1 00:00:00,080 --> 00:00:03,120 Speaker 1: You may like rap, you may hate rap, but should 2 00:00:03,120 --> 00:00:06,440 Speaker 1: someone be jailed over rap lyrics? A hip hop musician 3 00:00:06,440 --> 00:00:09,200 Speaker 1: and a community organizer in San Diego or jailed for 4 00:00:09,280 --> 00:00:12,479 Speaker 1: seven months on gang related charges based on their rap 5 00:00:12,560 --> 00:00:16,439 Speaker 1: lyrics and social media postings. Prosecutors said the lyrics and 6 00:00:16,560 --> 00:00:19,759 Speaker 1: postings promoted gang violence and we're connected to a gang 7 00:00:19,840 --> 00:00:24,640 Speaker 1: shooting spree. In a judge dismissed the charges against the two, 8 00:00:24,720 --> 00:00:28,360 Speaker 1: and now Brandon Duncan, who records under the name Tiny Doo, 9 00:00:28,440 --> 00:00:31,200 Speaker 1: and Aaron Harvey are suing the city of San Diego 10 00:00:31,240 --> 00:00:34,920 Speaker 1: for federal civil rights violations. Our guest is Laurie Levins 11 00:00:34,920 --> 00:00:38,560 Speaker 1: and a professor Loyola Law School and a former federal prosecutor. 12 00:00:39,440 --> 00:00:42,840 Speaker 1: Lorie the law that they were prosecuted under is not 13 00:00:43,159 --> 00:00:47,840 Speaker 1: often used. Tell us about the facts of this case. Well, 14 00:00:47,880 --> 00:00:51,760 Speaker 1: in this particular case, the defendants were really surprised when 15 00:00:51,800 --> 00:00:53,920 Speaker 1: they got knocks on their doors and said that they 16 00:00:53,920 --> 00:00:57,400 Speaker 1: were being arrested for being members of a criminal gang, 17 00:00:57,480 --> 00:01:01,440 Speaker 1: conspiracy and promoting the activity these of the gang. That's 18 00:01:01,440 --> 00:01:05,200 Speaker 1: the charge under Penal Code point five. They said, well, 19 00:01:05,200 --> 00:01:07,720 Speaker 1: we haven't done anything. You have the wrong person. They 20 00:01:07,760 --> 00:01:11,520 Speaker 1: spent the next seven months in jail until this case 21 00:01:11,600 --> 00:01:15,360 Speaker 1: was actually dismissed and the charges were brought because police 22 00:01:15,400 --> 00:01:18,360 Speaker 1: officers swore out on behalf of the arrest warrant us, 23 00:01:18,440 --> 00:01:21,880 Speaker 1: saying that these individuals had used rap lyrics and social 24 00:01:21,920 --> 00:01:26,399 Speaker 1: media postings in support in promoting gang violence. The officers 25 00:01:26,400 --> 00:01:30,399 Speaker 1: had been investigating some shootings, very serious crimes, and they 26 00:01:30,400 --> 00:01:34,320 Speaker 1: felt that the activities online were just promoting the gang activities. 27 00:01:34,560 --> 00:01:38,720 Speaker 1: Ultimately adjudged through the case out, but not after they 28 00:01:38,720 --> 00:01:41,119 Speaker 1: had spent those seven months in jail. And they've turned 29 00:01:41,160 --> 00:01:43,880 Speaker 1: around now and sued. They said that we're steel filling 30 00:01:44,040 --> 00:01:48,320 Speaker 1: the repercussions of what happened. So, Laurie, I guess the 31 00:01:48,440 --> 00:01:57,000 Speaker 1: law of criminalizes promoting gang activity. What does that mean? Well, 32 00:01:57,040 --> 00:02:00,160 Speaker 1: that's somewhat of a vague term, and ordinarily would think 33 00:02:00,200 --> 00:02:04,840 Speaker 1: about somebody who is involved in a gang, who's providing guns, 34 00:02:04,960 --> 00:02:09,720 Speaker 1: or hiding plays, or giving direct encouragement some way really 35 00:02:09,919 --> 00:02:12,800 Speaker 1: furthering what the gang wants to do. This is the 36 00:02:12,840 --> 00:02:15,400 Speaker 1: big gray area. In the gray area, we're often the 37 00:02:15,440 --> 00:02:18,760 Speaker 1: first amendment overlaps when you have people who through their 38 00:02:18,800 --> 00:02:22,880 Speaker 1: posting seem to support or at least give that impression 39 00:02:23,000 --> 00:02:26,000 Speaker 1: what the gangs are doing but don't are hands on 40 00:02:26,080 --> 00:02:30,320 Speaker 1: with the actual shootings for the cover ups. After the 41 00:02:30,440 --> 00:02:35,400 Speaker 1: judge dismissed the charges, the San Diego District Attorney spokes 42 00:02:35,800 --> 00:02:39,960 Speaker 1: and said this attorney's office respects the decision of the court. 43 00:02:39,960 --> 00:02:43,680 Speaker 1: This ruling in future rulings will help determine if California 44 00:02:43,760 --> 00:02:46,680 Speaker 1: Penial Code two point five, which is the law that 45 00:02:46,760 --> 00:02:49,760 Speaker 1: this was under, is a viable legal tool in our 46 00:02:49,760 --> 00:02:53,600 Speaker 1: fight against violent crime committed by San Diego street gangs. 