Unlawful Assembly in New York

Peaceful Protest vs. Public Order

The right of people to gather in groups in peaceful discussion or protest is one of the fundamental rights of American citizens. The courts are very careful to guard these rights and limit the powers of all levels of government to restrain and restrict the right of peaceful assembly.

Yet limits to these rights must be drawn to protect public order: citizens have the right to protest peacefully, while other citizens have the right to go about their business without “inconvenience, annoyance or alarm” or facing violence.

Governments have the right to protect themselves and their citizens from those who would violently attempt to overthrow the government, which is the guardian of law and order for its citizens. Governments and courts have tried to balance these two obligations by permitting peaceful assembly and passing laws to protect public order.

New York’s Penal Law about public order

New York State has declared a number of actions to be offenses against public order. In particular, New York State has passed laws forbidding unlawful assembly, criminal anarchy, and disorderly conduct.

The issue for someone charged with any of these offenses is whether their conduct has been such as to violate these provisions of New York’s Penal Law as defined by the statute and the courts’ interpretation of these provisions.

If you are charged with any offense against public order, or even believe you are being investigated for such an offense by the authorities, seek legal advice immediately. You will need the assistance of a criminal lawyer who is familiar with the many different public order offenses to defend yourself against a charge of unlawful assembly, criminal anarchy, and disorderly conduct under the Penal Law.

Major public order offenses in New York

New York’s Penal Law defines many public order offenses in this state. This article shall focus on three of these offenses: unlawful assembly (§240.10), criminal anarchy (§240.15), and disorderly conduct (§240.2).

Public order offenses: what can you be charged with

These include:

Unlawful assembly (§240.10): you meet with four or more other people in order to:
Engage or prepare to engage in ‘tumultuous or violent conduct’ that is likely to cause public alarm; or
You are present at an assembly that has or develops the purpose to engage in conduct likely to cause public alarm and stay at the assembly with the intent to advance this purpose.

Criminal anarchy (§240.15): you advocate
The violent overthrow of the government or
Publish, sell or distribute any document that advocates the violent overthrow of the government with knowledge of its contents, or
Join an organization that advocates the violent overthrow of the government, knowing that is the organization’s purpose.

Disorderly conduct (§240.20): intending to cause public inconvenience, annoyance or alarm, or recklessly creates a risk of these happening, you do one of the following:
Engage in fighting or violent, tumultuous or threatening behavior; or
Make unreasonable noise; or
Use abusive, obscene language or gestures in a public place; or
Disturb any lawful assembly or meeting of persons without the lawful authority to do so; or
Obstruct pedestrian or vehicular traffic; or
Gather with other persons in a public place and refuse to comply with a lawful order form the police to disperse; or
Create a hazard or physically offensive condition by any act which serves no legitimate purpose.

Unlawful assembly (§240.10): gathering in groups to cause public alarm

This offense prevents people from assembling in a group of five or more people (including you) to act or prepare to act violently in a way that would cause public alarm. You can be charged with unlawful assembly under Penal Law §240.10 if you meet with four or more other people in order to:

Engage or prepare to engage in ‘tumultuous or violent conduct’ that is likely to cause public alarm; or
You are present at an assembly that has or develops the purpose to engage in conduct likely to cause public alarm and stay at the assembly with the intent to advance this purpose.

The elements of unlawful assembly

There are two parts to the basic offense. To be a member of an unlawful assembly,

You must be found to have gathered in a group with at least four other people; and
You must have assembled for the purpose of planning to act or acting in a violent or tumultuous way that will alarm the public;

You must be found to have joined an existing assembly; and
You must be found to have remained with the group after it becomes clear that its members intend to act or are acting in a violent or tumultuous way that will alarm the public.

Unlawful assembly defined

The courts have interpreted Penal Law §240.10 to clarify its meaning. In People v. Sanchez, Cuevas, Hernandez and Quiles, N.Y. L. J. (Queens Co. Crim. Ct., 2009), the Court ruled that the unlawful assembly provision of the Penal Law makes a clear distinction between ‘advocating’ or promoting the use of violence and participating in or preparing to participate in violent actions that will alarm the public.

Merely advocating that people use violence does not violate §240.10 of the Penal Law. People have the right to advocate the use of violence. But §240.10 does not allow people to prepare to use violence or actually use violence actively.

An example of unlawful assembly

Bob dislikes the current President immensely. Bob finds out that the President will be visiting New York City and staying in a famous hotel. He meets with five friends – Abby, Celia, Dave, Edward and George – in front of the hotel. Each of them has brought a sign protesting one of the President’s policies.

