In-depth legal guide
Engaging in a Riot Defense in North Dakota
North Dakota does not make everyone standing near disorder a rioter. N.D.C.C. § 12.1-25-03 expressly says mere presence at a riot is not an offense. To prove the completed charge, the State must establish that you willfully engaged in a legally defined riot—not merely that you attended a protest, remained in a public place, associated with someone accused of violence, recorded police, or were swept into a mass arrest. The case turns on your own conduct and state of mind, the conduct of an assemblage of at least five people, the complete chronology, and whether that assemblage engaged in tumultuous and violent conduct producing one of the statute’s required dangers or obstructions.
You will work directly with me.
I will map the complaint to the completed or inchoate theory, identify your alleged acts, reconstruct the crowd’s conduct without borrowing police force as the crowd’s violence, test every part of the riot definition, preserve complete recordings, challenge generalized group attribution, and explain the actual misdemeanor sentencing range and collateral issues.
The completed charge has individual, group, mental-state, and consequence components
A reliable analysis keeps the accused’s conduct separate from the assemblage’s conduct. The State must prove both before the completed offense is established.
Official starting points
- N.D.C.C. §§ 12.1-25-01 and 12.1-25-03 — completed offense, full riot definition, special inchoate limit, and mere-presence rule.
- N.D.C.C. § 12.1-02-02 — willful default culpability and application to offense elements.
- State v. Bearrunner, 2019 ND 29 — nonviolent resistance and police force did not establish the assemblage’s tumultuous and violent conduct.
- N.D.C.C. chapter 12.1-32 — current class A misdemeanor ceiling and authorized sentencing alternatives.
“Engaging” must be proved person by person
The report may describe the crowd collectively. The verdict cannot. Each element must be tied to evidence about the accused and the defined event.
What did you do?
Movement, words, objects, contact, assistance, withdrawal, filming, and response to commands must be placed on a complete timeline.
What did the assemblage do?
At least five people must be connected to the public disturbance and the required tumultuous and violent conduct.
What did you perceive?
Visibility, sound, distance, barriers, crowd density, confusion, and timing bear on intentional, knowing, or reckless engagement.
What danger existed?
The statute requires grave danger of damage or injury, not a generic assertion that the scene was tense or potentially unsafe.
What was obstructed?
If the theory is obstruction, the State must identify the law-enforcement or government function and show substantial obstruction.
What is the complete record?
Native video, dispatch, body camera, messages, photographs, witnesses, and arrest timing can expose gaps in a short clip or collective narrative.
The evidence must distinguish action from attendance
Section 12.1-25-03 uses the verb “engages.” The statute does not define that verb by listing a single gesture, distance, duration, or type of contact. That makes the factual record especially important. The prosecution should identify the act or course of conduct it says crossed the line from presence to participation. The defense should demand a theory precise enough to test against the video, witness accounts, instructions, and required culpability.
A report that says “the group advanced,” “the protestors resisted,” or “the crowd became violent” does not establish what a particular person did. A person may enter the area before disorder begins, move with others because of pressure or fear, attempt to leave, seek medical help, protect another person, retrieve property, observe, report, or record. None of those descriptions decides the legal question by itself. The sequence, purpose, awareness, and physical context matter.
Conversely, the express presence protection is not a license to commit violence, destroy property, or deliberately assist the prohibited group conduct. The defense must be grounded in the actual record. The point is that the State cannot substitute location or association for proof of engagement. Investigators and counsel should identify the accused in every recording, synchronize camera clocks, map movement, determine what could be seen and heard, and compare conduct before, during, and after the alleged riot.
Willfully is the default mental state
Because § 12.1-25-03 does not specify another culpability term, § 12.1-02-02 supplies “willfully.” In North Dakota’s criminal code, willfully means intentionally, knowingly, or recklessly. Intentional conduct is purposeful; knowing conduct involves knowledge or firm belief without substantial doubt; reckless conduct involves conscious and clearly unjustifiable disregard of a substantial likelihood of the relevant facts or risks, amounting to a gross deviation from acceptable standards.
This does not mean that any deliberate movement in a crowd proves the offense. The culpability rule ordinarily applies to the conduct and attendant circumstances that define the offense. Counsel should ask what the accused knew about the group’s conduct, when that knowledge arose, what risk was consciously disregarded, and whether the alleged engagement occurred after the statutory riot actually existed. Surprise, coercive crowd movement, mistaken perception, and withdrawal may bear on that analysis.
