The Right To Assemble vs. Unlawful Assembly

When presumptive Republican nominee Donald Trump brought his message of border security to San Diego on Friday, a crowd of roughly a thousand turned up for a peaceful demonstration that took a violent turn as police, protesters, and Trump supporters clashed. As tensions continued to escalate, officers in riot gear remained unable to gain control of the crowd as violent fights reportedly broke out between heckling protesters and jeering Trump supporters, causing the San Diego Police Department to declare an unlawful assembly in an effort to quickly put an end to the protest. But what exactly constitutes an unlawful assembly and how are police able to use the concept to effectively curb a fundamental right?

Violence at Trump rallies isn't new. In fact, campaign events for presumptive GOP candidate have been a source of tense and violent conflict for months now, so it isn't surprising things got out of hand in San Diego.

Demonstrations outside the San Diego Convention Center began peacefully early Friday morning, long before Trump's private jet would touch down at Lindbergh Field shortly ahead of his 2:30 p.m. speech. But tempers flared and violent clashes broke out when protesters, police, and supporters of the GOP candidate all came face to face after Trump's rally ended. At 4:40 p.m., citing crowd behavior, authorities declared an unlawful assembly, leaving participants weighing the question of their right to assemble versus the threat of unlawful assembly.

Freedom of assembly is guaranteed to citizens in the First Amendment of the United States Constitution, which explicitly states, "Congress shall make no law ... prohibiting ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." However, the law is not without constraints, and the word "peaceably" plays a key role in the legal concept of the right to assemble. But even lawful assemblies (or a peaceful protest in this case) can easily morph into an unlawful assembly as tensions and tempers rise.

An unlawful assembly is defined in section 407 of the California Penal Code as whenever "two or more persons assemble together to do an unlawful act, or [to] do a lawful act in a violent, boisterous, or tumultuous manner." Under the law, participation in or remaining in the area of a gathering deemed an unlawful assembly after having been warned to disperse is a misdemeanor. The law is, for all intents and purposes, meant to assist authorities in keeping order and ensuring public safety.

Theoretically, however, there is a potential for abuse given the broad language of the law, which is why the California Supreme Court issued a more narrow interpretation of section 407 of the state's penal code. A court ruling in 1973 stated that "although the public may fear a large, noisy assembly, particularly an assembly that espouses an unpopular idea, such an apprehension does not warrant restraints on the right to assemble unless the apprehension is justifiable and reasonable and the assembly poses a threat of violence."

This means that when protesters began climbing and standing on barricades around the designated "free speech zones" outside the San Diego Convention Center, which resulted in police using force to push them back, the assembly was still lawful. When people in the crowd began throwing water bottles and other items at officers and when verbal taunting between protesters and supporters began leading to violent skirmishes as riot police moved into the crowd in an attempt to re-establish a sense of order, well, oops, things were no longer lawful.

Police said 35 people had been arrested and no injuries or property damage was reported.

Prior to Friday's Trump rally, San Diego police Chief Shelley Zimmerman had warned of "swift and decisive action for anyone who causes an unsafe environment by engaging in illegal activity." Given the precedent for violence at Trump events, it's no wonder local authorities in San Diego were on high alert, responding to violent tussles with a declaration of unlawful assembly. "The last thing we want is a mob mentality," Zimmerman said at a press briefing shortly after the crowd had been fully dispersed.

It's important to be vigilant about protecting the right to protest and peaceably assemble and to monitor how and why protests are declared unlawful assemblies by authorities. However, despite protesters' best efforts to keep their demonstration peaceful, things did turn violent on Friday, and that violence can't be left unchecked. What should be questioned isn't whether police were right to declare Friday's protest in San Diego an unlawful assembly, but why Trump rallies consistently become the source of violent clashes. There's a common denominator here that needs heavy scrutiny.