They march back and forth on the sidewalk outside the hotel but do not block pedestrians’ movements or prevent people from entering or leaving the hotel. They yell that the President should be dragged down from his hotel room and brought to them to ‘face justice.’

Bob notices that no one is paying attention to their protest. Angry, he gathers his friends in a circle around him and says that the only way to get attention is to take physical action to make the public aware of their protest. Bob and his friends use their signs to smash the windows and doors of the hotel and prevent guests from entering and leaving the hotel.

Consequences

Bob and his friends were legitimately protesting until they formed a circle and planned to use violence and then began to violently smash the hotel’s windows and interfere with peoples’ movements. While they advocated the use of force against the President, they could not actually carry it out.

They could be charged with unlawful assembly for two actions:

Gathering to plan the use of violence to cause public alarm; and/or
Using violence to cause public alarm.

The prosecution’s burden of proof in unlawful assembly cases

The prosecution must prove these things before you can be convicted:

That you assembled with at least four other people to take part or prepare to take part in tumultuous and violent action likely to cause public alarm; or
That you joined an assembly of people and did not leave when it became clear that the group was acting in a violent and tumultuous way to disturb public order or was about to start doing so;

And

That you did so intending to advance the purposes of the assembly.

Unlawful assembly is a class B Misdemeanor

Class B misdemeanors include issuing a bad check, creating a hazard, false personation, fortune-telling, prostitution, public lewdness, and refusing to aid a peace or a police officer. A conviction under this offense is punishable by up to three months in jail, and a fine up to $500.

Criminal anarchy (§240.15): advocating the overthrow of the government

This offense prevents people from advocating the violent overthrow of the existing government in several forms. You can be charged with criminal anarchy under Penal Law §240.15 if you:

Advocate the violent overthrow of the government of New York state; or
Knowingly publish, sell or distribute any document which advocates the violent overthrow of the government of New York state; or
Join an organization which you know advocates the violent overthrow of the government of New York state

The elements of criminal anarchy

There are two parts to the three different types of criminal anarchy. To be charged with criminal anarchy,

You must be found to have advocated the violent overthrow of the government of New York state; and
You must be found to have intended to actually attempt or to accomplish the violent overthrow of the government of New York state

You must be found to have knowingly published, sold or distributed a document which advocates the violent overthrow of the government of New York state; and
You must be found to have intended that the publication, sale or distribution of the document actually attempts or accomplishes the violent overthrow of the government of New York state

You must be found to have joined a group knowing that it advocates the violent overthrow of the government of New York state; and
You must be found to know that the group seeks to actually attempt or accomplish the violent overthrow of the government of New York State and intend to attempt or accomplish the violent overthrow of the government of New York State.

The meaning of criminal anarchy

The courts have interpreted Penal Law §240.15 to clarify its meaning. In People v. Epton, 19 N.Y.2d 496, the New York Court of Appeals ruled that the criminal anarchy provision of the Penal Law must be read to require that:

A person advocate or teach that the New York state government should be violently overthrown, and
Intend to carry out the overthrow, and
Attempt or accomplish the violent overthrow of the government of New York State.

Merely advocating that people use violence to try to overthrow or carry out the overthrow of the government of New York State does not violate §240.15 of the Penal Law. People have the right to advocate the use of violence. But §240.15 does not allow people to actively use violence to try to overthrow or – far less likely – actually overthrow the government of New York State.

This reasoning was followed in Samuels v. Mackell, 288 F. Supp. 348 (S.D.N.Y. 1968). The decision of the Supreme Court of the United States in Brandenberg v. Ohio (89 S.Ct. 1827), requiring “imminent lawless action” before the states can restrict freedom of speech, further supports the court’s decision in Epton.

An example of criminal anarchy

Margaret, a citizen of Buffalo, NY, thinks that the New York state government treats western New York unfairly. She has complained to her elected representatives about this to no avail: she is ignored or receives soothing letters dismissing her claims.

Margaret decides only overthrowing the government of New York State can save her beloved Buffalo from continued exploitation. Margaret finds a separatist organization in Buffalo that shares her beliefs and joins it when its leader says that its members are armed and are ready to attack in Albany.

Margaret buys a rifle and joins the group on its trip to Albany. At the state capitol, the group attacks the Attorney General’s Office by shooting their way in. The group then uses its weapons to damage the Attorney General office’s servers and database, hoping to destroy the Attorney General’s ability to maintain law and order.

