Please explain Virginia’s “unlawful assembly” law?

The Virginia statute on unlawful assembly is Va. Code §18.2-406:

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.

http://law.lis.virginia.gov/vacode/title18.2/chapter9/section18.2-406/

If you want to get a feel for the way in which Virginia regulates”unlawful assemblies” generally, go to that link and click backward and forward to adjoining sections of the Code.  One point that might jump out at you is that this chapter of the Code seems to use “unlawful” and “riotous” somewhat interchangeably.   Essentially the same definition is used for both terms.  In §18.2-405, for example, “riot” is defined as “Any unlawful use, by three or more persons acting together, of force or violence which seriously jeopardizes the public safety, peace or order…”  This is the same language as is used for “unlawful assembly.”  In §18.2-411, for example, the Code talks of “dispersal of riotous or unlawful assemblies,” without any attempt to draw any distinction between the two adjectives.  Another example is the immediately following section, §18.2-407:

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.

Note how the word “riot” is equated to “unlawful assembly.”

The juxtaposition of these terms leads to two inferences, which are both sides of the same coin:

1.  The General Assembly probably assumed that almost any disturbance by any crowd of any size was a paramount threat to public order.  These statutes were last amended in 1971, at the height of the anti-war fervor.  In the spring of 1970, protesting students had gathered on campuses across the Commonwealth, with demonstrations and rallies and occupying administration offices at the University of Virginia, and had not dispersed when told to disperse.  (The same thing happened at William & Mary, and perhaps other campuses as well.)  If you did not live in Virginia at the time, it is hard now to realize the extent to which The Establishment felt threatened by this loss of control, particularly at the hands of their sons and daughters — at the hands of the middle-class and rich white kids.  (The same was true nationally as well.)  In many places, government leaders felt that we as a society were nearing a precipice, about to fall into chaos and disorder.  These statutory changes, arguably making enforceable the power to order demonstrations to disperse, were enacted specifically to help maintain order.  So it seems likely to me that the General Assembly thought of “unlawful” and “riotous” as essentially synonymous.

2.  If “unlawful” and “riotous” are in fact to be seen as synonymous, it should tell us that an “unlawful assembly” must be something more than “traffic is being blocked,” or “we told you people to move and you haven’t moved fast enough for us.” It should tell us that the General Assembly was serious in saying that “unlawful” requires a real threat to public safety.

With those points in mind, an unlawful assembly requires:

1.  Three or more persons get together with a shared intention to commit an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order to help them accomplish some other objective, AND
2. What they were doing causes reasonable people to fear “serious and immediate” breaches of public safety, peace or order.

One distinction that should be drawn immediately — if you are a part of the unlawful assembly, meaning that you share their illegal intent, you can be charged with a jailable offense (a felony if you have a gun with you, open carry or not; a misdemeanor if you do not have a gun with you).  §18.2-406.  If you are simply there when some other people are constituting an unlawful assembly — if you are just a spectator — and you don’t go home when they tell you to go home, you can be charged with a Class 3 misdemeanor, which is subject only to a fine.  §18.2-407.

Another point that needs to be made is that the determination that there is an unlawful assembly is one that a judge will later have to make for him or herself.  Just because a police officer — even one with a megaphone — may read the announcement that an unlawful assembly has been declared does not mean that a judge has to go with that assessment.  Many judges will defer to the officers’ assessment on the ground that the officers were there and were no doubt seeing and hearing and sensing things that can’t be adequately seen or heard or sensed in a courtroom weeks or months later, but it’s still the judge’s call.

Finally, we return to the essential point of an “unlawful assembly” — that there must be a reasonable fear of a “serious and immediate breach of public safety, peace or order.”

“Breach of the peace” is a phrase that lawyers and judges understand to mean “someone is about to get physically assaulted.”  It doesn’t mean “someone is using curse words,” or “someone is having his feelings hurt.”  Yelling “fuck the police,” no matter how unfriendly or unkind that may be, is not a “breach of the peace.”  Nor should it be thought of as something likely to cause a breach of the peace, because police officers are supposed to be trained to let that stuff roll off their backs.

I have watched about 10 hours of video of the demonstration of July 8, 2017 — and spent about 25 hours doing it, because some of it has to be watched repeatedly to be understood.  I am sure that there is video out there that I have not seen — there were probably 250 people with cell phones out — and I am also sure that there are important details that have not been captured on any video.  And it is not my intention here to decide whether anyone charged with any crime on July 8 is guilty or not guilty.

