Recent political events in this country have incited the hearts and minds of thousands. Regardless of where you stand on the issues, the crime of rioting has become more relevant as people take to the streets in a struggle to be heard.

We are all aware of our freedom of speech, freedom of assembly, and that we are all innocent until proven guilty, but what happens to our rights when we are charged with rioting, or inciting a riot?

New York Penal Law § 240.06 – Rioting in the First Degree

In New York, Penal Law Section 240.06 is the statue that sets forth the legal definition of rioting.

Under this law, a person is guilty of the riot in the first degree if they, with ten or more people, engage in “tumultuous and violent conduct.”

“Tumultuous and Violent Conduct”

Cases in the State of New York have interpreted this language. The Courts view “tumultuous and violent conduct” to be clearly much more than mere loud noise or disturbance.”  People v. Mighty, 142 Misc. 2d 37, 39, 535 N.Y.S.2d 944, 946 (City Ct. 1988).

This conduct is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing, or other such terrorizing acts. People v Winston, 64 Misc. 2d 150, 153, 314 N.Y.S.2d 489, 494 (Cnty. Ct. 1970).

“Intentional” or “Reckless” Conduct

Under New York Rioting laws, this conduct must intentionally or recklessly cause or create a grave risk of causing public alarm. While the words “intentional” and “reckless” have normal definitions that we use in everyday conversation, the law treats these words very specifically based upon many cases where the courts had to evaluate whether a person’s conduct rose to the level of being “intentional” or “reckless.”

Knowledge of the Facts

For conduct to be considered intentional the defendant must know the facts of the situation. For example, if the defendant does not know a gun is loaded, he cannot be guilty of assault because he did not know the facts would lead to a reasonable person believing a battery would occur.

Reasonable Person Standard

The courts also consider whether a reasonable person in the defendant’s shoes would know the results. For example, if the defendant loaded the gun, and then claims he did not know it was loaded, a reasonable person would know otherwise, and the defendant would likely be found to have the mindset of “intent.”

Frequency of Your Actions

Certain acts increase the likelihood of a finding of intentional activity. For instance, a defendant that shoots a weapon once may be able to claim they negligently operated the firearm – it backfired, and they did not mean to shoot it. But, consider the situation where an individual fires ten times – then, intentional conduct is almost certain.

“It should be obvious that the more the defendant shoots (or stabs or bludgeons) the victim, the more clearly intentional is the homicide. Firing more rounds or inflicting more wounds does not make the act more depravedly indifferent, but more intentional.” People v. Payne, 3 N.Y.3d 266, 269, 786 N.Y.S.2d 116, 116, 819 N.E.2d 634, 634 (2004).

“Reckless” Conduct

Reckless conduct is the type of conduct that creates an unreasonable risk of serious injury to another. Consider an individual firing a shot through a doorway window, knowing full well that there were three people moving about on the other side of the doorway.

In that case, the Court in People v. Fields, 2007 NY Slip Op 1584, ¶ 1, 37 A.D.3d 733, 733, 830 N.Y.S.2d 317, 317 (App. Div. 2207) held that this conduct was evidence of  “depraved indifference to human life.” Why? The defendant had to have been aware that his actions could result in death to another person even if he could not be sure who the victim might be.

“Physical Injury” or “Property Damage”

The last element required by the rioting statute is that a person other than the participants must suffer physical injury or property damage. Consider the rioting in Los Angeles against the Los Angeles Police Department (LAPD) for using excessive force in the arrest and beating of Rodney King.

The looting, arson, and violence became so severe that the National Guard was called to regulate the situation. There, the elements of a Riot were clearly established:

• Groups of more than 10 people gathered (hundreds gathered in the streets)
• With the intent to cause public alarm (many people hid in their houses during the riots)
• That caused harm to personal property (dozens of shops were burnt and looted)

Examples

The following are examples of scenarios where people could be found guilty of rioting:

• A “rabble rouser” (the phrase often used by courts to describe rioters) urges a group of twenty people to break windows in a predominantly African American neighborhood for the purposes of intimidating or harassing
• A losing football team spray paints the busses and buildings of a rival school prior to a big game
• A group of political activists refuses to leave a bakery owned by a couple that refuses to serve members of the LGBTQ community, often called a “sit-in” protest

Applicable Federal Statutes 

Under Federal law, an individual who travels in interstate commerce or uses a facility of interstate commerce with intent to incite a riot, encourage a riot, commit an act of violence to further a riot, or aid a person trying to start a riot, is guilty of rioting.

