A judge dismissed gang conspiracy charges against a rapper and another San Diego man in a case that hinged on rap lyrics, social media posts and tattoos in a case that attracted nationwide attention for its free speech ramifications.
The ruling by San Diego Superior Court Judge Louis Hanoian drops rapper Brandon “Tiny Doo” Duncan and Aaron Harvey from a controversial case that charged 15 co-defendants in connection with nine shootings between May 2013 and February. Prosecutors said all the shootings were linked to the Lincoln Park gang.
Hanoian found there was not enough evidence to bring Duncan and Harvey to trial on conspiracy charges, according to KNSD, the NBC-affiliate in San Diego. Other defendants were bound over for trial on a variety of charges, including gang conspiracy.
Prosecutors had argued that both men were members of the Lincoln Park Bloods. They alleged that Duncan's music career got a boost from a series of gang slayings in 2013. For Harvey, authorities say he flashed Bloods gang signs in Facebook posts. Even the letters “CK,” tattooed on Harvey’s triceps, counts as evidence, as prosecutors say it stands for “Crip killer.
That was enough for them to be snared by the district attorney's interpretation of California Penal Code 182.5 passed by voters in a referendum in 2000. The relevant statute reads that anyone “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.”
David Loy, the legal director at the Southern California chapter of the American Civil Liberties Union, had argued that the charges violated Duncan and Harvey’s right to free speech under the First Amendment.
Loy, who wrote a friend-of-the-court brief for Duncan, said that the district attorney was misinterpreting the meaning of section 182.5 of the penal code, the conspiracy statute. In the prosecutor’s interpretation, Loy said, a person can benefit from a crime without ever knowing about it or approving it.
In his ruling, the judge also disagreed “with the District Attorney’s interpretation of the application of the largely untested law in this case … ,” according to the San Diego Union-Tribune, which quoted Hanoian as saying “We’re all digging new ground here.”
He ruled that “the problem with using the law in much of this case is that no specific person has been arrested or convicted of carrying out some of the specific shootings alleged,” the newspaper reported.
“How can you attach a conspiracy to a crime that doesn’t have a defendant?” Hanoian asked.
According to the Union-Tribune, Hanoian also ruled “there must be specific knowledge of that crime and a specific act of furthering or assisting, or a specific benefit to the individual, not just to the gang as a whole. Many of those factors could not be proven in this case.”