Men Lobby Judge to Advance Suit Over Botched Gang Arrests

SAN DIEGO (CN) – Did officers have probable cause to arrest and incarcerate two men for gang murders they didn’t commit? A federal judge heard arguments Tuesday on why he should toss a gang conspiracy case where the San Diego District Attorney’s Office botched a new legal theory over an obscure gang law.

U.S. District Judge Barry Moskowitz heard from Deputy City Attorney Stacy Jo Plotkin-Wolff, who asked to judge for summary judgment in favor of San Diego Police Department detectives Rudy Castro and Scott Henderson.

Castro and Henderson executed arrest warrants for Brandon Duncan and Aaron Harvey in 2014, during an investigation with the Violent Crimes Task Force which looked at shootings and drug trafficking traced back to the Lincoln Park gang in San Diego.

The detectives listened to jailhouse phone conversations, reviewed Facebook and other social media as well as rap music by Duncan before arresting him and Harvey along with other alleged members of the “5200 block” of the Lincoln Park gang.

But even though Duncan and Harvey were charged with conspiracy to commit murder for a series of gang-related shootings in 2013, neither man was connected to any of the crimes.

Instead they were charged under California Penal Code section 182.5, which says anyone who is part of a gang and is promoted by or benefits from any felony acts committed by members of the gang can be charged with conspiracy to commit that crime.

Duncan and Harvey were bound over for trial for seven months on $1 million bail before a state court judge tossed the charges. Duncan and Harvey sued the detectives and city of San Diego last year over the ordeal.

The men maintain they were not part of the Lincoln Park gang, but ended up on California’s CalGang database based on the heavy police presence in the southeast San Diego neighborhood they grew up in.

Plotkin-Wolff told Moskowitz the warrants did not violate Duncan and Harvey’s civil rights because the evidence used to exercise the arrest warrants – including social media posts and photos and rap lyrics – was not protected speech under the Constitution.

She asked the officers be granted summary judgment under qualified immunity.

Plotkin-Wolff said there was probable cause to issue the warrants when “looking at everything under the totality of the circumstances.”

She added, “Officers aren’t required to put in enough evidence to convict someone.”

But Duncan and Harvey’s attorney Dean Atyia with Los Angeles firm Morrison & Foerster said law under which his clients were arrested requires active participation in a street gang to be arrested. He said being Facebook friends with gang members or rapping lyrics about gangs doesn’t rise to that level of scrutiny.

“Someone having a social media account and being friends with alleged gang members is about as prohibitive as going to the same high school as a gang member or living in the same apartment building,” Atyia said.

“Where’s something that ties these men to a crime? In fact, what ties them to a gang?” he added.

Atyia’s colleague at Morrison & Foerster, Niles Pierson, said Castro was “uniquely close to the case” in working directly with the DA’s office for months to gather evidence and draft the warrants.

Pierson said there was a “dearth of allegations” in the warrants executed, amounting to a violation of Duncan and Harvey’s civil rights because law enforcement retaliated against them for engaging in First Amendment activities.

Moskowitz asked both sides to submit briefs detailing if a warrant was required in the arrests. He indicated he will rule on summary judgment after the briefs are received.


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