San Diego Rapper, and Suspected Gang Member, Tiny Doo Faces Potential 25 Years in Prison Over Lyrics, Album Cover Depicting a Gun

The L.A. Times reports on the far frontiers of when laws barring conspiracy run into free expression:

Among the 15 suspected San Diego street-gang members charged in a string of shootings is Brandon Duncan, an aspiring rap singer.

Duncan, 33, who raps under the name Tiny Doo, is not accused of providing the guns or being present at the nine shootings that terrorized a neighborhood where the Lincoln Park gang has long used violence to protect its turf.

Instead, prosecutors are going after Duncan over something else: His latest album.

Entitled "No Safety," the album features a picture of a gun and bullets on the cover.

Prosecutors say that shows that Duncan fits the legal definition of a gang member who "willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang."

Duncan is a documented gang member with a "gang moniker" of TD, according to the San Diego police….

Duncan's attorney, Brian Watkins, argues that the use of a 2000 law to include Duncan in the case is "absolutely unconstitutional" and a waste of taxpayers' money by the district attorney…..

"It's no different than Snoop Dogg or Tupac," he said. "It's telling the story of street life," with gritty details and obscenity-filled language.

"If we are trying to criminalize artistic expression, what's next, Brian De Palma and Al Pacino?" Watkins said after visiting with his client in county jail…..

Watkins made the same argument in San Diego County Superior Court. But a judge this week ordered Duncan and other defendants to stand trial….

….in court, Deputy Dist. Atty. Anthony Campagna noted of the case against Duncan, "We're not just talking about an album of anything, of love songs." The cover shows a revolver with bullets, Campagna told the judge.

Deanne Arthur, a lawyer in Watkins's office, guided me to the precise statute, 182.5, which reads in part:

any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182. 

So membership in the gang will be a necessary element the state will have to prove to hit him with the notion that his album constituted a crime as well.

ReasonTV reported on grand juries using rapping as evidence of crime: