Two men are suing the city of San Diego and two police officers, claiming they were unlawfully arrested and jailed on suspicion of violating California’s anti-gang statute based on social media postings and rap lyrics.
Brandon Duncan and Aaron Harvey were detained in 2014 and incarcerated for seven months before a judge dismissed the charges, according to their federal civil rights lawsuit.
The men allege violations of their First Amendment right to free speech and Fourth Amendment protection against unlawful search and seizure, and are seeking compensatory and punitive damages, along with other relief.
One of the plaintiff’s attorneys, Mark Zebrowski, said the arrests were based on a rarely used and little-known anti-gang statute, which makes it a felony to participate in and benefit from a gang with knowledge that other gang members engage in criminal activity.
The San Diego City Attorney’s Office could not immediately be reached for comment on the suit, filed Tuesday.
The case is thought to be the first time the statute was applied in San Diego, and possibly the first time anywhere in California, according to the plaintiffs’ lawyers. Duncan and Harvey faced possible sentences of life in prison before charges were dismissed, their attorneys said.
Harvey, from the Lincoln Park area of San Diego, was arrested in June 2014 in Las Vegas, where he had moved and was studying to be a real estate agent.
According to the lawsuit, photographs and other social media postings that neither depicted nor mentioned any illegal conduct were alleged to link Harvey to known gang members in San Diego, and therefore to a series of gang-related activity that occurred earlier that year and at the end of 2013, but Harvey was not charged with any of the underlying crimes.
Duncan, also from Lincoln Park, is a business owner and rap artist who performs under the name Tiny Doo. When he was arrested in July 2014, officers told him his rap lyrics celebrated gang activity, according to the lawsuit.
Duncan, who has made a name for himself as an artist who portrays the reality of being poor and black in America, says he was also singled out for his social media postings, some calling for the release of imprisoned local gang members.
“The prosecutor in my case admitted I wouldn’t be charged if I sang ‘love songs,’” Duncan said. “As if creating art illustrating the impossible choices poverty presents my community and the magic of our survival isn’t an act of love. My arrest and incarceration sent me a clear sign; that my government does not think I am worthy of First Amendment rights.”
Despite their exoneration, both Duncan and Harvey have difficulty sleeping and have ongoing fears of arbitrary arrest, according to the lawsuit. Both men say they suffered significant financial losses due to missed work and legal bills.
— City News Service