In June of last year, San Diego rapper Tiny Doo, whose real name is Brandon Duncan, was arrested in a raid on his family home. The stated reason for the raid was a hunt for illegal firearms, of which they found none. Duncan was arrested anyway, charged as part of a criminal conspiracy with the Lincoln Park Bloods gang related to a series of shootings in 2013. Though his story made some national waves at the time, Duncan still remains incarcerated on a $500,000 bail awaiting trial, set for January 23, and has largely flown under the mainstream radar. Tiny Doo’s case raises a host of issues on the legal ramifications of artistic expression, a debate that is especially poignant for Hip Hop. It is not the first time that prosecutors have attempted to present rap lyrics as evidence in a trial (more on that in a moment), but the expanded statute being used to link Duncan to the Attempted Murder is a soft and vague foundation with some ugly implications.
Brandon Duncan has no criminal record. In 2008 he was arrested on pimping charges that were later dropped. His lawyer admits to a documented association with the Lincoln Park Bloods and the social media images that have shown Duncan in red and throwing up signs have been a large part of the San Diego DA’s move to rope in gang associates.
“Facebook and rap music,” said a spokesperson for the San Diego DA’s office, “it’s just another form of communication that gang members use in order to establish reputation and create fear and basically brag about their activities to increase status in other communities to commit crimes with impunity.”
In the criminal complaint – which you can read here, thanks Popehat.com! – it lists the counts against the individual gang members charged with the shootings, followed by a 14-person defendant list of those charged with “Criminal Street Gang Conspiracy”, including Tiny Doo and three others whose charges are based solely on Hip Hop songs and Facebook posts. The other three are members of the Black Angels Music Group against whom, like Duncan, the accusation is that they “did willfully promote, further, assist and benefit from felonious criminal conduct by members of that gang”. No mention of the shootings in question have been found in the lyrics on Tiny Doo’s No Safety mixtape (or the songs from the Black Angel emcees), limiting the application of the “promoting the crime” angle. It is the “benefitting” clause that is the expansion over previous notions of conspiracy, voted in as part a state statute in 2000. In their 2014 summation of People v. Johnson , the California Supreme Court pointed out the expansion:
“The “one who benefits” provision recognizes that gang activities both individually and collectively endanger the public and contribute to the perpetuation of the gang members’ continued association for criminal purposes. Due to the organized nature of gangs, active gang participants may benefit from crimes committed by other gang members. When such benefits are proven along with the other elements of the statute, section 182.5 permits those benefitting gang participants to be convicted of conspiracy to commit the specific offense from which they benefitted.”
In this case the benefit is presumably increased profile and/or album sales, something that will be significantly difficult to prove, given that No Safety is available for free on Soundcloud. It will also be difficult to connect the album to the crimes in question making any “benefit” spurious and irrelevant. And rightfully so, when one considers the further ramifications of criminally charging artists for connections between their works and real life events. I’m not the first to make this comparison but would Martin Scorsese be subject to arrest for his extensive, beautiful, and finally Oscar-winning depictions of the Mafia(s) under the same line of thinking? He has certainly benefitted from the use of real stories and intimate interviews with criminals for his films, which have grossed over $1 Billion worldwide. Though the films of one of the greatest all-time directors may be based worlds away from the rugged, oft-criminal, streetlife in which Hip Hop is based (oh wait, maybe not…), the same logic must be applied to our beloved art-form. When we start arresting artists – and let’s be clear, that’s what Brandon Duncan is, a recording artist – for their works, absent proof of any actual crime perpetrated or contributed to by them, we march down a dark road of censorship and wrongful persecution veiled as criminal justice.
One of the obvious subsequent questions is how far can this line of thinking go, especially in a genre where many artists claim association with real-life gangs. So far 182.5 is a California law, taking Hip Hop artists outside the state like Jim Jones and his supposed Bloods connection out of the conversation, but what could it mean for the LBC’s most famous blue-flag flier, Snoop Dogg? Or The Game’s red fascination? Lil Wayne claims the LA Pirus, pretty much all of the Dogg Pound and former Aftermath claims LBC or Rollin’ 20’s Crips other than Suge, obviously, who is a Blood… the list goes on and on. Each of the above examples could certainly be seen as a better case of one of who benefits from that association than Tiny Doo. The key difference? Each is a multi-platinum selling artist signed to a major label with enough legal backing to make these spurious charges evaporate. What about Chris Brown and his supposed Bloods affiliation? Is he already too rich and popular to prosecute for gang associations? And this isn’t to trivialize the dangerous and important work of combating street gangs. Much like the work of the federal government in the 80s and 90s to combat the Mafia, given the organized nature of gangs law enforcement officials will constantly have to employ new tactics, including reassessments of how gangs communicate and perpetrate their acts. For the other 10 members of the conspiracy charge there is reported evidence linking them as accessories to actual crimes, a logical part of criminal conspiracy. For Duncan and the three other rappers, though, given that it seems no link to the crimes in question can be found or has even been asserted, it is their affiliation that is on trial. And that is a broad interpretation of the statute.
