Riot Criminal Charges

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The riot law in Minnesota is Minnesota Statutes § 609.71. Criminal riot charges can range from First to Third Degree. And the charges are either a felony or a gross misdemeanor. So, a person facing a Minnesota riot charge needs a good riot attorney. Common fact patterns for riot charges in Minnesota have included bar fights, protests, street and intersection takeovers, and civil unrest overwhelming local law enforcement ability to respond.

Crimes Against Persons v Disorderly Conduct by 3 or More

In criminal law, we can draw a line between crimes against persons and violent crimes on the one hand; and more trivial “public order” crimes like disorderly conduct. But Minnesota’s riot law blurs that line, to some extent. So, let’s take a look at Minnesota Statutes § 609.71:

“Subdivision 1. Riot first degree. When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property and a death results, and one of the persons is armed with a dangerous weapon, that person is guilty of riot first degree and may be sentenced to imprisonment for not more than 20 years …

Subd. 2. Riot second degree. When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant who is armed with a dangerous weapon or knows that any other participant is armed with a dangerous weapon is guilty of riot second degree and may be sentenced to imprisonment for not more than five years …

Subd. 3. Riot third degree. When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant therein is guilty of riot third degree and may be sentenced to imprisonment for not more than one year …”

Minn. Stat. § 609.71 (2025)

Statutory Definition of Riot Crime: Minnesota Statutes § 609.71

The statute contains the definition of the base crime, as well as the elements of charge enhancement facts. The base crime is defined, in subdivision 3, as:

“When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant therein is guilty of riot.”

As a practical matter, a person in a group where an intentional “act or threat of unlawful force or violence to person or property” may be at risk of facing a criminal riot charge. So assault, or an unwanted touching, or property damage, could create risk of a riot charge.

Elements of crime: riot attorney guide

Group crimes, like some inchoate crimes, are less common. So, the “three or more persons” element of the criminal statute is key. And in Minnesota we have seen people charged with double layers of inchoate crimes, such as “Aiding and Abetting” “Riot second degree,” largely based on what other people did.

“three or more persons”

In general, if a prosecutor charges a person with a riot crime; they could also charge some other crime without the “three or more persons” element. For example, in the right circumstances a person possessing an illegal weapon could face felony charges of Riot – Second degree, and Assault – Second degree. But without evidence of “three or more persons” any Riot charges would fail.

“assembled disturb the public peace”

Unless the group “assembled disturb the public peace,” the charge fails. Evidence could show the defendant did, or did not, assemble to disturb the public peace. See, State v. Winkels, 204 Minn. 466, 468, 283 N.W. 763, 764 (1939) (appeal from riot conviction, stating “public peace means that tranquility enjoyed by a community when good order reigns amongst its members”).

And assembling to disturb the peace, without more, could be protected speech under the First Amendment. For a federal civil rights case discussing rioting vs. protected peaceful protest, see, Bernini v. City of St. Paul, 665 F3d 997 (Court of Appeals, 8th Circuit 2012) (“It was reasonable, therefore, for an officer to believe that the group, as a whole, was committing one or more offenses under state law, including third degree riot and unlawful assembly. See Minn. Stat. §§ 609.71 subd. 3, 609.705.”) See also, Minn. Stat. § 609.705, the misdemeanor crime of Unlawful Assembly (quoted below).

“intentional act or threat of unlawful force … to person or property”

The riot law requires evidence of an intentional act, or an intentional threat. Lacking those, the charge fails. And the prohibited act or threat must be of unlawful force or violence. So, lawful force or violence is not a crime. As a result, where the prosecutor is claiming “an intentional act or threat of unlawful force or violence;” your riot attorney can defend you with evidence that any threat or act of force or violence was lawful.

Among other ways the threat or use of force can be lawful is self-defense and defense of another. Both are affirmative defenses to a riot charge. But the defendant needs a good riot attorney to effectively present the defense.

Whether the claimed act or threat of force was “to person or property” can make a difference, too. Crimes against persons are more serious crimes.

A federal court looked at whether a prior conviction for Riot third degree, was a violent crime for purposes of the federal sentencing guidelines, and concluded that it is not categorically a crime of violence:

“We conclude that the phrase ‘person or property’ lists two alternative means of committing the second element of the Minnesota third degree riot statute, Minn. Stat. § 609.71, subd. 3. The phrase ‘person or property’ therefore is not divisible and we may not apply the modified categorical approach to determine under which alternative McMillan was convicted. McMillan’s prior conviction for third degree riot thus does not categorically qualify as a crime of violence under the force clause because the statute encompasses crimes against property. See U.S.S.G. § 4B1.2(a)(1). For these reasons, the district court erred by concluding that McMillan’s third degree riot conviction is a crime of violence under the force clause.”

