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Loudoun County Attorneys > Blog > Criminal Defense > Difference Between a Riot Offense and Unlawful Protest Offense

Difference Between a Riot Offense and Unlawful Protest Offense


The son of Virginia Senator Tim Kaine was recently arrested during an anti-Trump rally in Minnesota, as reported by NBC News. He, along with five others, were allegedly dressed in dark clothing and entered the Capitol building to set off fireworks and smoke bombs, according to the official St. Paul police report. He was sprayed with a chemical irritant and forced to the ground during the arrest and an officer struck him with a knee to enforce submission. While no charges have been filed presently, the investigation is ongoing. The likelihood of being arrested during a protest or riot has been increasing all across the country due to the current state of civil unrest. Each state, including Virginia, has its own sets of laws regulating peaceful protests as well as criteria of what constitutes a riot or unlawful act.

Definition of a Riot in Virginia

Virginia statute § 18.2-405 states that an illegal event must have the following elements present in order to be construed as a riot:

  • Three or more people present and acting together; and
  • The use of force or violence that is seriously jeopardizing public safety, peace, or order.

A violation of this statute is a Class 1 misdemeanor, punishable by up to 12 months in jail and a fine of $2,500. However, if the defendant was carrying a deadly or dangerous weapon at the time of the riot, the charge is escalated to a Class 5 felony, which is punishable by at least one year in prison and up to 10, or at the discretion of the jury or court, a sentence of up to 12 months confinement and a maximum fine of $2,500.

Unlawful Assembly

Even at a peaceful protest, law enforcement may make arrests under the unlawful assembly statute in order to break up the protesters’ efforts. Unlawful assembly, as per Virginia § 18.2-406, is a group of three or more people who share a common interest of advancing a lawful or unlawful purpose who:

  • Intend to use unlawful force or violence;
  • That unlawful force or violence is likely to jeopardize public safety, peace, or order; and
  • The assembly of people actually scares or intimidates a reasonably courageous person into believing that there will be a breach of public safety, peace, or order.

No actual illegal force or violence need have been committed in order for a person to be charged with unlawful assembly. Proving in a court of law that the charges of unlawful assembly were justified may be more complicated, however, than proving that charges during a riot were justified. For one, there must be proof that, within the crowd, at least two people had the intention of using force or violence. Violations of this statute constitute a Class 1 misdemeanor or a Class 5 felony if armed with a deadly or dangerous weapon. Remaining at place during a riot or unlawful assembly after a dispersing warning has been given is a Class 3 misdemeanor.

Call a Loudoun County, Leesburg, Winchester, Fairfax, and Prince William Attorney Today

If you are facing criminal charges for participating in a protest or riot, call the Leesburg, Virginia Simms Showers, LLP attorneys today at 703-997-782. We are prepared to assist you immediately.



Disclaimer: This legal alert is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Caleb Kershner or Ben Mann at cak@simmsshowerslaw.com, wbm@simmsshowerslaw.com, or (703) 771-4671 for greater details concerning how this information may affect you.

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