Judge rules warrants were unconstitutional in Lincoln Park gang conspiracy case

San Diego Union-Tribune - 8/7/2019

Aug. 6--'SAN DIEGO --

A federal lawsuit attacking the use of a controversial gang conspiracy law has overcome major legal hurdles, with a judge ruling that two men at the center of the case were arrested without probable cause and that San Diego police may have purposefully or recklessly misled the judge who signed the warrants.

The order, filed Monday, largely tilted in favor of the two plaintiffs, rapper Brandon "Tiny Doo" Duncan and Aaron Harvey, who were arrested in 2014 as part of a wider effort to take down a Lincoln Park gang. The men and 13 others were charged under a new conspiracy law that makes it a crime to actively participate in a criminal street gang and willfully promote, further, assist and benefit from its criminal activity.

The criminal activity in this case included attempted murder and shootings.

The search and arrest warrants used Facebook postings, rap lyrics and recorded phone calls as purported evidence of Duncan's and Harvey's participation in the gang.

However, a San Diego Superior Court judge in 2015 found that there was no evidence to support the charges against Duncan and Harvey, and the case was dismissed.

The men filed a lawsuit against San Diego police Detectives Rudy Castro and Scott Henderson who led the investigation and authored the warrants leading to their arrests.

Both sides filed motions for summary judgment, asking the judge to rule on specific merits of the case before trial.

On Monday, U.S. District Judge Barry "Ted" Moskowitz ruled in favor of Duncan and Harvey as to the validity of their arrests. At most, the evidence attempting to link the men to the gang suggested passive, not active, participation as required under the law, Moskowitz ruled. And there was no evidence that pointed to any specific benefit either man gained from such participation, he added.

The judge also ruled that Duncan's arrest was improper because the officers came to his home with a search warrant only.

Moskowitz noted that the men had sufficiently established another claim at this stage, that the police may have intentionally or recklessly given misleading statements and omitted facts in obtaining the warrants. Both sides will have a chance to argue this point further.

The judge did not definitively rule whether police are entitled to "qualified immunity," a legal defense that looks at whether an officer's actions violated clearly established law or constitutional right.

The judge ruled in favor of San Diego police on one point, finding that the investigation's reliance on rap lyrics and social media postings -- while "troubling" -- did not violate free-speech protections.

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