The Outlaws of Waco

There are 169 bikers in jail in Waco, now that Jeff Batley made $1,000,000 bail.


As Mark Bennett pointed out, the million dollar bail set for these bikers, due to nine dead and 18 injured in the Twin Peaks melee, is off the charts.

Each defendant has bail (not “bond”) set at $1 million at the moment; they have a constitutional (under the Texas Constitution) right to “reasonable” bail, so as they get lawyers and those lawyers file applications for writs of habeas corpus, the bail amounts will take a nosedive. In Texas (contra Las Vegas lawyer Draskovich, quoted by the LA Times) a murder doesn’t merit a million-dollar bail. In Harris County, for example, the standard bail for murder is $30,000. A person can be held without bail for capital murder, but only if the State jumps through some procedural hoops within seven days of the arrest and proves at a hearing that the proof of the crime is “evident.” Because there are very few bonding companies that can make a million-dollar bond (none in Houston, unless the defendant puts up a million dollars of collateral), a million dollars might as well be no bail.

But the local Justice of the Peace, Pete, applied his own rule of law.

I think it is important to send a message. We had nine people killed in our community. These people just came in, and most of them were from out of town. Very few of them were from in town.

What was that important message Pete had to send?

He said the bonds were “adequate” given the pending investigation and “because of the magnitude of the situation and the total disregard for the safety of others.”

In other words, they needed jailin’, and he was just the judge to do it.  Both Bennett and Tamara Tabo run through the litany of problems this rather large group of defendants pose for McLennan County.  Not enough lawyers to represent them, particularly since there are only abut 25 qualified indigent defenders and a lot more defendants in need of a lawyer.

This case will way overtax the resources of the county, at every point in the process, which is not a reason in itself not to address crime, but a reason to avoid one issue here that tends to escape scrutiny.

Contrary to everything you read about these outlaw bikers in Waco, this is not merely some amorphous mass group of criminals, but 170 individual defendants, each of whom is entitled to, and deserves, individualized treatment by the criminal justice system.  Instead, they’re all going to be addressed as some mass group, each of whom is inexplicably culpable for whatever someone else is vaguely accused of doing.

Tabo touches on this point peripherally:

Earlier this week, police told the press that they expected to recover 1,000 weapons from the scene. Yesterday, they revised that number to 318, 118 of which were handguns. Police also confiscated knives, brass knuckles, and items like chains with padlocks.

How many of the items are actual weapons? How many of the actual weapons are actually illegal?

When the report is about 1,000 weapons, it’s easy to ignore the details, like since when is a chain and padlock a weapon? Don’t they use them to, you know, keep their motorcycles from being stolen?  And knives? Aren’t there a lot of guys with knives in Texas?  Are they Swiss Army knives or switchblades?  Or butter knives, for that matter?

When you only hear about 1,000 weapons, these questions seldom get asked, no less answered.  Now that we’re down to 318, it takes some of the sting out of the 1,000 weapons report, but still fails to answer the questions of what makes them illegal, or what did they have to do with anything that happened at Twin Peaks?

So far, all of the bikers arrested are being held for the offense of engaging in organized criminal activity leading to capital murder. That’s going to be tough to prove for most of the people arrested, many of whom will require state-funded defense counsel.

Twin Peaks is a barbecue joint favored by motorcycle enthusiasts and the occasional criminal defense lawyer.  Was every person who rides a motorcycle there to go to war?  Many had no prior criminal history, which militates in their favor, though not against.  Is it a crime to like both bikes and barbecue?

You call bullshit. You say that if they were there at Twin Peaks when rival gangs were going to war, they must have been involved.  Who cares what you say. You have no clue. Maybe you’re right. Maybe you’re wrong. But to reach your conclusion, you have to go through the evidence as to each individual biker’s conduct. Did he or she do something criminal?

But, but, but, you sputter, that’s impossible. It was a crazy scene, wild, guns shooting, blood spurting, outlaw bikers doing outlaw biker-ish stuff.  How in the world can anybody say what each one of these 170 individuals actually did?  Either we’re going to tar every person wearing colors, riding a bike, with a tat, or the guilty might go free.  Why can’t the prosecution, like Pete the judge, just deal with them as one big group of bikers who “are not from around here” and spread out nine deaths to 170 people.

