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Waco Biker Massacre Indictments and Why It Matters

Six months ago on May 17th, 2015, nine motorcyclists were killed and 24 were injured in a shootout at a Twin Peaks Restaurant, in Waco, Texas.  Allegedly, shots were fired by members of two or more motorcycle clubs.  Waco police, including a swat team, had gathered to monitor them from outside and opened fire on the motorcyclists shortly after the shootout started. According to six witnesses interviewed by the Associated Press, three of whom were military veterans, the shootout began with a small number of pistol shots, and was then dominated by semiautomatic weapons fire. Only one semiautomatic rifle was confiscated from a biker, which was in a locked car. The police had semiautomatic weapons.

In the aftermath, over 175 motorcycle club members at the restaurant were swept up in a mass arrest and all were charged with engaging in organized criminal activity.  The affidavits upon which the probable cause for their arrests was based were also identical.

Different stories are being presented as to the purpose of the assembly of motorcyclists that afternoon.  Police characterized the afternoon assembly at the Waco Twin Peaks restaurant as a gathering of criminal biker gangs with violent intent. The bikers say the meeting was a legitimate, organized gathering of motorcycle riders to discuss political issues, biker safety issues, proposed legislation, and other motorcycle related issues. These meetings have been regularly scheduled for years without incident under the auspices of the Texas Confederation of Clubs and Independents (CoC&I).

Last week, a McLennan County, Texas, grand jury took just nine hours to indict all 106 Twin Peaks biker cases presented to them during their session with prosecutors. The indictments charge that the bikers engaged in organized criminal activity by intentionally or knowingly causing the death of an individual. The indictments further charge that the method of death was by shooting, stabbing, cutting, or striking the victims and that the offenses committed were “as a member of a criminal street gang.”

Section 71.02 of the Texas Penal Code provides that engaging in organized criminal activity for these crimes is a first-degree felony. The possible sentence is up to life in prison or from 15 to 99 years in prison.  Texas law says a person participates in organized crime when that person commits any number of offenses as a member of a “criminal street gang.”  Texas is one of a handful of states with this charge on its books. The charge is meant to disrupt gang activity and is often applied when multiple crimes occur simultaneously.  Suspects don’t necessarily have to commit a criminal act to be charged with engaging in organized crime. They can be culpable if they essentially allowed the crime to happen.

The grand jury is schedule to return on November 18th but that McLennan County District Attorney Abel Reyna has not issued a statement on whether the 80 remaining cases will be considered on that day. “We’re not done. We still have a lot of work to do,” Reyna told reporters after the jury was dismissed.

The grand jury proceedings were not open to the public. A judge has put in place a gag order, which has limited comment.  Under Texas law, attorneys for the remaining defendants not indicted after 180 days can request that initial charges be dismissed and bond restrictions removed. Suspects can still be formally charged later.

What D.A. Reyna has not said is who he thinks did what in the fight, or who fired the shots that actually killed people. He does however indicate that the motorcyclists are to be prosecuted through the use of Texas organized-crime statute.  By charging under this statute, District Attorney Reyna can use evidence of conspiracy by citing older offenses that are now outside the statute of limitations as proof of the conspiracy. For the accused, any crime that’s committed as part of an organized-crime group is one category higher of offense in sentencing guidelines than it otherwise would be. That means prosecutors don’t have to go after defendants on multiple charges and the accused can still get up to life in prison.

The real chilling effect is on the United States Constitution’s First Amendment Rights.  It is not likely that all motorcyclists in attendance went with the purpose of participating in the shootout despite the numerous weapons recovered by the police at the accident scene.  A mere watching of the videos show more motorcyclists were interested in hiding and safety once the shooting started.

How likely is that a tax-paying, god-fearing, patriotic motorcyclist anywhere in the country can feel their rights will be respected by law enforcement if they show up at a legitimate, organized gathering of motorcycle riders to discuss political issues, biker safety issues, proposed legislation, or other motorcycle related issues?  More importantly the rights all Americans enjoy under the United States Constitution have most likely been trampled upon bylaw enforcement and the justice system in Waco.

Clearly, the motorcycle club member attendees had their rights violated under the First Amendment, as applied to the states under the Fourteenth Amendment.   Specifically, rights to “freedom of association,” “to assemble,” “to freedom of speech,” and “to be free of unwarranted governmental actions” were violated by the Police and prosecutors.

It is undisputed under the law that it is a fundamental First Amendment Right to wear motorcycle club colors on public roadways. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505-06 (1969)(upholding the wearing of black armbands by public school students) and Sammartano v.First Judicial District Court, 303 F.3d 959 (9th Cir. 2002)(holding that the wearing of motorcycle club colors in a government building is protected speech under the First Amendment). Further, Conduct is expressive, and therefore worthy of First Amendment protection, if the intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Spence, 418 U.S. at 409-11. Similarly, in order to prevail on a claim for interfering with an individual’s First Amendment right to associate, the group at issue must “engage in expressive activity.” Boy Scolds of Am. v. Dale,530 U.S. 640, 654 (2000)see also IDK, Inc. v. Clark Cnty., 836 F.2d 1185, 1192 (9th Cir. 1988) (“[t]he First Amendment’s freedom of association protects groups whose activities are explicitly stated in the amendment: speaking, worshiping, and petitioning the government”) . Context is crucial when determining whether conduct rises to the level of expression for purposes of the First Amendment. Spence, 418 U.S. at 410.

Another issue arises if the independent riders attending the event were free to leave and only motorcycle club members are arrested.  If motorcyclists are stopped because of their patches on their vests, were prevented from attending the gathering of the motorcycle club, this would constitute an infringement of the Club members rights to expressive association.

First Amendment Rights in Waco are subjected to an impermissible chill. “An impermissible chill is created when one is deterred from engaging in protected activity by the existence of a governmental regulation or the threat of prosecution thereunder.” Aiello v. City of Wilmington, Del., 623 F.2d 845, 857 (3d Cir. 1980).

In Waco, clearly the primary expressed intent to peaceably assemble to discuss motorcycle rights have not been rebutted by any information implied other than by the shooting of several motorcyclists in attendance, and the seizure of weapons afterwards.   In the videos disseminated to the public, not all motorcyclists in attendance engaged in the fighting.  Videos released to CNN show along with waitresses and bartenders, most motorcycle club members in attendance ran to escape from the unexpected gunfire.  Yet these very same motorcyclists have had their liberty deprived without due process.  The indictment of 106 in nine hours indicates the Grand jury spent, if they had no bathroom breaks, at most 5 minutes per indictment.  Clearly a cry for justice remains unheard in Waco.

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