The legal term “lynching,” in most states, refers to the killing of an individual by an angry mob (group of angry individuals). Lynching historically has been committed against individuals who have allegedly committed crimes. In many criminal cases, the individual was acquitted of one or more offenses. The mob would, in effect, provide its own form of “justice” by killing the individual, often by hanging. This crime of lynching is illegal.

The history of lynching in California — killing by a mob — runs from the 1800s to the end of the 1930s. Modern California law against lynching was created in the 1930s. In California, from then up until 2015, the crime of lynching was defined as the taking, by means of a riot, of any person from the lawful custody of a peace officer. It was not the act of a mob killing someone. After a series of African-Americans were lynched in the 1920s, California passed its 1930s anti-lynching law to punish the crime of taking someone from custody by means of riot. The act of taking someone from lawful custody by riot was often a tactic used by mobs who eventually murdered individuals in a lynching.

What Crime Does Lynching Refer to in California?

In 2015, the California lynching law was changed. The law was amended in part to prevent confusion between the California definition of the term, and other states’ definition. Under the amended law, the crime of taking a person from lawful custody by means of riot is no longer labeled as “lynching.” The amendment eliminated the confusion by striking the word “lynching” altogether from the criminal law. 

Under current California law, the crime of rioting is illegal. It is punishable as a misdemeanor. A person who participates in the taking of someone from lawful custody of a peace officer by riot, is guilty of a felony. This specific crime — contained in Section 405(a) of the California Penal Code —  is the felony that was previously punished, from the 1930s until 2015, as “lynching.”

What is a Riot?

Under California law, a riot is a use of force of violence (or a threat to use force or violence), that:

  • Disturbs the peace;
  • Is accompanied by the immediate power to apply force or the threatened force; and
  • Is committed by two more people, without legal authority.

As noted above,a person who takes a person from lawful custody by means of riot, is guilty of a felony. This act was previously prohibited by California, under the 1930s through 2015 lynching definition under California law. The crime of rioting requires two people for its commission. Therefore, a person cannot be guilty of rioting by themselves. In addition, mere presence at riot does not constitute rioting. To convict individuals of rioting, the individuals must have participated in the riot.

The crime of taking someone from lawful custody by means of a riot, requires the participation of only one individual. In other words, any one participant in a riot who takes someone from lawful custody, can be charged with a felony. An individual cannot riot by oneself, but can take someone from lawful custody through riot by themselves.

What Does A Prosecutor Have to Prove to Convict Me of Lynching?

To prove that an individual committed the offense of taking someone from lawful custody by means of riot (formerly “lynching”), the prosecutor must demonstrate the following beyond a reasonable doubt:

  • The defendant willfully (of their free will) and knowingly (with knowledge) participated in the act of rioting.
  • The defendant removed another person from the lawful custody of a peace officer or police officer.
  • The defendant knew, or reasonably should have known, that the person in custody was being held in custody by a peace or police officer lawfully performing their duties.

Evidence of the former crime of “lynching” can consist of witness testimony. If a witness observed an individual engaged in rioting, or witnessed the defendant remove another person from the officer, that witness’ testimony can serve as evidence to prove the first two of the three elements of the former crime of “lynching.” To prove the third element of a 405a offense (the “knowledge” element), the prosecutor must demonstrate that the defendant knew (or should have known) that the taking was from a police officer, in lawful custody.  

A defendant may defend against the crime of lynching by showing that the arrest or the detention of the person was illegal. If the defendant can make this demonstration, the defendant has not committed the act. Commission of the act requires that the defendant knew, or should have known, that a particular act of detention or holding someone in custody, was lawful. 

A defendant may also assert the defense that the person was not in the custody of a police or peace officer, but rather, was in the custody of someone impersonating one of those individuals, or acting as one of those individuals.

What Sentence Can I Receive for Committing This Crime?

The former crime of “lynching” in California is punishable as a felony. The crime carries a punishment of imprisonment in county jail. The term of imprisonment can be for up to four years. Alternatively, the crime may be punished as a felony probation. 

When a judge sentences the defendant to felony probation, the defendant, to avoid jail time, must regularly report to a probation officer, pay fines and restitution, and not engage in the same offense while on probation.  

Can I Be Charged with any Other Crime In Addition to Lynching?

The crime of lynching in California is closely related to other offenses. An individual who is charged with lynching may be charged with other crimes, including:

  • Resisting an executive officer or resisting arrest;
  • Committing a battery on a police officer;
  • Rioting;
  • Incitement to riot. In California,incitement to riot occurs when someone intends to cause a riot, by urging others to engage in rioting;
  • Unlawful assembly. In California, unlawful assembly is assembling together to commit an unlawful act, or committing an otherwise lawful act in a violent manner; or 
  • Commission of a hate crime. In California, a hate crime is a crime committed because of the victim’s actual or perceived (by the defendant) disability, race, religion, nationality, sexual orientation, or gender. A hate crime is also committed because of the victim’s actual or perceived association with either a person or a group that has one or more of these characteristics.

What If the “Riot” Did Not Involve Violence, But Was Instead a Group of People Peacefully Protesting?

In California, peaceful protesting is not a crime. An act that does not disturb the peace, that is not accompanied by the power to apply force or a threatened force, is not a riot. If a disturbance of the peace, accompanied by the immediate power to apply force or a threatened force, occurs, the individuals responsible for the disturbance can be charged with rioting. 

Individuals who are not engaged in acts of rioting, whose conduct is not otherwise unlawful, cannot be charged with rioting under these circumstances. Such charges would likely violate the right to freedom of speech under the First Amendment to the Constitution of the United States.

Should I Talk to a Lawyer about The Defenses I Can Use to Fight This Charge?

If you have been charged with lynching, rioting, or a related offense, you should contact a  California criminal lawyer. An experienced criminal lawyer near you can review the facts of your case, explain your rights and options, and represent you in court.