March 11 2015 11:02 AM

District attorney wants to jail people for rapping and posting on Facebook

Bonnie Dumanis
Photo by David Rolland

San Diego County District Attorney Bonnie Dumanis is out of control. Her office filed charges against 15 San Diego men for conspiracy to commit various violent crimes even though there's no evidence that they had anything to do with the offenses. To us, it looks like yet another example of brazen, systemic harassment of young African-American men, and it's clearly a violation of constitutionally protected freedom of speech and, possibly, freedom of association.

The case gained notoriety last last year when the news media focused on one defendant, Brandon Duncan, a gangsta rapper who performs under the name Tiny Doo. Prosecutors claim he's guilty of conspiracy to commit specific violent crimes because he's allegedly benefitted from music he's produced that depicts violence and gang membership. They'll attempt to prove that he's associated with the gang that's responsible for certain shootings. The ACLU of San Diego and Imperial Counties has taken up his case, having officially asked the court to dismiss the charges.

Voice of San Diego profiled a second defendant, Aaron Harvey, who, like Duncan, has no criminal record and is being linked to the "conspiracy" based on his Facebook posts, which say nothing about particular crimes but allegedly associate him with the same Lincoln Park gang. Harvey was in Las Vegas when he was arrested; he told Voice he moved there to get away from police harassment in San Diego.

Harvey's story is that he's simply a resident of a neighborhood known for gang activity and that he's gotten caught up in law-enforcement's net because he's socialized with friends and neighbors who are alleged gang members. We don't know the extent of his association with people who may or may not have committed crimes, but what doesn't seem in dispute is that authorities have no evidence that he had anything to do with the crimes at the root of the case.

The Voice story, written by managing editor Sara Libby, correctly states that being a member of a gang isn't a crime in and of itself, and that "if Dumanis is successful, she'd effectively make it one—because anyone documented as a gang member could be held responsible for the crimes of any other member, so long as the crime benefited the gang somehow." Prosecutors are arguing that Harvey benefits from the crime in increased street cred. As a matter of criminal justice, that's absurd and insane.

ACLU lawyers take issue with a couple of statements in Libby's story, such as the assertion that what Dumanis is attempting is "perfectly constitutional" under federal law and that "Harvey's case has none of those sexy First Amendment issues" contained in Duncan's case.

From the ACLU's perspective, the prosecution of both Harvey and Duncan is perfectly unconstitutional—a judge already dismissed conspiracy charges against several defendants—and lawyers point out that Harvey's case has as much to do with the First Amendment as Duncan's case: Harvey's Facebook posts are equally as protected as Duncan's rap lyrics.

We understand what Dumanis is trying to do. She's using any trick she can find in the book—in this case a section in the state Penal Code that may never have been used for this purpose—to interfere with gang activity. Our guess is this is a message to young folks to avoid even associating with gangs and gang members. To a point, we applaud robust efforts to disrupt gang violence and organized crime, particularly when it involves the exploitation of girls and young women.

However, this is an obscene overreach by Dumanis and her office. We predict that on some rung of the judicial ladder, Dumanis will be dealt yet another embarrassing defeat. If not—if courts up and down the justice system somehow uphold her interpretation of how people benefit from extremely loose gang ties—she will have done severe damage to freedom of speech, freedom of artistic expression and freedom to associate with groups or other individuals.

Dumanis and her team of prosecutors and investigators should stick to going after real criminals who commit real crimes, and they should try to avoid providing clear examples of the kind of harassment that African-Americans across the county have been protesting.

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