Jury: Fallbrook Schools Must Pay Ex-Employee $1M for Retaliation

After more than a year of delays, I'm pleased that Elaine Allyn finally got her day in court--and prevailed in her claim of illegal retaliation by Fallbrook Union Elementary School District.  

I'm wondering if Allyn will appeal some or all of the 11 claims that Judge Stern decided in favor of the school district.  Judge Jacqueline Stern seemed to be a bit over-anxious to protect the schools district, as indicated by the fact that she declared a mistrial in this case in October 2013 rather than placing an alternate juror on the jury--and then delayed the new trial for more than a year.

See earlier post on this case HERE.
See the complaint filed by Plaintiff HERE.

Jury: Fallbrook Schools Must Pay Ex-Employee $1M for Retaliation
Ashly McGlone
Voice of San Diego
Feb. 26, 2015

A jury Thursday afternoon ordered the Fallbrook Union Elementary School District to pay its former IT director Elaine Allyn over $1 million for retaliating against her for objecting to the deletion of district emails.

The jury returned the unanimous verdict after deliberating for four hours following a 15-day trial, said Allyn’s attorney, Michael Curran.

It was the second jury to hear wrongful termination claims made by Allyn, who was fired in May 2012 after a dispute over the deletion of district emails.

“I can’t express the emotion I am feeling,” Allyn said of the verdict. “This is not only for me but, for all the people at the Fallbrook Union Elementary School District, former and present employees that are going through the awful treatment that this administration is giving them. I really hope that it opens the eyes of the School Board to re-evaluate the current administration and their management philosophy.”

The district claimed the 18-year employee was fired for snooping and hacking colleagues’ emails and reduced the amount of time district servers retain emails on her own “to conceal her wrongful and deceitful acts.”

Allyn said she had previously reported sexual harassment by a superior and that she was ordered to dismantle the district’s email archive system, permanently erasing all deleted emails and reducing email retention from three years to one week, despite voicing objections and legal concerns.

A first trial that began in October 2013 ended in a mistrial after the district asked to extend it beyond the 10 days scheduled.

This time, the jury found Fallbrook retaliated “against Ms. Allyn for raising objections to reducing the retention time of the District’s email system,” and awarded nearly $1.05 million for lost income and $148,000 in damages, more than the amounts sought, court records show.

Read the rest of the story HERE. 

VERDICT IS IN: Jury unanimously finds Fallbrook Union Elementary School District wrongfully terminated Elaine Allyn; district ordered to pay over $1.19 million

February 27, 2015 

by admin FALLBROOK – The following are two statements provided to the Village News on Thursday, Feb. 26,  following a unanimous verdict in favor of plaintiff Elaine Allyn in the Allyn vs. Fallbrook Union Elementary School District lawsuit claiming wrongful termination.

The first statement is from Allyn’s legal counsel, Curran & Curran Law.

The second statement is from Fallbrook Union Elementary School District legal counsel, Gil Abed of Stutz, Artiano, Shinoff & Holtz, APC, who defended the district.

——
“1.2 million verdict in employment retaliation case against Fallbrook Union Elementary School District”

“In a resounding victory against the alleged misconduct by her former bosses, FUESD superintendent Candace Singh, Ray Proctor and Dennis Bixler, Elaine Allyn, the former 18-year information technology director for the district, prevailed in her claims for retaliatory mistreatment and wrongful termination with a unanimous jury award of $1,194,000 for lost past, present and future income and emotional distress (general damages).

“Ms. Allyn originally alleged claims for wrongful termination in violation of public policy, retaliation under the Labor Code and for the failure to conduct a proper alleged discrimination investigation relating to Mr. Bixler investigating his own boss, Mr. Proctor. Her claims were refined by her counsel and, based upon technical legal/procedural grounds, a single claim went to the jury; whistle-blower retaliation in violation of Labor Code section 1102.5.

