Two different judges have now rebuked the San Diego district attorney’s office over its effort to charge gang members with conspiracy using an obscure law.

San Diego Superior Court Judge Louis Hanoian dismissed charges against Aaron Harvey and Brandon Duncan Monday because of lack of evidence. They were charged with conspiracy under Section 182.5 of the Penal Code — marking the first time the statute has been used “at any significant level,” according to the DA’s office.

What made the charges against Harvey, Duncan and others so controversial was the fact that prosecutors didn’t believe the men actually carried out the series of gang shootings at the heart of the case. Rather, prosecutors said that because they belonged to the Lincoln Park gang that carried them out, they received a “benefit” from the crime – a boost to their stature.

Duncan and Harvey say they not only had anything to do with the shootings, they’re not even members of the Lincoln Park gang. They contend they were entered into the CalGangs database simply for living in Lincoln Park and associating with friends and neighbors who were also documented as gang members.

This is the second time a judge in the case has dismissed 182.5 charges against certain defendants. The defendants have been split into two groups, and Judge David Gill dismissed conspiracy charges against seven of the defendants in January.

The January ruling didn’t deter the district attorney’s office, though: It tried to re-file the charges against some of the defendants, and was again shot down. I’ve reached out to the DA’s office to see whether they plan to re-file charges against Harvey and Duncan, and will update this post if I hear back. DA spokesperson Tanya Sierra sent out this statement, but didn’t address re-filing charges. Here’s part of the statement:

“The District Attorney’s Office respects the decision of the court today. This ruling and future court opinions will help determine if California Penal Code 182.5 is a viable legal tool in our fight against violent crime committed by San Diego street gangs across the County. …

It’s unfortunate that in spite of the evidence transparently available in the court record and court’s rulings that clearly establish their active gang membership during the time of the shootings, the media and community has allowed itself to be manipulated by individuals who are misrepresenting their true level of gang involvement.”

Whether Harvey and Duncan were gang members or not, though, obscures the real reason this case has generated so much attention: It would essentially criminalize membership in the CalGangs database, and could impose prison sentences on people who didn’t actively engage in a crime.

Edward Kinsey, Harvey’s attorney, told me Monday that the DA’s office indicated to him weeks ago that it would re-file any dismissed charges, but he’s not sure whether that’s still their plan:

“The DA is like a dog with a bone on this case as they have a lot invested.  They recorded the entire proceeding so I’ll bet they will be brainstorming the issue this week. Aaron is intent on battling the whole gang documentation process and I think that gang documentation oversight is something that needs to be done. That is the more important issue, as many young black men are unjustly swept up in this craziness.”

Indeed, the DA’s office statement bent over backward to emphasize that Harvey and Duncan are dangerous gang members (emphasis theirs): “During the pendency of this case and today in court, all judges reviewing the case have found on the record that each and every defendant charged is in fact, an active gang member.”

Dana Greisen, head of the district attorney’s gang prosecution unit, told me earlier this month, after a judge refused to reinstate Section 182.5 charges against other defendants, that he thinks the case and the use of the law will ultimately be decided by a higher court.

“We have always anticipated this will ultimately be interpreted by a higher court as either our office or the defense would appeal as to the scope of this statute,” Greisen said.

That seemed to be what Harvey was thinking about as well. To him, the case won’t be over until Section 182.5 is repealed.

“I’m happy that I don’t have this hanging over my shoulder, but we’ve still got a lot of work to do,” he said. “Now it’s all about how we’re going to go after this penal code. This was just Round One. I’m back to work tomorrow. No, tonight.”

Sara Libby was VOSD’s managing editor until 2021. She oversaw VOSD’s newsroom and content.

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