Understanding the Waco Biker Prosecution

how-prosecution-justifies-177-arrested

Written by David “Double D” Devereaux

On May 17, 2015, Paul Landers was looking for a place to hang a Texas Confederation of Clubs and Independents banner in preparation for a scheduled political gathering to discuss motorcycle rights issues when gunfire erupted at a Twin Peaks in Waco, Texas. Paul was there to provide the region updates following the National Coalition of Motorcyclists National Convention that was held in Denver the previous week.

Despite being a dedicated political rights advocate with an indisputable track record, Paul and 176 other individuals were arrested and charged under the state’s organized crime statute for engaging in organized crime and committing or conspiring to commit capital murder. 154 of those arrested have had their cases presented to a grand jury, have been indicted, and are currently awaiting trial.

The significance of Waco to the motorcycle club community cannot be over-stated. What law could possibly allow 177 motorcyclists to be arrested for mere association? A simple analysis of the Texas Organized Crime Statute is key to understanding the prosecutor’s strategy and the legal argument 154 defendants will have to overcome.

Understanding the Texas Organized Crime Statute

The statute underlying the charge that 177 people were engaging in organized criminal activity in Waco on May 17, 2015 is broad and all consuming.

Sec. 71.02.  ENGAGING IN ORGANIZED CRIMINAL ACTIVITY.

  • A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:
  • murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
  • “Conspires to commit” means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the

Texas Statute says “Criminal street gang” means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.

The conspiracy clause of the statute doesn’t require an individual to actually participate in the commission of the actual violent act at issue. Rather “conspire to commit” requires that a person agree to commit the crime and then that person and one or more persons “perform an overt act in pursuance of the agreement.”

Importantly, this agreement doesn’t have to be tangible and there doesn’t have to be direct proof that an agreement was made. “An agreement constituting conspiring to commit may be inferred from the acts of the parties.”

Court Says Attending the Waco TCOC&I Meeting with any Knowledge of Tension Between Bandidos and Cossacks is an “Agreement To Conspire”

In the case of a motorcyclist present at the Twin Peaks on May 17th, merely being affiliated with an organization labeled a gang that allegedly was involved in the violence that day was considered to be probable cause for an arrest. The statute clearly requires that an agreement be made. So how has this probable cause justification held up to examining trial scrutiny?  Where is proof of an agreement?

Remember, the agreement can be inferred from the act of the parties. Consider a married couple (last name English, also members of a club) arrested in Waco for merely being present that challenged the basis for probable cause in their examining trial. After all, the prosecution admits there was no evidence of a direct crime

But the prosecutor countered, and the court agreed, that it was improbable the couple wasn’t knowledgeable of club tensions in Texas. Yet they still willingly attended a meeting in Waco where conflict between these clubs could easily erupt. Basically, the agreement was inferred from the act of attending the meeting regardless of whether the couple actually participated in any actions that lead to death.

Prosecution’s Theory Is Based On Pure Assumption

Recent alleged tensions between the Bandidos and the Cossacks were widely reported in Texas newspapers and on television news stations preceding Waco. Upholding probable cause based on the assumption of knowledge gained from news reports is specious at best. The court is assuming that everyone pays attention to the news and that everyone attending the event knew the Cossacks would attend the meeting. Remember, the Cossacks were not members of the TCOC&I and had not attended meetings in the past.

Texas Statute Threatens Fundamental 1st Amendment Freedoms

Any statute that allows mere association to be a criminal act is far too broad and overly restrictive of the 1st Amendment. There is no requirement of personal guilt. Assumptions of knowledge and membership in a motorcycle club should not be considered sufficient to establish that an individual conspired to commit capital murder.

Motorcycle clubs, including those clubs labeled organized or criminal gangs by authorities, are 1st Amendment protected associations. Restrictions solely based on association in a motorcycle club violate the 1st Amendment.

There is “no evidence that by merely wearing [motorcycle club] “colors,” an individual is “involved in or associated with the alleged violent or criminal activity of other [motorcycle club] members. It is a fundamental principle that the government may not impose restrictions on an individual “merely because an individual belong[s] to a group, some members of which committed acts of violence.” In fact, the Supreme Court has long “disapproved governmental action . . . denying rights and privileges solely because of a citizen’s association with an unpopular organization.”

Healy v. James, 408 U.S. 169, 185-86 (1972).

To permit [law enforcement officers] to impose restrictions on any person “who wears the insignia of [a motorcycle club], without regard to or knowledge of that individual’s specific intent to engage in the alleged violent activities committed by other Members, is antithetical to the basic principles enshrined in the First Amendment and repugnant to the fundamental doctrine of personal guilt that is a hallmark of American jurisprudence.

 (See Coles v. Carlini, U.S. District Court for the District of NJ, Civil No. 10-6132, Opinion, 9/30/2015, p.28)
About the Author

David “Double D” Devereaux is the Spokesperson for the Washington State Council of Clubs, Founder of the Motorcycle Profiling Project, and works with motorcyclists at the national level.

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