Is Rapper Brandon "Tiny Doo" Duncan Being Prosecuted For Rapping About Gangs?

Two things are clear: Brandon Duncan raps under the name "Tiny Doo," and he's being prosecuted for participation in the Lincoln Park street gang in San Diego.

After that, things get a little cloudy. But it appears that the San Diego County District Attorney's Office is prosecuting Duncan on the theory that a gang's activity made his rap music more popular, and that he therefore benefitted from gang activity. That poses some First Amendment problems.

You may have seen news about Tiny Doo — music sites are full of stories about how he's facing life in prison on the theory that his music benefited from gang activities. Those stories all seem to be sourced from frustratingly vague local coverage. This quote is fairly typical:

Last week, Duncan and some of the 14 other gang members facing attempted murder charges in the case were in court for a preliminary hearing. They are charged in a gang conspiracy involving nine local shootings since April 2013, as a judge mulled a possible trial.

Prosecutors are calling upon a state law put in place by voters in 2000 that has not been used until now. It allows for the prosecution of gang members if they benefit from crimes committed by other gang members.

Though Duncan hasn't been tied to the shootings, prosecutors argued that he benefited from the shootings because his gang gained in status, allowing him to sell more albums.

When I got a request to do a TV interview about the case, I decided to find out more. I reached out to the DA's Public Affairs office to get a copy of the criminal complaint, talked to some people who observed the preliminary hearing, and researched the statute under which Duncan is charged. Here's what I found out.

The Charges

Brandon Duncan is one of fifteen defendants charged in a criminal complaint in San Diego County Superior Court. The complaint — which I've uploaded here — addresses a series of gang-related shootings in 2013.

Some of the defendants are charged with conspiracy to commit murder. Duncan isn't. He's charged with multiple violations of California Penal Code 182.5. The relevant part of that says:

. . .any person who actively participates in any criminal street gang [as defined by statute] with knowledge that its members engage in or have engaged in a pattern of criminal gang activity [as defined by statute] and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony . . . .

The charges against Duncan look like this one, Count Two of the complaint:

On or about May 28, 2013, JUSTIN ANTONIO ANDERSON, ALVIN RANDOLPH BANKS, DARRYL LAWRENCE CHARLES JR., DESMOND RAYSHAWN CRISP, BRANDON DUNCAN, GLENN ROY GRAY, AARON WAYNE HARVEY, JAWAUN DESHAY JONES, CEDRIC CHARLES JORDAN, STANLEY BERNARD KING JR., FRANKLIN LAMBERTH III, ANTHONY ROBINSON, TEVONTE STRIPLING, and DEON WINTERS committed the crime of Criminal Street Gang Conspiracy, in violation of Penal Code Section 182.5, a felony, by unlawfully and actively participating in a criminal street gang with knowledge that its members engage in and have engaged in a pattern of criminal gang activity and did willfully promote, further, assist and benefit from felonious criminal conduct by members of that gang, to wit: the crimes of Premeditated Attempted Murder and Shooting at Inhabited Occupied Structure, in violation of Penal Code sections 664/187/189 and 246, committed on or about May 28, 2013, in violation of PENAL CODE SECTION 182.5.

So what does this mean? Well, by its terms, Penal Code Section 182.5 makes it felony to (1) actively participate in a criminal street gang (2) knowing that the gang has engaged in criminal activity and (3) willfully promoting, furthering, assisting, or benefiting from that activity.

Last year the California Supreme Court pointed out how different that is from previously existing conspiracy statutes:

[182.5] brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony. It also embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense. This constitutes a substantial expansion of a traditional conspiracy application. The “one who benefits” provision recognizes that gang activities both individually and collectively endanger the public and contribute to the perpetuation of the gang members’ continued association for criminal purposes. Due to the organized nature of gangs, active gang participants may benefit from crimes committed by other gang members. When such benefits are proven along with the other elements of the statute, section 182.5 permits those benefitting gang participants to be convicted of conspiracy to commit the specific offense from which they benefitted.

