Aaron Harvey was leaving his Las Vegas apartment to get some food one day in July 2014, when, suddenly, “man, Seal Team 6 came out of nowhere, pretty much. Guns drawn, dogs, helicopters.”

It was the U.S. Marshals, who’d come to take Harvey back to San Diego.

“They told me that I was wanted for murders in the state of California,” Harvey said. “I laughed. I started laughing. I told ‘em, ‘You’ve got the wrong guy.'”

Harvey isn’t charged with murder, though. That’s precisely why his case is so controversial.


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District Attorney Bonnie Dumanis is using an obscure criminal statute, Penal Code section 182.5, for what appears to be the first time ever in California to prosecute a group of 15 San Diego men, including Harvey. The DA has admitted that some of the men had nothing to do with the underlying crimes at the heart of the case – a series of shootings by Lincoln Park gang members in 2013. Rather, they’re charged with conspiracy for belonging to the same gang as the shooters. For that, they could go to prison for life.

It’s guilt by association, basically, and if federal law is any guide, it’s perfectly constitutional.

The law says a person who “willfully promotes, furthers, assists, or benefits” from a gang crime can be charged with conspiracy. The benefit Harvey received out of the shootings, according to the DA, is street cred. If someone in the gang commits a crime, the reasoning goes, the whole gang gets a boost to its reputation.

“They’re saying I benefited because my stature, my respect, went up. I didn’t even know I had any stature. I don’t understand how someone can benefit from something they don’t even know exists,” said Harvey. “It’s not a quantifiable thing, there’s no measure for stature. They’re the ones quantifying it.”

Most of the attention on the case so far has centered on the rapper Tiny Doo, whose real name is Brandon Duncan. Because some of the evidence tying Duncan to the Lincoln Park gang includes his own lyrics, his case has pulled at the heartstrings of everyone from music critics to legal scholars – “Rapper Tiny Doo facing long prison sentence over lyrics” reads one typical headline.

Harvey’s case has none of those sexy First Amendment issues. Much of the evidence being presented against him isn’t rap lyrics but Facebook posts that prosecutors say link him unmistakably to the Lincoln Park gang. But he, like Duncan, has no criminal record and is facing up to life in prison if convicted.

Harvey insists he’s no gang member – just a victim of living in a gang-heavy neighborhood, and thus, falling into the state’s gang database by virtue of having been seen in gang territory and socializing with other gang members, i.e., his friends and neighbors.

Being documented as a gang member isn’t a crime on its own. But if Dumanis is successful, she’d effectively make it one – because anyone documented as a gang member could be held responsible for the crimes of any other member, so long as the crime benefited the gang somehow.

“This is not the American justice system. We attach personal liability to things. You’re not guilty by mere association or mere membership,” said Edward Kinsey, Harvey’s lawyer. “It’s just wrong. If they can get away with this, I fear for our future as free citizens.”

“This is as draconian a conspiracy law as you’ll see anywhere in the United States,” said Robert Weisberg, a professor at Stanford Law School and co-director of the Stanford Criminal Justice Center. “It exploits it to the absolute maximum, but it’s not unconstitutional. It’s just unbelievably tough.”

Harvey’s trial is set for April 20.

♦♦♦

Harvey moved to Las Vegas in 2013, he said, after one encounter with San Diego police became the last straw. He was stopped outside his home and searched. An officer found his EMT card in his wallet, Harvey said, and told him they’d have to call his boss and tell him he was a gang member.

He said he was so spooked by the encounter, he decided to move to Nevada, where two of his sisters live. He made money as a club promoter while he studied to become a Realtor. He said he’d passed the required classes and was studying for the real estate exam when he was arrested – forfeiting the money he’d spent on books and courses.

Harvey says San Diego police stopped and questioned him more than 50 times while he was growing up in Lincoln Park, and that he was routinely handcuffed, or placed in the back of a police patrol car in many of those instances, then released without being charged with a crime.

“In the process of those stops, there were never any crimes being committed,” Harvey said. “Nobody called in, saying, ‘Oh there’s a disturbance.’ They’re just stops. Stops of me in front of my grandmother’s house, walking through the neighborhood, to the store, whatever.”