When accusations are made about a group, without any differentiation by individual actions, we fall into a dark hole where we forget that each and every individual arrested is entitled to be treated as an individual, culpable for what he did, but not for some mass accusation based on the body and faux weapons count.

Just as an otherwise lawful knife in the pocket of an otherwise ordinary biker suddenly becomes a weapon of mass destruction because someone else killed a guy, it requires us to parse the specifics rather than group each of the individuals together and pretend that their actions are undifferentiated because it’s so much easier to wrap our heads around the situation.

Maybe they are all guilty, each and every one of them. Maybe not. That’s what evidence is about, and if they have no evidence of criminal conduct for any individual, then he gets to enjoy the presumption of innocence and ride off into the Waco sunset.  Got that message, Pete?

46 thoughts on “The Outlaws of Waco

  1. Scott Morrell

    Exactly. What kind of idiotic justice system do they have in Texas?

    The politicians in Texas like to say that they are “strong on crime.” Yeah, but in lieu of liberty and the presumption of innocence?

    “Round ’em all up boys!” Small and narrow minded thinking with a big penis approach.

  2. Richard G. Kopf


    How about a short story on the Hells Angels?

    When I was a Magistrate Judge back in the late ’80s, the government took down the Hell’s Angels chapter in Omaha. The government was seriously pissed off.

    A special team of FBI agents from Washington was authorized to do a “black bag” job on a particular house that served the bikers as a clubhouse. The agents installed a bug, a very top secret bug, the technical specifications being so important that I sustained an objection to production of those specifications on national security grounds. Of course, there were the obligatory Title III wiretaps too. And, search warrants were executed by law enforcement. These were extremely violent entries into homes by a horde of SWAT teams.

    I heard testimony for 28 days on the whether the interceptions and subsequent searches violated the law or the Constitution. The defendants and their lawyers filled a large courtroom. (Dave Stickman, now our FPD, was then in private practice and was the discovery and motion coordinator for all the defendants.)

    Anyway, and if I remember correctly, as to one defendant and one no-knock entry, I recommended that suppression be granted but the DJ disagreed. I think the Circuit reversed him on that issue, and the government gave the guy a sweet deal at resentencing. That’s not the important point

    As I remember it, the defendant was the treasurer of the gang and no doubt guilty. But he was married, and otherwise lived a very middle class life save for his activity with his bike and biker friends. He had a teenage daughter who was an honor student and, I think, had won a college scholarship.

    When the black-clad SWAT team busted in behind a ballistics shield and heavy weapons early in the morning and ordered the innocent family to hit the floor or die, they were justly terrified. I remember feeling outraged at the behavior of the law enforcement officers who had made the entry.

    In short, I agree with you. The judicial system in Waco must expend the time and energy to treat each defendant as if he or she was the only defendant. There can be no excuse for doing anything less.

    All the best.


    1. ExCop-Lawyer

      Judge, that’s not going to happen in McLennan County (Waco).

      The judicial system there is not exactly known for its fairness, nor even for paying attention to little things like constitutional rights. The sheriff there, with the apparent approval of the McLennan County Indigent Defense Coordinator, sends out a deputy to the residence of each person who has been appointed counsel for being indigent. If the deputy sees anything that is different from what was on their request for counsel appointment, the individual is arrested and charged with the felony offense of tampering with a governmental record. Requests for counsel have dropped 40% according to the article last year in the Washington Post by Radley Balko.

      It’s not exactly the kind of thing that would lead one to believe that the trials will be fair.

  3. Steve bott

    The AP news have reviewed 9 video tapes of inside the resturant and one person fired one shot from the patio and went insides to hide. Not a single act of violence occurred in the building. Every single person except one in the building is completely innocent. Why are the police still holding them? They have had plenty of time to review the tapes.

    1. Turk

      Many of those inside, no doubt went outside at some point, and the police simply “rounded up the usual suspects”, meaning anyone wearing biker clothes, and figured they would sort it all out later back at the office.

    2. Not Jim Ardis

      And was that one person a biker, or a guy that was lawfully carrying (it’s Texas, after all), and was firing in response to the fact that bullets were coming his way?