So What's the DA's Theory in This Case?

It's undisputed that Duncan has no criminal record. The DA hasn't asserted that he had anything to do with the shootings charged in the complaint, or that he knew they would happen. He's not accused of any specific acts, only the crime of conspiring to be a gang member under Section 182.5.

Based on what?

There's nothing public in writing spelling out the DA's theory of their case. But I talked to a source about what happened at the preliminary hearing, at which the DA had to put on evidence showing probable cause supporting the charges.

Here's what I understand:

 

  • The DA's theory is that Duncan promoted the gang by writing rap music about gang activity, and that he received an "intangible benefit" — their words — by his music becoming more credible or popular.  The DA did not present any evidence that the gang's crimes had any impact on album sales.
  • The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs.  But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.
  • The DA's theory is that when a gang commits a crime all members of the gang automatically benefit for purposes of Section 182.5.  That theory, if accepted, would effectively eliminate one of the elements of the crime so that the DA would no longer need to prove that any individual gang member "willfully promotes, furthers, assists, or benefits from" the criminal activity.

In short, based at least on reports of their stance at the prelim, the DA seems to be saying that Duncan violated the statute by being a member of the gang and by rapping about the gang.

Now, the DA hasn't committed to a theory in writing, and the burden at a prelim is very low.  They may yet focus their theory another way before trial.  But if that's their theory, it poses very significant First Amendment problems.  The government's argument doesn't fit into familiar and easy categories:  they aren't saying that the rap music incited violence (which would be easy to analyze under the Brandenburg standard), or that it contained a true threat to someone, or that it's obscene, and they aren't trying to use it to prove Duncan's intent in connection with a substantive crime (a popular topic recently). It's not quite like the cases analyzing "Son of Sam laws" that try to prevent criminals from profiting by telling their story, as those laws are explicitly directed at speech and this law is facially neutral but being used against speech.

Arguably the closest comparison is to cases dealing with material-assistance-to-terrorist-organization prosecutions like U.S. v. Mehanna, which I wrote about. Eugene Volokh has written about the scope of the First Amendment in the context of those prosecutions; I'd be very interested to hear his view on this.

Can the government make it a crime to participate in a criminal organization as its poet or songwriter or biographer? That's core expression. Could the government, for instance, charge the writers of narcocorridos on the theory that they benefit from the deeds of the cartels they talk about? Could the government punish someone for hanging out with a marijuana grower and writing articles glamorizing him? I have grave doubts. This is a copout, I know, but I'm going to think and research about it some more.

For now, I know enough to say that the DA's theory seems constitutionally suspect.

Last 5 posts by Ken White

Comments

  1. Lawrence Statton says

    In other news: Federal prosecutors eyeing Woordward and Bernstein – they contend that the fame afforded by Pulitzer Prize is unlawful participation in Watergate burglary.

  2. jdgalt says

    Let's take this law to its logical conclusion: any member of a police or sheriff's department that conducts an "asset forfeiture" racket is now a felon. Oh, please!

  3. C. S. P. Schofield says

    I think you are being for too nice. I think we can say that, based on the evidence, the DA is being a grandstanding putz. He cannot possibly believe that this case will not end up being tossed at some point int the appeals process, assuming it ever gets as far as a trial. He's making headlines, making a name for himself as being "against gangs" in a way that is unlikely to actually put him in any danger, and probably has plans to run for Governor some day.

    Please God, let him run into a Judge with brains and some ethical standards sooner rather than later.

  4. fsandow says

    Ken, do you read the statute as requiring the prosecution to prove that the accused knew, at the time of participation, that he would benefit from the gang's criminal conduct? Or, once you've participated with the requisite knowledge, are you forever liable for any future benefit even if unanticipated or unforeseeable?

    Also, does "promote" have a previously understood meaning in U.S./California conspiracy law? I'm not sure what it means to "promote" criminal conduct.

  5. says

    @fsandow:

    I read the statute as requiring the conduct to be willful, meaning knowing and intentional. The language is "who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang." I read willfully as modifying all of those options.

