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Constitutional Law

Suit claims arrests over social media posts and rap lyrics violated First Amendment rights

Two men arrested and detained by San Diego police because of rap lyrics and social media posts have filed a federal lawsuit for alleged violation of their First and Fourth Amendment rights.

One of the plaintiffs in the Jan. 10 lawsuit (PDF) is rapper Brandon Duncan, known as Tiny Doo, according to a press release. The other is Aaron Harvey, who was studying to become a real-estate agent at the time of his arrest. Duncan and Harvey are represented on a pro bono basis by lawyers at Morrison & Foerster.

The men had been accused of promoting gang violence in violation of an obscure California law that makes it a felony to promote and benefit from a gang that is engaged in criminal activity. The arrests in June and July 2014 may have been the first time the law was used in San Diego, and possibly in California.

Prosecutors had contended Duncan’s lyrics promoted gang violence, created fear and helped legitimize the Lincoln Park gang, which was linked to nine shootings between May 2013 and February 2014.

Officer declarations in support of arrest warrants for Duncan and Harvey said the men were Facebook friends with gang members, and Harvey had appeared in Facebook photos with gang members. They also said Duncan posted a Facebook message urging the freeing of two gang members who had been arrested.

The men spent seven months in jail, before bail was lowered and charges were dismissed.