      I know I’m super looking forward to the “DIFFERENT RULES!!” outrage when a bunch of these guys go free.

    3. Bob Mc

      “Every single person except one in the building is completely innocent. Why are the police still holding them”?

      Witness intimidation. They’ll probably coerce most of them into a deal to gag them from talking about that day.
      That will be useful when ballistic & coroner reports show WPD ammo caused much of the carnage.

  4. Beth Clarkson

    Thanks, not a perspective I’ve thought of, but it stands to reason that some people are not guilty of anything other than being in the wrong place at the wrong time.

  5. bacchys

    Pete doesn’t have to worry about being called to account when he breaks the law…

  6. David M.

    I wonder whether Jordan Weissman would be content to see a random couple of bikers convicted, pour encourager les autres. Though there’s no economic mandate to keep the Bandidos afloat, so maybe convicting them all would be preferable.

          1. Marc not-R

            And Twin Peaks is not a Barbeque joint . . .. New York folks may not know the difference, but generally BBQ joints don’t have waitresses, much less are they ‘scantily clad’.

            1. SHG Post author

              And let’s be clear, there has been a dearth of good brisket in my life lately.

              You would think that somebody from Texas would get the hint already.

            2. Not Jim Ardis

              Sadly, this is true.

              Though their burgers are actually pretty darned good.

              It’s basically Hooters with a better menu.

            3. Marc not-R

              I was aiming for a double epic face palm with a heaping side of irony because I’m not a native Texan and even graduated from a certain upstate universty about four years after SHG. Apparently I missed.

              And I’m sure that ECLS or myself (though I’m just a lowly Adminstrative/regulatory law attorney) would be glad to escort you to our favorite BBQ shack if you are nearby for reasons.

            4. SHG Post author

              You do realize that all this serves to highlight the fact that no one in Texas is doing squat to show me any barbecue love. You selfish, thoughtless bastards.

              What school, by the way?

            5. Marc not-R

              Ag & Life Science. biology degree. Waited a few years to go to law school, though.

  7. CLC

    Umm, yes, it would actually….

    With that aside, I’m thinking treating almost everyone who was there at a CoC meeting as having some guilt in a Capital Murder case is different, in fact unfair, as opposed to treating all Outlaw Club members, as an organization as a whole, as having the same culpability. Perhaps it IS a club problem. As they say, cut one and they all bleed. Well then, perhaps if THEY cut one, then perhaps they’re ALL guilty…..

    But, I’m certainly not a lawyer….

    1. SHG Post author

      No. You’re certainly not. Hear that? It’s reddit calling. They miss you. Quick, go. Fly like the wind.

  8. Bob Mc

    115 of the arrested have no criminal conviction in TX.
    Could be they’re just really good at 1% Gangster Biker-ing and never got caught? Or not.

  9. Tom

    Thank you for for some intelligent commentary on this subject, as most people online seem to have their view of reality based on Sons of Anarchy or wackjob conspiracy theories. I’m not a lawyer and don’t claim to have much background in how the legal system operates . But I was a member of a couple of different Motorcycle clubs.
    I’m a little nervous about how people are so quick to toss all these people into the same basket. Most clubs members are good hard working, law abiding citizens. Who simply enjoy riding their motorcycle and sharing the camaraderie of othe like minded people.
    This was a meeting of what is a motorcycle rights group. They do fundraising for charities, motorcycle safety programs, and watch for, and help draft any legislation that might effect the interest of motorcyclists .
    Were there ” outlaw gangs” present, yes and they are referred to as 1%ers because they represent only 1% of the Motorcycling population..
    Seems there is really something wrong when a judge is willing to lock up everyone present, essential w/o bail for a capital offence without regard for their actions.

    1. Motorcycle Enthusiast

      Tom is correct. This was a legit meeting of motorcyclists whose intent was to focus on motorcyclist issues such as legislation & MC business. Sgt. Swanton did not make this clear just as the proverbial stuff hit the fan, and instead, made it appear as if everyone in attendance was there to wage war on one another. Obviously, this is not the case.

      However, somewhere along the line of writing and lobbying for legislation that benefit motorcyclists as a whole, including focusing on our collective safety on the roads, we’ve perhaps lost touch with maintaining order within our own ranks. It may be time now to focus our efforts inward as we proceed from this tragedy and as we work to free the innocent.

