Virginia Law on Protesting and Unlawful Assembly

As mass-protests continue in cities throughout the country, it may be difficult to know what your rights, particularly as your right to freedom of speech intersects with public safety. Here is a refresher on some of the important Virginia laws on protests, assemblies, riots, and other similar concerns.

Virginia Laws on Protest, Riot, and Unlawful Assembly

Virginia has a series of laws that may impact any protest or assembly:

§ 18.2-404: Obstructing free passage of others.

Any person or persons who in any public place or on any private property open to the public unreasonably or unnecessarily obstructs the free passage of other persons to and from or within such place or property and who shall fail or refuse to cease such obstruction or move on when requested to do so by the owner or lessee or agent or employee of such owner or lessee or by a duly authorized law-enforcement officer shall be guilty of a Class 1 misdemeanor. Nothing in this section shall be construed to prohibit lawful picketing.

Va. Code § 18.2-404

§ 18.2-405: What constitutes a riot and how is it punished?

Any unlawful use, by three or more persons acting together, of force or violence which seriously jeopardizes the public safety, peace or order is a riot.

Every person convicted of participating in any riot shall be guilty of a Class 1 misdemeanor.

If such person carried, at the time of such riot, any firearm or other deadly or dangerous weapon, he shall be guilty of a Class 5 felony.

Va. code § 18.2-405

Va. Code § 18.2-406: What constitutes an unlawful assembly and how is it punished?

Whenever three or more persons assembled share the common intent to advance some lawful or unlawful purpose by the commission of an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order, and the assembly actually tends to inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety, peace or order, then such assembly is an unlawful assembly. Every person who participates in any unlawful assembly shall be guilty of a Class 1 misdemeanor. If any such person carried, at the time of his participation in an unlawful assembly, any firearm or other deadly or dangerous weapon, he shall be guilty of a Class 5 felony.

Va. Code § 18.2-406

Va. Code § 18.2-407: Remaining at place of riot or unlawful assembly after warning to disperse.

Every person, except the owner or lessee of the premises, his family and nonrioting guests, and public officers and persons assisting them, who remains at the place of any riot or unlawful assembly after having been lawfully warned to disperse, shall be guilty of a Class 3 misdemeanor.

Va. Code § 18.2-407

Va. Code § 18.2-408: Conspiracy and incitement to riot.

Any person who conspires with others to cause or produce a riot, or directs, incites, or solicits other persons who participate in a riot to acts of force or violence, shall be guilty of a Class 5 felony.

Va. Code § 18.2-408

Va. Code § 18.2-413: Commission of certain offenses in county, city, or town declared by Governor to be in state of riot or insurrection.

Any person, who after the publication of a proclamation by the Governor, or who after lawful notice to disperse and retire, resists or aids in resisting the execution of process in any county, city or town declared to be in a state of riot or insurrection, or who aids or attempts the rescue or escape of another from lawful custody or confinement, or who resists or aids in resisting a force ordered out by the Governor or any sheriff or other officer to quell or suppress an insurrection or riot, shall be guilty of a Class 5 felony.

Va. Code § 18.2-413

Va. Code § 18.2-414: Injury to property or persons by persons unlawfully or riotously assembled.

If any person or persons, unlawfully or riotously assembled, pull down, injure, or destroy, or begin to pull down, injure or destroy any dwelling house or other building, or assist therein, or perpetrate any premeditated injury on the person of another, he shall be guilty of a Class 6 felony.

Va. Code § 18.2-414

Va. Code § 18.2-414.1: Obstructing emergency medical services agency personnel in performance of mission and the punishment.

Any person who unreasonably or unnecessarily obstructs the delivery of emergency medical services by emergency medical services agency personnel, whether governmental, private, or volunteer, or who fails or refuses to cease such obstruction or move on when requested to do so by emergency medical services personnel going to or at the site at which emergency medical services are required is guilty of a Class 2 misdemeanor.

Va. Code § 18.2-414.1

Va. Code § 18.2-414.2: Crossing established police lines, perimeters or barricades.

It shall be unlawful for any person to cross or remain within police lines or barricades which have been established pursuant to § 15.2-1714 without proper authorization.

Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

Va. Code § 18.2-414.2

Va. Code § 18.2-415: Disorderly conduct in public places.

A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he […] In any street, highway, public building, or while in or on a public conveyance, or public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed….

A person violating any provision of this section shall be guilty of a Class 1 misdemeanor.

Va. Code § 18.2-415

You Should Also Know

You should also know that Virginia law provides a good deal of “immunity” to law enforcement officers acting in response to “unlawful assemblies” or “riots.”

Va. Code § 18.2-412: Immunity of officers and others in quelling a riot or unlawful assembly.

No liability, criminal or civil, shall be imposed upon any person authorized to disperse or assist in dispersing a riot or unlawful assembly for any action of such person which was taken after those rioting or unlawfully assembled had been commanded to disperse, and which action was reasonably necessary under all the circumstances to disperse such riot or unlawful assembly or to arrest those who failed or refused to disperse.

Va. Code § 18.2-412

As mentioned in this post, attending any protest or similar gathering creates a strange predicament, where you are expected or required to wear a mask for safety and health reasons, but prohibited from wearing a mask to conceal your identity.

What To Do If Confronted By Law Enforcement

If you are confronted by law enforcement, you should obey all lawful orders, such as orders to disperse. Declarations by state, county, and city officials can change your obligations, and you need to be aware of such declarations, such as curfews.

If you are detained or arrested, do not talk to the police. Do not argue with the police. If you are asked questions, request to speak with a lawyer. Do not sign any confessions or paperwork trying to explain what happened prior to your arrest.

If you are arrested, and released, contact a criminal lawyer immediately. Do not wait for any court dates. Even if you are charged with what you consider (or your friends tell you is) a “low level” misdemeanor, you should consult with an attorney. Virginia does not expunge any conviction. Even if you think you can afford to just pay off the fine, the charge will stay on your record, which may cause employment and clearance problems for you in the future.

If you are arrested, and denied bond, contact friends or family who can help you get in touch with a criminal defense lawyer immediately. If your bond was denied by a magistrate, a qualified local attorney can file a Bond Motion to attempt to get you released from jail.

It can be a difficult time to know what you are and are not permitted to do–and some actions that are not being enforced right now may still be enforced as criminal actions in the future–so consult with one of our qualified Virginia or Washington, D.C., criminal defense attorneys with any questions.