A loud demonstration, refusal to disperse, or isolated offense is not automatically a statutory riot
A public disturbance
The State must first identify a public disturbance. The place, accessibility, audience, disruption, and event chronology are relevant. A public meeting, march, picket, celebration, sports gathering, traffic incident, or police encounter does not become a riot from size or controversy alone. The statutory definition supplies additional cumulative requirements.
An assemblage of at least five persons
The State should identify the people counted and the evidence connecting them to the assemblage and conduct. Bystanders, journalists, medics, property owners, law-enforcement officers, or people moving independently should not be silently added simply to reach five. A wide aerial view may show many bodies but not their roles. A close view may show conduct but not the size of the relevant assemblage. The prosecution must connect the two.
Tumultuous and violent conduct
The text uses “and,” requiring conduct that is both tumultuous and violent. Noise, agitation, disorder, emotional intensity, chanting, arm-locking, sitting, or refusal to comply may be evidence in context, but the Supreme Court’s decision in Bearrunner prevents the government from treating police force used to overcome nonviolent resistance as if the assemblage itself supplied the violent conduct. The relevant question is what the group did, not merely how forcefully police responded.
Grave danger or substantial obstruction
The conduct must produce one of two consequence theories. The first is grave danger of damage or injury to property or persons. “Grave danger” demands more than a remote possibility or generalized concern. Evidence may concern projectiles, fires, forced entry, vehicles, weapons, falls, stampede risk, injuries, property damage, distance, trajectory, barriers, or the number and vulnerability of people exposed.
The second theory is substantial obstruction of law enforcement or another government function. The State should identify the particular function, who was legally authorized to perform it, when performance was obstructed, and why the obstruction was substantial. Delay, inconvenience, rerouting, staffing burden, or a brief interruption is not automatically substantial. Dispatch logs, assignments, operational plans, video, testimony, and timing can show what occurred.
“Governmental function” includes activity that one or more public servants are legally authorized to undertake on behalf of government. Authority matters. A vague claim that “operations were impacted” should be tied to the actual activity, legal authority, duration, and causal connection to the assemblage’s conduct.
Mere presence is expressly not criminal under this section
The presence clause is not a slogan added by a defense lawyer; it is enacted text. Its placement in § 12.1-25-03 reflects a need to distinguish participants from peaceful demonstrators, observers, residents, workers, reporters, medical volunteers, people passing through, and individuals who cannot immediately leave a dense or controlled area.
That boundary makes individualized proof indispensable. Clothing color, proximity to a banner, appearance in a group photograph, attendance at an earlier meeting, or a social-media connection may help investigators locate a person, but none automatically proves engagement. The same is true of flight after police arrive. People may run because they fear injury, arrest, chemical agents, projectiles, or crowd compression. Flight is contextual evidence, not a substitute for the offense elements.
Remaining at a scene after an order may support a different charge if the elements of § 12.1-25-04 are established, including a qualifying reasonable public-safety order from the senior law-enforcement official on scene during or immediately before a riot. It does not erase the separate engagement requirement in § 12.1-25-03. Charging provisions should not be blended simply because they arise from the same event.
The defense should preserve evidence explaining legitimate presence: work schedules, residence, travel theories, press credentials, medical role, messages about peaceful purpose, calls for de-escalation, attempts to leave, requests for instructions, and video showing nonparticipation. Such evidence does not create automatic immunity, but it can test the prosecution’s theory and the required willful state of mind.
State v. Bearrunner requires the group’s own tumultuous and violent conduct
In State v. Bearrunner, the North Dakota Supreme Court reviewed evidence from a protest where people locked arms and did not separate when officers sought to arrest someone. Officers used force to overcome that noncompliance. The Court held the evidence did not establish that the assemblage engaged in “tumultuous and violent conduct” within the riot definition. The State could not transform police force used against nonviolent resistance into violent conduct by the protestors.
The holding matters in any case built from a confrontation between a crowd and law enforcement. Counsel should separate the timeline into what civilians did, what officers ordered, what force officers used, how individuals responded, and what conduct followed. A report may compress these events into “a violent clash,” but the statute requires attribution. Force appearing on video is not enough unless the evidence shows whose force satisfies the element.
