What Exactly is an "Unlawful Assembly?"

Jun 25, 2020

Protesters shield themselves from rain as they surround the statue of Confederate General Robert E. Lee on Monument Avenue, Monday June 22, 2020, in Richmond, Va.
Credit AP Photo / Steve Helber

It’s been almost a month since protests began on Monument Avenue in Richmond. In the time since, police have declared these gatherings to be “unlawful assemblies” on multiple occasions, leaving many to wonder what that really means.

According to William and Mary professor, Tim Zick, the unlawful assembly statute refers to an instance when three or more people come together with a common intent to engage in violent or unlawful behavior...

Zick says, "if what they’re going to engage in is both imminent and likely to occur."

He explains that imminence and likelihood are First Amendment-based requirements needed to distinguish a peaceable assembly from one likely to result in an immediate public disorder.

"So it’s not an offense to show up with three or more persons and simply observe," he explains. "You have to be present with some intent to commit the underlying offense."

That underlying offense being violence or unlawful conduct, he explains.

But intent isn’t always easy to prove. Zick says there has to be some kind of overt action or evidence, like emails or social media posts that prove that the gathering was intended to be unlawful.

In a written statement, Dana Schrad with the Virginia Association of Chiefs of Police, said “there are laws, and there is real life.” When agency policies and local ordinances fail to address the realities of a situation, said Schrad, officer discretion kicks in.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.