Hip hop artist Tiny Doo (real name: Brandon Duncan) is currently facing charges in Los Angeles County that are related to his affiliation with a gang. The case has attracted a lot of media attention, largely because of the perception that he’s being prosecuted for the lyrics to his songs. Ken White, a local criminal defense attorney and former federal prosecutor, looked into the case, and still isn’t quite sure what’s going on.
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 . . . .”
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 . . .
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.
White then spoke to someone who was present at the preliminary hearing, who said the DA is arguing that the charges are indeed directly related Duncan’s lyrics and the fact that his music and career benefited from the gang’s crimes. But White points out that evidentiary standard at a preliminary hearing is low, and the DA could change its tactics later on.
If Duncan is indeed being criminally charged for his music, I don’t see how those charges could possibly hold up. White compares the law in question here to the problematic federal laws banning “material support” for terrorist groups, with the added twist here that the California law also bans “benefiting” from gang crimes. It also seems clear that the DA is engaging in some pretty ridiculous grandstanding here.
But there’s another problem, here. If you read the Popehat blog with any regularity, you’ll know that Ken White is a smart guy with a lot of criminal law experience. After reading the law, the complaint against Duncan, a California Supreme Court opinion on the law, and consulting with a source familiar with the charges, White still isn’t clear on what’s going on in this case. Laws need to be clear, narrowly written and precise. With respect to clarity, you can’t expect the public to abide by laws they don’t understand. There are of course some exceptions. Laws governing complicated financial transactions, for example, will necessarily seem complicated and confusing to the general public. But even here, the laws should still be easily understood by the people at whom those laws are targeted.
With respect to precision, laws that lack specificity give prosecutors far too much discretion. Too much discretion is an opportunity to apply laws selectively. When laws are broadly applied selectively, you’re no longer government by the rule of law, but by the rule of men and women, which inevitably means the rule of politics.
This particular law is both broad and complex. The very fact that after a preliminary hearing it’s still difficult for even professionals who specialize in criminal law to not only figure out what’s actually going on, but to ascertain whether the law is being a applied in an unconstitutional manner is a pretty good indication that the law itself is flawed.