Riots: Legal Aspects

The first statutory riot act was the famous British Riot Act (An Act for preventing Tumults and Riotous Assemblies and for the more speedy and effectual punishing the Rioters, 1 Geo. 1, Stat. 2, c. 5 (1714) (Great Britain) (repealed 1973)), according to which a justice of the peace or other officer, when confronted with an "unlawful, riotous, or tumultuous assembly," was to approach as close as safety permitted and read with a loud voice the prescribed language: "Our Sovereign lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves and peaceably to depart to their habitations or to their lawful business, upon the pains contained in the Act made in the first year of King George, for the prevention of tumults and riotous assemblies. God save the King" (143). The statute further provided that if twelve or more of the assembled persons failed to disperse within an hour, they were guilty of a felony.

Several American jurisdictions still have statutes requiring a command to disperse before local officials may move in to quell a riot. However, even under the British Riot Act, an unlawful assembly could be dispersed and arrests made for breach of the peace without the requirements for the act being fulfilled, since riot is a common law offense and so exists independently of the statute (Commonwealth v. Frishman, 235 Mass. 449, 126 N.E. 838 (1920)).

Three general approaches are followed in defining riot. The first is not to define it statutorily but simply to incorporate terms such as riot, riotous, or persons unlawfully, riotously, or tumultuously assembled into the statute. The second approach essentially codifies the common law definitions of riot or violent and tumultuous activity. A third categorization defines riot broadly as any use of, or threat to use, force or violence by a specified number of people. During the riots of the 1960s several states updated their own riot statutes, reflecting changes in social behavior and constitutional law. For example, one modern statutory definition of riot is "any unlawful use, by three or more persons acting together, of force or violence which seriously jeopardizes the public safety, peace or order" (Va. Code Ann. § 18. 2-405 (1999)).

Riot is usually classified as a misdemeanor, although several jurisdictions provide for "aggravated riot," which is a felony. Other states provide for increased punishment if the accused committed certain acts during the rioting, such as carrying a weapon, encouraging or soliciting others to commit violence, or wearing a mask or disguise. Most statutory schemes are more stringent when the offender also commits acts destructive of person or property.

Several jurisdictions distinguish between classes of riots. Under the New York statute, a riot in the second degree occurs when five or more persons have intentionally or recklessly engaged in "tumultuous and violent conduct" that results, or tends to result, in public alarm. If over eleven are involved and if physical injury or substantial property damage results to one not participating, then the offense is riot in the first degree (N.Y. Penal Law (McKinney) §§ 240.05, 240.06 (1999)).

Second-degree riot is a misdemeanor and focuses on riotous conduct that is terminated before actual injury results. First-degree riot conforms more closely to what is popularly understood as an urban riot, and is committed when the proscribed conduct results in personal injury or property damage. The phrase "tumultuous and violent conduct" includes "frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts" (Hechtman, p. 251).

The number of persons necessary to constitute a riot varies among the states, some statutes requiring only two. Whereas the common law spoke in terms of three or more persons, modern statutes frequently require a larger minimum number. A few statutes specify "any number of persons" unlawfully or riotously assembled.