Inciting a Riot

Inciting a riot, especially during a peaceful protest can cause serious harm to any political statement the protest is making. Instigating a riot can bring the ire of law enforcement on every one that is present, creating a dangerous situation that often leads to massive arrests and innocent people getting hurt.

Escalating the situation by creating violent turmoil will bring you to the attention of law enforcement. If you are being charged with inciting a riot, do not take it lightly. Get a criminal defense attorney to help protect your rights and your freedom.

For a critical understanding of what it means to incite a riot, let’s take a look at how California defines it.

Free Consultation (619) 233-4433

Definition of inciting a riot

California outlines what it means to incite a riot under Penal Code 404.6. It states that you commit this crime when you:

Intend to cause a riot by urging other people to;

  • Engage in a riot,
  • Burn or destroy property, or
  • Use force or commit acts of violence.
  • And there was a clear, present, or immediate danger of a riot taking place.

You can be guilty of inciting a riot without a riot even happening. If you attempt to urge other people to riot and there was a clear or immediate possibility of one breaking out, the attempt is enough to face a PC 404.6 offense.

Closely Related Offenses

Sometimes, there are multiple offenses a defendant can face in addition to inciting a riot. This is often the case in situations where assault or property damage played a role. Here are just some of the commonly associated offenses to PC 404.6.

Penal Code 240 – Assault;

This law states it is a crime to unlawfully attempt to commit a violent injury on another individual and you had the present ability to use force or violence on this person.

Penal Code 242 – Battery;

You commit this crime when you willfully and unlawfully use force and/or inflict violence on another individual.

Penal Code 404 and 405 – Rioting;

These statutes prohibit participation in a riot, which takes place when two or more people acting together cause a disturbance, commit acts of force or violence, or threaten to commit acts of force or violence.

Penal Code 405(a) – Removing a prisoner from police custody by means of a riot;

You commit this crime when you make an attempt to or are successful in taking a prisoner out of police custody through rioting.

Penal Code 407 and 408 – Unlawful Assembly;

Under PC 407, it is a crime for two or more people to unlawfully assemble to commit criminal acts. PC 408 makes unlawful assembly a misdemeanor.

Penal Code 415 – Disturbing the Peace;

This statute prohibits people from engaging in fights or using offensive language to provoke a fight, or by making an unreasonable amount of noise.

Penal Code 463 – Looting;

You violate this statute when you commit grand or petty theft, and/or burglary while the county or state is under a declared state of emergency.

The Prosecution

There are certain factors the prosecution must prove beyond a reasonable doubt to get a conviction for PC 404.6. These facts of the case are also referred to as the:

Elements of the Crime

The defendant intended to cause a riot,

By urging other people to:

  • Start a riot,
  • Start destroying property or setting things on fire, and/or
  • Commit acts of force or violence.


  • There was a clear, present, and immediate danger of a riot taking place.

Keep in mind, even if a riot did not take place, you can still be charged for attempting to incite a riot. If a riot did take place and members of law enforcement were injured in the melee, the prosecution will work toward getting a solid conviction. If you can relate to this type of situation, getting the help of an expert criminal defense lawyer should be a priority. You do not have to fight these accusations alone.

Who Can Be Charged

Several situations can lead to someone being charged with PC 404.6. Regardless of whether you set out to flex your freedom of speech rights, if you assisted in escalating a situation so things would turn violent, you will be held accountable. Here are just some of the examples that illustrate who can be charged with inciting a riot.

Example 1:

A landlord who owns an apartment complex is demanding rent from his tenants during a pandemic. The tenants decide to protest, refusing to deliver rent and protesting outside his office. Law enforcement arrives and attempts to disperse the crowd. Arnold refuses to leave and instead urges the protesters to throw rocks at the police officers and the windows of the office.

No one acted forcefully or violently and eventually listened to law enforcement. Arnold, however, is still guilty of inciting a riot under PC 404.6. He urged protesters to throw rocks at police officers and urged them to cause property damage by hurling rocks through the office windows. He could also face charges for PC 416 failure to disperse if he refused to leave when he was ordered to do so by police.

Example 2:

Medical workers were protesting wage cuts, working conditions, and the lack of PPE (personal protective equipment). Freddy began to encourage the protesters to throw rocks at the hospital administrators’ vehicles. When law enforcement intervened, they ordered the workers to disperse, but Freddy refused. Instead, he urged the crowd to hurl objects at police officers while he pulled off his work-crocks and threw them at law enforcement.

Freddy could be charged with PC 404.6, inciting a riot. He attempted to provoke the protesters into damaging property as well as assault law enforcement.

Example 3:

There was a peaceful protest against police brutality near the city hall. Kate was a counter-protester and wanted things to escalate so she could fight some of the protesters. As soon as opposing sides began yelling at each other, she threw a sock of full rocks at protesters while yelling “we should get them! It’s time to fight!”

