also not unlimited. First, the right only applies to the right to "peaceably assemble." There is no right to assemble to engage in violent acts.

Cities can also regulate the right of peaceable assembly by requiring permits or limiting demonstrations to a designated area. Cities may have practical concerns regarding crowd size and protestor safety. Cities must also safely maintain or divert road traffic. During a demonstration, law enforcement must watch for groups engaging in vandalism or other crimes.

If a group of people gathers intending to disturb the public peace, they could be charged with unlawful assembly or a similar offense like civil disorder. 

When Is Rioting a Federal Crime?

A person would be charged under federal law if the following are true:

• Rioting occurs on federal lands, federal government buildings, VA hospitals, military bases, etc.
• The person traveled between states or countries to participate in a riot (though the law specifically states it is not intended to prevent travel for legitimate purposes)
• The person used interstate or foreign commerce (internet, mail, telephone, radio, television, or social media) to communicate intent to:
  • Incite a riot
  • Organize, promote, encourage, participate in, or carry on a riot
  • Commit any act of violence in furtherance of a riot
  • Aid or abet any person in inciting, participating in, or carrying on a riot or committing any act of violence in furtherance of a riot

Federal law enforcement uses its discretion. They may not involve themselves in protests or demonstrations that do not occur on federal property.

In most circumstances, state and local police will take action to suppress a riot. Thus, most riot charges will occur under state laws. State laws apply to anyone present in the state when the criminal act happens.

Prosecutions in Both State and Federal Courts

In most cases, a person can be prosecuted for committing the same criminal acts in both state and federal court.

The U.S. Supreme Court affirmed this view in its ruling in Gamble v. United States (2019), upholding the dual sovereignty doctrine. That doctrine states there is no violation of double jeopardy because the state and the federal government are separate sovereigns.

But, sometimes, a statute will say a person cannot be charged in both federal and state court. In the case of rioting, the federal statute specifically states that a judgment, conviction, or acquittal under state law bars federal prosecution for the same act. This statute creates protection from federal prosecution that would not typically exist.

Rioting and Inciting to Riot: California State Law and History

California serves as an example of state rioting laws. The state has seen major protests during tense periods in U.S. civil rights history.

California witnessed riots in 1992 after news spread of not-guilty verdicts. The criminal case was against the police officers charged with beating Rodney King.

After the 2020 murder of George Floyd at the hands of police officers in Minneapolis, large protests occurred in several California cities and counties. In Los Angeles, Riverside, and Orange County, protests turned violent when individuals at the protest damaged store windows and police cruisers. In one Los Angeles demonstration, protesters placed an L.A.P.D. officer in a chokehold and kicked him.

Large-scale protests always present a risk of violence, whether from the protesters themselves or counter-protesters that appear and cause trouble. Law enforcement must balance the rights of protesters to demonstrate peacefully and the need to maintain order and public safety when things spin out of control.

Differences Between Riot and Incitement To Riot Charges

California prohibits participating in a riot and inciting a riot.

California Penal Code section 404 defines a riot as:

1. Any use of force or violence, disturbing the peace, or any threat to use force or violence
2. Accompanied by immediate power of execution
3. By two or more persons acting together
4. Without the authority of law

Participating in a riot is a misdemeanor offense. Upon conviction, an offender may face up to one year in county jail, a $1,000 fine, or both.

The crime of incitement to riot is similar. The elements of the crime are as follows:

1. With the intent to cause a riot
2. A person acts or engages in conduct
3. That (1) urges a riot, or (2) urges others to commit acts of force or violence, or property damage (the burning or destroying of property)
4. Under circumstances that produce a clear, present, and immediate danger
5. Of acts of force or violence, or property damage

Incitement to riot is also a misdemeanor offense. An offender faces up to one year of jail time, a $1,000 fine, or both after conviction. The offense can become a felony if an offender commits incitement to riot at a prison or county jail and it results in serious bodily injury. The penalty can increase to up to three years in state prison.

Legal Defenses to Riot and Inciting a Riot

Most defense strategies for riot or inciting a riot focus on the protest's turmoil once things get out of hand. Common defenses in such cases may include the following.

Mistaken Identity

The defendant may claim that they were present at the protest or rally, but they did not engage in acts that amount to riot or incitement to riot. The defendant may use the chaos to question witness accounts of the defendant's role or behavior. The witness or law enforcement may have mistaken the person's identity. 

No Clear and Present Danger

The defendant may admit to some role in urging protestors to engage in violent acts. But they may deny that the circumstances presented any clear, present, and immediate danger. If the evidence supports this view, the defendant may seek to reduce the charges to disorderly conduct or disturbing the peace.

Self-Defense or Defense of Others

The defendant may claim that misconduct by the police forced the defendant to engage in violent acts or to urge violent acts in self-defense or defense of others. Depending on the law of the jurisdiction, the defendant may claim a right to reasonably stand their ground if they perceived an assault by the police.

Tips for Organizing a Peaceful Protest

Protest organizers must exercise free speech and assembly rights carefully to avoid criminal charges. Impassioned protests could surge beyond organizers’ control. You cannot determine the actions of everyone who attends. This risk can make planning a protest challenging.

Learn about your local and state protest laws. You may need a permit to hold a march, rally, or parade. You might also need a permit to protest in certain areas.

You may want to take precautions to reduce the risk of incitement to riot charges, such as the following:

• Get guidance from a civil rights lawyer during planning activities
• Clearly state that the protest will be nonviolent in all related communications
• Share accurate legal sources to inform the attendees about protesters’ rights and obligations
• Learn how the law defines violent language
• Review drafts of your speeches and online posts for potentially violent language or expression
• Avoid verbal speech that may appear to be a call or threat of violence
• Prepare for emergencies with plans for if violence begins or you face an arrest, including knowing phone numbers for emergency contacts like a criminal defense lawyer

Protest organizers’ liability for violence is a complex area of civil and criminal law. Despite the best intentions, you may encounter accusations of inciting a riot. A strong legal defense may become essential to protect your civil rights.

Get Legal Help With Your Riot or Inciting to Riot Charges

You can face serious penalties if you have been charged with rioting or incitement to riot at the federal or state level. You will want to seek the best defense from a skilled lawyer. Talk with a criminal defense attorney in your area today and learn how they can help.