  6. Jordan says

    I'm not a lawyer, but this proposed argument seems like it has a lot of problems. Ken mentions narcocorridos, and someone "hanging out with a marijuana grower and writing articles glamorizing him", but it seems like it's broader than that even.

    Couldn't this argument be used against journalists for any articles or reports about gang activity, "glamorizing" or not? They sell a lot of advertisements and newspaper subscriptions based on the articles they are producing, it seems hard to claim that they aren't also somehow "benefiting" in some way from this activity as well.

    (Obviously the newspaper has more in it than just reports about gang crimes, but then again, if there was a huge uptick in gang activity where I live, I'm certain that I'd pay more attention to the news….).

  7. fsandow says

    Ken: I understand how the willful requirement interacts with promoting, furthering and assisting, which are all active, but benefitting is essentially passive. How does one willfully benefit from something? Does it require some act of accepting the benefit, and conversely, the option to refuse it? If so, it would seem to be impossible to prove with respect to the type of indirect and intangible benefit that the prosecution is alleging in this case; if not, and it's sufficient that you know you're receiving the benefit at the time of receipt, then it would seem to be pretty much an absolute liability offence.

  8. Jordan says

    Well of course, I did forget about the element of "participating" in the gang, so the journalists are off-the-hook. So, I'll have to back off from what turns out to be a pointless observation and just get in line behind Ken to say, "That seems problematic from a 1st amendment standpoint."

  9. Jacob Schmidt says

    I read the statute as requiring the conduct to be willful, meaning knowing and intentional. The language is "who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang." I read willfully as modifying all of those options.

    Dear lord, I hope so. Otherwise, unwillfully furthering, assisting, and benefiting would count.

  10. says

    Following this logic, couldn't Mario Puzo, or the creators of "The Sopranos", or similar, be charged on the same grounds, that they're popularizing/glamorizing crimes, and (since they aren't sleeping with the fishes) the people they write about approve of their depiction, thus giving them "street cred"?

    Or is that different, because reasons?[1]

    [1]And by 'reasons', I mean, racism… because, oddly, you rarely see the same outcry about Mafia movies/books/etc, or "heist" films like Ocean's 11, [2]that you do about media focusing on crimes committed by darker-skinned criminals. But that's probably another topic. (Counting down to someone claiming it's TOTALLY different, because the Mafia, et al, have a Code Of Honor, while those STREET GANGS are just THUGS.)

    [2]And because this is the Internet and no one assumes a reasonable caveat when they could instead assume mindless absolutism, I did not say there was "no" outcry or reaction — just a lesser one.

  11. ysth says

    Huh; somehow I'd always assumed Ken would look…more like a superhero, I guess. Not that there's anything wrong with how he looks; I guess professional makes sense for most lawyerly stuff.

  12. Angstela says

    The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs

    Awesome. Rob Ford is a gang member! Would we be the first Canadian city with a gang member elected to the mayor's office?

  13. Matthew Cline says

    @Lizard:

    Following this logic, couldn't Mario Puzo, or the creators of "The Sopranos", or similar, be charged on the same grounds, that they're popularizing/glamorizing crimes, and (since they aren't sleeping with the fishes) the people they write about approve of their depiction, thus giving them "street cred"?

    Well, one difference is that Tiny Doo made money from popular entertainment about criminal gangs and hung out with said gangs, while (so far as I know) Mario Puzo didn't hang out with the Mafia. So you could claim that merely hanging out with organized crime but nothing else isn't participating, and making money from entertainment about organized crime without hanging out with organized crime isn't participating, but doing both is participating. I mean, it doesn't seem very reasonable to me, but you could claim it.

  14. Matthew Cline says

    So, how long before some moron treats Penal Code Section 182.5 like other morons treat RICO? I'm sort of hoping that some pro-#GamerGate person will claim that anti-#GamerGate people could be charged under 182.5.

