Peaceful protesting is not a crime. It is an impactful way, especially when done in mass numbers, to make your voice heard. Recent mass protests relating to the death of George Floyd led to a rash of arrests and citations. A common offense charged to protestors, mainly the peaceful ones, is the offense of Unlawful Assembly. It is a misdemeanor and can occur in different situations. The common thread in all those situations is three or more people assembling at one time.

One situation in which unlawful assembly can occur is when a group of three or more people have intent to commit any unlawful act. That act can be either by force or in such a manner as to disturb or threaten the public peace. Unlawful assembly can also occur if a group of three or more people assemble with an unlawful purpose. And, then those people act disorderly, disturb, or threaten public peace.

Unlawful Assembly is a misdemeanor offense. The maximum punishment for misdemeanors is ninety days in jail and a fine of one-thousand dollars. It is very rare, however, for people to actually serve jail time for an unlawful assembly charge, especially if they have a clean criminal record. Additionally, it is very uncommon for someone to have to pay a maximum fine for such a charge. Prosecutors may be willing to offer a stay of adjudication, which results in a dismissal of the charge upon completing probation, a continuance for dismissal, or outright dismissal of the charges. For those looking to protect their criminal records, all three outcomes are preferable to a simple conviction for the charge.

Presence at an Unlawful Assembly

There is also a more specific offense for peaceful protesting, which is called Presence at an Unlawful Assembly. If someone is at an unlawful assembly, without a lawful purpose, and refuses to leave when asked by the police, then they may be charged with Presence at an Unlawful Assembly. This is also a misdemeanor offense, which carries a maximum penalty of ninety days in jail and a $1,000 fine. But, it is also unlikely those outcomes occur similar to the Unlawful Assembly charge.

Those charged with unlawful assembly often ponder whether their First Amendment right to free speech protects them against such crimes. The main counterargument from the prosecution will be, if applicable, is if the peaceful assembly disturbs the rights of others to use the property where the protest is occurring. If there is a disturbance, or interference, in a person’s use of a public area or property, then they run using a First Amendment argument as a defense may not work.

Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Minnesota. Super Lawyers named him a Rising Star for the past five years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. He is an adjunct professor at both the University of Minnesota Law School and Hamline Mitchell School of Law. Criminal Defense Attorney Woodbury MN; Criminal Lawyer Minnesota; and Criminal Appeals Lawyer MN.

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