Bearrunner does not hold that every refusal, blockade, or protest is protected, and it does not prevent prosecution where the assemblage itself engages in qualifying violence and the other requirements are met. It supplies a disciplined rule: apply the statutory words to the group’s conduct, and do not rely on labels or reciprocal imagery.
State v. Hidanovic arose from a different arming-rioters prosecution involving a large fight, alleged use of a bat, injuries, competing witnesses, and identification issues. It is useful as an example of why scene reconstruction and individualized attribution matter. It should not be cited as though it eliminates the mere-presence clause or decides every meaning of “engages.”
Attempt, solicitation, and conspiracy carry a special imminence safeguard
Section 12.1-25-03 incorporates subsection 3 of § 12.1-25-01. That provision says a person may be convicted of attempt, solicitation, or conspiracy to commit the offense only if the person engages in the prohibited conduct under circumstances in which there is a substantial likelihood that the conduct will imminently produce a violation. This is an additional limit; it does not replace the general elements in chapter 12.1-06.
Attempt
An attempt analysis begins with § 12.1-06-01, the intended completed crime, and the conduct alleged to constitute the criminal attempt. For this riot offense, the State must also satisfy the incorporated substantial-likelihood and imminence condition. Preparation, travel, political advocacy, event planning, protective equipment, or presence near a future demonstration should not be collapsed into attempt without the statutory conduct, culpability, and immediate relationship to the anticipated violation.
Solicitation
Solicitation under § 12.1-06-03 requires proof of the communication and criminal purpose specified by that section. The special riot provision further requires circumstances creating a substantial likelihood that the conduct will imminently produce engaging in a riot. Hyperbole, quotation, reporting, abstract approval, general political rhetoric, or discussion of lawful protest is not automatically criminal solicitation. Complete context, audience, timing, platform, follow-up, and speaker identification are central.
Conspiracy
Conspiracy under § 12.1-06-04 requires the charged agreement, criminal objective, culpability, and any statutory act requirement. Group chats, shared transportation, attendance, mutual aid, or affiliation may be consistent with lawful activity. The State must prove the criminal agreement and the incorporated substantial-likelihood/imminence condition, not infer conspiracy merely because multiple people know one another.
Digital cases demand native exports and context. A screenshot may omit preceding messages, replies, edits, reactions, timestamps, identities, private jokes, warnings against violence, or later withdrawal. Account ownership does not automatically establish authorship of every post. Platform records, device access, attribution evidence, and witness knowledge must be tested.
The defense needs the full event, not the prosecution’s shortest clip
Video and audio
Obtain native body-camera, dash-camera, surveillance, drone, news, livestream, telephone, and bystander files. Record start and stop times, clock drift, frame rate, compression, missing intervals, camera position, field of view, occlusion, and whether the recording contains original audio. A clip beginning after the critical act may accurately show its own frames while giving a misleading account of causation, perception, or withdrawal.
Rule 106 supports completeness analysis when a writing or recorded statement is introduced in part. Rules 401 and 403 govern relevance and unfair prejudice. A dramatic image of fire or injury elsewhere in the event may be powerful but minimally probative of this accused’s engagement. Counsel should identify what each exhibit actually proves and resist montage-style attribution.
Identification and personal knowledge
Masks, helmets, similar clothing, distance, darkness, chemical agents, fast motion, stress, radio repetition, and group assumptions can produce mistaken identification. Preserve first descriptions, show-ups, photo arrays, officer briefings, face-recognition leads, clothing seizures, location data, and the point at which a name entered the investigation.
Rule 602 requires personal knowledge. Rules 607, 608, 609, and 613 govern impeachment issues. A witness may know that something occurred but not who did it. Another witness may repeat what a nearby officer said without having observed the act. Prior inconsistent accounts, omitted identifiers, motive, visibility, and exposure to later media can matter.
Statements and digital records
Rule 801 and Rule 803 require statement-by-statement analysis. Dispatch entries, platform exports, business records, news captions, and officer reports can contain multiple hearsay layers. A record may authenticate that an account transmitted a message without proving who typed it, what a slang phrase meant, or whether the excerpt reflected the complete conversation.
