Rapper Accused of Gang Membership Based on Lyrics (Audio)

shooting spree. In a judge dismissed the charges against the two, and now Brandon Duncan, who records under the name Tiny Doo, and Aaron Harvey are suing the city of San Diego for federal civil rights violations. Our guest is Laurie Levins and a professor Loyola Law School and a former federal prosecutor. Lorie the law that they were prosecuted under is not

often used. Tell us about the facts of this case. Well, in this particular case, the defendants were really surprised when they got knocks on their doors and said that they were being arrested for being members of a criminal gang, conspiracy and promoting the activity these of the gang. That's the charge under Penal Code point five. They said, well,

we haven't done anything. You have the wrong person. They spent the next seven months in jail until this case was actually dismissed and the charges were brought because police officers swore out on behalf of the arrest warrant us, saying that these individuals had used rap lyrics and social

media postings in support in promoting gang violence. The officers had been investigating some shootings, very serious crimes, and they felt that the activities online were just promoting the gang activities. Ultimately adjudged through the case out, but not after they had spent those seven months in jail. And they've turned around now and sued. They said that we're steel filling the repercussions of what happened. So, Laurie, I guess the

law of criminalizes promoting gang activity. What does that mean? Well, that's somewhat of a vague term, and ordinarily would think about somebody who is involved in a gang, who's providing guns, or hiding plays, or giving direct encouragement some way really furthering what the gang wants to do. This is the

big gray area. In the gray area, we're often the first amendment overlaps when you have people who through their posting seem to support or at least give that impression what the gangs are doing but don't are hands on with the actual shootings for the cover ups. After the judge dismissed the charges, the San Diego District Attorney spokes and said this attorney's office respects the decision of the court.

This ruling in future rulings will help determine if California Penial Code two point five, which is the law that this was under, is a viable legal tool in our fight against violent crime committed by San Diego street gangs. Is it a viable tool, Laurie, I think it may be a viable tool in a different way, which is actually if you see people posting information like this, you know who they are, and you can make contact in

any type of investigation. You can find out whether these people are linked to people that are involved in the direct criminal behavior, or if this is just something they're doing pursuant to the type of music they do or the type of promotion promotions they want to have. You can also actually have a discussion with these individuals regarding the dangers of it. I don't think it's going to be a viable tool for arresting people who are using

rapture lyrics. Or other things in their Facebook pages or other social media. Well, if this statute is used in the way that it appears to have been used in this case with you know, if somebody felt, for instance, that something the authorities were characterizing as gang activity was in fact civil disobedience, and you know, put out a tweet or um made a speech saying that they were supported whatever the alleged gang was was doing, would they

be liable to press accution here? That's a big concern, you know, The big concern is how far would this go? You know, even without social media. Let's say that somebody we're out on the street and said, you know, the gang did this terrible shooting. But frankly, I hate the police. They've been after this gang. Sometimes I think they have it coming. Not a sentiment I share, but someone might have a right to tell someone else that. So now you put it out on social media and we have

these lines. Where where does something become a threat? Where does it become involvement in a conspiracy? I think if you've seen these type of postings, you will probably hear a knock on your door by police officers, but it won't be a knock to arrest you, it will be to do further investigation as to what your direct involvement will be. This statute as a prosecution tool. I think the message got out to the prosecutors, don't rely on this.

It's not likely to hold. And Laurie, as far as the civil case now, will the judge is ruling dismissing the criminal charges be great help in moving the civil case forward. It will, but we need to remember that the civil case is actually against the police officers, not against the prosecutors. They have immunity in a case like this, and the question is whether these police officers even had any good faith beliefs that they could use such a

statute in pursuing a criminal charge. It hasn't been used before in this way. They were taking a risk. I really wonder what was going through their mind rather than doing further investigation, just sort of to round up these suspects. Lauria Levinson, it's always a pleasure to have you on Bloomberg Law. That's Laurie Levinson. She's a professor at Loyola Law School and a former federal prosecutor.