A conviction under this law – 18 U.S. Code §2101 – results in a fine or imprisonment of up to five years.

Congress’ Interpretation of the constitution.

Congress gets its power from the Constitution. Based upon Congress’ interpretation of the Constitution, it may broaden its powers as it sees fit. Congress writes the laws, and the courts interpret them. Consider the case with the commerce clause. Beginning with the Supreme Court case of Gibbons v. Ogden (1824), the court ruled that all forms of business across state lines equal “commerce.”

This was a very broad interpretation because it includes broadcasting, banking, finance, and pollution in addition to traditional ideas of commerce. Congressional power was again expanded by the case NLRB v. Jones & Laughlin (1937).

There, the Court held that Congress has the authority to regulate activity that occurs entirely in a state, without crossing boundaries, if that activity could significantly affect interstate commerce.  This expanded Congressional power greatly because virtually everything affects commerce – marriage, birth, death, etc.

What does this mean in the context of rioting?

You may be subject to laws governing federal crimes in any place where you were found rioting, assisting a rioter, or even simply promoting a riot.

For example, federal laws have the potential to govern the behavior of the people in the following scenarios:

• An individual who posts messages encouraging people to gather and riot in an online, public forum
• A student who flies from New York to California to protest police brutality engages in a riot, then flies back home to New York and is arrested by federal agents
• An organizer e-mails electronic booklets (e-books) listing times for an upcoming riot and tips on avoiding police detection or apprehension

Crimes Related to Rioting 

Rioting is often charged in connection with another crime. The offenses of Riot (Penal Law § 240.05), Unlawful Assembly (Penal Law § 240.10) and Inciting to Riot (Penal Law § 240.08) defines several criminal offenses relating to rioting in general. From these offenses, we find that you need not actually be a rioter to be convicted of a crime relating to a riot.

Rarely does a person simply “riot” without engaging in some other type of conduct. The following crimes are examples of common criminal charges that are filed along with the rioting charge:

Example #1: Conspiracy

The crime of conspiracy is an offense separate from the crime that is the object of the conspiracy. Once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy, and that action may be the object crime.

To simplify this thought, consider a conspiracy to rob a bank. Two defendants agree to rob a bank, gather materials for the robbery, plan all of the necessary components, and then at the doors of the bank, they abandon their plan.

A security officer catches them, and they are arrested before they enter the bank. Can they be found guilty of conspiracy to commit the robbery? The answer is yes, depending on the circumstances. 

Example #2: Assault & Battery

In New York, civil assault is defined as intentionally placing another in fear of imminent harmful or offensive contact. To take a step further civil battery is actually and intentionally making wrongful physical contact without consent.

Assaults and batteries happen every day. The difference is whether the contact is harmful enough to constitute a crime.

Consider crowded subway cars. While you may not consent to be poked and prodded by the elbows and bags of your fellow subway riders, hardly anyone files criminal complaints about this type of “offensive touching.” In stark contrast, an individual who is repeatedly bullied, and then later punched in the stomach would likely be considered the victim of an assault and battery. 

Example #3: Disorderly Conduct

Disorderly conduct is a common criminal occurrence that acts as a “catch-all” for what the courts deem to be “annoying behavior.

• The elements of Disorderly Conduct and Disturbing the Peace are listed in Penal Law § 240.20(5). A person is guilty of disorderly conduct when, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he obstructs vehicular or pedestrian traffic.

The convenience must be more than temporary. Instead, it must be repeated, or long enough to cause serious interference with vehicular or pedestrian traffic.

• The Court in People v. Michie, 2016 NY Slip Op 26090, ¶ 1, 52 Misc. 3d 270, 272, 27 N.Y.S.3d 363, 366 (Crim Ct.) discussed this matter at length. Specifically, the court was concerned with the “temporary inconvenience” of the crime.

The court held that the crime must be more than a temporary inconvenience because otherwise, any person who happens to stop on a sidewalk—whether to greet another, to seek directions or simply to regain one’s bearings—would be subject to prosecution under the law.

• Consider a group of people protesting a war. To make their voices heard, they lie on an expressway, hoping that instead of being run over, vehicles would stop and media attention would increase due to the blockage of traffic. This would constitute a crime under Penal Law 250.20(5).