      If some motorcyclist organizations have a history of this sort of thing, and in fact, persist in this behavior that negatively affects us all, then perhaps we need to introflect on a solution to it that does not involve law enforcement. By the time law enforcement becomes involved, well, it’s just too late. Then we’re left to pick up the pieces of a tragedy that could have been avoided by those most interested in it not happening in the first place: we fellow motorcyclists.

      1. SHG Post author

        Tom’s comment was not an opportunity to use this as a soapbox to anonymously offer a blanket claim to know what was intended by every biker who happened to be at the Waco meeting and make overarching assertions as to what happened. Were you there? Are you willing to put your name to your claim? Was every biker in Twin Peaks there for a peaceful and productive meeting? Obviously not.

        Just as I’ve trashed idiotic comments tarring all bikers as if they’re part of some vast criminal conspiracy, your comment comes dangerously close to being the opposite. You can make the claim, but then you have to be willing to back it up. Otherwise, it’s just noise.

        1. Motorcycle Enthusiast

          My apologies. It was not my intent to stir discontent or otherwise anger you or anyone else here. This was an extremely tragic situation, obviously, but one I feel could have been averted from the inside (i.e. us folks in the motorcycling world). I feel that I can safely presume that the vast majority of us motorcyclists, including most MC members in attendance at that CoC meeting would have preferred the conflict not to have erupted at all.

          It is my sincere belief that somewhere down the line we motorcyclists, whom congregate together at these CoC meetings in mutual desire to improve our situation in life as it pertains to our shared love of motorcycling, must at times turn our focus inward as well instead of always focusing on those outside forces that seem to conspire to make our collective lives miserable.

          It is but just a few MC’s, a minority for sure, but those very specific MC clubs are over represented in regards to these sorts of affairs — violent affairs that tarnishes the perceptions of all of us motorcyclists to some degree. We all pay for that violence, whilst the clubs known for that violence benefit from it in the form of enhanced street cred.

          Perhaps as a silver lining the events in Waco have presented that opportunity for us motorcyclists to reconsider how we deal with, or perhaps rather, won’t deal with these types of clubs in the future. That is all I am suggesting. Nothing wrong with constructive, healthy self-introspection from time to time. There is some truth to saying, we are known by the company we keep. Attempting to clean house before violence erupts is an admirable endeavor, I should think. Again, my apologies for any misunderstandings.

          1. SHG Post author

            A much more productive comment, and thanks for shifting sets so that your point wasn’t obscured by the details of Waco. Years ago, Hunter Thompson wrote about Sonny Barger was concerned how his MC was feared when all they wanted to do was have a good time and help out on the road when they could. But people’s expectations made innocent, helpful acts come off as dangerous threats. Reputation precedes you.

            For guys who don’t want to be viewed as dangerous, and suffer the consequences, the perception problem needs to be addressed, and it starts from within.

  10. Wrongway

    From the moment I heard about this incident, my first thought was,”how many undercover agents were in the crowd wearing colors ??”

    BATFE, FBI, DEA, etc have infiltrated these biker gangs for years..

    just a thought..

  11. Bruce Coulson

    “These people just came in, and most of them were from out of town. Very few of them were from in town.”

    This sounds like the typical small town mentality; a bunch of foreigners came into town and caused trouble. (Foreigner meaning anyone who wasn’t born in town, or has lived there 20+ years.) And everyone knows that foreigners shouldn’t get the same rights or considerations as real ‘murricans’.

  12. Motorcycle Enthusiast

    Since this is a blog that perhaps primarily focuses on the legal aspects of issues, I’d like to put forth a couple of questions pertaining to the general hypothetical legal direction law enforcement may be pursuing here in this case.

    [Ed. Note: Deleted.]

    That’s the simple of it. Have I wandered too far off the reservation here?

    1. SHG Post author

      Yes. This is a law blog, not a free legal Q&A website. If you want a lawyer to answer questions, retain one.

  13. Motorcycle Enthusiast

    No no, I don’t need an attorney, nor do I need legal advice. Was only participating in a thoughtful discussion of the issue as a whole as I’m beginning to try and make sense of it is all….

