Speaker 1: You may like rap, you may hate rap, but should
Speaker 1: someone be jailed over rap lyrics? A hip hop musician
Speaker 1: and a community organizer in San Diego or jailed for
Speaker 1: seven months on gang related charges based on their rap
Speaker 1: lyrics and social media postings. Prosecutors said the lyrics and
Speaker 1: postings promoted gang violence and we're connected to a gang
Speaker 1: shooting spree. In a judge dismissed the charges against the two,
Speaker 1: and now Brandon Duncan, who records under the name Tiny Doo,
Speaker 1: and Aaron Harvey are suing the city of San Diego
Speaker 1: for federal civil rights violations. Our guest is Laurie Levins
Speaker 1: and a professor Loyola Law School and a former federal prosecutor.
Speaker 1: Lorie the law that they were prosecuted under is not
Speaker 1: often used. Tell us about the facts of this case. Well,
Speaker 1: in this particular case, the defendants were really surprised when
Speaker 1: they got knocks on their doors and said that they
Speaker 1: were being arrested for being members of a criminal gang,
Speaker 1: conspiracy and promoting the activity these of the gang. That's
Speaker 1: the charge under Penal Code point five. They said, well,
Speaker 1: we haven't done anything. You have the wrong person. They
Speaker 1: spent the next seven months in jail until this case
Speaker 1: was actually dismissed and the charges were brought because police
Speaker 1: officers swore out on behalf of the arrest warrant us,
Speaker 1: saying that these individuals had used rap lyrics and social
Speaker 1: media postings in support in promoting gang violence. The officers
Speaker 1: had been investigating some shootings, very serious crimes, and they
Speaker 1: felt that the activities online were just promoting the gang activities.
Speaker 1: Ultimately adjudged through the case out, but not after they
Speaker 1: had spent those seven months in jail. And they've turned
Speaker 1: around now and sued. They said that we're steel filling
Speaker 1: the repercussions of what happened. So, Laurie, I guess the
Speaker 1: law of criminalizes promoting gang activity. What does that mean? Well,
Speaker 1: that's somewhat of a vague term, and ordinarily would think
Speaker 1: about somebody who is involved in a gang, who's providing guns,
Speaker 1: or hiding plays, or giving direct encouragement some way really
Speaker 1: furthering what the gang wants to do. This is the
Speaker 1: big gray area. In the gray area, we're often the
Speaker 1: first amendment overlaps when you have people who through their
Speaker 1: posting seem to support or at least give that impression
Speaker 1: what the gangs are doing but don't are hands on
Speaker 1: with the actual shootings for the cover ups. After the
Speaker 1: judge dismissed the charges, the San Diego District Attorney spokes
Speaker 1: and said this attorney's office respects the decision of the court.
Speaker 1: This ruling in future rulings will help determine if California
Speaker 1: Penial Code two point five, which is the law that
Speaker 1: this was under, is a viable legal tool in our
Speaker 1: fight against violent crime committed by San Diego street gangs.
Speaker 1: Is it a viable tool, Laurie, I think it may
Speaker 1: be a viable tool in a different way, which is
Speaker 1: actually if you see people posting information like this, you
Speaker 1: know who they are, and you can make contact in
Speaker 1: any type of investigation. You can find out whether these
Speaker 1: people are linked to people that are involved in the
Speaker 1: direct criminal behavior, or if this is just something they're
Speaker 1: doing pursuant to the type of music they do or
Speaker 1: the type of promotion promotions they want to have. You
Speaker 1: can also actually have a discussion with these individuals regarding
Speaker 1: the dangers of it. I don't think it's going to
Speaker 1: be a viable tool for arresting people who are using
Speaker 1: rapture lyrics. Or other things in their Facebook pages or
Speaker 1: other social media. Well, if this statute is used in
Speaker 1: the way that it appears to have been used in
Speaker 1: this case with you know, if somebody felt, for instance,
Speaker 1: that something the authorities were characterizing as gang activity was
Speaker 1: in fact civil disobedience, and you know, put out a
Speaker 1: tweet or um made a speech saying that they were
Speaker 1: supported whatever the alleged gang was was doing, would they
Speaker 1: be liable to press accution here? That's a big concern,
Speaker 1: you know, The big concern is how far would this go?
Speaker 1: You know, even without social media. Let's say that somebody
Speaker 1: we're out on the street and said, you know, the
Speaker 1: gang did this terrible shooting. But frankly, I hate the police.
Speaker 1: They've been after this gang. Sometimes I think they have
Speaker 1: it coming. Not a sentiment I share, but someone might
Speaker 1: have a right to tell someone else that. So now
Speaker 1: you put it out on social media and we have
Speaker 1: these lines. Where where does something become a threat? Where
Speaker 1: does it become involvement in a conspiracy? I think if
Speaker 1: you've seen these type of postings, you will probably hear
Speaker 1: a knock on your door by police officers, but it
Speaker 1: won't be a knock to arrest you, it will be
Speaker 1: to do further investigation as to what your direct involvement
Speaker 1: will be. This statute as a prosecution tool. I think
Speaker 1: the message got out to the prosecutors, don't rely on this.
Speaker 1: It's not likely to hold. And Laurie, as far as
Speaker 1: the civil case now, will the judge is ruling dismissing
Speaker 1: the criminal charges be great help in moving the civil
Speaker 1: case forward. It will, but we need to remember that
Speaker 1: the civil case is actually against the police officers, not
Speaker 1: against the prosecutors. They have immunity in a case like this,
Speaker 1: and the question is whether these police officers even had
Speaker 1: any good faith beliefs that they could use such a
Speaker 1: statute in pursuing a criminal charge. It hasn't been used
Speaker 1: before in this way. They were taking a risk. I
Speaker 1: really wonder what was going through their mind rather than
Speaker 1: doing further investigation, just sort of to round up these suspects.
Speaker 1: Lauria Levinson, it's always a pleasure to have you on
Speaker 1: Bloomberg Law. That's Laurie Levinson. She's a professor at Loyola
Speaker 1: Law School and a former federal prosecutor.