US v. McMillan, 863 F3d 1053 (Court of Appeals, 8th Circuit 2017)

“participant … knows … armed with a dangerous weapon”

The two felony riot crimes (first and second degree) require evidence of “armed with a dangerous weapon.” But the gross misdemeanor riot crime (third degree) does not have a weapon enhancement element. So, no weapon at all means no felony. But, the felony second degree riot law criminalizes “participant” members of the group who are armed or who know that any other participant is armed with a “dangerous weapon.”

Must be a “participant,” and must be armed or have “knowledge:”

“it is reasonable to infer that Witherspoon was a participant who either was armed with a dangerous weapon or knew that another participant was armed with a dangerous weapon. Minn. Stat. § 609.71, subd. 2. ‘In a prosecution for riot common purpose can be inferred from the circumstances and the acts committed.’ State v. Winkels, 283 N.W. 763, 764 (1939). Similarly, ‘[k]nowledge, like intent, usually must be inferred from the evidence.’ …
But under the heightened standard applied to circumstantial evidence cases, the state must prove more than that it is reasonable to infer from the evidence that the defendant is guilty. The state must prove that the circumstantial evidence is such that it is ‘inconsistent with any other rational hypothesis’ other than that of the defendant’s guilt.”

State v. Witherspoon, nonprec. A12-1247 (Minn. Court of Appeals 2013)

Another Minnesota court observed, that “mere presence” is not enough, and that any weapon element must be supported by proof of being an armed participant or knowledge another participant is armed:

“the statute and the jury instruction require that McRaven either have a weapon or know another participant is armed. This element, as the district court astutely noted, requires knowing participation and alleviates the concern that mere presence is sufficient to sustain a conviction for second-degree riot.”

State v. McRaven, nonprec. A19-0759 (Minn. Court of Appeals 2020)

Definition of “dangerous weapon”

“‘Dangerous weapon” means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm. …”

Minn. Stat. § 609.02, Subd. 6 (2025)

And the Minnesota Supreme Minnesota court, reversing a trial court dismissal of second-degree riot charges, decided that a motor vehicle can be a “dangerous weapon” if it is used in a manner likely to result in death or great bodily harm. (In that case, other participants doing donuts at intersection takeovers had hit bystanders with their drifting cars.) That court explained:

“‘When determining whether an object, even an inherently dangerous object, is a dangerous weapon, the court must examine not only the nature of the object itself, but also the manner in which it was used.’ State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997). A reasonable juror could conclude that death or great bodily harm is a probable or reasonably expected result when a vehicle spins “donuts” mere inches from dozens of excited onlookers. The facts in the record could support a jury finding that the vehicles were likely to produce death or great bodily harm based on the manner in which they were being used.”

State v. Abdus-Salam, 1 NW 2d 871 (Minn. Supreme Court 2024)

More on:

Dangerous Weapon Charges & Defenses

Brandishing, Assault & Self-Defense: Legal Readiness

Level of harm, if any

The first degree felony riot crime requires evidence that a death resulted from the intentional, prohibited act. The prosecutor would not have to prove the defendant specifically intended to kill (specific intent). If prosecutors claim evidence that the defendant intended to kill a person, they would charge murder.

But they would need to prove criminal intent and the prohibited act. The prohibited act includes: “assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property;” … “and one of the persons is armed with a dangerous weapon,” both.

So, we have three distinct Minnesota riot crimes:

1. Death (Felony First Degree Riot)
2. Weapon (Felony First and Second Degree Riot)
3. Assembled to disturb the public peace by an intentional act or threat of unlawful force to person or property (no harm or weapon). (Gross Misdemeanor Riot Third Degree)

Self-defense vs violent mob: riot attorney

During rioting, calling 911 may get no response. Government law enforcement may be unavailable.

“You’re on your own.” As a result, people can only rely on themselves to defend themselves, their families, their communities and their property during periods of social unrest. The use of reasonable force in self-defense is lawful under Minnesota law – “reasonable force” under the circumstances, at the time. And it’s legal to use reasonable force to defend another from bodily harm; and to defend property.

But no simple, bright-line exists in the law, defining lawful self-defense. Rather, the law calls for a totality of the circumstances test. And over the years, we’ve developed a set of factors commonly considered important in those circumstances.

An act of self-defense within a context of rioting and violent mob behavior, is more likely to be viewed as justified, than in normal times. So, take a look at our other pages on self-defense:

• Self-Defense Laws in Minnesota
  
• Disparity of Force & Self-Defense
  
• Blog Series on Self-Defense Law In Real Life

“Collateral” Consequences: riot attorney

Your riot attorney can help you avoid “direct” consequences of conviction: prison, jail, or a criminal conviction record. And I can help you also avoid “collateral consequences,” often worse than the so-called direct consequences.

