In California, “Every person who participates in any lynching is punishable by imprisonment . . . for two, three or four years.” That can include the person being lynched.

That doesn’t seem possible until one realizes that the 1933 law defines felony lynching as simply, “The taking by means of a riot of any person from the lawful custody of any peace officer.” The law was passed to discourage vigilante mobs from seizing blacks detained by the police and hanging them.

But since not a lot of that goes on in California these days and it’s a shame to waste a good law, police have taken to applying it to protesters. Last January, Sacramento police arrested Maile Hampton, a 20-year-old black woman protesting police brutality near the state Capitol, and charged her under the lynching law.

She allegedly interfered with officers who had taken a fellow protester into custody. Her group of demonstrators where 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.

Hampton wasn’t identified until later and was arrested at her home three weeks later. Bail was initially set at $100,000.

Hampton is scheduled to appear in Sacramento County Superior Court on Thursday to face charges. She could get four years in jail if convicted. She was also charged with resisting arrest. She is not the first person charged with lynching. Two other protesters were reportedly charged with lynching, but those charges were said to be dropped.  

The East Bay Express and London’s Guardian plucked a few examples from the historical record to illustrate the ongoing appeal of the law. A University of California, San Diego student was arrested in 1986 during a protest when a crowd gathered around the police and loudly demanded they release an arrestee. The one student was picked out of the crowd and charged with lynching. The charge was later dropped.

Four anti-fur protesters were arrested at a San Francisco Nieman Marcus store in 1999 and charged with lynching. That case never went to court. Oakland police used the law against at least two Occupy activists in 2011, but dropped those charges. Los Angeles police used the law against an Occupy protester during Art Walk in 2012, but that charge was eventually dropped.    

The odd use of the lynching law did not go unnoticed by the judiciary. Indeed, the California Court of Appeal for the First District ruled in People v. Anthony J. that year 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.

According to the East Bay Express, police were especially creative with the law in 2005 when they arrested Gabe Meyers for attempted lynching of himself at a protest of the G8 international meeting in San Francisco. He allegedly shouted for help while officers choked him. Charges were eventually dropped.   

Kevin Johnson, Sacramento’s first African-American mayor, appealed to the state Legislature to change the law’s incendiary name and much of the case’s attention has focused on that aspect of Hampton’s arrest. But questions have also been raised about the use of felony charges, by whatever name, against non-violent demonstrators.

Patrisse Cullors-Brignac, a cofounder of Black Lives Matter, told Truthout, “This collision of forces—police abuse, unnecessary incarceration and felony disenfranchisement—that's part and parcel of the prison-industrial complex.”

–Ken Broder

To Learn More:

Protester Arrested on Sacramento’s Capitol Mall Faces "Lynching" Charge (by Ryan Lillis, Sacramento Bee)

Black Woman's "Lynching" Charge: an Unsettling Tactic to Punish Activism? (by Anita Chabria, London Guardian)

In Strange Twist of History, Black Activist Charged with "Lynching" (by Thandisizwe Chimurenga, Truthout)

OPD Arrests Protesters for “Lynching” (by Susie Cagle, East Bay Express)

California "Lynching" Laws Penal Code 405a & 405b PC (Shouse California Law Group)