State Erases “Lynching” from Law, but It Can Still Be Used to Bust Protesters

Friday, July 03, 2015
Maile Hampton (photo: Anita Chabria)

Although the dictionary defines lynching as an extrajudicial public hanging by a mob, California has defined it in statutes since 1933 as, “The taking by means of a riot of any person from the lawful custody of any peace officer action.”

California’s last real lynching occurred on January 6, 1947, when a mob of ranchers hung a black man in the Siskiyou County village of Callahan that they suspected of rustling cattle. They hung him from a utility pole in front of a one-room schoolhouse in the morning and left him there for the arriving students to see.

But the last person to be charged with felony lynching was in January when cops arrested activist Maile Hampton, a 20-year-old black woman protesting police brutality near the state Capitol in Sacramento.

Hampton and a group of demonstrators were participating in a counter-rally to a pro-law-enforcement rally and at some point police ordered them to remain on the sidewalk. Some didn’t and they were arrested. Hampton was among a few people who allegedly tried, and failed, to pull them from the police.

That action constituted a lynching under Penal Code Sections 405 (a) until Thursday when Governor Jerry Brown signed Senate Bill 629, which removed the word from the law. SB 629 passed unanimously in the Senate and the Assembly.

The penalties, however, remain the same for jerking someone from police custody. But the state’s indiscriminate use of the word ends now. It is still a felony to kill someone through mob action.

“It’s been said that strong words should be reserved for strong concepts,” bill co-author state Senator Holly Mitchell (D-Los Angeles) said in a statement. “And ‘lynching’ has such a painful history for African Americans that the law should only use it for what it is―murder by mob.”

Now that the phraseology of the law has been dealt with, there might be something to be said for revisiting its substance. Police have used the law, especially in recent years, to bust up political and social demonstrations. They have also taken advantage of an interpretation of the law to charge the person being taken from the authorities with lynching.

The rational was the Penal Code’s penalty that stipulates, “Every person who participates in any lynching is punishable by imprisonment . . . for two, three or four years.”

Every person.

In 2012, the California Court of Appeal for the First District ruled in People v. Anthony Jr. that the law could be interpreted to mean a person could lynch themselves. “We conclude that a person who takes part in a riot leading to his escape from custody can be convicted of his own lynching,” the court said.

Although “lynching” is gone from the law, the logic remains.

The East Bay Express reported that in 2005 the police arrested a protester in San Francisco for lynching after he shouted for people to come free him from the authorities. Oakland police used the lynching law against Occupy activists in 2011 and Los Angeles police trotted it out during Art Walk arrests the following year. Charges were dropped in both incidents.

The felony lynching charge against Hampton was dropped in April, but she remained charged with misdemeanor resisting arrest.

 –Ken Broder


To Learn More:

Jerry Brown Signs “Lynching” Law Bill (by David Siders, Sacramento Bee)

California Removes “Lynching” Language from State Law Cited in Activist’s Arrest (by Curtis Skinner and Emmett Berg, Reuters)

Gov. Brown Signs Measure Striking “Lynching” Charge from California Law (by  Melanie Mason, Los Angeles Times)

Black Woman Faces Lynching Charge for Sacramento Activism (by Ken Broder, AllGov California)

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