Rules 901 and 902 address authentication and self-authentication. Rule 1001 recognizes electronic information and outputs, but a screenshot is not automatically the most complete or reliable version. Preserve native messages, metadata, account-access logs, device images, and export documentation when lawfully available.
Opinion evidence and reconstruction
Rules 701 and 702 separate lay and expert opinion. Image enhancement, geolocation, acoustic analysis, fire origin, projectile trajectory, device attribution, crowd movement, and injury causation may require specialized methods. Examine qualifications, underlying data, validation, assumptions, and whether the opinion answers an element or simply adopts the investigator’s conclusion.
Discovery and preservation
N.D.R.Crim.P. 16 governs discovery. A focused request should identify every recording, dispatch channel, operational plan, order, arrest log, officer assignment, report, witness interview, use-of-force record, injury or property claim, digital search, warrant, platform return, forensic examination, and exculpatory source. Preservation must remain lawful: no one should delete, alter, hide, fabricate, or unlawfully access evidence.
The strongest issue may be participation, culpability, the group conduct, or the required consequence
Mere presence
The accused attended, observed, worked, lived nearby, reported, filmed, rendered aid, or was caught in the area but did not engage. The statute expressly excludes mere presence. Evidence should document the legitimate role and personal conduct rather than rely on the defense label alone.
No willful engagement
The accused’s movement was accidental, compelled by crowd pressure, directed toward leaving, protective, or undertaken without awareness of the relevant circumstances. The State must prove intentional, knowing, or reckless engagement under the default rule.
No qualifying assemblage
The evidence may show isolated acts by fewer than five people, unrelated individuals, officers and bystanders counted toward the group, or conduct too dispersed in time or place to establish the statutory assemblage.
No tumultuous and violent conduct by the group
The gathering may have been loud, resistant, crowded, or disorderly without the assemblage itself engaging in both tumultuous and violent conduct. Bearrunner is especially important when police force supplies the violence visible on the recording.
No grave danger
The conduct may have created inconvenience, anxiety, or a speculative possibility but not grave danger of damage or injury. Distance, barriers, capability, trajectory, actual conditions, and expert evidence may matter.
No substantial obstruction
The alleged law-enforcement or government function may have continued, suffered only a minor delay, changed for reasons unrelated to the crowd, or lacked identified legal authority. The State must prove substantial obstruction, not merely impact.
Mistaken identity or overbroad attribution
Clothing similarity, masks, poor lighting, unreliable tracking, group descriptions, and repeated hearsay may connect the wrong person to an act. The defense should trace each identification to its first source.
Constitutional and evidentiary limits
Protected speech, peaceful assembly, reporting, and association cannot substitute for the statutory conduct. An unlawful search, overbroad digital warrant, involuntary statement, suggestive identification, incomplete recording, unauthenticated post, hearsay layer, improper other-act theory, or unfairly prejudicial group exhibit may support suppression or exclusion depending on the record.
The current ceiling is 360 days and $3,000; the statute states no offense-specific minimum
| Legal theory or period | What must be proved | Classification or limit |
|---|---|---|
| Completed offense under current § 12.1-25-03 | Willful engagement in a riot satisfying every incorporated definition element | Class A misdemeanor: up to 360 days, a $3,000 fine, or both |
| Attempt, solicitation, or conspiracy | Applicable chapter 12.1-06 elements plus the special substantial-likelihood and imminence condition | Classification depends on the inchoate statute and charged theory; no automatic completed-offense result |
| Conduct before the 2017 emergency amendment | Exact offense date and then-effective statutory text | Former class B misdemeanor grading may govern; current class A treatment must not be applied retroactively |
The statutory maximum is not a prediction. Section 12.1-25-03 does not impose an offense-specific minimum jail term. A lawful sentencing analysis must use the offense date, conviction theory, criminal history, record, and current authorized alternatives.
A misdemeanor can still affect liberty, work, travel, property, and future cases
The plea or trial analysis should address the lawful range and the consequences that actually follow from the proposed disposition.
Authorized sentence
North Dakota law may authorize prosecution costs, probation, jail, a fine, restitution, no-contact restrictions, property restoration or work detail, and other listed alternatives when legally and factually supported.