Gun rights: A felony riot conviction is on Minnesota’s felony “crimes of violence” list. So such a conviction triggers a presumptive lifetime loss of civil rights to firearms. And a gross misdemeanor riot conviction creates a presumptive three year gun ban under Minn. Stat. § 624.713, Subd. 1 (1).

So, your riot attorney should be an expert on Minnesota gun laws:

Gun Charges Defense Lawyer

Immigration: A conviction for any riot offense will likely cause an immigration law problem for any non-citizen; even a lawful Permanent Resident. But a Riot conviction could also be an “aggravated felony” under federal immigration law, with severe immigration consequences. So, any non-citizen, even a lawful Permanent Resident, must consult an immigration attorney, in addition to their criminal defense lawyer, to be fully informed of risks, and to enable the best available choices. See:

Immigration Consequences of Criminal Charge

Minnesota’s Unlawful Assembly Misdemeanor: Minn. Stat. § 609.705

The Minnesota Unlawful Assembly statute describes similar, but less egregious conduct, compared to the Riot crime statute. As a result, we may make a few observations. While Riot is either a gross misdemeanor or a felony; Unlawful Assembly is a lesser, misdemeanor crime. And it can be a lesser included offense when a defendant is facing a Riot charge. And the Unlawful Assembly statute may be more susceptible to wrongly charging lawful protesters engaging in only First Amendment protected free speech. Here’s the statute:

When three or more persons assemble, each participant is guilty of unlawful assembly, which is a misdemeanor, if the assembly is:

(1) with intent to commit any unlawful act by force; or

(2) with intent to carry out any purpose in such manner as will disturb or threaten the public peace; or

(3) without unlawful purpose, but the participants so conduct themselves in a disorderly manner as to disturb or threaten the public peace.

Minn. Stat. § 609.705 UNLAWFUL ASSEMBLY (2025)

The statute lays out the elements of the crime. (Note that identity is one of the elements of any crime.) Defending against such a charge involves looking for a lack of evidence to support one or more of the statutory elements, as well as other defenses such a self-defense (if the defendant used reasonable force).

The Minnesota Supreme Court upheld Minn. Stat. § 609.705 (3) against constitutional challenges, saying:

“Both the language and intent of the statute are directed at regulating conduct and not pure speech. That intention is reflected by the commentary of the advisory committee which drafted the Criminal Code of 1963. The emphasis, as was true of the common-law crimes of unlawful assembly, rout, and riot from which the statute is derived, is placed upon a breach of the peace, coupled with the committee’s recognition of “the effect of crowd psychology which promotes the commission of crime.” Its purpose is to discourage assemblies which get “out of hand,” which interfere with the public, and thus disturb the public peace and provoke the commission of other and more serious crimes. So construed, the statute neither prohibits activity which is merely annoying to others nor invites discriminatory enforcement. It is limited to regulating only criminal conduct or activities, not peaceful protest, general obnoxiousness, or deviant life styles.”

State v. Hipp, 213 NW 2d 610 (Minn. Supreme Court 1973)

And in another case, the Minnesota Supreme Court discussed the meaning of “breach of the peace:”

“the term “breach of the peace” is a generic term which includes all violations of the public peace or order calculated to disturb the tranquility which members of the public are entitled to enjoy. The culpability of the offense depends upon time, place, and circumstance. The offense may arise out of acts of violence or conduct causing or likely to cause an immediate disturbance of the public order.”

State v. Johnson, 163 NW 2d 750 (Minn. Supreme Court 1968)

And blocking public roadways and highways has been enough to support police action and criminal charges. See, Cox v. New Hampshire, 312 US 569 (U.S. Supreme Court 1941) (Upholding constitutionality of statute prohibiting march in street. “Where a restriction of the use of highways … is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection.”)

Disorderly Conduct is another, related misdemeanor crime, though it does not require “three or more persons.” And it might also be a lesser included offense in some cases. For more on Minnesota’s Disorderly Conduct law, see my legal analysis:

Disorderly Conduct Charges & Defense.

Question? Call Riot Attorney Thomas Gallagher, 612 333-1500

Riot charges arise within chaotic circumstances. And police may arrest an innocent bystander. A prosecutor may charge an innocent person. But these charges are serious. So, the defendant needs a good riot attorney.

Attorney Thomas Gallagher can put over 35 years experience to work for you. And he can help protect you and your family from Minnesota riot charges.

More: riot attorney

Public Order Crimes and Their Defense

What are Minnesota “Crimes of Violence?“

Obstruction & Resisting Arrest

The Necessity Defense