Consequences

The New York State police quickly subdue Margaret and her friends. They are arrested.

Margaret could be charged with criminal anarchy for two actions:

She joined an organization knowing that it planned an imminent attack to attempt to overthrow the government of New York State; and/or
She used violence in an attempt to overthrow the government of New York State.

The prosecution’s burden of proof in criminal anarchy cases

The prosecution must prove these things before you can be convicted:

That you advocated a violent attempt to overthrow the government of New York State; or
That you published a document knowing that it included calls to violently attempt to or actually violently overthrow the government of New York State; or
That you joined a group that you knew was about to violently attempt to or actually violently overthrow the government of New York State

And

That you did so intending to violently attempt to or actually violently overthrow the government of New York State.

Criminal anarchy is a class E Felony

Class E felonies include abandoning a child, bigamy, computer trespass, defrauding the government, eavesdropping, second-degree identity theft, fourth-degree arson and rot in the first degree.

Conviction under this offense is punishable by one-and-a-half years to four years in jail, and a fine up to $5000.

Disorderly conduct (§240.20): causing public inconvenience

This offense prevents people from disturbing other people by alarming, annoying, or inconveniencing members of the public or recklessly risking doing this by their actions.

You can be charged with disorderly conduct under Penal Law §240.20 if you:

Fight or take part in other violent, tumultuous or threatening behavior; or
Make unreasonable noise; or
Use abusive language or obscenities, or make obscene gestures, in a public place; or
Disturb a lawful assembly or meeting without legal authority to do so; or
Block pedestrian or vehicular traffic; or
Join other people in a public place and refuse to disperse when the police lawfully order you to do so; or
Create a hazardous or physically offensive condition by any act which serves no legitimate purpose.

The elements of disorderly conduct

There are two parts to the seven different types of criminal anarchy. To be charged with any of the various types,

You must be found to have fought or behaved in a violent, tumultuous or threatening way; and
You must be found to have intended to cause public annoyance, alarm or inconvenience or recklessly risked doing so

You must be found to have made unreasonable noise; and
You must be found to have intended to cause public annoyance, alarm or inconvenience or recklessly risked doing so

You must be found to have used abusive or obscene language, or made obscene gestures; and
You must be found to have intended to cause public annoyance, alarm or inconvenience or recklessly risked doing so

You must be found to have disturbed a lawful assembly or meeting; and
You must be found to have intended to cause public annoyance, alarm or inconvenience or recklessly risked doing so

You must be found to have obstructed vehicular or pedestrian traffic; and
You must be found to have intended to cause public annoyance, alarm or inconvenience or recklessly risked doing so

You must be found to have congregated with other people in a public place and refused a lawful order by the police to disperse; and
You must be found to have intended to cause public annoyance, alarm or inconvenience or recklessly risked doing so

You must be found to have created a hazardous or physically offensive condition by an act that serves no legitimate purpose; and
You must be found to have intended to cause public annoyance, alarm or inconvenience or recklessly risked doing so.

The meaning of disorderly conduct

The courts have interpreted Penal Law §240.20 to clarify its meaning. In Brandenberg v. Ohio, 89 S.Ct. 1827 (1969), the Supreme Court of the United States ruled that the fundamental freedoms of speech and of the press do not permit the states to “forbid advocacy of the use of force or of violating the law except when the advocacy is intended to inciting or producing imminent lawless action” and is likely to cause such action to happen.

The Supreme Court of the United States expanded this in Hess v. Indiana, 94 S.Ct. 326, (1973). It applied its reasoning in Brandenberg to Indiana’s disorderly conduct statute, ruling that the state can only prohibit speech that incites “imminent disorder.” Speech that promotes lawless action in the indefinite future is permissible.

A conviction for disorderly conduct requires that the person’s prohibited actions under §240.20 of the Penal Law will imminently lead to or cause public inconvenience, annoyance or alarm, or pose an immediate and reckless risk of causing public inconvenience, annoyance or alarm.

An example of disorderly conduct

Tashi, a Tibetan-American citizen, wants to draw attention to the government of China’s treatment of the people in western China. He decides to blockade Fifth Avenue in New York City to force people to consider their plight.

At 5:30 AM on a weekday morning, Tashi and a friend park two Ford F-150 pick-up trucks across Fifth Avenue. Tashi’s friend then leaves. The trucks are festooned with Tibetan flags. Traffic is soon blocked in both directions.

Other supporters of Tibet’s cause soon join the blockade. They sit on the F-150s and sit on Fifth Avenue in front of and behind the two pick-ups.