To hear Harvey and his supporters tell it, his case is at best a misunderstanding. At worst, it’s the product of a system that’s stacked against young men in poor, gang-ridden neighborhoods.

Harvey says his classification as a gang member was cemented just after he turned 18, largely because of information collected during those police stops, including photos of him outside his family’s home and his grandmother’s home, also in Lincoln Park.

To Harvey and his parents, Aaron’s inclusion in the gang database paints a wildly misleading picture of their family. Once people hear “gang member,” they won’t see that Aaron comes from a two-parent family, that Kelly, his mother, and Dwayne, his father, have been married for about 30 years. They won’t see that Aaron finished high school and attended college at Washburn University on a football scholarship until one too many shoulder injuries forced him off the team (“He washed out of Washburn,” Dwayne says with a chuckle). They won’t see that Aaron’s grandparents moved to Lincoln Park in the 1950s, establishing a legacy in the neighborhood that the family is proud of.

“Aaron’s no angel. I’ve been up at the school a bunch of times before when they’d call me because of stuff he was doing,” Dwayne Harvey said. “But it was always for ‘Dennis the Menace’-type stuff.”

According to the state, a person can be entered into the CALGANG database if he or she meets any two criteria from a list that includes: admitting to being a gang member: being arrested alongside known gang members; being ID’d as a gang member by a reliable source; being seen affiliating with documented gang members; displaying hand gestures affiliated with a gang; frequenting gang areas; wearing gang dress; or having gang tattoos.

It’s easy to see, then, why advocates and community leaders think a young person could be condemned by circumstance — entered into the database, and made to suffer all the consequences that come with it, simply for living in a certain neighborhood and for socializing with other people who live there.

The fact that Harvey has no criminal record has attracted advocates and local leaders to his cause. His case has crossed Assemblywoman Shirley Weber’s radar, and the lawmaker plans to meet with Dumanis to express concern about her office’s use of Section 182.5.

Dana Greisen, head of the district attorney’s gang prosecution unit, says the idea that someone could make it into the database simply for being in the wrong place at the wrong time, or for something vague like wearing a red shirt, is absurd.

Much of the evidence tying Harvey to the Lincoln Park gang was gathered from social media.

“In every type of crime that gang members involve themselves, they’re using the internet,” said Greisen. “So, they’re posting pics of themselves with firearms, recruiting and advertising girls for prostitution, making statements in posts, songs, etc. that are threatening real neighborhoods, real people, so that when they walk into those neighborhoods, they can do whatever they want. It’s kind of the Wild West on the internet right now.”

The district attorney’s office said it has included “numerous Facebook posts” in its case against Harvey, in which he’s “throwing up gang signs representing the Lincoln Park Bloods. Also numerous pictures with Aaron Harvey and numerous Lincoln Park Gang members who are throwing signs for ‘Crip Killer’ and ‘Lynch Mob’ a subset of Lincoln Park Bloods, and numerous references and posts related to the Lincoln Park Gang.”

“It’s not a guessing game. They’ve made it as obvious as they possibly could. The social media stuff is in our face, in their rivals’ faces in no uncertain terms,” Greisen said. “People talk to their girlfriends and the media and say they’ve never been a gang member, that this is all just a big misunderstanding. And then you look at the evidence, and it’s not a close call.”

While it’s true Harvey has no criminal convictions to his name, it’s hard to believe, as he contends, that he had no idea police had documented him as a gang member until he was charged in this case.

Harvey was tried on of a single count of drug possession in 2010. In that case, prosecutors were allowed to present evidence tying Harvey to the Lincoln Park gang. The exhibit list from the trial includes things like “Waist belt with ‘Lincoln Park’ written on one side” and “Red polo shirt with the defendant’s known street moniker written on the front.”

A jury took just over an hour to find Harvey not guilty.

♦♦♦

Like any criminal case, the district attorney’s office and Harvey couldn’t be further apart in their versions of reality. Either Harvey is a hardcore gang member who was helped terrorize a community, or he’s a young man who just wants the police to leave him alone to get his real estate license.

But both sides seem to agree on at least one thing: Using the law in this way is new, and it could have big consequences if it works.

Section 182.5 was created as part of Proposition 21, a 2000 voter-approved package of criminal justice reforms. Pushed by former Gov. Pete Wilson, most of the reforms targeted juvenile offenders, and made them eligible in some cases to be tried as adults.

Harvey’s case marks the first time Section 182.5 has been used in San Diego, according to the district attorney’s office, and possibly the entire state.

“It’s the first time this statute has been used at any significant level,” said Greisen. “We’ve spent many hours in regard to what this law says and what evidence we need in order to prove it. Literally thousands and thousands of docs retrieved, numerous witnesses involved in the case, years of documentation, wiretaps, etc., has gone into this.”

The California penal code is both gratuitously complicated and extremely harsh, said Weisberg, the Stanford law professor. “Prosecutors are situated to take advantage of those things more than any other participants in the system. They know how to work the penal code,” he said.

Greisen said the DA’s office believes a higher court will ultimately have to weigh in on the law. But federal law has a similar version of the statute, RICO, which has been used to criminalize gang membership.

Even if a jury takes prosecutors at their absolute word, and believes Harvey is a member of the Lincoln Park gang, the conspiracy charge could still be a tough sell without evidence he knew about the shootings.

“There’s always the risk a jury will nullify a charge even when it’s legally sound because they think it’s too draconian,” said Weisberg. “Or if they’re bothered by the vagueness of the statute they’re being asked to enforce, they may just acquit. It’s a huge gamble.”

As you might imagine, Harvey doesn’t care much for being part of a trial balloon that could land him in prison for life. He’s spoken to the City Council’s public safety committee and to a class at San Diego City College, warning against what he says are the dangerous implications of the law. The last time I met with him, he was about to meet with a group that’s organizing an effort to repeal Prop. 21.

“This is about a penal code that is so unjust, that if we are convicted, we will be used as a model throughout the state that will have the capabilities of annihilating and eliminating communities,” Harvey said at a press conference last week.

Though he says he moved to Las Vegas to escape the constant questioning by San Diego police, his arrest, counterintuitively, has convinced him to stay in San Diego for good.

“They have created a young activist now,” Harvey said. “I am going to be actively involved in my community. Not just in my community that I grew up in, but hopefully all communities across the state. I even plan on going to law school.”

He pauses for a moment, then corrects himself. “Not planning. I am going to law school.”

Liam Dillon and Camille Lozano contributed to this report.

    This article relates to: Gang Culture, Must Reads, Public Safety

    Written by Sara Libby

    Sara Libby is VOSD’s managing editor. She oversees VOSD’s newsroom and its content. You can reach her at sara.libby@voiceofsandiego.org or 619.325.0526.

    25 comments
    izraul hidashi
    izraul hidashi

    Please... I grew up around gang members and not once have I taken pictures throwing up gang signs, or worn clothing with a set's name on it. As far as the law goes, that's an unlawful reach and needs to be shutdown. Someone needs to investigate Dumanis for her mis-deeds, cause she's a classic hypocrite. She sat and did nothing when white collar (white color) Criminal Bankers were committing grand theft, stealing peoples homes, and terrorizing innocent families who were thrown into the streets. Where was her tough on crime persona then?  She's just another racist hypocrite trying to make a name off others misery.     

    As far this fool goes..  wearing belts with L.P. on it?, throwing up L's in photos?  c'mon man.. No one just gets away with false flaggin infront of active members! homies or no homies... that shit don't fly!  Save that bullshit for people who don't better..

    rhylton
    rhylton subscriber

    Those persons who do not recognize (or cannot manufacture) a relationship between this retreat and last week's delay on the publication of the Racial Profiling Data analysis, may not be paying close attention.


    It was reported that she said racial disparities within the system also need to be changed.


    “We think we have to put balance to prevent harsh treatment and disparate treatment with members of the minority community.”


    The Racial Profiling Data analysis shows the things that  claims to be seeking to prevent. I and more than 40 members of the San Diego Community know the results and doubtless so does Dumanis and so does several members of the City Council who would claim the opposite.

    front center
    front center

    It's sad and pathetic to see men who act like bosses and talk like killers one minute, openly tuck their tails for the whole world to see. It can takes years to build street cred, and only a second to destroy it.Without a doubt, there is no question that the streets know exactly to what and to whom it all refers to. Unfortunately it never matters what the rest of the world may know or not know, the streets already do. And that's all that ever does. It was certainly funny  at one time or another for some,  but not for the others who can understand the codes in songs and posts. Throwing around hints specific to particular situations for which there could be no mistake is not for the faint of heart. It's not uncommon place among many guilty parties to try and run from past situations. But like the many others before that suddenly come to realize the gravity of a situation, there is no cure, only delay.  And only now desperate for something better out of life, way after its too late. It's exactly these kind of unchangeable facts that will always come back to haunt those who cared nothing for the lives of others. No matter what one comes to care about later, it always end the same. Death or Prison.. It comes with the stripes.

    rhylton
    rhylton subscriber

    @front center Nicely written but your disguise remains "shining plain"(ly). Facts are facts and the law in question is an ass. Two judges agree, and now so does Dumanis.


    Your side lost.

    Les Ciapponi
    Les Ciapponi subscriber

    This is so disgusting on so many levels. I think it's time for Bonnie Dumanis to resign. Last I checked this is still America, not Amerika.

    SCOTT KNUTSON
    SCOTT KNUTSON

    District Attorney's name should be changed to Bonnie DumbAnus

    Annie O'Connor
    Annie O'Connor subscriber

    Now if we can just get the DA to apply the same logic to the Muslims.

    Matty Azure
    Matty Azure subscriber

    Cleveland and Ferguson PD's are rookies in the harassment field...as far as we're concerned.

    Signed,

    SDPD

    rhylton
    rhylton subscriber

    @Matty Azure More than 40 San Diegans are familiar with Josh Chanin's (SDSU) findings from the initial analysis of the SDPD's  Vehicle Stop Data. In every meaningful category or metric that is indicative of harassment or racial profiling, San Diego is left looking up at Ferguson.


    I have not examined Cleveland's data; regrets.



    Matty Azure
    Matty Azure subscriber

    I truly believe that the entire District Attorney's office should be locked-up since I am a criminal.

    Signed,

    Bonnie Dumanis

    brantcooper
    brantcooper subscribermember

    This sentence is dumb: "If federal law is any guide, it’s perfectly constitutional." Constitutionality doesn't materialize from passing laws.

    moleman
    moleman subscriber

    "According to the state, a person can be entered into the CALGANG database if he or she meets any two criteria from a list that includes: admitting to being a gang member: being arrested alongside known gang members; being ID’d as a gang member by a reliable source; being seen affiliating with documented gang members; displaying hand gestures affiliated with a gang; frequenting gang areas; wearing gang dress; or having gang tattoos."


    i count 8 different points, and a person must meet two to be considered a gang member.  well, #2, 4, 5, 6, and 7 are not enough in my book, and in many cases #2, 4, and 5 seem downright unconstitutional.  one would imagine that living in a neighborhood with a gang would invariably lead to people "been seen affiliating with document gang members" and "frequenting gang areas."


    i think this law would be okay if it was restricted to #1 and 8, possibly #3 and 7.  And i am very skeptical of the value of "street cred."  couldn't "street cred" go down in some instances?

    DavidM
    DavidM subscriber

    @Judith Swink  A "reliable source" is someone a cop says he has found "reliable." In my experience, cops will claim their source is reliable, and will not remember those times the source has lied.

    Judith Swink
    Judith Swink subscriber

    I have trouble with #3 because there needs to be a definition of "reliable source". Furthermore, a "reliable source" should not be allowed to identify someone as a gang member based on opinion without some documentable evidence. Many of the other criteria seem questionable as well.

    Janet Shelton
    Janet Shelton subscriber

    Find and convict the ones who did the deed or who directly participated.  Any young person can do something stupid like flashing a gang sign on social media, especially in areas where gangs are strong and you don't want to defy them.  I don't see how society at large is going to benefit by taking a guy who was in Las Vegas about to get his real estate credentials and locking him up for years. The justice system needs to go after people who committed serious crimes, and that includes white collar crime.  If we are going to have these laws then let's also prosecute all the thousands of people in the financial/mortgage industry, who either committed fraud and other crimes AND those who watched others do so and failed to report them.  Let's get tough on all crimes if we are going to get tough.  This smells like the crack/powder laws that threw crack offenders in jail for long periods while walking white collar powder users or giving them short sentences. 