  15. Mikee says

    I'm almost on the fence on this one. If the DA had evidence he was directly involved in a crime, either through indirect participation or having knowledge about it beforehand and not reporting it or being able to directly link a specific criminal act to a specific lyric in his rap, then I could see them tying him to the gang activity and his benefiting from said activity. But absent that evidence it does appear he's being prosecuted simply for rapping about gang activity.

    It is akin to Hunter S Thompson, though I don't think it is anything like Woodward & Bernstein, news journalists, or the creators of fictional stories. The former traveled with and partook in the life of what he reported on, the latter were reporting/creating after the fact and only tied to criminal activities because of their reporting and/or creations.

  16. Dan says

    I bet this thing ends up being about whether you LIKE "Tiny Doo" or people like him. I would of course rather it be decided by someone like Popehat who understands precedent and what this thing would mean going forward. Instead, it will be an emotional, impassioned plea argued in front of a jury with little regard for the law.

    Even if Tiny Doo were to win, the ordeal in many cases like this can be devastating with bills and appeals and waiting etc. Perhaps in his case however, any benefits he may or may not have gotten from the gang, will be far outstripped by the act of being prosecuted itself.

  17. Yarrgh says

    All I can say is that if Tiny Doo is found guilty, theni must be married to Whitney Houston. Because she is literally every woman.

  18. John Kingston says

    To jump on the bandwagon, could this theory be used to prosecute Sudhir Venkatesh, who benefited from his associating with a gang in order to write books (Gang Leader for a Day, Floating City) on the economics of the drug trade?

  19. Noscitur a sociis says

    "Federal prosecutors eyeing Woordward and Bernstein – they contend that the fame afforded by Pulitzer Prize is unlawful participation in Watergate burglary."

    "Let's take this law to its logical conclusion: any member of a police or sheriff's department that conducts an "asset forfeiture" racket is now a felon."

    "Gilbert and Sullivan wanted on claims that they incited piracy in "Pirates of Penzance"?"

    "Following this logic, couldn't Mario Puzo, or the creators of "The Sopranos", or similar, be charged on the same grounds, that they're popularizing/glamorizing crimes, and (since they aren't sleeping with the fishes) the people they write about approve of their depiction, thus giving them "street cred"?"

    You seem to be ignoring one of the two elements of the crime — that the defendant "actively participate in" the criminal street gang.

    (The Hunter S. Thompson and Tom Wolfe examples come a little closer, but I think there would be a good argument as a matter of statutory interpretation that simply spending time with a criminal street gang is not enough to constitute active participation — and I don't feel like taking the time to research whether the respective groups would have met the definition of criminal street gang under California law.)

  20. John Barleycorn says

    ~~~_…as a judge mulled a possible trial._~~~

    Gangs. What-cha-ya gonna do?

    "constitutionally suspect" aside
    more than a pleasure to see you rolling atop this tractor of yours again, plowing the grounds for the winter wheat planting again Ken.

  21. Izraul says

    The truth is he (tiny doo doo) and his other unknown amateur no names / talent homies attempted to make names for themselves in dropping gay little hints surrounding the killing of one of my friends. Of course initial suspicion was LP. Eventually the streets talk. Generally sooner than later. But given the depth and level of the incident no one wanted their name on it. their name on it mute. Needless to say the cities murder rated doubled immediately after that. When keeping it "gangsta" goes wrong! lol

    Prison will go above and beyond..

  22. Shrubery says

    Following this to an illogical extreme: Would this make the majority of the police/insert you favorite agency officers guilty of a felony?

  23. Levi says

    Certainly it would seem that any researcher who comes close to embedding with a gang (like Sudhir Venkatesh, though I think that was Chicago) would be arguably liable under this the instant they publish.

    What about employees of Rockstar North who might have spent time on the street researching gangs while producing games like GTA San Andreas? That's some serious "benefiting".

  24. Levi says

    For that matter, what's the threshold for active participation? Cops at least were willing to accuse the Minneapolis mayor of putting lives in danger by flashing a "gang sign", which is apparently "legitimizing these people that are killing our children in Minneapolis".

