Riots: Legal Aspects

Several statutory crimes exist that are offshoots of riot, including inciting riot, conspiracy to riot, failing to disperse upon command, and failing to render assistance upon lawful order. Under the British Riot Act, one who incited others to riot was guilty of simple riot, a felony with the same penalty as that attached to riot. Some jurisdictions make inciting to riot a felony, while treating simple riot as a misdemeanor.

The crime of inciting to riot, both at common law and by statute, deals with a critical stage of a riot. It is well known that the conditions for a riot may exist but need a spark to set them off. The inciting-to-riot statutes attempt to prevent the spark from being struck by focusing on the instigator of the disorder rather than on the potential participants. The statutes require a specific intent to cause a riot; an act or conduct that urges a riot; and a time, a place, and circumstances that constitute a clear, present, and immediate danger. A riot need not materialize for the violation to exist, nor need the defendant participate in the riot if it ensues.

A major problem with both inciting-to-riot statutes and riot statutes involves defining the crime so as to avoid offending the free-speech guarantees of the Constitution. The statute should be broad enough to encompass inflammatory conduct and specific enough to give warning to an offender of the nature of the violation, but it should also be narrow enough to survive constitutional attack.

Riot statutes have generally been upheld against constitutional attacks. It would seem that those statutes which adhere closely to the traditional common law definitions of riot are less susceptible to such attack. Moreover, most arrests for riot have been made during large-scale mass disorders in which little question arises about suppression of First Amendment rights.

Several jurisdictions, such as that of New York, have a separate offense of conspiracy to riot. For a conspiracy, only two or more persons are necessary, and the defendant need not cause or participate in the riots. A New York case upheld a conviction for conspiracy to incite riot (People v. Epton, 19 N.Y. 2d 496, 227 N.E. 2d 829 (1967)). Other frequently invoked statutory and common law crimes in riot situations are breach of the peace and disorderly conduct, but these have an application much broader than riot situations.