Restitution and causation
A request should be tied to damages resulting from the offense. Ownership, repair, medical loss, insurance, scope, causation, and responsibility for acts of others require evidence.
Release and probation conditions
Location, contact, travel, protest, substance, device, employment, and reporting restrictions must rest on lawful orders and should be understood before a resolution.
Collateral effects
Employment, licensing, immigration, housing, education, security clearances, firearm eligibility, and record use depend on separate law and individual facts. They should not be promised or assumed from the charge title.
The 2017 emergency law raised engaging in a riot from class B to class A misdemeanor
The 1973 enactment made completed engaging in a riot a class B misdemeanor and included both the special limit for attempt, solicitation, and conspiracy and the express mere-presence rule. Those structural protections were part of the original North Dakota criminal code.
Enrolled HB 1426 amended § 12.1-25-03 from class B to class A misdemeanor and declared an emergency. Official legislative history identifies filing with the Secretary of State on February 23, 2017. For conduct before or spanning that change, counsel should obtain the exact enacted version and apply constitutional limits on retroactive punishment.
The National Commission final report and North Dakota’s criminal-code hornbook explain a drafting concern: officials should distinguish actual participants from peaceful demonstrators, innocent observers, and people trapped in a crowd. That history helps explain the express presence clause, but it is background—not a substitute for the enacted text or Bearrunner.
Later changes, appellate decisions, and sentencing provisions must be checked through the final publication date. A prior version’s classification or a historical commentary’s policy discussion should never be presented as current law without that check.
North Dakota engaging-in-a-riot questions
Can I be convicted just for being at the scene?
No. Section 12.1-25-03 expressly says mere presence at a riot is not an offense. The State must prove willful engagement and every part of the incorporated riot definition.
Does the crowd have to include at least five people?
Yes. The riot definition requires an assemblage of at least five persons. The evidence must identify the relevant assemblage and connect it to the required group conduct.
Is refusing to separate or disperse automatically a riot?
No. In Bearrunner, locked-arm nonviolent resistance and police force used to overcome it did not establish the assemblage’s tumultuous and violent conduct. A separate public-safety-order charge has different elements.
What mental state applies?
The section states no different culpability level, so North Dakota’s default rule requires willful conduct—intentional, knowing, or reckless engagement—applied according to § 12.1-02-02.
Can attempt, solicitation, or conspiracy be charged?
Potentially, but the general inchoate elements must be proved and the incorporated special rule requires circumstances creating a substantial likelihood that the conduct will imminently produce the offense.
What is the current maximum penalty?
The completed offense is currently a class A misdemeanor carrying up to 360 days, a $3,000 fine, or both. The statute states no offense-specific incarceration minimum.
Why does the alleged offense date matter?
The original offense was a class B misdemeanor. A 2017 emergency amendment raised it to class A. The exact effective law must be matched to the conduct date rather than applying today’s grade automatically.
What evidence should be preserved immediately?
Preserve native video and audio, complete messages, photographs, location history, witness contacts, legitimate-purpose records, dispatch and body-camera identifiers, injury or property records, and a private chronology. Do not delete, alter, fabricate, or unlawfully access evidence.
A lawyer’s file review of Engaging in a Riot Defense in North Dakota
The first pass through a criminal file should be exact, not dramatic. I want the statute and subdivision, the alleged date, the conduct the State says satisfies each element, and the source for every fact that raises the degree or punishment.
Read the count as a set of propositions the State must prove
For Engaging in a Riot Defense in North Dakota, the governing text begins with N.D.C.C. §§ 12.1-25-03, 12.1-25-01, 12.1-02-02, 12.1-06-01, 12.1-06-03, 12.1-06-04, and 12.1-32-01; State v. Bearrunner, 2019 ND 29. That citation matters because a familiar charge name can contain several statutory routes, definitions, and sentencing rules. I read the exact count, the alleged date, and every incorporated definition before deciding which facts are material and which allegations are simply part of the narrative.
Next, I connect each material fact to evidence the prosecution can actually present. The source might be a witness, a recording, a certified record, laboratory work, device data, or an admissible inference—but it should be identifiable and testable. That approach shows whether the real dispute concerns what happened, how evidence was obtained, whether it is admissible, or whether it proves the required element at all.
