A federal judge in Waco has dismissed 13 civil rights lawsuits filed by 45 bikers arrested after the May 2015 shootout at Twin Peaks in Waco, a ruling that suggests more dismissals will be coming.
U.S. Judge Alan Albright, in a 13-page order issued Monday, dismissed civil rights claims against the city of Waco, McLennan County, former District Attorney Abel Reyna, former Waco Police Chief Brent Stroman and a handful of other Waco and Texas Department of Public Safety officers.
The 45 plaintiffs were among 192 bikers who were arrested and among 155 who were indicted in the Sunday noon-hour shootout at the former Central Texas Marketplace restaurant that left nine dead and 20 injured. A total of about 134 bikers filed civil suits.
Dallas attorney Don Tittle, who represents the majority of the bikers, said he will appeal the order to the 5th U.S. Circuit Court of Appeals.
“Ultimately, this was always going to be determined by the Court of Appeals,” Tittle said. “The only thing the judge’s ruling really changes is whether we are the party bringing the appeal or the one responding to it. Either way, the ruling was going to end up on appeal.”
Only one of the criminal cases went to trial and ended in a hung jury and mistrial. That case and the remaining cases all were dismissed by the McLennan County District Attorney’s Office, the majority after Reyna was defeated and left office.
Albright ruled the bikers failed to sufficiently allege their claims that the defendants violated their Fourth Amendment rights against unlawful search and seizure by arresting them on identical “fill-in-the name” affidavits and jailing them under $1 million bonds. They also alleged 14th Amendment due process violations and unlawful arrest that the judge rejected.
Tom Brandt, a Dallas attorney who represents McLennan County and Reyna, said he sees Albright’s ruling as a “harbinger” for future rulings involving cases filed by other bikers who also were indicted.
“We are thrilled with this ruling,” Brandt said. “We think the judge got it right and we think we will win on any appeal.”
Reyna deferred comment Wednesday because of the remaining pending cases.
Waco City Attorney Jennifer Richie said city officials are “pleased” with the court’s ruling.
The judge’s ruling, citing multiple higher court precedents, states the defendants’ claims of qualified immunity are difficult for the plaintiffs to overcome..
“Qualified immunity balances ‘the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably,’” according to the order. “Because qualified immunity shields all but the plainly incompetent or those who knowingly violate the law, the (5th U.S. Circuit of Appeals) considers qualified immunity the norm and admonishes courts to deny a defendant immunity only in rare circumstances.”
.Albright’s order also states the plaintiffs failed to allege that each defendant maliciously omitted evidence or mislead the grand jury to obtain the indictments. He also said the plaintiffs had no way of knowing if the defendants “tainted” the grand jury process because the proceedings are secretive, there was no transcript and they do not know who the witnesses were.
“Plaintiffs admit that they do not know what testimony was given before the grand jury; they don’t know who testified before the grand jury; and there is no transcript of the grand jury proceedings,” the ruling states. “In other words, plaintiffs are simply guessing at what took place before the grand jury and who testified before the grand jury. Such allegations are no more than rank speculation. …
Because plaintiffs’ conclusions and guesses as to who possibly testified before the grand jury, and what their testimony could have possibly been are the type of formulaic, threadbare allegations that are insufficient under the Supreme Court’s … standard, the court must dismiss plaintiff’s complaint.”
Albright wrote in a footnote that he is not requiring plaintiffs to “prove the impossible — what occurred inside the secret proceedings of a grand jury.” However, he said the plaintiffs’ allegations amount to no more than “defendants knew of” or “condoned” the alleged constitutional rights violations.
Grand jury proceedingsThe plaintiffs’ petition includes numerous allegations about the grand jury proceedings that claim the grand jury could not possibly have been given a thorough presentation on the facts of the incident because it took an average of mere minutes to approve an indictment in each of the 155 cases. Also, the plaintiffs allege the panel was not shown any video footage of the clash between the Bandidos and Cossacks and their support groups that could have cleared many of wrongdoing, and that the grand jury was provided with “materially misleading and false statements and information.”
Tittle said he thinks the plaintiffs have a good chance of winning on appeal.
“To require proof of how the grand jury was actually misled without knowing what went on in the grand jury room seems like an impossible standard to me,” Tittle said. “We offered eight pages of facts from which it could be determined that the grand jury got far less than an accurate picture of what actually happened out at Twin Peaks. According to the court’s order, that wasn’t enough. There’s really nothing else we could have offered without violating the secrecy of the grand jury proceedings.”
Dallas attorney Clint Broden, who represented bikers in the criminal case, said he is confident the plaintiffs will win on appeal. He said they have waited five years for justice, and Albright’s ruling means they will just have to wait a bit longer while the appeals court decides the issue.
“The defendants, such as defendant Reyna, are scared to death to address this case on the merits because the defendants know they can’t possibly win on the merits,” Broden said. “Instead, they choose to hide behind grand jury indictments, knowing full well that they bamboozled the grand jury in complete secrecy only to see each and every indictment ultimately dismissed.
“The district court’s ruling on the civil rights cases effectively means that no defendant indicted can ever get justice because they will never possibly be in a position to show what went on in the secrecy of a prosecutor’s grand jury room.”
The bikers whose cases were dismissed include John Wilson, John Arnold, Roy Covey, James Brent Ensey, Edgar Kelleher, Brian Logan, Terry S. Martin, Robert Robertson and Jacob Wilson in one suit. Also, Mitchell Bradford, Richard Luther, John Craft, Daniel Johnson, Jason Dillard and Ronald Atterbury in a suit.
Others together in a suit include Martin D.C. Lewis, Ricky Wycough, Gregory Wingo, Dusty Oehlert, James Michael DeVoll, James David, Jarron Hernandez, Andrew Sandoval, Jason Moreno and John Martinez. Another suit dismissed include Noble Mallard, Salvador Campos, Michael Thomas, Sergio Reyes, Mario Gonzalez, Andres Ramirez, Edward Keller Jr., Gregory Salazar, Jose Valle, James Rosas, Richard Cantu Jr., Daniel Pesina, Justin Garcia, Marco DeJong, Andrew Stroer, Kenneth Carlisle, Rolando Reyes, James Hardin, Michael S. Herring and Valdemar Guajardo Jr.