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In the summer of 2014, Brandon Duncan and Aaron Harvey were arrested in connection to their rap lyrics and social media posts and were accused of violating an obscure California law making it illegal to promote gang activity. They were kept in detention for months, before their charges were ultimately dismissed.
Now the two are suing, alleging that their arrests violated their First and Fourth Amendment rights.
Both men were arrested by San Diego police and accused of promoting gang violence. Duncan, who raps under the name Tiny Doo, was said to have promoted violence in his lyrics and social media posts. Harvey, who was living in Las Vegas and studying to become a real estate agent when he was arrested, was connected by Facebook photos to gang members in San Diego.
They were both prosecuted under California Penal Code Section 182.5. That law states:
[A]ny person who actively participates in any criminal street gang [...] with knowledge that its members engage in or have engaged in a pattern of criminal gang activity [...] and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony
Prosecutors had asserted that the men's social media postings, and in Duncan's case, lyrics, promoted gangs in the Lincoln Park neighborhood of San Diego, gangs which had been linked to a series of shootings between 2013 and 2014. But charges against Duncan and Harvey were dismissed by San Diego Judge Louis Hanoian in March of 2015. As Judge Hanoian noted, no one else had been convicted, nor even arrested, for those shootings. "How can you attach a conspiracy to a crime that doesn't have a defendant?" the judge asked.
The two have now filed a Section 1983 lawsuit against San Diego and two police investigators, alleging that they were unconstitutionally arrested and jailed for engaging "in speech or expressive conduct protected by the First Amendment."
The men's arrest warrants, the complaint states, were based on the fact that they were Facebook friends with and appeared in Facebook photographs with alleged gang members. Duncan further was said to have posted a Facebook message saying "Free Lil Hawg and Tae Dip," referring to the arrests of other alleged gang members.
"No reasonably competent officer would have believed" that such facts were enough to establish probable cause to arrest the men, according to the suit.
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