San Diego, Calif. – On Monday, a San Diego judge dismissed charges against a San Diego rapper and another man who were both prosecuted under a controversial law and faced life in prison.
In a case that caught the attention of national media and sparked an outcry, rapper Tiny Doo aka Brandon Duncan, whose case the Free Thought Project reported on previously, and Aaron Harvey, were charged under CA Penal Code section 182.5.
California Penal Code 182.5 makes it a felony for an individual to participate in a criminal street gang or benefit from gang activity. The penalty for violation is 25 year to life imprisonment.
To gain a conviction using this law, the prosecutor has to show that the defendant benefited from a crime the gang committed.
Harvey, Duncan and 14 other individuals were accused of conspiring with gang members under this law. The gang reportedly shot nine people in 2013 and early 2014, but neither Duncan nor Harvey were implicated in any of the shootings.
Nevertheless, Duncan and Harvey were charged with multiple felonies under 182.5 and both faced up to life in prison.
In the case of Harvey, a man with no criminal record, the state alleged that his “stature” increased, and that is how he benefited from the gang's crimes. Harvey was charged after posting a picture to Facebook that prosecutors alleged proved he was a gang member.
“They’re saying I benefited because my stature, my respect, went up,” Harvey said. “I didn’t even know I had any stature. I don’t understand how someone can benefit from something they don’t even know exists.”
Although Harvey has never been convicted of committing a crime, he has been stopped by police over 50 times. It was at some point during this time that he was put into the CALGANG database denoting him as a gang member.
As for Duncan, prosecutors point to his “No Safety” album, claiming the lyrics show that he’s guilty of breaking that code — that he’s obviously in a gang and profiting from gang activity.
Duncan denied the prosecutions allegations, telling NBC 7,
"If you want to hear my music, it's not promoting anything." Duncan added, "I'm not telling anybody to commit no crime, I'm not telling anybody to do anything. It's just artistry. I'm painting a picture of an urban community."
The allegations were in spite of the fact that Duncan had a 9-5 job and had moved out of the neighborhood in question years ago. That and they had no evidence of Duncan even actually committing a crime, ever — as he has absolutely no criminal record.
In both cases, the prosecution contended that these men’s “stature” was raised due to the shooting, never so much as alleging that either was culpable or in any way connected to the murder.
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The case raised the ire of free speech advocates that felt that mere association isn’t enough to charge someone with a crime.
The legal experts that weighed in on the case have in no uncertain terms let it be known that the state is taking extreme liberty in prosecuting Americans under this arcane law.
"This is as draconian a conspiracy law as you'll see anywhere in the United States," said Robert Weisberg, professor at Stanford Law.
Harvey’s attorney, Edward Kinsey, was appalled at the potential implications,
“This is not the American justice system. We attach personal liability to things. You’re not guilty by mere association or mere membership — it’s just wrong. If they can get away with this, I fear for our future as free citizens.”
San Diego County District Attorney spokeswoman Tanya Sierra released the following statement about judge's decision:
"The District Attorney's Office respects the decision of the court today. This ruling and future court opinions will help determine if California Penal Code 182.5 is a viable legal tool in our fight against violent crime committed by San Diego street gangs across the County.
In recent weeks, the District Attorney has reached out to community members, state and local legislators, and faith-based leaders, meeting with them to discuss their understandable concerns about the use of this law. While a debate over the law can be constructive and educational, combatting the scourge of deadly gang violence remains our focus. Instead of waiting for more shootings and murders to victimize the community we used this law to cripple the organization."
While keeping communities safe is of utmost importance, charging people for crimes they didn’t commit, because of whom they are friends with, is an extremely dangerous application of this law.
Thankfully justice prevailed, but the reality is that two men faced life in prison for doing nothing other than being friends with people accused of being gang members.
Had it not been for the American people raising their voices and putting the national spotlight on this case, the outcome may have been drastically different.
Let's get the word out! Keep sounding the alarm about the police state and help wake more people up by sharing this article.
Below is an interview with the two men after hearing that logic actually prevailed instead of tyranny.
Jay Syrmopoulos is an investigative journalist, freethinker, researcher, and ardent opponent of authoritarianism. He is currently a graduate student at University of Denver pursuing a masters in Global Affairs. Jay's work has previously been published on BenSwann.com and WeAreChange.org. You can follow him on Twitter @sirmetropolis, on Facebook at Sir Metropolis and now on tsu.