The evidence I would ask for first
For Engaging in a Riot Defense in North Dakota, I would not begin with a canned list of defenses. I would begin with the source file: the charging paper, every police report, uncut recordings, witness interviews, warrants and returns, device and account records, photographs with metadata, expert or laboratory material, certified prior records, court orders, and any document the prosecution relies on to prove an element or increase the classification. A police summary can identify what an officer or witness says happened, but it cannot substitute for the recording, photograph, data, or document being summarized. The same is true of a complaint. It identifies the prosecution’s theory at the start of the case; it does not prove the theory.
I put those materials on one chronology. That lets me see what was known at each decision point, which account was contemporaneous, what appeared only after people spoke with one another, and where the record is silent. It also keeps an admissibility question separate from a factual one. A fact can be disputed even if the evidence was lawfully obtained. Evidence can also be accurate yet inadmissible for a particular purpose. Those are different arguments and should not be blurred together.
Read the charging document against the offense date
The alleged date matters because statutes, penalty thresholds, definitions, sentencing rules, and published decisions change. I save the version in force on that date and read the session-law history when the current online text is different. I also check whether a later amendment was merely clarifying or made a substantive change; that is a legal question, not an assumption. The same discipline applies to prior convictions and administrative events. A prior must fit the definition the charged statute actually uses, fall within any stated lookback period, and be proved by a reliable record.
I then compare the formal count with the probable-cause narrative and the discovery. If the prosecution’s theory shifts, I want the amended pleading and enough detail to prepare. If several factual alternatives are alleged, I identify whether they are separate elements, alternative means, enhancement facts, or merely evidentiary details. That distinction affects notice, motions, jury instructions, unanimity arguments, and how a verdict form should be read.
Separate an evidentiary weakness from a suppression issue
Not every troubling fact produces a motion to suppress. Suppression ordinarily requires a constitutional, statutory, or rule-based violation with a remedy that reaches the evidence at issue. A weak identification, an incomplete investigation, or a witness inconsistency may be powerful at trial without making evidence inadmissible. By contrast, a stop, search, interrogation, identification procedure, warrant, or test can raise a legal issue even when the resulting evidence appears incriminating. I analyze both tracks and do not promise dismissal simply because one problem exists.
For a search issue, I reconstruct what officers knew before each intrusion and what authority they claimed. For a statement, I examine custody, questioning, warnings, voluntariness, recording, and the complete context. For scientific or technical evidence, I request the method, underlying data, quality-control material, uncertainty information, and chain of custody. For hearsay or confrontation questions, I identify the actual statement, its purpose, the declarant, and the proposed foundation. Specificity matters; “the evidence is bad” is not a motion.
Prepare negotiation and trial at the same time
A plea decision should be compared with the case the State could present at trial, not with the complaint’s maximum penalty in isolation. I want to know the strongest admissible proof, the weakest required element, the realistic motion practice, the likely instructions, and the consequences of every proposed disposition. That includes custody, probation, treatment, restitution, driving, firearm restrictions, registration, employment or licensing, immigration consultation, family-court effects, and record consequences when they are actually triggered. I avoid telling a client that every collateral consequence applies to every conviction.
Trial preparation gives negotiation its credibility. Witness interviews, exhibit review, motions in limine, expert consultation, demonstrative evidence, jury instructions, and a clean theory of the case force both sides to confront what can be proved. Negotiation can continue while that work is underway. The two tracks are not opposites.
A case-law point worth keeping in its proper place
Appellate decisions matter, but a quotation should not be detached from the issue the court was deciding. In State v. Hartson, 2024 ND 78, ¶ 26, the North Dakota Supreme Court explained that, on a sufficiency challenge, “we do not weigh conflicting evidence, or judge the credibility of witnesses.” That is an appellate-review rule, not a reduction of the State’s burden at trial. At trial, the prosecution still must prove every element beyond a reasonable doubt. I cite the case for the point it actually decided and then return to the charged statute, the instructions, and the admissible evidence in the present file.
What I would want you to understand before choosing an outcome
You should be able to identify the exact charge, the facts that set its level, the disputed elements, the evidence that matters most, the motions that have a legal basis, the realistic trial issues, and the concrete effect of each proposed resolution. If an answer depends on a missing report, recording, expert opinion, or certified record, I will say so. An honest answer about what remains unknown is more useful than a confident guess.