Unlawful Assembly (Penal Code §§ 407) in California

Being at the Wrong Place at the Wrong Time Can Still Lead to Criminal Charges.

California law makes it a crime to participate in or remain at an unlawful assembly. Under Penal Code § 407, even being part of a group that is considered disruptive or failing to leave after being told to disperse can result in a misdemeanor charge.

These cases often arise in the context of protests, demonstrations, or large gatherings. What starts as a lawful exercise of free speech or assembly can quickly be labeled “unlawful” if law enforcement believes the situation has become violent, boisterous, or threatening to public order. Many people charged under these statutes are surprised to find themselves facing criminal penalties simply for being present in a crowd.

At The Nieves Law Firm, we know that unlawful assembly charges often stem from confusion, overbroad police responses, or simple presence at a public event—not criminal intent. Here’s what these laws mean, the penalties you could face, and the defenses that may apply.

Unlawful Assembly Under Penal Code § 407

According to PC § 407, an unlawful assembly occurs when:

• Two or more people gather to commit an unlawful act, or
• Two or more people gather to commit a lawful act in a violent, boisterous, or tumultuous manner

This definition is intentionally broad, which means police and prosecutors often have wide discretion in applying it. For example:

• A protest that turns heated and involves shouting or pushing may be deemed an unlawful assembly.
• A group gathered for an otherwise lawful activity (such as a parade or demonstration) could be labeled unlawful if it becomes loud, disruptive, or destructive.
• Smaller gatherings may qualify if participants are perceived as threatening violence or public disturbance.

Related Offenses: PC §§ 408 and 409

California law includes two companion statutes to § 407 that expand on the definition of unlawful assembly and participation:

• PC § 408 – Anyone who participates in a rout or unlawful assembly is guilty of a misdemeanor.
• PC § 409 – Anyone who remains present at the scene of a riot, rout, or unlawful assembly after being lawfully ordered to disperse is guilty of a misdemeanor (with exceptions for public officers or those helping to disperse).

In practice, this means you can face charges not only for actively engaging in disruptive conduct but also for failing to leave quickly enough once police declare an unlawful assembly.

Penalties for Unlawful Assembly

Violating PC §§ 407 is considered a misdemeanor offense in California. Potential consequences include:

• Up to 6 months in county jail
• Fines of up to $1,000
• A criminal record that can affect employment, housing, and immigration status
• Probation, community service, or court-ordered classes

For students, professionals, or noncitizens, even a misdemeanor conviction for unlawful assembly can carry long-term collateral consequences.

What the Prosecution Must Prove

To convict under these statutes, prosecutors generally must show:

1. You were present at an unlawful assembly as defined by PC § 407.
2. You willfully participated (PC § 408) or remained present after being warned to disperse (PC § 409).
3. The assembly was indeed unlawful under the statute’s definition.

This creates room for defense strategies, particularly when the definition of “boisterous” or “tumultuous” conduct is subjective.

Common Scenarios Leading to Charges

Unlawful assembly charges are often filed in the following contexts:

• Protests and demonstrations – especially those involving police response, civil disobedience, or crowd dispersal orders.
• Sporting events or concerts – large crowds that become unruly or destructive.
• Neighborhood disputes or gatherings – situations where groups are seen as threatening violence or disrupting the peace.
• Public celebrations or spontaneous gatherings – such as street parties that escalate into property damage or fights.

Even if you did not engage in violence or destruction, being in the wrong place at the wrong time can expose you to charges.

Defenses to Unlawful Assembly Charges

At The Nieves Law Firm, we know that unlawful assembly allegations are not always clear-cut. Common defenses include:

1. Constitutional Rights

The First Amendment protects the right to free speech and peaceful assembly. If the gathering was peaceful and law enforcement overreached by labeling it “unlawful,” charges may be challenged.

2. Lack of Unlawful Conduct

If the group’s actions did not rise to the level of violence, boisterousness, or tumult required by PC § 407, the assembly may not meet the statutory definition.

3. No Willful Participation

Being present in a crowd does not automatically prove intent to participate. You may have been a bystander, passerby, or someone caught in the wrong place at the wrong time.

4. Failure to Provide Lawful Dispersal Order

Under PC § 409, prosecutors must show that you were lawfully warned to disperse. If the dispersal order was unclear, inaudible, or not communicated properly, the charge may not stand.

5. Mistaken Identity

In chaotic crowd situations, police often arrest individuals based on proximity, appearance, or assumptions. Eyewitness errors or lack of clear identification can be challenged.

Why These Charges Matter

Some may think of unlawful assembly as a “minor” misdemeanor, but the consequences are not minor at all. These charges can:

• Create a permanent criminal record, affecting jobs, housing, and background checks
• Impact immigration status for noncitizens
• Be used by prosecutors alongside other charges, such as resisting arrest (PC § 148) or disturbing the peace (PC § 415), to build a stronger case

Because of the broad nature of the law, prosecutors often file unlawful assembly charges as a “catch-all” in protest-related arrests. That’s why having experienced defense representation matters.

How The Nieves Law Firm Can Help

We know that unlawful assembly cases often come down to context. Was the gathering truly violent? Did you actively participate, or were you just present? Was a dispersal order lawfully given?

At The Nieves Law Firm, we:

• Examine body camera footage, recordings, and witness statements
• Challenge vague or subjective claims about crowd behavior
• Raise constitutional protections when free speech and assembly are at issue
• Work to get charges reduced or dismissed whenever possible

Facing Unlawful Assembly Charges? Take Action Today.

If you’ve been arrested for unlawful assembly under Penal Code §§ 407, you may feel like you were criminalized simply for being in the wrong place. These cases are often defensible—but you need an experienced legal team to protect your rights and your future.

Call The Nieves Law Firm today or request a consultation online. We’ll review your case, explain your options, and fight for the best possible outcome.