Consequences

The New York City police quickly arrive at the scene. They order Tashi to remove the trucks and allow traffic to pass. Tashi refuses. The police call for two tow trucks and the two F-150s are quickly removed. Tashi is arrested.

Tashi could be charged with disorderly conduct for two actions:

He obstructed vehicular traffic; and/or
He congregated with others in a public place – Fifth Avenue – and refused to disperse the group and move the F-150s when he was lawfully ordered to do this by the police.

The prosecution’s burden of proof in criminal anarchy cases

The prosecution must prove these things before you can be convicted:

That you carried out one of the seven prohibited actions listed in section 240.20;

and

That you did so intending to cause public inconvenience, annoyance or alarm, or to pose an immediate and reckless risk of causing public inconvenience, annoyance or alarm.

Disorderly conduct is a Violation

Crimes under this offense are Violations. They include disorderly conduct, hazing in the second degree, harassment in the second degree, loitering, trespassing, and unlawfully posting advertisements.

Conviction under this offense is punishable by up to 15 days in jail and/or a fine.

Important Cases That Define Unlawful Assembly

People v. Sanchez, Cuevas, Hernandez, and Quiles

In People v. Sanchez, Cuevas, Hernandez and Quiles, N.Y. L. J. (Queens Co. Crim. Ct., 2009), the Court ruled that the unlawful assembly provision of the Penal Law makes a clear distinction between ‘advocating’ or promoting the use of violence and participating in or preparing to participate in violent actions that will alarm the public.

Important Cases That Define Criminal Anarchy

People v. Epton

In People v. Epton, 19 N.Y.2d 496, the New York Court of Appeals ruled that the criminal anarchy provision of the Penal Law must be read to require that

A person advocate or teach that the New York state government should be violently overthrown, and
Intend to carry out the overthrow, and
Attempt or accomplish the violent overthrow of the government of New York State.

Important Cases That Define Disorderly Conduct

Brandenberg v. Ohio

In Brandenberg v. Ohio, 89 S.Ct. 1827 (1969), the Supreme Court of the United States ruled that the fundamental freedoms of speech and of the press do not permit the states to “forbid advocacy of the use of force or of violating the law except when the advocacy is intended to inciting or producing imminent lawless action” and is likely to cause such action to happen.

Hess v. Indiana

Who investigates public order offenses in New York State?

The state and local police forces, along with the Attorney General’s office, investigate and prosecute public order offenses in New York.

What additional consequences do you face for a public order offense conviction?

There are often other consequences beyond fines and/or imprisonment for those convicted of public order offenses. A conviction shows that you are capable of disturbing the public peace in various ways and could show disregard for the views and concerns of others.

It could be difficult to gain admission to higher education institutions. People and organizations may be reluctant to offer you employment, make contracts, or offer you a loan or mortgage, knowing that you have been convicted on public order charges.

Possible defenses to public order offenses

An effective defense is to raise doubts that you ever attempted to violate the public order or meet other components of the offense. These could include:

Showing that you did not act in a way that violates the particular Penal Law provision;
Showing that you did not take part in an unlawful assembly (§240.10);
Showing that you did not have the intent to cause public alarm (§240.10);
Showing that you did not have the intent to overthrow the government (§240.15) violently;
Showing that the police did not have the lawful authority to order an assembly or gathering to disperse (§240.20);
Showing that you did not have the intent to cause public inconvenience, annoyance or alarm, or the intent to create a risk of doing so (§240.20) recklessly.

Why you need a lawyer if you’re facing charges under a public order offense

If you are charged with under a public order offense section of the Penal Law, or even learn you are being investigated for a possible public order offense, obtain legal assistance immediately. There are many different public order offenses. A strong defense requires lawyers knowledgeable about:

The different public order offenses;
How these offenses are investigated; and
How investigators may question you during an interrogation

Lawyers can assist you in making statements during the investigation.

You will need legal counsel that has defended others charged with one or more of these offenses to defend you. The prosecution will rely on documents and testimony to show that your words or actions that were intended to harm public order. They will introduce these documents and present evidence through witnesses. Your legal counsel will be able to:

Analyze your specific situation to determine if you have been properly charged with the offense;
Develop the best possible defense to the charges, based on their experience in other cases and their understanding of your situation;
Examine the evidence and object to evidence that is improperly introduced in court;
Cross-examine witnesses to challenge their evidence and their credibility; and
Advocate forcefully on your behalf in all aspects of your defense.

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