A new legal chapter has opened in the debate over a gang conspiracy law that was used to send dozens of alleged gang members in San Diego to jail.

Rapper Brandon “Tiny Doo” Duncan, 35, and student Aaron Harvey, 28, who both spent about seven months in jail charged under the law only to have a judge dismiss the case against them in 2015, filed a federal civil-rights lawsuit Wednesday against the San Diego Police Department and two gang detectives.

The lawsuit slams police for arresting the two men under the law, Penal Code 182.5, which was being used for the first time in San Diego and possibly in California.

Passed in 2000, the state law says gang members with general knowledge of a gang’s criminal activities can be prosecuted for crimes others commit as long as they willfully benefited from, furthered, promoted or assisted in some way.


Duncan and Harvey were among 15 alleged gang members arrested in connection with nine shootings in 2013 and 2014. There was no evidence that either man committed the actual shootings. Instead the evidence used against them included rap lyrics and social media postings that prosecutors argued promoted gang violence and created a sense of fear in the community.

Aaron Harvey, left, and Brandon “Tiny Doo” Duncan celebrate in front of San Diego Superior Court on March 16, 2015, after a judge dismissed the criminal case against them. (Misael Virgen / San Diego Union-Tribune )

The District Attorney’s Office, which prosecuted the case, defended its use of the law at the time, calling it a powerful tool to take down gangs as an organization.

A San Diego Superior Court judge ultimately disagreed with the use of the law against both men, dismissing the case against them in March 2015.


In the lawsuit, Duncan and Harvey claim their lyrics and social media postings were protected free speech under the First Amendment. They also allege unlawful search and seizure.

“Here there are two individuals who were arrested and incarcerated for seven months for committing no crime whatsoever, based entirely on things they wrote or said. … That’s not the way we do things around here,” said attorney Mark Zebrowski, whose firm is handling the case pro bono.

Both men claim they were traumatized by the ordeal, including their months of incarceration, and are asking for damages to be determined by a jury.

San Diego police referred questions to the City Attorney’s Office, which had not yet been served with the lawsuit and declined to discuss the claims Wednesday.


Duncan and Harvey grew up in southeastern San Diego’s Lincoln Park neighborhood and have said in previous interviews they are not gang members as authorities have alleged but were punished for associating with those who are.

Duncan, an aspiring rapper who earned a living laying tile, was arrested June 19, 2014, by police officers as he prepared to go to work. Officers then searched his home without his consent or a warrant, according to the lawsuit.

Harvey, who had moved to Las Vegas and was studying to become a real estate agent, was arrested by U.S. marshals a month later as he left his apartment. The marshals told Harvey he was wanted for a number of murders in San Diego, according to the lawsuit.

“Mr. Harvey had no idea what the marshals were referring to and assumed that there had been a serious mistake that would be quickly resolved,” the suit states.


Harvey spent about three weeks in a Las Vegas jail before the detectives came for him and drove him to San Diego.

Harvey’s bond was set at $1.1 million, while Duncan’s bond was set at $500,000. Neither could afford to post the bond amount and stayed in jail until a judge lowered their bonds at a hearing seven months later.

The lawsuit said Detectives Rudy Castro and Scott Henderson were the lead investigators on the shootings. The suit accuses the detectives of targeting Duncan and Harvey, then aiding in their prosecution with testimony and investigative reports, the lawsuit says. Duncan and Harvey are not suing the district attorney because the office is apparently protected by immunity, Zebrowski said.

The prosecution — at least regarding PC 182.5 — began to unravel when a judge found there wasn’t enough evidence to try some of Duncan’s and Harvey’s co-defendants under the law. Another judge then held a hearing on Duncan, Harvey and others and came to a similar conclusion, dismissing the case entirely against Duncan and Harvey.


Judge Louis Hanoian said it was problematic that no specific person had been arrested or convicted of carrying out some of the shootings. He also ruled that for someone to be charged with PC 182.5 the person must have specific knowledge of that crime and have carried out a specific act that furthered or assisted in the crime, or have specifically benefited from the crime.

The dismissal was widely celebrated by a large community of supporters who had rallied around Duncan and Harvey and the others being prosecuted. The men and civil-rights leaders argued the law amounts to guilt by association and unfairly targets young, minority men.

The prosecution went ahead for 11 of their 15 co-defendants. The judge allowed the PC 182.5 charge to remain on some, while others faced various felony charges such as attempted murder and general conspiracy. The cases ended with guilty pleas and two jury convictions. A few also faced charges in a similar federal case.

The District Attorney’s Office simultaneously used PC 182.5 in another case involving gang shootings. The charges were dismissed against one of those defendants, while the remaining 17 either pleaded guilty or were convicted of various violent crimes.


kristina.davis@sduniontribune.com

Twitter: @kristinadavis