“Ms. Allyn testified she had questioned the spending of Ms. Singh, alleging she had spent in excess of $43,000 of public funds on a larger office and redecorating and over $14,000 in public funds on new tech items for herself, when she first became Superintendent in August 2011. She further alleged that Ms. Singh and Mr. Proctor had spread these expenditures around various district budgets to avoid the scrutiny of the board. Ms. Singh had asked Ms. Allyn to purchase a larger computer screen for her from the IT budget so as not to “flag the board.”

“Ms. Allyn had also testified in the early summer of 2011 that Mr. Proctor had warned his fellow administrators to “clean their houses” as he was aware of public investigations into misconduct in other districts concerning improper financial relationships with contractors and other financial misconduct and was concerned Fallbrook could be investigated and he could be embarrassed or disciplined for his own alleged financial misconduct.

“Mr. Proctor and Ms. Singh then directed Ms. Allyn to delete the district’s archive server which contained three years of district historical emails. When Ms. Allyn initially refused and asked her bosses to provide a legal opinion because she believed what they were asking violated law and district policy, they threatened her with insubordination charges and ordered her to delete the email archive sever telling her they would take care of the legal issue.

“Once that was done, in a further attempt to cover themselves and point the finger at Ms. Allyn in case of investigation of the District, they falsely and pretextually accused her of “hacking” and reading their emails and conducted a $43,000 pretextual investigation with the district lawyer Dan Shinoff’s trusted investigator, who found no computer or forensic evidence of misconduct by Ms. Allyn.

“Despite the findings of the investigator, Ms. Singh, Mr. Proctor and Mr. Bixler still falsely charged Ms. Allyn with reading emails, deleting emails, and failing to assist the district with the voluntary Erate funding program. In a formal Notice of Charges document, Mr. Bixler, who testified the documents was “wordsmithed” with Mr. Shinoff, presented these pretextual and false charges to the board, resulting in Ms. Allyn’s wrongful and retaliatory termination.

“Earlier in this litigation, district spokesperson, Dennis Bixler, had previously falsely indicated to the press Ms. Allyn had been terminated for dishonesty, fraud and violation of district policies. After an initial trial, which Ms. Allyn and her counsel believe the district intentionally caused to be mistried, the district board again falsely reported to the press Ms. Allyn was terminated for dishonesty, fraud and violation of district policy.

“The dedicated jury in this second trial listened attentively to all the evidence and believed Ms. Allyn and her former district employees, all of whom were absolutely honest and sincere and none of whom were impeached, not a single time in the trial. The district witnesses were impeached repeatedly with inconsistent deposition and former testimony from the first trial. The district witnesses were shown to be inconsistent with each other on key issues in the case with Mr. Bixler giving five different versions of Ms. Allyn reporting to him and Mr. Shinoff and his investigator that she had been directed by Ms. Singh and Mr. Proctor to delete the districts archive email server.

“The district witnesses even attempted to add new preposterous claims and allegations against Ms. Allyn raised for the first time in the litigation at this trial, like Ms. Allyn had years back sexually harassed her boss Mr. Proctor and Ms. Allyn violated procedures and had a bad reputation. The jurors properly disregarded these new claims as unsubstantiated mud-slinging.”

“At trial, Mr. Proctor also testified for the first time in the litigation that he did not need to delete email as he had printed everyone of his emails for the past 21 years which district counsel said were all “public record.” There was no evidence to support this new allegation and no other witness supported these claims and, in fact, the district charges against Ms. Allyn alleged the district administrator emails were highly confidential and related to confidential district business.
“The jury properly considered all the evidence and found Ms. Allyn had been retaliated against and wrongfully terminated.  Jurors indicated the district’s mistreatment angered and insulted their intelligence and awarded Ms. Allen the maximum damages they believed they could based on the evidence and jury instructions. They even awarded Ms. Allyn a greater sum of emotional distress damages that had been asked by her counsel in closing argument...


Below is the media statement provided by Gil Abed of Stutz, Artiano, Shinoff & Holtz, APC, who defended Fallbrook Union Elementary School District (FUESD). The statement is attributed to FUESD superintendent, Candace Singh.

” Re: Jury decision/Allyn v. FUESD”

“This lawsuit was filed with 12 claims against the district, 11 of which the district either prevailed or were dismissed. The district intends to seek all remedies available including costs and attorneys’ fees with respect to all of the 11 claims.

“The Fallbrook Union Elementary School District is disappointed with the outcome of the trial with respect to the one claim that the jury was asked to decide.

“While the jury’s decision is not the outcome expected, the district respects the jury’s time and commitment to the judicial process. At the same time, the district will continue to pursue the legal remedies that reach beyond today’s decision.”
—————
The Village News will publish its customary news coverage of the jury decision in the March 5 issue.

San Ysidro Board Moves Swiftly To Regain Public Trust

See more Lora Duzyk blog posts.
Ms. Duzyk's most controversial actions relate to the San Diego County Office of Education's Joint Powers Authority (SDCOE-JPA).

San Ysidro Board Moves Swiftly To Regain Public Trust

February 20, 2015

New San Ysidro Interim Sup Wants To Save Property Taxpayers $51-$71 Million
By Barbara Zaragoza
La Prensa

Ever since Edward Velasquez became the new interim superintendent of the San Ysidro School District on February 2nd, board members have moved swiftly to regain public trust after reeling from a pay-to-play scandal, a near takeover by the state due to negative certification and a teacher’s strike.

On February 3rd, the San Ysidro School District filed a lawsuit against former superintendent Manuel Paul, demanding that he return the approximately $210,000 he received after stepping down from the position. Paul faced misdemeanor charges for allegedly taking $2,500 in cash from a contractor who wanted to get work with the district. Last month, Paul was found guilty, fined $5,000 and sentenced to two months in jail. The lawsuit argues that because Paul was found guilty, he is obligated to pay the district back for the money he received from a retirement agreement.

At the February 12th board meeting, Velasquez then made a suggestion to trustees: refinance the district’s Proposition C bond.

Proposition C was passed in 1997 when, fed up with crumbling infrastructure, a grass roots campaign convinced voters to authorized $250 million for the district, the largest bond ever issued in California history. Velasquez explained that refinancing the Prop C bond from a 7.2% interest rate down to a 5.2% interest rate could be a first step in building back trust within the community. A retired educator of 35 years, he is credited with taking the Lynwood Unified School District out of near bankruptcy within three months.

Velasquez said, “If things go right, we’ll be able to do a great job in saving millions of dollars to the property taxpayers.”

He brought in a group of legal and financial advisors to explain the refinance. Frank Vega of RBC Capital Markets said that the maximum tax rate has been reached for property owners. “So because the way the ballot measure was written, the district cannot sell any bonds today. You’re over your maximum legal tax and there’s nothing the district can do about that… So one option is to stop building, stop construction. Other option, and many districts do this is, can we refinance our debt, can we lower our payments so that the tax rate goes down with it. And if you execute a bond refinancing, then the payments will go down, ideally the tax rate goes down with it, and then that might allow you to sell bonds at some point in the future.”

The rate reduction would save property taxpayers anywhere from $51 to $71 million over the next thirty-five years. Vega said, “Every dollar of savings goes to the community.”

Lora Duzyk, Assistant Superintendent of Business Services for the San Diego County Office of Education, sat in the audience and made it clear to board members that the county would have to review and approve the refinance...

Still pending is the $12 million owed to solar company EcoBusiness Alliance due to a breach-of-contract lawsuit. San Diego Superior Court records show that the district filed an appeal, which was certified on January 16, 2015.

On February 7th the board held a special meeting, where they entered into a legal service agreement with Long Beach lawfirm Leal & Trejo, PC. Velasquez said: “We brought in special council for two things. One is to deal with the EcoBusiness, and the other is to deal with the bond. General council didn’t want to handle the EcoBusiness lawsuit.”

