NEW ORLEANS (CN) — A Fifth Circuit panel heard arguments Monday over whether the former district attorney in Waco, Texas, is entitled to qualified immunity for arrests made in the aftermath of a 2015 biker gang shootout that killed nine people.
Former McLennan County District Attorney Abel Reyna was sued in May 2016 by several men who claimed they and dozens of others were rounded up and charged with cookie-cutter felonies in what was one of the largest mass arrests ever in the United States over a single incident.
Reyna’s attorney Thomas Brandt told the three Fifth Circuit judges Monday that because his client “didn’t do any actual arresting,” he should be entitled to qualified immunity over the 192 arrests made.
U.S. Circuit Judges Stephen Higginson, a Barack Obama appointee, and Edith Jones, a Ronald Reagan appointee, appeared to be of entirely separate minds about the matter.
Higginson suggested the warrants for arrest would never have been issued in the first place if all the facts were known in the case, saying they were issued based on misinformation.
“Certainly, you can never lie to a judge to obtain a warrant,” Higginson said.
But Jones said that considering two of the men arrested at the Twin Peaks restaurant in Waco were there to deal drugs, the case for Reyna’s qualified immunity “makes sense to me.”
“I was thinking of a variation on ‘Casablanca’ of ‘round up the usual suspects,’” Jones said.
Brandt appeared to mostly agree with Jones on the “Casablanca” metaphor, but added the difference in this case is that it was not the whole city but only Rick’s Café that had been infiltrated by gangsters.
Higginson interjected that he was not sure the plaintiffs or others present at Twin Peaks at the time clearly belonged to street gangs.
Attorney Don Tittle, representing the plaintiffs, said most of the nearly 200 people arrested were not affiliated with the Bandidos or the Cossacks, two motorcycle clubs identified as being on opposite sides of the shootout that left nine people dead and 18 others.
Tittle said Reyna was the mastermind behind charging everyone present with the same offense – engaging in organized criminal activity – when a legal arrest requires that every person be charged based on compelling facts and evidence and tried individually.
“If the defendants can prove that someone is in a gang and that they engaged in violence,” Tuttle said, then – and only then – are they fair game for the charges brought against them.
“The fact that flash violence occurred has little to do with what the defendants have described as ‘bikers descending on Waco,’” the attorney added.
As a result, he said his clients were sent to jail and charged with first-degree felonies without probable cause.
The case being heard in the Fifth Circuit stems from the May 17, 2015, massacre outside Twin Peaks. Around lunchtime, hundreds of motorcycle enthusiasts gathered in the parking lot of the “breastaurant” where a biker coalition summit was being held. Prior to the summit, local police officers heard that members from two rival motorcycle clubs, the Bandidos and the Cossacks, might be present and showed up armed and in large numbers in case of a conflict.
One of the Bandidos’ motorcycles was either hit or nearly hit by a bike belonging to a Cossack and violence erupted for a brief minute or two. Armed with clubs, brass knuckles, baseball bats, knives and handguns, the bikers beat, stabbed and shot at their rivals.
Police officers opened fire on the scene, shooting at least four bikers. When the chaos subsided, nine bikers lay dead in the parking lot. Another 18 were wounded.
“In 34 years of law enforcement, this is the most violent crime scene I have ever been involved in,” Waco Police Sergeant W. Patrick Swanton said in a statement at the time. “There is blood everywhere.”
Police immediately rounded up and detained 239 people and bussed them to the Waco Convention Center, which they turned into a temporary holding facility. Of those, 177 men believed to be either Bandidos, Cossacks or supporters of one of the two clubs were arrested on the same charge of engaging in organized criminal activity, a first-degree felony that comes with a sentence of between 15 years and life. A total of 192 people were eventually arrested.
The civil case now in the Fifth Circuit was filed in 2016 but sat on the docket for two and a half years during a criminal investigation.
In June, U.S. District Judge Alan Albright in the Western District of Texas ruled that the case cannot continue to be stayed for defendants who are not arguing for qualified immunity.
Higginson and Jones were joined on the panel by U.S. Circuit Judge Patrick Higginbotham, another Reagan appointee. The judges did not indicate how or when they will rule on the issue.