  25. Nyarlathotep says

    Well, crap. When I first heard about this case, I was hoping it was another one of those cases of the press getting the law wrong and misrepresenting what was actually happening. Like those "upskirt photography" cases.

  26. Jesse from Tulsa says

    Hollywood is set for a SLEW of indictments for Colors, Scarface, Bonny and Clyde, Butch Casidy and the Sundance Kid, Jesse James, Al Capone… just a ton of movies where Hollywood clearly benefited from criminal activity.

    I patiently wait justice for everyone on equal footings…

  27. Rick says

    By this standard, all lawyers who represent criminals benefit financially or reputationally from their criminal activity so are therefore criminals themselves.

    Hmm….

  28. says

    Just noting that (1) this particular law only applies to street gangs, and (2) it wouldn't apply unless prosecutors argue that the artist not only benefits from, but "participates."

  29. Dan Weber says

    2000 years ago there was a man who rapped about God. They nailed him to a tree. His name was Jesus.

  30. Doctor X says

    To be fair, he only hung around for three hours and was sprung by his lawyers after three days. . . .

    What?

  31. Doctor X says

    @Ken of White Just how does one define, legally, "participates?" That is not intended as a snide question. Is there a material standard.

    A lot of comments are trying to work around what that means: is an author researching and publishing on a criminal organization "participating?" I would think not, but the SD DA's office does not have me on speed dial.

    Let us pretend a non-gang member who admired a particular member–neighborhood/Church/Mensa/Pre-Law friend. Gang member is gunned down by Thugs™ So non-gang member writes a song mourning his friend. Song becomes popular and inspires Many Peoples to join the gang and do . . . gangy things. Has he participated?

    Less absurd perhaps, he has lots of fans. Lots of them are gang members. This means income. Being a bit of an idiot, his songs start "Celebrating the Gang Life Style." Is he participating in gang activity?

    You may not, of course, have an answer to any of that.

  32. En Passant says

    Ken wrote:

    The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs. But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.

    Two distinct and different pieces of evidence.

    "Photos of him with gang members throwing gang signs" could be any photo of "Tiny Doo" in the general vicinity of gang members. In other words, the meaning of such photographs could be entirely fabricated.

    In the 1960s the CPUSA was known to find unwitting newsworthy and non-communist people at a newsworthy event, and gather party officials around him to shake his hand, while their photographer snapped pictures. The pictures would then be published in their party newspapers or leaflets to show that the speaker was a friend of the CPUSA.[1]

    On the other hand, "h]is rap music also showed that he participated in the gang" reeks of bootstrapping: "he raps about the gang because he's a gang member; he's a gang member because he raps about the gang."

    As others have noted above, Hunter Thompson and Tom Wolfe could have been indicted under a conspiracy definition as loose as that.

    FN 1: That CPUSA trick actually happened to someone I knew long ago, who despised the CP and the left generally.

  33. Matthew Cline says

    @Ken:

    Just noting that (1) this particular law only applies to street gangs,

    Why did they write it particularly for street gangs, as opposed to organized crime in general?

  34. Guesting says

    So, how long before some moron treats Penal Code Section 182.5 like other morons treat RICO? I'm sort of hoping that some pro-#GamerGate person will claim that anti-#GamerGate people could be charged under 182.5.

    While not citing the actual law, im afraid it has been done

    By this standard, all lawyers who represent criminals benefit financially or reputationally from their criminal activity so are therefore criminals themselves.

    Hmm….

    And gangsters need to eat so they buy food which somewhere down the line provides money to the government so the government benefits from gang activities too. We all (maybe?) have used services from the government so we all benefit from gang activity.

    Okay everyone lets all go to jail, do not resist or you will be shot.

  35. Someone says

    In addition to the freedom of speech issue, is there also potentially a freedom of association issue? One of the elements of the crime is "active participation" in a particular group.

  36. George William Herbert says

    I see a constitutionally vague failure in the law to define or to discriminate artistically or curiously describing/reporting on/rapping about from artistically self-identifying with from self-identifying with from associating with from membership in from participation in.

