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Riot in a Penal Institution, But Not Necessarily a Riot

There are certain jurisdictions that like to use OCGA 16-10-56 for any little thing that happens in their local jail, but many more that do not.  In Uno, this would be the "Draw 4" card.  It takes a crime that may be a misdemeanor or a felony and makes sure that it is a felony.  Where the underlying crime carries more penalty than OCGA 16-10-56, the prosecutor can stick with the original charge.  The actual title of the statute is "unlawful acts of violence or other violent or tumultuous acts committed in a penal institution."

What is a Penal Institution?

While the acts must occur in a penal institution, the definition of "penal institution" is fairly broad.  A penal institution is "any place of confinement for persons accused of or convicted of violating a law of this state or an ordinance of a municipality or political subdivision of this state."

It is a jury question whether a particular location qualifies as a penal institution, so at least one case has held that a county jail was not necessarily a penal institution.  

So, it seems like a penal institution could include a county jail, a city jail, a holding cell in a police station, sheriff's office, courthouse, etc.  Could it apply to a conference room place detainees in a courthouse while they await their turn before the court? Maybe.  Nobody really knows until a jury says so.

What Acts Qualify?

Let's start with the idea that there are many examples of things that assuredly qualify as acts of violence:  aggravated assault, battery, simple battery, murder, etc.  But a concern is that there are many other things that might qualify.

There are two kinds of act that may qualify for treatment under this statute:

  • unlawful act of violence or
  • any other act in a violent or tumultuous manner.

The first group of offenses have to be unlawful, so they are already crimes.  This may refer to crimes against the person, assaultive sexual offenses, and, possibly, some offenses against public administration or order.

But what about that second group?  I cannot say that I have found an example of a prosecution of something that would not have been a crime outside a penal institution.  Most of the reported cases are pretty clear examples of violent acts that are unlawful:  gouging out a guard's eye, injurious assaults, etc.

But that second group is still troubling to me.  I provided a link to a dictionary for those that are not exactly certain what tumultuous means. 

The first definition is loud, excited and emotional.  Given its use in combination with violent, that is probably not what was meant, but we don't really know.  So any act.  So, if a person is visiting a jail, which a jury finds to be a penal institution, and they crumple up a piece of notebook paper and spike it into the trash receptacle while loudly proclaiming "score" in an emotion fashion, have they committed an act in a tumultuous manner, and may they be successfully prosecuted and sentenced under this statute.

The second definition is reductive, it just says to cause a tumult.  So, a tumult can be a disorderly agitation or milling about of a crowd usually with uproar and confusion of voices.  That is also known as a commotion or hubbub.  Again, that really does not seem like what should be within the range of the criminal offense, but it is left to the jury.

The more appropriate definition of tumult is riot.  

Again, most of the time, the charged acts are indisputably violent acts which should qualify.  But idoes something like simple assault, threatening to do an injury qualify?  What if it is said in the metaphorical sense, i.e. I am going to kick your butt in Parcheesi or basketball?.  What if it is one of these ridiculous obstruction charges where the officer says the person tensed their arms for a second when they were being handcuffed or manacled?

I am just pointing out that by using this kind of vague language, the legislature opens up people to prosecution for cases that stretch those terms.

Person Does Not Have to be Confined

So, the person charged does not have to be a detainee, a prisoner or an inmate.  The law could apply equally to an employee of the facility, a visitor, a law enforcement officer, or a repairperson.  It does not have to occur in a containment area of the facility.  The plumber could come to work on the jail's lobby toilet and get into a fight with a visitor over a bet on a football game and could be charged with the felony offense, and the jury would have to figure out if that law should apply.

Punishment for Offense

A person charged and convicted of the offense can be sentenced to one to twenty years in a state prison.  That sentence can be suspended or probated.


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