SAN DIEGO (CN) – Two men have sued the city of San Diego, claiming they were detained for months under an obscure California gang conspiracy law and charged with murders they didn’t commit.
Brandon Duncan and Aaron Harvey sued the city on civil rights violations related to their arrests and seven-month detention following a gang investigation by San Diego Police detectives Rudy Castro and Scott Henderson. The detectives investigated a series of shootings between May 2013 and February 2014 in the Lincoln Park neighborhood, about 15 minutes southeast of downtown.
The men claim in their 23-page lawsuit, filed Jan. 10, that they were wrongfully charged under state penal code section 182.5. According to the statute, 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, a rapper who goes by the name Tiny Doo and raps about the Lincoln Park neighborhood where he grew up, was charged with conspiracy to commit murder based on lyrics from his album “No Safety.” The district attorney said Duncan benefitted from gang crimes because he had “status” to rap about what prosecutors claimed were gang activities.
Duncan rebuffed the characterization he gained “status” from selling the album, however, telling Courthouse News that “No Safety” was a free downloadable album anyone could get off the internet.
Harvey was studying to become a real estate agent when he was arrested based off Facebook posts and photos that prosecutors said tied him to the Lincoln Park gang.
The morning of June 19, 2014, Duncan heard voices outside his home as he was getting ready for work. He opened his front door to a group of armed San Diego Police officers, who arrested him.
Duncan was detained for hours in a police car outside his home while his home was “searched and ransacked” by officers who did not have a warrant, the complaint states.
After bringing Duncan to the police station, detectives Castro and Henderson told the rapper he was being arrested because of his music lyrics.
Duncan was unable to post the $1 million bond – later dropped to $500,000 – and he remained behind bars while awaiting trial.
Harvey was living in Las Vegas when he was swarmed by armed agents from the U.S. Marshals Service. The officers told him he was being arrested for “a number of murders in San Diego.”
Harvey claims he “had no idea what the marshals were referring to.”
He spent three weeks in a Las Vegas jail before being picked up by Castro and Henderson on July 30 and driven to San Diego, where he was held on $1.1 million bail.
The men say they were arrested and jailed over their free speech activities, protected by the First Amendment.
At a preliminary hearing in November 2014, a San Diego Superior Court judge expressed “significant reservations” but initially found probable cause existed to charge Duncan, Harvey and others under section 182.5
Both Duncan and Harvey pleaded not guilty to multiple charges at their arraignment the following month, according to the complaint.
At a later preliminary hearing for other defendants charged in the same case, the court found there was no probable cause for the section 182.5 charges against the other individuals.
Following that hearing, Duncan and Harvey’s bail amounts were lowered and they were able to post bond, with Duncan being released from jail Jan. 19, 2015 and Harvey released Jan. 21.
The two men moved to have the charges set aside, which Superior Court Judge Louis Hanoian granted on March 16, 2015.
Harvey and Duncan say they have ongoing psychological and financial problems due to their seven-month incarceration. They want a jury to award them unspecified damages for constitutional violations related to their arrest and detention.
In an interview at their attorney’s office, both men said the case was “bigger than them” and represented the district attorney’s “political agenda.”
Harvey and Duncan grew up down the street from each other. Both men said they had “typical” childhoods spent playing football and riding bikes, and said they always felt safe in their neighborhood.
But both men ended up on a statewide database called CalGang, which is used by law enforcement officials to track people who police document as gang members.
Harvey said he didn’t know he was on the CalGang database the day he was cornered by “a dozen people screaming all different things” even though, by his count, he had been stopped by police 50 to 75 times starting when he was nine years old.
“No, I’m not in a gang,” Harvey said. “But per CalGang, everyone is a gang member. It’s not illegal to be a gang member. But there’s a criminalization of culture where they paint this picture of a gang member and lock up 33 people the DA admits had nothing to do with the crimes. Nobody says a peep because they’re considered gang members, which is just a tag that is used to throw people away.”
Harvey said he believes he and Duncan would still be in jail were it not for the media attention the case got – particularly when journalists latched onto the concerns about the potential violation of First Amendment rights the case raised.
Both men have since become activists, booking speaking engagements and working with Assemblywoman Shirley Weber, D-San Diego, on legislation passed last year which requires law enforcement agencies to notify anyone added to the CalGang database so they can dispute their inclusion.
A state audit of CalGang released this past August showed the lack of oversight and problems with how people are entered led to major errors in the database, including 42 infants who’d been listed as gang members. Auditors found the problems diminished the database’s “crime-fighting’ value.
Duncan said his case raises questions about policing free expression.
“I understand being tough on gangs, but I feel like you do the crime, you do the time,” Duncan said. “I shouldn’t be doing time for crimes you know I didn’t commit. The district attorney thought my music wasn’t the type of music that should be made. I guess they feel like people in the urban community don’t have First Amendment rights; it applies to everybody else, just not us.”
Mark Zebrowski, Harvey and Duncan’s attorney, said he doesn’t think the DA should spend resources on “test cases” to see if their interpretation of penal code 182.5 holds up in court.
“I don’t think you should arrest people, put them in jail and do that when they have been charged with no underlying connection to any crime,” Zebrowski said.
“You do that to see if you can apply some law in some new way and get away with it. It doesn’t seem right, particularly when you have these guys in jail with no ability to get out on any reasonable bond or bail, and they’re going to sit there and rot while you’re seeing if what you’re doing is right and you’re doing that because of music and Facebook.”
Zebrowski said the deputy district attorneys who worked on the case have prosecutorial immunity from litigation, which is why they are not being sued in Harvey and Duncan’s civil case.
City Attorney spokesman Gerry Braun said his office is reviewing the case. A spokeswoman for the San Diego District Attorney’s Office did not return an email request for comment.