    The DA is taking full advantage of the vagueness to go back to (based on presented evidence) at least artistically self-identifying with, possibly as far as artistically rapping about.

    I believe that 1st amendment covers at least that far, and the courts should shoot that down.

    I believe that the last several are not sufficiently discriminated. The court either needs to establish a test for participation to separate it from the others, or reject he law until the legislature clarifies it to establish what they meant by participation.

  37. Graham Martin says

    The definition of "gang" notwithstanding, is the DA prosecuting every priest in his jurisdiction, now? How about every employee of a the major banks that criminally repossessed homes?

  38. David C says

    Why did they write it particularly for street gangs, as opposed to organized crime in general?

    If you look at the definition of criminal street gang

    As used in this chapter, "criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

    Given that extortion, money laundering, carrying a concealed weapon, and witness intimidation are on the list of offenses (along with obvious stuff like murder, arson, robbery, etc.), I think most organized crime actually WOULD fall under this.

    Nightmare scenario: You're a member of your school's marching band. Every week, you play during the football game. The band also runs the concession stand and gets the proceeds. You know that the football team will vandalize the sign of opposing school the day before the game. It's some sort of weird tradition. The school paper has run an article urging the activity to stop, but it doesn't, not even after two players are caught and prosecuted. You figure that it's not your problem – you aren't even ON the football team, and you certainly didn't vandalize anything.

    Then, a few days before the last game of the season, a player on the football team snaps and kills the star of the opposing team. The game is not canceled – "he would have wanted us to play," says his team. So you go and play your instrument in the game, which is sold out due to the spectacle.

    You are now convicted of conspiracy to commit murder, along with everyone else in the band. Felony vandalism (which starts at only $400 of damage) counts as "criminal gang activity", you knew about the "pattern of criminal gang activity" but still "participated" in the "street gang's" activity by playing your instrument (the law explicitly says you don't need to be a member of the gang to be convicted of this, so long as you "participate"), and then you "willfully benefited" from the murder via increased concession sales. Since the sentence for conspiracy is identical to the sentence for the crime, you are all sentenced to life without parole.

  39. En Passant says

    Since the sentence for conspiracy is identical to the sentence for the crime, you are all sentenced to life without parole.

    And that's without the accordion enhancement.

  40. anonymous says

    why was the gang enhancement law "laughable" when the "bird rock bandits" followed and killed a man, collectively. all were directly involved, and they acted on behalf of the gang name "bird rock bandits".. meanwhile Mr. duncan has no knowledge of, and no participation in these alleged shootings, but judge rules there IS somehow probable cause in this case based soley off his music and the fact that there is a revolver on the cover? DA bonnie was involved in prosecuting both cases. ask her what the difference is.

  41. Czernobog says

    @Matthew Cline

    Steven Seagal did associate with mobsters,and benefited financially from movies about the mob. When can we expect an arrest?

  42. says

    Could the government punish someone for hanging out with a marijuana grower and writing articles glamorizing him?

    1) I'm not just thinking of Hunter S Thompson embedding himself with the Hells Angels, but I'm thinking about High Times magazine, and yes, The Sopranos and other mob/gang/crime shows. It's VERY common for the people involved with those shows to bring in actual gangsters as consultants: Sons of Anarchy actually gave a bit part to Sonny Barger, a founding member of the Hells Angels, and the actor who plays "Happy" is also a patched member of that MC.

    2) Would it make a difference if he was a rock or country artist? Does it make a difference if we replace "rapping" with "singing" or "writing"? I think there's a pretty strong argument that choosing to use a racially associated term like "rap" rather than a universal one like "song" is prejudicial.

  43. joz says

    All of this is troubling. The idea that you prove membership in a criminal gang by producing a photo of someone with a known, (alleged, certain, whatever) gang member is troubling.

    That done, you have now more or less established conspiracy too? Or you can now proceed to establish conspiracy? Something like this.

    Bad enough.

    But this case seems to take a frog leap, flinging an already stretched argument where it simply will not go, but, I am beginning to suspect, is where the legislature intended all along perhaps? Target: Certain kinds of rap albums?

