Two California men who spent seven months in jail for conspiracy to commit murder based on rap lyrics and Facebook photos that made no reference to actual murders filed a lawsuit against the San Diego Police Department Tuesday.

Police based their arrests on allegations that Brandon Duncan and Aaron Harvey were Facebook friends with suspected gang members they grew up with, using an obscure law that does not ever appear to have been used in California before the 2014 arrests.

But there was no evidence that either committed any murders or were actual gang members.

Duncan, 35, was an aspiring rapper who went by the moniker “Tiny Doo,” but who was making a living laying tile when he was arrested at his San Diego home, which police searched without a warrant, later informing him he was arrested over the contents of his music lyrics.

Harvey, 28, was studying to become a real estate agent when he was arrested by federal marshals in Las Vegas, who informed him he was wanted for a string of murders, which he knew he did not commit.

He later learned that San Diego police detectives Rudy Castro and Scott Henderson were only basing that belief on Facebook photos showing him posing with suspected gang members he grew up with in San Diego’s Lincoln Park neighborhood.

Both men spent seven months in the George Bailey Detention Center, known as “Thunderdome” and “Gladiator School” because of its reputation for violence.

A judge threw out the case in 2015 on lack of evidence, allowing the men to proceed with the federal lawsuit, which you can read here.

The law police arrested them on is Penal Code 182.5 which notes gang members with general knowledge of a gang’s criminal activities can be prosecuted for crimes others commit as long as they willfully benefited from, furthered, promoted or assisted in some way.

Duncan was arrested on June 19, 2014. Harvey was arrested a month later on July 19, 2014.

Harvey’s bond was set at $1.1 Million and Duncan’s was set at $500,000. Neither could afford to bail out which was why they sat in jail for seven months.

The lawsuit states that authorities had no probable cause for arrest and violated the plaintiff’s Fourth Amendment right by ransacking Duncan’s home and the false arrest, not to mention their First Amendment rights by arresting them for rap lyrics and social media posts.

“Here there are two individuals who were arrested and incarcerated for seven months for committing no crime whatsoever, based entirely on things they wrote or said,” said their attorney, Mark Zebrowski, who is representing them pro bono, according to the San Diego Union-Tribune.

“That’s not the way we do things around here”

After nearly seven months of being locked up in the rough San Diego jail, their bond was lowered to the point where they could afford to bail out.

Once out, the two men went on a fact finding mission to debunk the charges they were arrested for in the first place. They filed a motion with the court to dismiss the charges based on Penal Code section 995, which essentially means there was no probable cause for them to of been arrested.

Two months later in March 2015, Judge Louis Hanoian granted that motion and all charges were dropped.

Judge Hanoian took issue with the fact that there was no evidence they even had knowledge of the murders, much less participated in them. Instead, the arrests were based on Harvey and Duncan’s associations with gang members, who just happened to be the guys they grew up with.

The lawsuit states the following:

“Even though Mr. Harvey has now been out of jail for over a year, he continues to suffer from the emotional trauma of living in such a violent and restrictive environment. Mr. Harvey still has nightmares about jail, becomes nervous in crowded places, and continually worries that he could be jailed again despite doing nothing wrong. Mr. Harvey also continues to face the economic consequences of his jail time in the forms of debt and poverty, and now lives with his parents to save money. And, of course, he spent seven months of his life incarcerated and facing a life sentence for doing nothing illegal.”

Facebook Evidence?

The criminal complaint that the lead detectives wrote noted that: “Mr. Duncan posted a message to his Facebook wall saying “Free Lil Hawg and Tae Dip” following the arrests of Tevonte Stripling and Desmond Crisp; and Mr. Duncan was a member of a rap group called “Black Angel Music
Group.”

Moreover Harvey’s criminal complaint shows: “Mr. Harvey was friends on Facebook with others who were allegedly members of the Lincoln Park Blood, and “posted about their Lincoln Park membership;”

Mr. Harvey appeared in photographs posted to Facebook along with men who were allegedly Lincoln Park Blood members; and Mr. Harvey was said to be “keeping gang members in order.”

The lawsuit argues that: “No reasonably competent officer would have believed the facts stated in the declaration established probable cause to arrest Mr.Duncan or Mr. Harvey. No reasonably competent policymaker would have believed that the facts pertaining to Mr. Duncan or Mr. Harvey justified an arrest.”
As we pointed out in a November 2014 article, even police officers on the Police One Facebook page were questioning the validity of the arrests.

According to the suit the plaintiffs have suffered damages from spending months in jail for a crime they didn’t commit. Those damages include lost salary, diminished earnings capacity, humiliation, lost career and business opportunities, and loss of reputation.

Harvey and Duncan are seeking punitive damages, compensatory damages, relief, and attorneys fees.

“I’m not telling anybody to commit no crime,” Duncan said about his music in a 2015 interview with NBC San Diego.

“I’m not telling anybody to do anything. It’s just artistry. I’m painting a picture of an urban community.”

Be sure to check out the videos below for more details.

PINAC Publisher Carlos Miller contributed to this report.