47 00:02:54,600 --> 00:02:57,720 Speaker 1: Is it a viable tool, Laurie, I think it may 48 00:02:57,720 --> 00:03:00,960 Speaker 1: be a viable tool in a different way, which is 49 00:03:01,400 --> 00:03:04,560 Speaker 1: actually if you see people posting information like this, you 50 00:03:04,600 --> 00:03:07,400 Speaker 1: know who they are, and you can make contact in 51 00:03:07,440 --> 00:03:10,440 Speaker 1: any type of investigation. You can find out whether these 52 00:03:10,480 --> 00:03:12,920 Speaker 1: people are linked to people that are involved in the 53 00:03:12,960 --> 00:03:16,200 Speaker 1: direct criminal behavior, or if this is just something they're 54 00:03:16,200 --> 00:03:18,720 Speaker 1: doing pursuant to the type of music they do or 55 00:03:18,760 --> 00:03:21,640 Speaker 1: the type of promotion promotions they want to have. You 56 00:03:21,639 --> 00:03:24,480 Speaker 1: can also actually have a discussion with these individuals regarding 57 00:03:24,480 --> 00:03:27,120 Speaker 1: the dangers of it. I don't think it's going to 58 00:03:27,240 --> 00:03:30,680 Speaker 1: be a viable tool for arresting people who are using 59 00:03:30,760 --> 00:03:35,080 Speaker 1: rapture lyrics. Or other things in their Facebook pages or 60 00:03:35,120 --> 00:03:38,640 Speaker 1: other social media. Well, if this statute is used in 61 00:03:38,680 --> 00:03:40,160 Speaker 1: the way that it appears to have been used in 62 00:03:40,200 --> 00:03:42,800 Speaker 1: this case with you know, if somebody felt, for instance, 63 00:03:42,800 --> 00:03:47,160 Speaker 1: that something the authorities were characterizing as gang activity was 64 00:03:47,200 --> 00:03:50,480 Speaker 1: in fact civil disobedience, and you know, put out a 65 00:03:50,520 --> 00:03:54,800 Speaker 1: tweet or um made a speech saying that they were 66 00:03:54,800 --> 00:03:59,200 Speaker 1: supported whatever the alleged gang was was doing, would they 67 00:03:59,200 --> 00:04:02,480 Speaker 1: be liable to press accution here? That's a big concern, 68 00:04:02,920 --> 00:04:05,080 Speaker 1: you know, The big concern is how far would this go? 69 00:04:05,520 --> 00:04:08,800 Speaker 1: You know, even without social media. Let's say that somebody 70 00:04:08,800 --> 00:04:10,400 Speaker 1: we're out on the street and said, you know, the 71 00:04:10,480 --> 00:04:14,200 Speaker 1: gang did this terrible shooting. But frankly, I hate the police. 72 00:04:14,320 --> 00:04:16,719 Speaker 1: They've been after this gang. Sometimes I think they have 73 00:04:16,800 --> 00:04:20,160 Speaker 1: it coming. Not a sentiment I share, but someone might 74 00:04:20,279 --> 00:04:22,880 Speaker 1: have a right to tell someone else that. So now 75 00:04:22,920 --> 00:04:25,400 Speaker 1: you put it out on social media and we have 76 00:04:25,640 --> 00:04:28,920 Speaker 1: these lines. Where where does something become a threat? Where 77 00:04:29,000 --> 00:04:32,080 Speaker 1: does it become involvement in a conspiracy? I think if 78 00:04:32,120 --> 00:04:34,800 Speaker 1: you've seen these type of postings, you will probably hear 79 00:04:34,839 --> 00:04:37,640 Speaker 1: a knock on your door by police officers, but it 80 00:04:37,680 --> 00:04:40,160 Speaker 1: won't be a knock to arrest you, it will be 81 00:04:40,240 --> 00:04:43,520 Speaker 1: to do further investigation as to what your direct involvement 82 00:04:43,520 --> 00:04:47,560 Speaker 1: will be. This statute as a prosecution tool. I think 83 00:04:47,560 --> 00:04:50,560 Speaker 1: the message got out to the prosecutors, don't rely on this. 84 00:04:50,800 --> 00:04:53,600 Speaker 1: It's not likely to hold. And Laurie, as far as 85 00:04:53,640 --> 00:04:57,600 Speaker 1: the civil case now, will the judge is ruling dismissing 86 00:04:57,839 --> 00:05:01,280 Speaker 1: the criminal charges be great help in moving the civil 87 00:05:01,360 --> 00:05:04,320 Speaker 1: case forward. It will, but we need to remember that 88 00:05:04,360 --> 00:05:07,120 Speaker 1: the civil case is actually against the police officers, not 89 00:05:07,240 --> 00:05:11,279 Speaker 1: against the prosecutors. They have immunity in a case like this, 90 00:05:11,800 --> 00:05:14,760 Speaker 1: and the question is whether these police officers even had 91 00:05:14,760 --> 00:05:17,080 Speaker 1: any good faith beliefs that they could use such a 92 00:05:17,200 --> 00:05:21,840 Speaker 1: statute in pursuing a criminal charge. It hasn't been used 93 00:05:21,880 --> 00:05:24,720 Speaker 1: before in this way. They were taking a risk. I 94 00:05:24,760 --> 00:05:27,600 Speaker 1: really wonder what was going through their mind rather than 95 00:05:27,640 --> 00:05:31,240 Speaker 1: doing further investigation, just sort of to round up these suspects. 96 00:05:31,800 --> 00:05:34,120 Speaker 1: Lauria Levinson, it's always a pleasure to have you on 97 00:05:34,320 --> 00:05:37,760 Speaker 1: Bloomberg Law. That's Laurie Levinson. She's a professor at Loyola 98 00:05:37,839 --> 00:05:39,920 Speaker 1: Law School and a former federal prosecutor.