He was referring to the law firm Stutz Artiano Shinoff & Holtz that represented the district in the breach-of-contract lawsuit and lost. Now, trustees have agreed that attorney William Trejo will take over at a rate of $180 per hour. Community members are waiting to see if Trejo will go forward with the appeal, settle with EcoBusiness, or pay the $12 million in a district whose overall budget is about $33 million per year.

Why are study rooms sitting empty at the new Central Library in San Diego?

Room 853 on the eighth floor of the new Public Library in downtown San Diego sat empty today as clients were told that no study rooms were available.

Room 854 also sat empty.

Note the sign in room 853 saying, "Please do not open the windows." The windows open!? Is this the reason that I wasn't allowed to use the rooms? Is the library afraid someone will open the window and step out on the ledge? Or worse, step off the ledge?  Can't the library simply lock the windows if it's afraid someone will try to commit suicide here? 

Here's what the website for the library says:

Study Rooms -- 20+ rooms to choose from
Capacity* 2-6
Onsite booking for up to 2 hours, first come, first served basis at the 1st floor Computer Service Desk.

On Feb. 18, 2015 I went to the front desk and mentioned that study rooms were sitting empty while clients were being told that no rooms were available. I was told that only a group of six people could use the rooms pictured above.  (The library website contradicts this claim, clearly stating that 6 is the maximum, not the minimum, number of individuals allowed in these rooms.)



To emphasize her point, the clerk held the room 853 key card right in front of my face for over 30 seconds. Eventually her arm got tired (I was impressed with the stamina of her arm muscles; I think she works out) and she set the card down on the counter in front of me and indicated that I should keep reading it until I understood it. I took a picture of it.  I'm pretty sure I understand it.

 I mentioned that the taxpayers built the library and that the public was not served by having the rooms left empty.  A different employee retorted that the library had been built mostly with donations!

Of course, the taxpayers are paying the salary of this employee who apparently believes that the public should have no input into how the library is used.  Does this woman not know that once donations were accepted by the City of San Diego (and the donors had received their hefty tax deductions), the money belonged to the public?

I doubt that Robin and Gerald Parsky demanded that room 853 be reserved for them in case they might want to drop by with a group of friends and a burning desire to sit in a cold place.  (It turns out that a concrete room exposed to the elements on two sides doesn't get much benefit from the library's heating system.)  Rather, I think we have lazy library employees who use any excuse, no matter how false or ridiculous, to turn away questions about how the library is utilized.

I wrote to San Diego Public Library's Cynthia Shutler, Supervising Librarian, Central Library, 619-236-5880, cshutler@sandiego.gov.  I'll report on her response.

by Maura Larkins

Patient safety and the medical device tax repeal: The good, the bad and the ugly

The medical device tax repeal: The good, the bad and the ugly
When $30 billion dollars are injected into the device industry, it will stimulate the good, the bad and the ugly all the same
Hooman Noorchashm MD, PhD and Amy J. Reed MD, PhD.
Philadelphia Enquirer
February 18, 2015

Recently we’ve been getting some feedback from medical device industry advocates.

Ironically, this feedback did not come when we started to raise an alarm about the severe patient safety hazard the device industry’s federal regulations have caused. Rather, it came when we raised a significant concern about providing this unsafe industry a tax advantage – the so-called “medical device tax repeal”.

You see, giving a financial boost to an industry whose products have virtually no standardized guarantee of safety, is wrong...

We do believe that a vast majority of medical devices in our country are designed to be ‘life saving’ – and to make a good profit for their manufacturers. We are not against industry or profits. But, a minority subset of these devices are faulty, in design or conception – as the power morcellator is. And no real federal safety checkpoints are in place to protect unsuspecting patients. Doctors and device reps are the only things that stand between the patient and this monster we call “harm” – and that’s just not acceptable.

When $30 billion dollars are injected into the device industry, it will stimulate the good, the bad and the ugly all the same. And when the bad and the ugly in the medical device realm have no real federal safety checkpoints and are stimulated to grow, they devastate unsuspecting patients’ lives in America.