Of course this is not the first time that prosecutors have attempted to use rap lyrics as evidence in a criminal trial. In August of last year the New Jersey Supreme Court ruled in the case of rapper Vonte Skinner aka Real Threat whose lyrics had been introduced as part of his trial for the attempted murder of Lamont Peterson. Though they contained no mention of the crime in question, with some composed months and years before the event, the lyrics, violent and criminal in nature, were introduced as an effort to show Skinner’s character and motive. The Supreme Court ruled that this was wrong, Skinner’s conviction thrown out and a new trial ordered. Lyrics cannot be deemed evidence of guilt, it was ruled, unless they possess a “strong nexus to the crime” with Justice Jaynee LaVecchia having this to say:
“One would not presume that Bob Marley, who wrote the well-known song ‘I Shot the Sheriff,’ actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story ‘The Tell-Tale Heart,’ simply because of their respective artistic endeavors on those subjects.”
The legality of criminally charging artist for the connections between their work and criminal organizations is only one part of the problem. Also at issue is the fundamental misunderstanding of how Hip Hop works by those outside the art-form. The first-person narrator inherent to the majority of Hip Hop songs, coupled with the sometimes violent and/or criminal vernacular and content creates a perspective that is easy to both misinterpret and misrepresent. The gangster (/”gangsta”) lifestyle is cool, it’s a hard fact to deny, at least in the glossy, glorified, stylized iteration widespread through not only Rap, but all kinds of music, movies and television. As rappers we think it is both cool and ethically okay to incorporate gangster sensibilities into our art, whether they are reflective of our individual real life experiences or not. And you know what? It is okay. We can have/continue the debate within Hip Hop of what effect gangster glorification has on our art-form, our audience, and our children but it certainly isn’t the purview of cops and judges. It is a fine line in Hip Hop, between metaphor and “keeping it real” and the first-person, reality-themed perspective is often interpreted with a degree of literal-ness not assigned to other genres of music. Not every rapper is a current or former gangster, though many have had legit ties to illegitimate operations of varying degrees. And not everyone who talks as though he’s a gangster is, despite the contradictory nature of that statement.
Eminem is famous for his animated, violent, misogynistic, and murderous portrayals, often of real, living people. By now, with Mathers cemented as a Hip Hop icon, one of the genre’s best-selling artists of all-time, and a CEO, mogul and multi-millionaire, would we consider bringing criminal charges against him for his threats against other celebrities and, most savagely, his own wife?
The answer is certainly not, and the outlandish level to which Em takes his lyrics make the distinction somewhat easier to discern. But what about a rapper like Tiny Doo, where the character is perhaps harder to separate from the real person? Is that separation any less valid? What line, if any, should we draw when it comes to art based on possible real life criminal activity?
The conflict between Freedom of Speech and art has a long history. From 2 Live Crew’s famous obscenity trial, to the banning of The Grapes of Wrath for sexual content, there have been many efforts made to regulate artistic content and in the majority of cases the First Amendment has stood strong. By charging and incarcerating Brandon Duncan based on the content of his mixtape with no evidence of involvement in an actual crime, the San Diego DA has violated his Constitutional Right to Freedom of Expression. They have locked up a man with no criminal record, placing in front of him a sentence of 30 years to Life for an Attempted Murder to which he has no discernible connection, intending to prove some “inherent benefit” to his musical career based on his association with the Lincoln Park Bloods. No, I don’t necessarily think we should condone the current portrayals glorifying street gangs so ubiquitously in Hip Hop. I do believe it’s too simple for a kid to quote, “Now all my Bloods scream Soo Woo and Da Da Do” with no knowledge of the violence he’s referencing. But that is not a battle to be had in a courtroom, it is one to be had in a classroom, in recording studios, and at home. Art reflects who we are, indifferent of judgment, and short of State censorship (and even that is reflected) it flows and grows organically. We can’t incarcerate our artists, good, bad, popular or unpopular in hopes that the horrors and the allure of gang life won’t then make their way into our culture and entertainment.
For further reading both on Duncan’s case, including some further legal analysis, I implore you to check out this article from Popehat.com which I referenced above.