    Bit-watcher
    Bit-watcher subscriber

    @Janet Shelton Leaning on anyone who can shed light has a purpose.  It's sad he got sucked into this, but the sooner someone helps out, the better off for all.  Interesting that the gang members and others who can help haven't yet, so we know they don't care about an innocent like Aaron being sucked in and left hanging so the perps can stay free. If Aaron knows anything, he should help out, too, unless he wants to build "cred".  I hope that's not the case, though.

    Janet Shelton
    Janet Shelton subscriber

    @Bit-watcher @Janet Shelton Sure, lean on them, but prosecute them?  Is this producing results?  This guy flashed gang signs, but does he know who did the crimes.  Basically, the law is saying that many people in these areas can be prosecuted for something others did and which they had no involvement in.  Sure, it's constitutional, but is it productive.  Has prosecution of the 15 led to information leading to the arrest of the ones who did it?  The problem here is that it is too easy to get turned into a criminal when you have committed no crimes.  But as I said, if we are going to turn the screws on gangs, let's also have fun with the organized gangs in the financial industry, which caused so many people in this country to suffer greatly.  The problem is that if you wear a suit, you can mostly get by with anything, but if you wear gang colors and flash a gang sign, off to the slammer.  I agree gangs are a menace; I don't agree that just about any young person in a poor neighborhood is guilty by association.  And I don't agree that we should be tough on poor people crime and soft on crime by well off people.

    Bit-watcher
    Bit-watcher subscriber

    @Janet Shelton @Bit-watcher I'm not saying we should be soft on white-collar crime.  We're Enron-by-the-Sea, remember? Look how little anyone has been taken to account.  One city council member is in Congress, another is state speaker.  It's sickening.  

    Bit-watcher
    Bit-watcher subscriber

    Leaning on folks when there's a capital crime involved is a tactic used to get someone to fold -- it's used at the federal level, so why can't it be used at the local level?  This story will go away when someone cants on the real perp.  It's ridiculously easy to get a law school faculty member to describe any law as "draconian", just dial in your political persuasion, and look at the faculty roll. As for Aaron, it's unfortunate to be young and stupid (flashing gang signs in social media posts is pretty stupid if you're trying to be a real straight-up person) and caught at it, it's worse to be older and still stupid, though.  Has anyone written a story on the victim(s)?  No?  Why not?  Were they black?  Were they other gang members, or innocent bystanders?  There's more to the story than this narrow play for a poster-child.

    Is this waving the race card related to Ferguson?  Jumping on the bandwagon, VOSD.  Very "original", and "hard-hitting".  Give a little more of the story than your narrow view.

    rhylton
    rhylton subscriber

    @Bit-watcher Race card? Cards that are in the deck ought to be played.


    Artiewhitefox
    Artiewhitefox subscriber

    Do people consider who invented jails? I can tell you this: God did not invent jails.

    Dennis
    Dennis subscriber

    WTF?


    You have to be kidding me!!!!


    This is a travesty. This man's and other lives disheveled for guilt by association?


    Wow, what is our city, state and country coming to?

    richard brick
    richard brick subscribermember

    So the DA admits that those arrested along with Harvey have nothing to do with the crimes that were committed. Harvey's family has lived in the same area for over 60 years, he has never been found guilty of any crime. He did pose with gang members on Facebook and flashed some gang signs. For this he could spend the rest of his life in prison because he benefited from these crimes. Asked to define how Harvey benefited from these crimes the DA's office said he got street cred. How do you measure street cred?


    Question for the DA. Hey Bonnie did you catch the real people that committed these crimes?  I noticed that the cop who was found guilty of sexually molesting women under color of authority was let out of prison before he even served 1/3 of his sentence.Yet she wants to send this kid to prison for life for committing no crime. Seems fair to me. Do we get to do the same thing to the bankers that robbed everyone?

    Nancy Witt
    Nancy Witt subscribermember

    I don't like what is happening in many states and now this in our city.  It is so sad to see young people who do something foolish get thrown into the system and even end up on death row if too many minor or non-fatal crimes are committed.  And we dare to say that we live in a "christian" country.

    moleman
    moleman subscriber

    @richard brick hey Bonnie, gonna prosecute yourself for taking illegal campaign donations from a Mexican national?  no?


    no surprises here.