WEBVTT - Rapper Accused of Gang Membership Based on Lyrics (Audio)

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<v Speaker 1>You may like rap, you may hate rap, but should

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<v Speaker 1>someone be jailed over rap lyrics? A hip hop musician

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<v Speaker 1>and a community organizer in San Diego or jailed for

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<v Speaker 1>seven months on gang related charges based on their rap

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<v Speaker 1>lyrics and social media postings. Prosecutors said the lyrics and

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<v Speaker 1>postings promoted gang violence and we're connected to a gang

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<v Speaker 1>shooting spree. In a judge dismissed the charges against the two,

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<v Speaker 1>and now Brandon Duncan, who records under the name Tiny Doo,

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<v Speaker 1>and Aaron Harvey are suing the city of San Diego

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<v Speaker 1>for federal civil rights violations. Our guest is Laurie Levins

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<v Speaker 1>and a professor Loyola Law School and a former federal prosecutor.

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<v Speaker 1>Lorie the law that they were prosecuted under is not

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<v Speaker 1>often used. Tell us about the facts of this case. Well,

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<v Speaker 1>in this particular case, the defendants were really surprised when

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<v Speaker 1>they got knocks on their doors and said that they

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<v Speaker 1>were being arrested for being members of a criminal gang,

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<v Speaker 1>conspiracy and promoting the activity these of the gang. That's

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<v Speaker 1>the charge under Penal Code point five. They said, well,

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<v Speaker 1>we haven't done anything. You have the wrong person. They

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<v Speaker 1>spent the next seven months in jail until this case

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<v Speaker 1>was actually dismissed and the charges were brought because police

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<v Speaker 1>officers swore out on behalf of the arrest warrant us,

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<v Speaker 1>saying that these individuals had used rap lyrics and social

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<v Speaker 1>media postings in support in promoting gang violence. The officers

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<v Speaker 1>had been investigating some shootings, very serious crimes, and they

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<v Speaker 1>felt that the activities online were just promoting the gang activities.

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<v Speaker 1>Ultimately adjudged through the case out, but not after they

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<v Speaker 1>had spent those seven months in jail. And they've turned

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<v Speaker 1>around now and sued. They said that we're steel filling

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<v Speaker 1>the repercussions of what happened. So, Laurie, I guess the

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<v Speaker 1>law of criminalizes promoting gang activity. What does that mean? Well,

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<v Speaker 1>that's somewhat of a vague term, and ordinarily would think

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<v Speaker 1>about somebody who is involved in a gang, who's providing guns,

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<v Speaker 1>or hiding plays, or giving direct encouragement some way really

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<v Speaker 1>furthering what the gang wants to do. This is the

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<v Speaker 1>big gray area. In the gray area, we're often the

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<v Speaker 1>first amendment overlaps when you have people who through their

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<v Speaker 1>posting seem to support or at least give that impression

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<v Speaker 1>what the gangs are doing but don't are hands on

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<v Speaker 1>with the actual shootings for the cover ups. After the

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<v Speaker 1>judge dismissed the charges, the San Diego District Attorney spokes

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<v Speaker 1>and said this attorney's office respects the decision of the court.

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<v Speaker 1>This ruling in future rulings will help determine if California

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<v Speaker 1>Penial Code two point five, which is the law that

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<v Speaker 1>this was under, is a viable legal tool in our

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<v Speaker 1>fight against violent crime committed by San Diego street gangs.

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<v Speaker 1>Is it a viable tool, Laurie, I think it may

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<v Speaker 1>be a viable tool in a different way, which is

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<v Speaker 1>actually if you see people posting information like this, you

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<v Speaker 1>know who they are, and you can make contact in

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<v Speaker 1>any type of investigation. You can find out whether these

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<v Speaker 1>people are linked to people that are involved in the

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<v Speaker 1>direct criminal behavior, or if this is just something they're

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<v Speaker 1>doing pursuant to the type of music they do or

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<v Speaker 1>the type of promotion promotions they want to have. You

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<v Speaker 1>can also actually have a discussion with these individuals regarding

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<v Speaker 1>the dangers of it. I don't think it's going to

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<v Speaker 1>be a viable tool for arresting people who are using

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<v Speaker 1>rapture lyrics. Or other things in their Facebook pages or

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<v Speaker 1>other social media. Well, if this statute is used in

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<v Speaker 1>the way that it appears to have been used in

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<v Speaker 1>this case with you know, if somebody felt, for instance,

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<v Speaker 1>that something the authorities were characterizing as gang activity was

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<v Speaker 1>in fact civil disobedience, and you know, put out a

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<v Speaker 1>tweet or um made a speech saying that they were

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<v Speaker 1>supported whatever the alleged gang was was doing, would they

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<v Speaker 1>be liable to press accution here? That's a big concern,

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<v Speaker 1>you know, The big concern is how far would this go?

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<v Speaker 1>You know, even without social media. Let's say that somebody

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<v Speaker 1>we're out on the street and said, you know, the

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<v Speaker 1>gang did this terrible shooting. But frankly, I hate the police.

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<v Speaker 1>They've been after this gang. Sometimes I think they have

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<v Speaker 1>it coming. Not a sentiment I share, but someone might

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<v Speaker 1>have a right to tell someone else that. So now

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<v Speaker 1>you put it out on social media and we have

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<v Speaker 1>these lines. Where where does something become a threat? Where

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<v Speaker 1>does it become involvement in a conspiracy? I think if

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<v Speaker 1>you've seen these type of postings, you will probably hear

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<v Speaker 1>a knock on your door by police officers, but it

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<v Speaker 1>won't be a knock to arrest you, it will be

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<v Speaker 1>to do further investigation as to what your direct involvement

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<v Speaker 1>will be. This statute as a prosecution tool. I think

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<v Speaker 1>the message got out to the prosecutors, don't rely on this.

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<v Speaker 1>It's not likely to hold. And Laurie, as far as

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<v Speaker 1>the civil case now, will the judge is ruling dismissing

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<v Speaker 1>the criminal charges be great help in moving the civil

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<v Speaker 1>case forward. It will, but we need to remember that

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<v Speaker 1>the civil case is actually against the police officers, not

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<v Speaker 1>against the prosecutors. They have immunity in a case like this,

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<v Speaker 1>and the question is whether these police officers even had

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<v Speaker 1>any good faith beliefs that they could use such a

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<v Speaker 1>statute in pursuing a criminal charge. It hasn't been used

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<v Speaker 1>before in this way. They were taking a risk. I

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<v Speaker 1>really wonder what was going through their mind rather than

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<v Speaker 1>doing further investigation, just sort of to round up these suspects.

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<v Speaker 1>Lauria Levinson, it's always a pleasure to have you on

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<v Speaker 1>Bloomberg Law. That's Laurie Levinson. She's a professor at Loyola

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<v Speaker 1>Law School and a former federal prosecutor.