California Penal Code §409 — Unlawful Assembly
PC §409 punishes remaining present at the place of any riot (§404) or unlawful assembly (§407) after the same has been lawfully ordered to disperse. It is a straight misdemeanor: up to 6 months in county jail and/or a $1,000 fine. The statute has three constitutional prerequisites: (1) a lawful dispersal order, (2) actual and reasonable opportunity to comply, and (3) the underlying assembly must itself be unlawful. Every element is defense-litigation territory.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney · Unlawful Assembly Cases in All LA County Courts
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01 — Quick Facts
PC §409 — Unlawful Assembly at a Glance
| Fact | Detail |
|---|---|
| Full Name | California Penal Code §409 — Remaining at Riot or Unlawful Assembly After Dispersal |
| Code Type | Penal Code (PC) |
| Classification | Misdemeanor |
| Max Penalty | 6 months county jail |
| Fine | Up to $1,000 |
| Strike | No |
| Prerequisite | Lawful §726 dispersal order + reasonable opportunity to comply |
| Free Consultation | (213) 723-2337 — 24/7 |
01 — What Is PC §409?
What Is California Penal Code §409?
PC §409 Reads:
"Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to disperse the same, is guilty of a misdemeanor."
— California Penal Code §409
PC §409 works together with PC §407 (defining unlawful assembly) and PC §726 (governing the dispersal order procedure). To be prosecuted for §409, a person must (a) have been present at what was in fact a riot or unlawful assembly, (b) have been given a lawful and audible dispersal warning, and (c) have had a reasonable opportunity to leave. LAPD and Sheriff dispersal orders are frequently defective — inaudible, given without an actual unlawful assembly, or without egress routes — creating routine dismissal opportunities.
PC §409 vs. §416 vs. §407 vs. First Amendment
§407 defines 'unlawful assembly' (two or more people assembling to do an unlawful act, or to do a lawful act in a violent, boisterous, or tumultuous manner). §409 punishes staying after the dispersal order. §416 punishes refusing to disperse when directed by a peace officer to disperse an unlawful assembly. §404 defines 'riot.' Charges frequently overlap; §409 is the most common protest-arrest charge in LA.
PC §409 — Remaining
Staying at riot/unlawful assembly after lawful dispersal warning.
PC §416 — Failure to Disperse
Refusing officer's order to disperse when unlawfully assembled.
Why §409 Cases Turn on Dispersal-Order Legality
Nearly every LA protest arrest generates a §409 filing. But the People must prove a valid §726 dispersal order — audible, from the appropriate authority, with reasonable opportunity to comply, and only after a genuinely unlawful assembly. Video review of the dispersal announcement (audibility, direction, egress paths, sound-truck placement) frequently produces dismissal. Selective-enforcement and content-based-application defenses often follow.
Official Sources
02 — Elements of the Crime
Elements the Prosecution Must Prove Under PC §409
To convict under PC §409 the People must prove each element beyond a reasonable doubt.
Presence at a Riot or Unlawful Assembly
The gathering was in fact a §404 riot or §407 unlawful assembly at the time of the dispersal order. Merely being present at a large protest is not enough.
Lawful Dispersal Warning
A peace officer or public officer gave a §726 dispersal command — audible, communicated with reasonable clarity, and stating the intent to disperse the assembly.
Reasonable Opportunity to Comply
The defendant had actual and reasonable ability to leave — egress routes, time, and physical capacity.
Remained Willfully
The defendant willfully remained after the warning — not by accident, entrapment, or officer direction.
03 — Degrees
PC §409 — Tiers & Degrees
PC §409 is a straight misdemeanor with no degrees.
PC §409
Standard filing for protest arrests after lawful dispersal orders.
PC §416
Companion charge — refusing officer's dispersal directive.
PC §408
Participation in an unlawful assembly — often filed alongside §409.
04 — Penalties
Penalties for PC §409 Unlawful Assembly in California
PC §409 exposure and commonly stacked charges.
| Charge | Code | Prison Term | Probation | Strike |
|---|---|---|---|---|
| Remaining After Warning | PC §409 | Up to 6 months county jail | Available | No |
| Participation in Unlawful Assembly | PC §408 | Up to 6 months county jail | Available | No |
| Failure to Disperse | PC §416 | Up to 6 months county jail | Available | No |
| Rioting | PC §404 | Up to 1 year county jail | Available | No |
Aggravating Companion Charges
Resisting Arrest
PC §148(a)(1)
Common companion charge on mass-protest arrests.
Assault on Officer
PC §241(c)
When contact with officers is alleged during arrest.
Vandalism
PC §594
Where property damage is attributed to the gathering.
Battery on Officer
PC §243(b)
When any force is used against an officer.
Federal Civil Disorder
18 U.S.C. §231
Federal exposure when protest is deemed a civil disorder — up to 5 years.
Collateral Consequences
- Mass-arrest booking records — expungement available under PC §1203.4
- Immigration analysis for non-citizens in stacked-charge cases
- Employment / licensing consequences (teacher, healthcare, government)
- Civil § 1983 First Amendment retaliation claims often viable
- LAPD / Sheriff protest-arrest records subject to discovery in later cases
- Stay-away or protest-restriction bail conditions
Sentencing References
05 — Defense Strategies
How Rubin Law Defends PC §409 Unlawful Assembly Charges
Rubin Law, P.C. defends §409 cases with dispersal-order video review, First Amendment litigation, and selective-enforcement defenses.
Not an Unlawful Assembly
The protest was peaceful and lawful. §407 requires unlawful purpose or violent/boisterous/tumultuous manner. A peaceful First Amendment gathering does not qualify.
In re Brown
Defective Dispersal Order
The §726 order was inaudible from defendant's position, given in the wrong direction, or lacked the required content (identify assembly, order dispersal, threaten arrest).
PC §726
No Reasonable Opportunity to Comply
Officers 'kettled' the crowd, blocked egress routes, or provided insufficient time. Impossibility of compliance defeats §409.
Collins v. Jordan
Not Willful — Officer Directed
Officers held defendant in place, then arrested for remaining. Officer-caused non-compliance defeats willfulness element.
PC §409
First Amendment — Content-Based Dispersal
Dispersal order was issued based on the content or viewpoint of the speech, not any unlawful act — heightened scrutiny applies.
Reed v. Town of Gilbert
Selective Enforcement
Enforcement targeted the specific protest while similar assemblies were tolerated — viewpoint discrimination defense.
Nieves v. Bartlett
Constitutional Sources
07 — Court Process
How PC §409 Unlawful Assembly Cases Move Through Los Angeles Courts
How a PC §409 protest-arrest case moves through LA County courts.
- 1
Step 1 — Mass Arrest / Field Booking
LAPD/Sheriff conducts a mass arrest; individuals are field-booked and cited-released or transported to a central booking site. Preserve arrest-team identification data.
- 2
Step 2 — Filing Decision
City Attorney reviews for §409 and companion counts. Political-protest cases receive senior-attorney review.
- 3
Step 3 — Arraignment / Diversion Screening
Charges read; PC §1001.94 diversion or civil-compromise screening often applied to first-time protest arrests.
- 4
Step 4 — Video Review / Dispersal-Order Litigation
§1538.5 suppression and §1004 demurrer targeting audibility, direction, and lawfulness of the §726 dispersal order.
- 5
Step 5 — Trial or Negotiated Plea
Common outcomes: dismissal after dispersal-order defect, PC §1001.94 diversion with dismissal, infraction reduction, or plea to Municipal Code violation.
- 6
Step 6 — Post-Disposition
PC §1203.4 expungement of any conviction; § 1983 civil litigation coordinated where First Amendment retaliation is provable.
Los Angeles Courts That Handle PC §409 Unlawful Assembly Cases
LA-area courts most commonly handling PC §409 filings.
Reviewed by Your Attorney
Daniel S. Rubin — Los Angeles Unlawful Assembly Defense Attorney
Daniel S. Rubin has defended clients charged with unlawful assembly and related offenses in Los Angeles County courts — including Clara Shortridge Foltz, Van Nuys, Compton, and Pomona. He understands that these cases are won in the details: the suppression hearing that eliminates key evidence, the preliminary hearing cross-examination that exposes a weak witness, the penalty phase argument that keeps a client out of the worst outcome.
This page was written and reviewed by Daniel A. Rubin, Los Angeles criminal defense attorney, CA State Bar 302093, with 10+ years of experience defending clients charged under PC §409 in Los Angeles County. Last reviewed: July 2026.
CA Bar 302093 | Whittier Law School | Rising Star — Super Lawyers 2019–2023 | Unlawful Assembly Cases Throughout LA County
09 — FAQs
PC §409 Unlawful Assembly Questions — Los Angeles
What is PC §409?
California's remaining-after-dispersal statute. Punishes staying at a riot or unlawful assembly after a lawful dispersal warning. Straight misdemeanor with 6 months jail max.
Is peaceful protest an 'unlawful assembly'?
No. A peaceful First Amendment gathering is not an unlawful assembly under §407, and no §409 exposure can attach — even if police declare it 'unlawful.' The prosecution must prove the underlying assembly was unlawful in fact.
What makes a dispersal order lawful?
PC §726 requires the order to be given by a designated official, identify the assembly as unlawful, order dispersal, warn of arrest for non-compliance, be audible from defendant's position, and provide reasonable opportunity to comply.
What if I couldn't hear the dispersal order?
That is a complete defense. If the order was inaudible from your position — due to distance, ambient noise, sound-truck direction, or crowd density — the People cannot prove willfulness.
What if police blocked me from leaving?
That is a complete defense. 'Kettling' — where officers surround and hold a crowd — defeats the reasonable-opportunity-to-comply element.
Is PC §409 a crime of moral turpitude?
Generally no. §409 is typically deemed non-CIMT, though stacked charges (battery on officer, vandalism) can change the immigration analysis.
Can I sue the police?
Often yes. Where First Amendment retaliation or defective dispersal orders are provable, § 1983 civil-rights suits proceed in parallel with criminal defense.
What should I do if I'm arrested at a protest?
Say nothing beyond identifying yourself, do not consent to device searches, preserve any video you took (do not delete), get contact information from witnesses and observers, and call Rubin Law, P.C. before any interview.
Available 24/7 — Free Consultation
Charged With PC §409 Unlawful Assembly After a Protest in LA?
§409 is the most common LA protest arrest — but dispersal-order defects, kettling, and First Amendment defenses dismiss cases regularly. Rubin Law, P.C. defends protesters and coordinates parallel civil-rights litigation. Call now.