    I don't think there is only a Free Speech problem here. The reasoning and logic is hinky – there is something flawed and defective in the logic as well.

  44. Michael Price says

    So then a locksmith who benefitted from the increased demand for locks "benefitted from" a rash of burglaries?

    And how are they defining being a member of the gang? Does throwing a few gang signs in a photo count? How they hell could it?

  45. Fasolt says

    As used in this chapter, "criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

    Would the Prenda secret handshake count as an identifying sign, I wonder?

  46. David C says

    @Michael Price:

    And how are they defining being a member of the gang?

    The law explicitly states that you do not have to be a "member" of the gang to be prosecuted for this. You only have to "actively participate" and have knowledge that some of the members commit crimes.

    So then a locksmith who benefitted from the increased demand for locks "benefitted from" a rash of burglaries?

    Indeed he does. But they couldn't prosecute him unless they found evidence of his participation.

  47. David C says

    As used in this chapter, "pattern of criminal gang activity" means the commission of, attempted commission of, conspiracy to commit

    But wait. "Conspiracy to commit" is what someone is guilty of if they "actively participate" and "willfully benefit". This means you get some weird form of tertiary criminal liability.

    Say you have an animal rights organization that, along with legitimate protests, runs around breaking into places and freeing animals. Under this statute, all of the members are guilty of conspiracy to commit the crime, right? But now let's say you have a organization like the ASPCA, which doesn't do burglary or theft but often joins the first organization's protests. So now all the members of the ASPCA are ALSO guilty of conspiracy to commit. And now let's say some local politician decides to participate in an ASPCA event to adopt shelter dogs (it's great publicity.) Assuming he knows about the first organization's crimes and the ASPCA's association with them, he could now be jailed for conspiracy to commit burglary, even though he's several times removed from the actual crime and didn't do anything except promote shelter dog adoption.

    One could imagine a scenario where this attaches to an entire political party due to their connection to a group that has a connection to a group that does illegal things. And then attaches to every group that donates to that party. The one thing that can save you is ignorance – if you aren't aware of it, you can't be convicted.

  48. David C says

    Would the Prenda secret handshake count as an identifying sign, I wonder?

    Sure, if they have one, but you don't even need to go that far – "Prenda" is a name, and that's all that's needed. They've been at least accused of extortion, witness intimidation and money laundering by some people, which are each crimes that can trigger them being a "criminal street gang" under this statute. The statute doesn't seem to actually require a conviction – the law says " commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of". They don't have to convict any one person of the actual crime so long as they know someone in the group did it.

    Prenda might be many things, but it seems a bit ridiculous that they could be considered a "criminal street gang". The law is obviously ridiculous.

  49. Jacob Schmidt says

    Nightmare scenario: You're a member of your school's marching band. Every week, you play during the football game. The band also runs the concession stand and gets the proceeds. You know that the football team will vandalize the sign of opposing school the day before the game. It's some sort of weird tradition. The school paper has run an article urging the activity to stop, but it doesn't, not even after two players are caught and prosecuted. You figure that it's not your problem – you aren't even ON the football team, and you certainly didn't vandalize anything.

    Then, a few days before the last game of the season, a player on the football team snaps and kills the star of the opposing team. The game is not canceled – "he would have wanted us to play," says his team. So you go and play your instrument in the game, which is sold out due to the spectacle.

    You are now convicted of conspiracy to commit murder, along with everyone else in the band.

    I'm not seeing it. I don't think occasional vandalism, or one murder in which only one person participated, can be called a "primary activity"; it all seems rather incidental to me.

  50. David C says

    I don't think occasional vandalism, or one murder in which only one person participated, can be called a "primary activity"; it all seems rather incidental to me.

    Obviously the murder wouldn't be a primary activity (although it's not necessary that the crime you're being convicted of is a primary activity, as long as a crime somewhere on the list is a primary activity.) I was envisioning a scenario where they did the vandalism every week. The law says "a" primary activity, not "the" primary activity. I think it's a grey area.