At this point, not only would Kate be guilty of PC 404.6 inciting a riot, but she could also face an assault charge under PC 240 for throwing a sock of full rocks. Even if a riot did not end up happening she would still be guilty of attempting to provoke a riot. The same goes for the assault, even if the hard projectile did not hit anyone, the attempt to injure another individual is enough to face this offense.

Example 4:

At an anti-war protest, Colby wanted to incite a riot so he could loot some of the small businesses in the area. Once law enforcement showed up and the crowd started yelling at them, Colby began using offensive language and urged the crowd to throw water bottles, soda cans, and rocks at them. Several people in the crowd listened and began throwing hard objects at them. As things began to escalate, he ran to the nearest electronics store, broke the largest window, and ran in to steal merchandise.

Colby would be charged with PC 404.6, inciting a riot. He would also face charges for PC 463, looting by burglary.

Legal Defense

The help of a criminal defense lawyer could impact the results of your case. With the help of an effective defense attorney, you could face lighter penalties, like probation, or possibly have the charges dropped. It all depends on the details of your case and your criminal background history.

To get a better idea of how someone can challenge allegations for PC 404.6, take a look at the following defenses. These are only some of the common defenses that have been used to fight an inciting a riot offense.

Were you expressing your first amendment rights?

The First Amendment of the U.S. Constitution states everyone has the right to exercise free speech, which includes freedom to peacefully assemble and the freedom of speech. Attending a protest and urging other people to yell, chant, sing, or be more verbal is not the same as instigating a riot. The freedom of expression is within your rights and cannot be criminalized.

Laurie, for instance, attended a protest for labor rights and brought her guitar with her. She began playing the guitar and singing a worker solidarity song. The crowd got excited and began singing along. The noise level increased dramatically and police officers decided to throw tear gas to disperse the crowd. Laurie was at the center of the crowd of singing protesters and police officers charged her with PC 404.6. They claimed she had gotten the crowd riled up which led to law enforcement supposedly fearing for their safety against what they deemed as a dangerous mob.

Laurie would not be guilty of inciting a riot, because the song was not violent nor did it promote violence. Her defense attorney was able to prove Laurie was merely exhibiting her freedom of speech. Multiple videos documented the start of her playing the guitar and getting the crowd to sing along before the first tear gas canister was thrown.

Was there immediate danger?

If there was not a clear, present, or immediate danger of a riot happening then the charges do not meet all the elements required to be found guilty of PC 404.6.

Paris, for example, went to a peaceful protest against Bank bailouts. Thousands of protesters arrived in front of Bank of America, which got local law enforcement’s attention. Afraid things would become violent, they began ordering protesters to move farther and farther away from the bank. After being herded into the street, Paris decided to sit down. Other protesters peacefully followed suit. Soon, everyone was quietly sitting down while holding up their posters and signs. Law enforcement got frustrated and began pepper-spraying and tear-gassing protesters to get them to move. Paris was arrested and charged with inciting a riot.

Her defense lawyer was able to provide eyewitness accounts of the protest and reveal that the police officers were the instigators and simply chose to use force against people who were peacefully engaging in a sit-down protest. To be guilty of inciting a riot, there must have been a clear, present, or immediate danger of rioting. Eyewitness accounts and video proof was enough to prove her innocence and the charges were dropped.

False Accusation: Were your actions exaggerated?

It is not unheard of for riot police to harbor disdain and biases against protesters. This dislike can lead to members of law enforcement making exaggerated or completely false allegations against as many protestors as possible.

For instance, as police officers were building a barricade to keep back advancing protesters, Adam moved to the front of the line and yelled, “attack, attack. Who has a molotov cocktail!?” Police officers instantly reacted, tackling Adam and arresting him for PC 404.6. Jason, who was recording the whole thing happened to be standing six feet away from Adam. A police officer yelled at him to stop recording and to disperse. Within seconds he arrested Jason for attempting to incite a riot and failing to disperse.

Unfortunately, law enforcement sometimes exhibits a disregard for freedom of the press and is often inclined to obstruct any reporters, photographers, legal observers, and sometimes witnesses. Luckily, Jason was able to turn over video proof to his defense lawyer who managed to get all fabricated charges dropped.

Mistaken Identity: Did you try to instigate violence?

If you were not the person urging the crowd to start rioting, then you should not be guilty of PC 404.6. Unfortunately, there are cases where someone can be charged simply because they were present, but they were not the ones attempting to incite violence.

For example, Lee was attending a peaceful assembly for supporting Indigenous People’s Rights. State forces were called and created a blockade on both ends of the crowd, seemingly boxing them in. People were scared of being shot with bean bags, rubber bullets, pepper balls, and tear gas, so panic slowly erupted. Lee moved to the front of the line while recording on his phone and began to yell, “leave us alone. Stop herding us.” As more people began to chant the same words, a member of the police shot a tear gas canister toward them. Someone within Lee’s vicinity picked it up and tossed it back toward law enforcement. In the chaos that ensued, several officers tackled and arrested Lee as the culprit, charging him with inciting a riot.

