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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