    Below is an edited version of my comment so as to remove those concerns. I apologize for the confusion.

    OK, here’s a couple of observations pertaining to the general hypothetical legal direction law enforcement may be pursuing here in this case.

    Basically, and from day one, it appears that law enforcement (as highly suggested through Sgt. Swanton’s multiple interviews) seems to be pursuing a RICO case against a “criminal enterprise,” or enterprises. Thus, law enforcement seems more interested in attempting to shut this/these “criminal enterprise(s)” down than simply pursuing individual bikers whom may be guilty of some crime. Perhaps as many as 5 “criminal enterprises” are in focus by LE, e.g., 5 MC’s which apparently include the Cossacks and Bandidos MC’s.

    Yet, another intriguing strategy seems to be at play here by LE: to treat the entire Confederation of Clubs & Independents organization as, perhaps, an umbrella “criminal enterprise” in and of itself. This seems to make sense since the Bandidos are the organization that dominate this “enterprise” as well as having apparently created it in the first place.

    So, considering the Cossacks’ grievances against the Bandidos…. The Bandidos were being perceived, in essence, as extorting $100 per/mo per Cossack chapter in order to gain permission, from the Bandidos MC, to wear a Texas rocker patch on Cossacks’ vests (perhaps among other issues). The Cossacks balked and perhaps took offense to the notion that some other MC should dictate to them what they could or could not do as an independent MC. But perhaps more significantly, the Cossacks refused to be extorted of money in the process — money, or “dues,” that apparently goes straight into a CoCI controlled bank account.

    I suggest the process could be considered extortion due to the fact that the whole enterprise appears to be an extra-legal affair wherein the consequences for not abiding by the Bandidos’ demands may, and in fact, apparently has in the recent past, lead to violence against nonconforming clubs and/or individual members of said club, and in this case the Cossacks. The dominate outlaw MC in a State does not take any person or club to court for breaking certain laws. Instead, they may beat the crap out of you; stab you; steal your bike; kill you; burn down or blow up your clubhouse, etc., etc. in order to gain compliance — compliance with their demands, or their “laws” — all of which activities are obviously extra-legal affairs centered around money and the power to levy that cash from other MC’s in a particular territory, in this case, the State of Texas, which the Bandidos have historically and forcefully claimed as theirs.

    So, it’s much bigger than just Waco it seems to me. Perhaps if successful this approach by LE could serve as a template to deconstruct other similar enterprises in other States (perhaps all States for that matter) depending on how successful LE is in Waco (which investigation does include the Feds as per Sgt. Swanton).

    That’s the simple of it. If I have wandered too far off the reservation here, then feel free to chime in.

    1. SHG Post author

      First, you’ve gone off topic to the post. By a million miles. Second, this is legal masturbation. When there’s an indictment (and should I chose to write about, which is the sine qua non of all discussion on my blawg), then, and only then, is it worthy of discussion because we actually have something real to discuss. Third, mention of RICO is pretty much a sign that your helmet is made out of tinfoil.

      And finally, this is the sort of discussion that non-lawyers have amongst themselves at reddit, where all manner of baseless speculation masquerades as knowledge. You have not only wandered too far off the reservation, but you’ve wandered off a cliff. There will be no discussion of RICO or its ramifications for Waco and the rest of the world here today (although I’m sure some smeghead will try to do so, just to tweak me for having said this).

  14. Nathaniel

    Hopefully, for the prosecutors’ sakes, each killing wound was only caused by precisely one identifiable weapon.

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  16. Bill Duff

    Two questions:

    1) What level of Federal participation occurred in the Waco shooting, as the bullets clearly do not add up?

    2) is some type of Presumptive Classification, National Security Letter or other similar Federal chicanery going on here?

    1. SHG Post author

      If you have a substantive point to make, then make it. Questions like this are for reddit, which is down the hall to the left.

      1. Bill Duff

        The brass count is 44, plus any uncounted revolver rounds. Waco LEO says they fired 12 rounds. Tx-DPS says they fired 0. Associated Press Accounts indicate 1 biker fired 1 round, in the parking lot, on video footage. Perhaps there were federal shooters. Shouldn’t the defendants and human targets be informed if federal agents did most of the shooting?

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