The real problem in the medical device industry comes from the corrupted way in which the Food and Drug Administration is using the 510(k) law to clear the vast majority of medical devices in the United States. This legislation was never designed for this purpose and it was certainly not designed to ensure patient safety. But, with definitive certainty, the way to protect patients from an industry gone rogue due to defunct federal regulation, is not to boost it with a sizable tax advantage.

So, our response to our friends and colleagues in the medical device industry when they tell us to “keep ‘em separated” is: Help us drive a leadership overhaul of the FDA’s Center for Devices and Radiological Health by congress. Help us make a “Medical Device Safety Reform Act” a reality and the law of this land. Only then can we help you achieve your tax repeal, stimulate your industry and create your jobs.

Read more at http://www.philly.com/philly/blogs/healthcare/The-medical-device-tax-repeal-The-good-the-bad-and-the-ugly.html#1WCdwRUz2AQYWEDL.99

As VOSD revisits 1992 tragedy, San Diego Unified won't tell how many football concussions occur

Coach at Center of Notorious ’90s Concussion Case Oversees Concussion Safety for SD Schools
Mario Koran
VOSD
February 10, 2015

As Escondido High’s football coach, Bruce Ward played an already injured athlete who suffered a second, catastrophic injury. Now, he oversees San Diego Unified’s sports safety protocols, including those for concussions.

On Oct. 2, 1992, Escondido High was desperate for a win.

In three games the team hadn’t notched a victory. And in the week leading up to the game against San Marcos High, a group of players, frustrated with coaches, walked away from the team.

Vu Dang, then a 17-year-old, 160-pound Escondido senior, stepped up to fill the gaps. In addition to starting at wide receiver, his coach, Bruce Ward, made the decision to put him back to return punts and kickoffs. He wasn’t big or blazingly fast, but had a quick first-step.

Now 40, Dang remembers catching a punt and heading up field – and then, the impact. He was hit by a wall of defenders. That’s when the lights went out.

The rest he’s pieced together from what teammates later told him: He immediately tore off his helmet, his eyes rolled back in his head, he lost consciousness and stopped breathing. His mother rushed onto the field and collapsed when she saw her son.

“We lost Vu Dang twice on the field and once more in the ambulance. We performed CPR on the field and again in the ambulance. He was gone, and we were able to bring him back,” San Marcos’ athletic trainer later said.

Dang was taken by ambulance to Palomar Medical Center. There, doctors found bleeding on the right side of his brain. While treating Dang’s immediate trauma, they also discovered an older, subdural hematoma – a blood clot between the brain and skull – which they said could have been about a week old.

In fact, Dang had gotten a concussion in a game the week before. 

In that game against Temecula Valley, he caught a quick pass and a defender hit Dang underneath his facemask. The impact was so hard he was lifted off his feet.

“I knew I was rocked. When I got up off the ground my body was tingling,” Dang said about the first concussion.

Escondido’s athletic trainer knew about his first concussion. So did Ward, the team’s head coach. But his parents didn’t because nobody ever told them, legal documents allege.

Doctors called it a “second-impact syndrome” a second, catastrophic concussion that occurs before symptoms from the first have subsided.

Put simply, Dang should have never played against San Marcos. Why he did was set to be hashed out by legal teams, and is documented by court records. But before the case went to trial, the parties settled out of court.

Dang eventually recovered. He suffered long-term brain damage and struggled with memory loss after the injury. He struggled in areas where he’d once excelled, like high-level math. He left college after his grades fell too low to maintain an academic scholarship, and he drifted between low-paying jobs for several years. He now owns a yoga studio with his wife in Escondido.

As for the coach, Ward left Escondido and in 2000 was hired by San Diego Unified. Today, Ward is the district’s director of physical education, health and interscholastic athletics.

Ward is paid just under $128,000 a year to oversee the daily operations of the district’s athletic programs. He’s the point person for making sure all coaches in the district are properly trained and following safety protocols – including those for concussions.

The District’s Man on Concussions

Despite the increased awareness, many California school districts, including San Diego Unified, can’t say how many football-related concussions they’ve seen in recent years. District spokesperson Ursula Kroemer said the district has a system that allows its nursing team to record injuries, but that it doesn’t have a means to document the circumstances around an injury.

