Unit 27: Unlawful Assembly

Overview:

Unlawful assembly is an inchoate offense that criminalizes the act of gathering with others for the purpose of committing an unlawful act, often before any overt steps toward that act occur. Traditionally, it served as an intermediate offense between conspiracy—an agreement between two or more persons to commit a crime—and riot—the actual execution of violent acts by a group. Unlike conspiracy, which can occur in private and does not require physical presence, unlawful assembly historically requires a public or physical gathering, making it more immediately visible to law enforcement. Both offenses share a preventative rationale, allowing intervention before harm occurs.

Assignment:

  • Inazu, “Unlawful Assembly as Social Control”

  • Whitney v. California

  • State v. Mast

Key words: 

  • Unlawful Assembly

  • Riot

Unlawful Assembly

Historically, unlawful assembly was narrowly defined, often requiring three key elements: (1) an objective perception of harm that disturbed public peace, (2) a likelihood of severe harm, and (3) a contemplated use of force or violence. These safeguards distinguished it from mere association and aligned it more closely with First Amendment protections for assembly, whereas modern statutes often omit these elements, expanding liability and blurring the doctrinal boundaries between lawful protest and punishable conduct. The challenge is to provide appropriate discretion to law enforcement without allowing intervention before harmful acts occur, often based on subjective assessments of intent rather than objective indications of imminent danger.

Questions for Review:

Q1. How should law enforcement balance the tradeoff between public safety and peaceable assembly?

Q2. Should government officials be able to consider past illegal conduct by a group in intervening under the auspices of unlawful assembly? If so, does it depend on where the conduct occurred or how closely connected the members who engaged in past illegal conduct are to the members facing ongoing or future restrictions?