Waco Bikers: No Probable Cause? No Problem.

Over 100 people were arrested in Waco without probable cause.

The Waco biker shootout is an excellent case study in probable cause or the lack thereof. We’ve blogged about the probable cause standard before. When looking at the Waco biker case, it would seem clear that the Waco Police Department lacked probable cause to arrest all 177 people.

Initially 239 people were detained at the scene, and of those, 177 were formally arrested and charged with a first degree felony of engaging in organized criminal activity. It is unknown what criteria was used to whittle down the 62 persons who were not formally arrested, but what is known is that the Waco PD were already on the scene and apparently witnessed the groups of people that started the skirmish. Yet, somehow 177 people were arrested, many of whom were not near the fighting.

The Texas Penal Code states it is an offense when a person, with the intent to participate in a criminal street gang, commits or conspires to commit, a number of offenses including murder, capital murder, aggravated assault or deadly conduct. See Tex. Penal Code §71.02(a)(1). The bikers in Waco were attending a regular meeting of the Texas Confederation of Clubs & Independents (COCI), which is a group that organizes to uphold bikers rights with representatives from various independent clubs. There was a mixture of motorcycle clubs present at this COCI meeting.

The problem is that the Bandidos Motorcycle Club has been classified as a “Tier-2” gang by the Texas Department of Public Safety. Unfortunately, through association of being a biker and wearing a leather jacket (whether it identified the wearer as a Bandido or not), all of these 177 people were arrested and charged.

Waco has adopted the adage of “birds of a feather flock together” to equal probable cause, but probable cause is more than just mere suspicion. If one believes that all 177 people were conspiring together to murder the members of another gang, then one must also believe that the event was the most obvious and worst criminal planning or conspiracy ever or else was something elaborately staged to be turned into a made for TV movie.