    Maybe you're right and vandalism wouldn't be considered a primary activity in that example. But if you're a band member, you rely on that at your own risk.

    What I didn't tell you before is that the entire team is in on a money laundering scheme where half the ticket sales are split between the players instead of going back to the school like they are supposed to. Legally, they ARE a criminal gang because this is one of their primary activities, but you don't know this. Everything else is like my original example. You could still be convicted of conspiracy to commit murder. The law doesn't require that you know they are a criminal gang so long as you know about a "pattern" of activity, which starts at two offenses. Nothing says the activity you know about (vandalism) and the activity that makes them be a gang (laundering) have to be the same crime.

  51. Daniel says

    "Can the government make it a crime to participate in a criminal organization as its poet or songwriter or biographer?"

    Yes. The key word is "participate". I don't read the governments argument to say that no one can be a gang's songwriter, only their songwriter can't be a member of the gang. Look at it this way…is the US Marine Band part of the Marines? Yes. Yet John Phillip Sousa wrote many marches glorifying military conflict while not a member of the band. So the test doesn't turn on the speech. The test turns on gang participation. The writers of narcocorridos won't qualify because they are not, for the most part, active gang members.

    The idea that members of a criminal conspiracy have less free speech rights than people who are not members of a criminal conspiracy strikes me as legally noncontroversial. What strikes me as dubious is the word "benefit". What if one gang member wrote a poem about his gang's recent bank heist, shared it with his mother, and his mother baked him some cookies for his effort. Does that count as an benefit such that he is now liable for conspiracy to commit a bank heist? That seems outrageous and bizarre. I think the better attack on the statute is to argue that the word "benefit" is unconstitutionally overboard or vague because no reasonable person would know whether they benefited or did not benefit from gang activity.

  52. Corporal Lint says

    is the US Marine Band part of the Marines? Yes. Yet John Phillip Sousa wrote many marches glorifying military conflict while not a member of the band.

    To be the pedant of the day, Sousa was in the Marine Corps Band for 19 years, it's director for 12. He wrote "Semper Fidelis" while part of the Band, but was a civilian for "Stars and Stripes Forever". So the prosecutor can totally get him for the first one, but has to let him go on the second.

    Somewhat perversely, Sousa wrote the Army's song ("When the Caissons Go Rolling Along" or whatever it's called) while he was in the Navy, running a band, during WWI.

  53. Czernobog says

    @Daniel

    For starters, since participation in gang activity carries it's own penalties, the notion that there should be further penalties for writing about them is the crux of the matter, and the test does turn on speech.

    And the idea that members of a criminal conspiracy have less free speech rights than people who are not members of a criminal conspiracy IS fucking controversial, especially before those people have actually been convicted of criminal activity.

  54. David C says

    I don't read the governments argument to say that no one can be a gang's songwriter, only their songwriter can't be a member of the gang.

    The law explicitly says you don't have to be a member.

    (i) In order to secure a conviction or sustain a juvenile petition, pursuant to subdivision (a) it is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of his or her time or efforts to the criminal street gang, nor is it necessary to prove that the person is a member of the criminal street gang. Active participation in the criminal street gang is all that is required.

  55. David C says

    The idea that members of a criminal conspiracy have less free speech rights than people who are not members of a criminal conspiracy strikes me as legally noncontroversial.

    Even assuming that such a thing IS noncontroversial, this law still does it backwards. This isn't a modifier to enhance a penalty or something. The prosecution claims that the rapping itself is what makes him guilty of conspiracy.

  56. glasnost says

    Like so many other things, this is horrifying and insane. Criminal conspiracy laws seem like laws making it illegal to be associated with a criminal.

  57. Robert says

    * It seems that two basic conditions must be met – (1) active participation AND (2) promotes, furthers, assists or benefits.
    * California Penal Code Section 182.5: "Notwithstanding subdivisions (a) or (b) of Section 182, any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182."
    * If the AND is changed to OR then the entire entertainment industry is susceptible. I think this case must be more about actual membership or association with specific individuals.

Trackbacks