But Kroemer couldn’t even say how widely that system was used, or whether schools are required to report injuries through it. So while there have been 135 concussions since September 2013, the district can’t say how many of those were related to athletics.

Ward is the “overall-point person” for making sure coaches are certified and teams are following safety protocols, according to the district. Yet, 20 years ago, a lawsuit blamed his leadership for traumatic brain injuries suffered by one of his players...

But in 2007, he spoke to the Union-Tribune about Dang’s injury. In that story, Ward acknowledged that he had concerns about Dang’s first concussion when he decided to play him in the second game against San Marcos.

“We were playing San Marcos in a game we felt was going to be a battle of field position. Vu was a good receiver with good hands. But we took him off the offense and put him on the field to return punts. He was instructed to catch the ball. Fair catch everything to save the offense some yards. We didn’t want him to run. But he was young, caught the ball, decided to run, and he was injured,” he told the paper.

But Dang said that wasn’t true. In fact, because the team was unexpectedly short-handed, Ward had actually increased his workload for the San Marcos game.

Ward shifted blame onto Dang, saying he had ignored coaches’ instructions. The decision to play him, however, was a serious risk no matter what instructions Dang received.

The Trial That Never Happened

The Union Tribune reported that Dang had seen a doctor before the San Marcos game and had been cleared to play. But court records obtained by VOSD put that claim in serious dispute.

In fact, it was the basis of the lawsuit Dang’s family eventually filed against three defendants: Bruce Ward and the Escondido Union High School District, Riddell, a helmet manufacturer, and North County & Escondido Physical Therapy, Inc., the company contracted by the school to provide athletic trainer services.

The trial was sure to be an ugly, finger-pointing circle. The attorneys representing North County & Escondido Physical Therapy said the athletic trainer warned Ward that Dang was injured and recommended he not play. The school denied that conversation ever took place.

Court records show the arguments each side was prepared to make.

The athletic trainer blamed Ward for creating a “Texas football,” “win-at-all costs” culture. Journal entries the trainer’s attorneys submitted as evidence include descriptions of Ward calling kids “lazy” and yelling at them not to visit the athletic trainer if they wanted to make the team...

Kids are forced by law to go to school, where they meet their bullies: Danielle Green petition regarding her bullied daughter's suicide

Kids are forced by law to go to school, where they meet their bullies. Schools should take responsibility for the harm that students endure as a result of going to school. 

Protect Our Children: Do Not Pass Senate Bill 500 
Danielle Green
West Lafayette, IN

 On March 5th, 2013, my beautiful daughter Angel took her own life after being repeatedly bullied by classmates both in person on school grounds and over the internet. The pain of losing a child is indescribable -- she was the light of my life and I still can’t comprehend life without her. The only way I can move forward now is to dedicate myself to making sure that this never happens to another family. I have worked diligently to get anti-bullying legislation passed in my home state of Indiana, and when House Bill 1423 (The Anti-Bullying Bill) was passed in 2013, I was hopeful that we had made a turn for the better.

The bill stated that disciplinary actions would be taken against bullies and that any and all bullying related incidences would be investigated and reported.

 But now a new bill could completely dismantle all of the progress made to stop bullying in Indiana. Senate Bill 500, which is currently in committee and set to be voted on in this legislative session, would remove the school’s ability to address bullying that takes place off school grounds that could impair the victims school environment. This means that cyberbullying, one of the most popular and insidious forms of bullying our kids deal with today -- the form of bullying my daughter Angel experienced -- would no longer be considered a form of bullying by schools.

The bill also eliminates all disciplinary actions toward bullies as well as programs for victim support, and would eliminate teacher training on suicide, bullying prevention, and mental health awareness. Suicide is the 2nd leading cause of death among people ages 15-34 in Indiana. According to the 2011 Youth Risk Behavior Survey, administered bi-annually by the Centers for Disease Control, Indiana ranks third worst in the nation in terms of incidences of bullying at school and cyberbullying.