The police on July 8 had escorted the Ku Klux Klan members to their cars in the 4th Street parking garage by about 4:30 PM.  At that time there were about 250 people milling about in 4th Street, or on the sidewalks of 4th Street.  There was a police line being maintained on the east side of the street, closest to the parking garage.  According to the videos that I have seen, the crowd was peaceful, and except for a few people who just stood in front of the police and glared at them, I saw little sign of confrontation.  At some point, as the Klan members prepared to leave, police officers began to move the crowd back across 4th Street by taking slow steps forward until they were standing on the west side of 4th Street with the roadway cleared behind them.  There was no discernible force or resistance, and it took about a minute for 4th Street to be was cleared.  Around the same time, a police officer read the “unlawful assembly” notice, though I didn’t see any indication that it was a factor in clearing 4th Street.  One video that shows this time period is at https://youtu.be/XomprbU2D4I   (I apologize in advance for the fact that the hyperlinks don’t seem to be working.)

There is no time stamp on this video, but my guess is that it starts at about 4:35 PM. It is taken by someone standing on Fourth Street, outside the Charlottesville Circuit Court Clerk’s office. At about 1:15 in, the police officers move from the east side of the street to the west side of the street, clearing the street. It looks like there may be 100-150 people on the west sidewalk and on the grass and in the parking lot. At about 2 minutes in, a police officer with a bullhorn says, “This gathering has just been declared an illegal assembly. If you do not disperse, you will be arrested.” At this point, the people are entirely out of the road. Everyone is just standing around. It’s pretty quiet.

So by about 4:45, give or take 5 minutes, the Klan had left the parking garage, escorted away by the police without incident.

The next time that I am aware of the police declaring the assembly to be unlawful was at about 5:05 PM, on East High Street, in the few minutes before the tear gas was deployed.

The leadup to that is visible on the same video; at about 18:20 in, it appears that someone has been arrested by State Police, apparently at the base of the ramp leading into Juvenile Court.  The crowd starts chanting “Let her go,” and, later, “Black Lives Matter.” At about 19 minutes in, things seem to be getting a bit louder and there is a feeling of greater tension, but the police who are cordoning off what I surmise is the area of the arrest are not being challenged or pushed. Everyone seems to be more interested in documenting with their cell phones than anything else.

At 21:00 in, the “unlawful assembly” announcement is repeated.  I think that this works out to be about 5:05 PM.  The riot squad continues to maintain its formation around the entrance to the Court building, and to the park itself.

At 22:20 in, a police car is trying to get through the crowd, hitting its siren. It seems to take about 40-50 seconds to accomplish that.

At 24:00 in, the riot squad starts to break out the gas masks, though it is hard to see anything that they NEED to be using tear gas against. They seem to be headed west.

At 25:00 in, the warning is given that chemical agents will be used if they don’t disperse. The crowd is standing there, chanting, “Whose street? Our street.” Every so often a chant begins, “Cops and Klan go hand in hand,” but it doesn’t get a lot of traction.

At 27:45 in, the first tear gas canister is shot. At 28:21 in, a second canister is fired. From the vantage point of this video, it is hard to see any reason for it — no escalation is apparent, either visually or audibly

However, the different videos show different things, and some aspects of what happened next are in dispute.

One video that shows much of  what happened on East High Street is on YouTube at https://www.youtube.com/watch?v=jTaIZviwXHs&feature=youtu.be&t=1h40m50s  It is programmed to start 1:40:50, which translates to about 5:00 PM.  The person shooting this video is on the north side of High Street, and has a better view of what happens next.

The announcement of “unlawful assembly” comes at about 1:42:30 in (roughly comparable to 21:00 in on the first video referenced), and again at about 1:43:10 in and 1:44:00 in.  At about 1:44:04 in you can see police officers looking down at the ground, and at 1:44:07 in they begin showing signs of reacting to something that one officer refers to at 1:44:08 in as “mace.”  (This is not shown on the first video referenced, as far as I can tell.)

The question of who used pepper spray or “mace” (the terms are used interchangeably, though they are not synonymous) is confusing, but it is important because police sources are saying that a protester sprayed “mace” at the feet of a police officer, and that that was the justification for dispersing the crowd.  One of those being arrested at the foot of the ramp by Juvenile Court claims that he was having pepper spray sprayed in his face at about that time.  I haven’t seen video that supports either claim.  I have seen video that shows both police officers and protesters reacting to some chemical having been used, but the videos that I have seen don’t show the chemical actually being used.  If a protester was spraying pepper spray on or near police, that may be justification for an amplified police response.

The test for declaring an unlawful assembly is whether the demonstrators showed an intent to use illegal force or violence in what they were doing, and whether the police reasonably thought that what they were doing was going to lead to a fight.  If one of the demonstrators in fact used pepper spray on or near the police, that could provide the basis for a declaration of an unlawful assembly.

Although I have seen enough video of the 4th Street confrontation to have an opinion, I don’t have that level of comfort about the East High Street situation 30 minutes later.  I want to see more evidence.