There is no denying that the United States is not particularly unified at this point in history. Social media gives each and every American a personal platform to express their (sometimes polarizing) political views and thoughts. Social media also provides Americans with the opportunity to connect with other like-minded individuals. When groups of people connect to fight for a cause the platform can become more powerful. In this age of unrest, we have seen many (new and old) politically-charged groups emerge. These groups have, in some cases, essentially gone to war with one another. When these groups clash in public – each trying to champion opposite causes – things can get ugly. Berkeley, California was recently in the headlines after a group of self-proclaimed “anti-fascists” staged a forceful counter-protest at a conservative pro-Trump event.
This group, known as Antifa, was described by police as violent and “militia-like.” Antifa is relatively new and appears to have emerged after the Charlottesville, Virginia white supremacist rally that shook the country earlier this summer. Antifa has reportedly not been a particularly peaceful group. Rather, members carry weapons and protest in manners that are eerily reminiscent of those employed by the white supremacist groups that they stand against. Rather than staging powerful nonviolent protests, Antifa members employ violence and leave a path of destruction in their wake. These violent protests have caused California lawmakers to call for Antifa to be categorized as a criminal street gang.
California Penal Code Section 186.22(f) defines a “criminal street gang” as “any ongoing organization, association, or group of three or more persons” that has a “common name or common identifying sign or symbol” whose primary activity is a specified criminal act in which members individually or collectively engage and establish “a pattern of criminal gang activity.” Essentially, a criminal street gang is a group of at least three people who have adopted a name or symbol that routinely engage in criminal acts.
Classifying Antifa as a criminal street gang in California would significantly heighten the penalties associated with political riots. As it currently stands, members of Antifa who are arrested during a protest are subject to the laws and penalties that apply to all private citizens. They are not currently classified as a special group. So, a member of a counter-protest could be arrested and charged with inciting a riot, unlawful assembly, or refusal to disperse. These crimes are generally misdemeanors and carry relatively light criminal sentences. Most counter-protesters charged with one of these crimes would likely be sentenced to probation, community service, and/or be required to pay fines of up to $1,000.
If the Antifa group were to be classified as a criminal street gang, however, the members (if arrested) would be subject to aggravated sentencing because of their association with the group. At the very least, Antifa members charged under California Penal Code 186.22 PC could face up to three years in prison for their involvement in an Antifa counter-protest. The penalty, of course, would depend on the underlying criminal act. Penal Code 186.22 includes penalties for gang-related activity including assault with a deadly weapon, possessing or discharging a firearm, looting, mayhem, and criminal threats. Given the violent nature of Antifa counter-protests – and many other political protests staged by alt-right and white supremacist groups – it would not be difficult for prosecutors to charge group members with gang-related crimes.
As tensions grow between groups who stand on polar opposite sides of very politically charged issues, it will be interesting to see if any are formally classified as criminal street gangs. This classification could potentially act as a deterrent to engaging in violent protests. However, classifying one politically-related group as a criminal street gang, and not classifying another as the same could backfire. Alternatively, the California legislature may want to think about creating a new classification for these fairly recent and unique political protester groups. It may be wise to create a blanket classification that will deter violent protest, foster nonviolent protest, and apply equally to any political viewpoint. Either way, criminal defense attorneys in the area will likely face new challenges as their clients face aggravated charges for participating in political rallies. If you’re facing criminal charges, visit our guide on how to find a good criminal defense attorney in California.