Related Crimes 

Other related crimes include Unlawful Assembly under New York Penal Law §240.10. A person is guilty of the unlawful assembly when he assembles with four or more other people to engage in “tumultuous and violent conduct” likely to cause public alarm. This is a class B misdemeanor.  Criminal Anarchy is punishable under New York Penal Law §240.15.

A person is guilty of criminal anarchy when (a) he advocates the overthrow of the existing form of government of this state by violence, or (b) with knowledge of its contents, he publishes, sells or distributes any document which advocates such violent overthrow, or (c) with knowledge of its purpose, he becomes a member of any organization which advocates such violent overthrow. Criminal anarchy is a class E felony.

Essential and Impactful Cases:

• During the Vietnam War, many instances of riots were prosecuted. Courts were especially concerned with infringing upon free speech. Free speech is a hallmark of what it means to be American, but courts have often wrestled with an individual’s freedom of expression and whether that expression crosses the lines to become criminally dangerous behavior.
• In the New York case of People v. Epton, 19 N.Y.2d 496, 508, 281 N.Y.S.2d 9, 19, 227 N.E.2d 829, 836 (1967), which was decided by the Court of Appeals in 1967, at the height of the Vietnam War, the majority of the court battled with the dissent about whether the defendant’s conduct constituted constitutionally protected free speech or criminally punishable behavior.
• The majority in People v. Epton discussed the language used by the defendant. They discussed the “clear and present danger” that his words incited by advocating an overthrow of the government. They determined that there was no doubt that the defendant intended to inflame the already intense passions of the troubled people of Harlem and to incite them to greater violence.

Furthermore, defendant’s exhortations calling for organized resistance to the police and the destruction of the State formed a sufficient basis for the trial court and jury to conclude that his words and actions created a “clear and present danger” that the riots then rocking Harlem would be intensified or, if they subsided, rekindled.

The dissent argued that the statute was vague and indefinite, and contrary to the Constitution because the defendant’s conduct was unclear to deserve the imposition of criminal liability.

Ultimately, the majority won out, and the words used by a defendant during the commission of a “riot” have the potential to amount to criminally punishable conduct the likes of which could result in fines amounting to thousands of dollars, or prison or probation time.

• Other cases have tackled rioting laws and their connection to an individual’s freedom of assembly. Rioting laws have been challenged over the years because they tend to minimize our first amendment rights. One of our first amendment rights is freedom of assembly. Unlawful Assembly refers to evidence of actions that constitute an incitement to produce imminent violent and tumultuous conduct.

Consequently, as to Penal Law § 240.10, the prosecution must prove the defendant shared a community of purpose imminently to engage in violent and tumultuous conduct. This makes it more difficult for the prosecution to simply argue “they were part of the riot, so they should be convicted.”

Investigative Agencies 

In New York, the governmental agencies that detect, investigate, and prosecute the crime of rioting are typically police officers that are part of the state and local police departments. Rioting is often a crime that is “caught red-handed,” meaning the rioters are arrested and charged while in the commission of a riot.

Penalties for Violating Rioting Statutes:

Being charged with a Riot offense depends on the facts surrounding the accident. The crime could be considered a misdemeanor or a felony.

• The penalties for Riot in the Second Degree include being charged with a Class A Misdemeanor. Riot in the Second Degree involves a defendant acting with four or more individuals, engages in conduct considered “tumultuous and violent” and “intentionally or recklessly” causes or creates a grave risk of public alarm.

Class A misdemeanors are generally punishable by fines up to $1,000 or prison time up to 1 year in jail.

• The penalties for Inciting to Riot include being charged with a Class A Misdemeanor. Inciting to Riot involves urging ten or more people to engage in “tumultuous and violent conduct” to create public alarm.

Similar to Riot in the Second Degree, the maximum penalty for this crime is incurring fines up to $1,000 or prison time up to 1 year in jail.

• Based on the probation options for the E Felonies of this class, your attorney may be able to negotiate a plea involving a monetary fine and substantial probation in lieu of jail time, assuming the non-violent nature of the offense.
• The more serious crime of Riot in the First Degree includes being charged with a Class E Felony. This involves the same crime as Riot in the Second Degree, but with ten more people, and the conduct involves an individual other than the rioters suffering physical injury or substantial property damage.

The punishment for a Non-Violent E Felony is no jail, but probation up to 1 1/3 to 4 years. A Violent E Felony involves probation from 1 ½ year to 4 years.