The idea that a bill could remove what are obviously desperately needed programs to prevent bullying in our schools is incomprehensible. Schools should be safe places where our children learn and grow into the unique individuals they are meant to be, not the places that convince them their lives are not worth living. 4,400 teens nationwide take their lives every year due to the hateful words and cruel actions of others. Please sign our petition to keep the kids of Indiana safe in school and at home. In her suicide note, Angel asked for us to get her justice, and I will never stop trying to fulfill her final wish. Losing one Angel was too many lost. No child should ever feel victimized by another to a point of suicide. Lets give these kids hope for a future. Please sign today.
Thank you and God Bless.

Petitioning Indiana State Senate
This petition will be delivered to: Indiana State Senate
Danielle Green started this petition

Sometimes David Loy gets it right: speech about crimes should not be criminalized

See all posts about San Diego ACLU chief counsel David Loy.

On the district attorney’s theory, it could prosecute a current or former gang member for writing a book, giving an interview to an author, or appearing in a documentary about gang life, as well as a substance abuse counselor who draws on his gang experiences, because they all “benefit” from knowledge of crimes committed by gang members.

San Diego Man Faces Life in Prison for … Rapping
by Source on February 4, 2015 
San Diego Free Press

San Diego prosecutors admit that Brandon Duncan was not at the scene of any one of several shootings in the city, and they have no evidence linking him to those shootings that occurred between May 2013 and February 2014. Still, the District Attorney Bonnie Dumanis charged him for those crimes because…he rapped about them.

...Only recently released on bail, Duncan, who performs under the name Tiny Doo, spent eight months in jail on so-called “gang conspiracy charges” arising from those shootings. The San Diego ACLU is filing an amicus brief in court asking the court to dismiss the charges immediately. In a blog post about the case, David Loy, legal director of the ACLU of San Diego & Imperial Counties said that the case was “not only absurd; it is a blatant violation of the First Amendment.”

The district attorney is testing a law in which an “active participant” in a “criminal street gang” who “willfully promotes, furthers, assists, or benefits from” any felony committed by fellow gang members can be charged with “conspiracy to commit that felony.” Unlike traditional conspiracy, the charge does not require any agreement to commit the crime. Instead, it requires either “promoting, furthering, or assisting” the crime, which means being a direct accomplice, or knowingly “benefiting” from the crime.

“Whether or not this law can be used to prosecute others, the prosecution is abusing it to charge Duncan,” Loy said. “To ‘promote, further, or assist’ means to aid and abet, and there is no evidence he did that.” Instead, the prosecution is unconstitutionally twisting the word “benefit” to charge Duncan. The district attorney alleges that he  “benefited” by making a CD called “No Safety,” on which he raps about shootings, and by receiving “praise” for his music. As the prosecutor admitted, he wouldn’t be charged if he sang “love songs.” That’s a classic First Amendment violation.

...“This is a textbook case of using a ‘gang’ dragnet to over-criminalize people of color,” Loy said. Beyond that, even if prosecutors could prove that Duncan is an “active participant” in the gang under California law, the prosecution’s theory violates the First Amendment by punishing him for the content of his speech. The government can punish crime, but it cannot punish speech about crime, even by proven criminals about their own crimes, much less an artist like Tiny Doo.

The U.S. Supreme Court has held that the government can’t confiscate income from speech based on its content, even speech about crime, because that would punish the speech itself. Under that principle, the government cannot prosecute Duncan for singing about crime or allegedly receiving “benefits” for doing so. Indeed, this case is even worse, because it involves criminal prosecution, not just loss of income...

The government cannot criminalize free speech, and it cannot criminalize Duncan’s music. Duncan is now free on bail, but he still faces “gang conspiracy” charges, which threaten a potential life sentence. The ACLU brief calls on the court to dismiss the charges immediately. “The court should stop this case in its tracks and send a clear message that prosecution for protected speech cannot be tolerated,” Loy wrote in his blog post.