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Illegal Arrest Charged in Facebook Gang Case

Rapper and Student Sue San Diego PD

In case you haven’t noticed, there are thousands of laws on the books in California, including those contained in the California Penal Code. Sometimes the lawmakers get it right, and sometimes the language they draft and codify into law invites problems. All of which brings us to PC 182.5, which says that anyone who “participates” in a criminal street gang with knowledge of the gang’s criminal activities, and who promotes or benefits from any “felonious conduct,” is guilty of conspiracy to commit that felony. That’s quite a mouthful. And when you hear about the arrests that were based on the law, you’ll understand how loose language can lead to all kinds of bizarre results.

PC 182.5 was passed in 2000. As far as anyone can remember, prior to 2014 it had never before been used in a prosecution in San Diego, or anywhere in California for that matter.

Brandon Duncan is a rapper. His friend Aaron Harvey was studying for his real estate license in Las Vegas. The two were arrested in 2014, and police based the arrest on PC 182.5. The “evidence” consisted of some Facebook postings by the two men, as well as rap lyrics. According to the police, these social media postings and songs showed that the two had general knowledge of gang activities. Whether or not that was true, there was no evidence that either of them participated in street gang activity, or that they had knowledge of any specific crime committed by gang members.

The lack of probable cause was recognized by the judge in the case, who dismissed the charges in 2015. Unfortunately, by that time, both had spent seven months in jail, having been unable to raise bail, which was set at $1.1 million for Harvey, and $500,000 for Duncan. But the problem with the case went beyond the lack of evidence. While it does appear as if the two were singled out because of their views, we believe the vague language of the statute was an invitation to concoct criminal charges against the pair, independent of any wrongful act on their part.

Now that the criminal charges have been dismissed, the men have filed a federal lawsuit against the San Diego Police Department and two of its detectives. The lawsuit includes claims of illegal search and seizure, and violation of their First Amendment rights. We expect to hear more on the case as it moves through the courts.

Law Office of David P. Shapiro

3500 5th Avenue, Suite 304,
San Diego, CA 92103
(619) 295-3555

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