By Matthew S. Dearth, Esq.

The last two weeks in America have been chaotic and tumultuous, as millions of citizens rise up in protest in reaction to the death of George Floyd, and express concerns with widespread police brutality. In most major U.S. cities, protests are peaceful demonstrations. However, there have also been widespread reports of violence, arson, and destruction of property occurring as well. Police and National Guard personnel are responding to these incidents with increased presence and force. When does a peaceful protest become an unlawful assembly? Can the police really require peaceful protesters to disperse? Can protesters be criminally charged just for being present at a demonstration? Are the laws different from state to state?


Unlawful Assembly in North Dakota

In North Dakota, a “Riot” is defined as “a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.” Under this statutory definition, a group of people holding signs and chanting slogans is not a riot all by itself. However, if protesters throw bottles, bricks or rocks (violent conduct creating grave danger of damage or injury to property or persons), or intentionally block or attack police or emergency services (substantially obstructing law enforcement or other government function), the assembly has possibly crossed the line into a riot.

Keep in mind that there is a continuum between lawful assembly and riot. In North Dakota, the “disorderly conduct” statute criminalizes many activities that do not rise to the level of Riot. For example, a person in public, who uses abusive or obscene language, makes an obscene gesture, obstructs vehicular or pedestrian traffic or the use of a public facility, or engages in harassing conduct by means of intrusive or unwanted acts, words, or gestures affecting the safety, security, or privacy of another person, could be charged with Disorderly Conduct, even though they are not engaging in a riot.

At the point where peaceful protesters begin to cross the line into disorderly conduct, the police will likely issue something called a “public safety order.” A public safety order is “an order designed to prevent or control disorder, or promote the safety of persons or property, issued by the senior law enforcement official on the scene.” A person who disobeys a reasonable public safety order to move, disperse, or refrain from specified activities in the immediate vicinity of the riot, can be criminally charged with Disobedience of a Public Safety Order Under Riot Conditions, a Class A misdemeanor. This means that a person who, despite the order, politely stands in the street holding a sign can still be criminally charged and arrested, even if they are not actively participating in the violence. Active participators can additionally be charged with Engaging in a Riot, a Class A misdemeanor. The penalties increase to felonies for individuals who engage in a riot while armed with firearms, dangerous weapons, or destructive devices. Protesters who incite violence or give commands, instructions, or directions to other protesters in connection with the riot also face felony charges.

If you have been arrested in connection with a protest or demonstration, it is important to seek legal advice right away. Experienced attorneys will be able to spot legal defenses, constitutional issues, and mitigating circumstances, if any exist in your case.

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