In this case, state forces were the ones that escalated the violence by shooting the tear gas into the crowd. Lee’s defense lawyer was able to obtain the video footage which provided proof that he was not the one to toss the canister back and all charges against him were dropped.

On a side note, the person that did toss the tear gas canister back toward the police should not be guilty of inciting a riot either. As it was clearly shown that a peaceful, lawful assembly turned violent when state forces decided to shoot tear gas at the crowd.

Whether you were falsely accused or mistakenly identified, the police officer who arrested you may often use the excuse that there were simply so many people present. The number of people who were being forceful or violent had completely drowned out the people who were not. Consequently, this often happens and could result in you facing a PC 404.6 offense even when you were not doing anything that would rise to the crime of inciting a riot.

Penalties for inciting a riot

If convicted of PC 404.6, inciting a riot, you face a:


A potential one-year county jail sentence, and/or

Fines as high as one thousand dollars.

The judge has the discretion to grant probation in lieu of jail time depending on the specifics of your case and your criminal background history.

However, if they do grant probation it is under several stipulations, which are:

The defendant must stay out of legal trouble, and

Keep their distance from the place the riot was instigated.

If the terms of the probation are violated, the defendant could end up facing the maximum penalties under PC 404.6.

Enhanced Penalties

The punishments can get worse if you are convicted of inciting a riot while you are incarcerated. Especially if other individuals suffered any serious or great bodily injury as a result of the riot.

If you are convicted of inciting a riot while in county jail or state prison, you could face a wobbler. A wobbler means the prosecution can choose to pursue misdemeanor or felony charges.

If you are charged with felony inciting a riot while in county jail or prison, you could face as much as three years in state prison. This sentence will be served consecutively, which means it will be added to your current sentence.

Hugo, for instance, was sentenced to one year in the county jail for inciting a riot. After three months of incarceration, he urged fellow prisoners to riot against their jailers. One prisoner and two guards were seriously hurt. Hugo would be guilty of inciting a riot while in jail and because people were seriously hurt, he could spend an additional three years in a California state prison instead of just the nine remaining months from his original sentence.

Penalties for Closely Related Offenses

The following offenses can be charged in addition to PC 404.6 inciting a riot. If you or someone you care about faces multiple offenses, do not hesitate to contact a legal defense attorney as soon as you can. Acting swiftly can mean the difference between meeting compounded consequences or achieving the most desirable results.

Penal Code 240 – Assault;


Summary (informal) probation,

As long as six months in county jail, and/or

Fines of up to one thousand dollars.

Penal Code 242 – Battery;


Misdemeanor (informal) probation,

A possible county jail sentence of up to six months, and/or

Fines as high as two thousand dollars.

It is important to note, regardless of what charges the defendant faces if anyone was hurt as a result of your actions, you could be facing multiple suits. The alleged victim(s) are within their rights to bring legal action against you. This could mean facing additional probationary terms or increased fines and court fees. You could also be held responsible for any medical or counseling bills as well as any lost wages the alleged victim sustained as a result of your actions.

Penal Code 404 and 405 – Participating in a Riot;


Informal (summary) probation,

Up to one year in county jail, and/or

Fines of up to one thousand dollars.

Penal Code 405(a) – Removing a prisoner from police custody by means of a riot;


Felony (formal) probation,

As long as four years in county jail, and/or

Fines as high as ten thousand dollars.

Penal Code 407 and 408 – Unlawful Assembly;


Summary (misdemeanor) probation, and/or

A potential six-month county jail sentence.

Penal Code 415 – Disturbing the Peace;


A fine of up to four hundred dollars.


A potential county jail sentence of ninety days, and/or

Fines of up to four hundred dollars.

Penal Code 463 – Looting;


Possible minimum county jail sentence of one hundred eighty days,

Summary (informal) probation,

As long as one year in county jail,

Fines of up to one thousand dollars and/or

Between one hundred sixty and two hundred forty hours of community service.


A potential minimum of one hundred eighty days in county jail,

Formal (felony) probation,

16 months, 2 or 3 years in county jail,

Fines as high as ten thousand dollars, and/or

Up to two hundred forty hours of community service.

Let Us Help

Are you located in the greater San Diego area, Los Angeles, or Orange County and need legal advice or representation? Consider the Law Offices of Anna R. Yum. Attorney Yum is a highly sought after criminal defense attorney with a solid record of aggressively fighting for her clients’ rights.

If you or someone you care about is facing charges for PC 404.6, inciting a riot or any of the related offenses, call our offices at 619-233-4433 or you can use our online contact form. We welcome all inquiries and look forward to hearing from you.