Sentencing Enhancements

The penalties for Rioting are significantly steeper if the assembly becomes violent. Courts seek to discourage “mob mentalities” and the violence that results.

Specifically, you face heightened penalties if you:

• Engage in violent behavior
• Cause serious physical damage to a government building
• Engage in conduct that involves the death of a non-participant
• You have a history of other similar offenses

What are some of the additional consequences of being convicted?

Unfortunately, many of the defendants charged with rioting or a rioting type offense are young people or students. Even with pleading down to a lesser offense, the stigma or a misdemeanor or felony could follow you for the rest of your life. As a juvenile, these convictions could result in criminal records that damage a career that has not even started.

These words of caution are not meant to discourage an individual’s right to civil disobedience in an orderly manner. What begins as a peaceful protest can sometimes turn deadly. When this happens, an innocent demonstration can result in the imposition of criminal liability for all participants.

When engaging in any form of protest, while it is your right to exercise peaceful, civil disobedience, be aware of your surroundings, and the people you are with. Your event could turn criminal without even realizing the change has happened.

What are some defenses to the charge of Riot? 

While the prosecutor must prove the elements of the crime beyond a reasonable doubt, there are several defenses that may be raised to help defendants escape criminal culpability.

Common defenses to rioting or inciting a riot charge include intoxication, insanity, a mistake of fact, alibi, insufficient evidence, coerced confessions, and others. While these defenses generally apply to many different criminal charges, the following legal defenses are fact specific to riot charges:

Defense #1: Not an active participant

• One defense to the crime of Riot is that the defendant was not actively a participant in the riot, only present at the time. While the Zuccotti Park protests in Manhattan, commonly known as Occupy Wall Street, were mostly a peaceful endeavor, consider a situation where the masses became violent, and rioting occurred.

Lower Manhattan is a heavily populated area, and it would be within the realm of possibility that a bystander could be considered a participant of the riot. That innocent bystander would be able to claim that they were not an active participant as a defense to the charge. The prosecution shoulders the burden of proving the defendant was an active participant.

Defense #2: Mistaken Identity

• The second defense for the crime of Riot is mistaken identity. Similar to the claim of not being an active participant, the mistaken identity defense rests on the alibi defense – that the individual was either not in the Riot as claimed, or that they are being mistaken for another person.

Consider the scenario where a large group of fifty people protests a decision at a Courthouse. Police are tasked with silencing the group. In doing so, the group becomes mob-like, agitated, and violent.

A glass bottle is thrown from the middle of the group. Absent video or eyewitness testimony, it would be incredibly difficult to pinpoint who threw the bottle amongst all of those people. As such, the claim of mistaken identity would be available as a defense in that case.

• Where the prosecution relies upon a theory of accomplice liability, the criminal charging documents must allege facts specific to the defendant from which it may be inferred that the defendant shared a “community of purpose” with others engaged in violent and tumultuous conduct. Really, the Courts are trying to separate actual rioters from innocent bystanders, whose closeness to the riot might make it appear that they were involved.

Defense #3: Attacking the Charges

• General rioting charges have been held by the Courts in New York to be insufficient. The petition must contain particular conduct, words, or acts specifically to the defendant to support a finding that the defendant’s purpose was to engage in violent and tumultuous conduct. Charges that fall short of this requirement may be subject to dismissal.

Defense #4: Negating an Element of the Charge

• Since the prosecution has the burden of proof on all elements of the crime charged, think of the best defense as negating any one of those elements. For the crime of Rioting, the defendant can prove:
  • • Fewer participants were actually involved than required by statute
    • Defendant lacked an “intentional” or “reckless” mindset
    • No one suffered personal injury
    • No serious property damage resulted

• The successful defense of any one of these issues has the potential to lead to a not guilty verdict.

If you have been charged with a Riot offense, you need private legal counsel:

Riots can often involve complex situations where groups of individuals are charged. Criminal investigators are skilled at questioning defendants separately and convincing them to provide evidence against the others.

Government assigned attorneys are often overburdened and cannot pay close attention to your case that justice requires. Private attorneys can review your case, assist you with a comprehensive case evaluation, and prepare a strategy for trial.

Call Our Defense Team Today for More Information

The attorneys at our firm are experienced and knowledgeable when it comes to Rioting charges. For questions about the charges you face, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us.

Our team of attorneys, paralegals, investigators, and support staff are standing by to assist you when you need it most. If you’re facing criminal charges, consider this your rainy day. We have your umbrella.