Biker News & Biker Lifestyle

The Waco Effect Police say TXGANG is a valuable law enforcement tool allowing them to keep tabs on potentially dangerous citizens and members of criminal organizations

Eric Dexheimer and St. John Barned-Smith 

For Jason Medrano, it meant being stopped and grilled at Fort Sam Houston when he tried to enter the San Antonio post to apply for a job. For Patrick Vaden, it resulted in getting arrested in Milam County and charged for unlawfully possessing a gun — even though he had a valid Texas carry permit.

The reason, both men learned, was that their names appeared on a list of motorcycle gang members kept in a secretive state database. Police don’t have to inform those added to the list. Once on it, it is nearly impossible to challenge, attorneys and advocates say.

Police say TXGANG is a valuable law enforcement tool, allowing them to keep tabs on potentially dangerous citizens and members of criminal organizations. Yet motorcycling advocacy organizations say club riders without any criminal record have been swept up in the effort as well, labeled and punished for being suspicious gang members without good cause. In recent months, several Texas courts have agreed, raising questions about how police use the database.

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Bikers say they have been added to the list based on what they’re wearing or tattoos, patches or bumper stickers on their motorcycles. In some cases, they have no idea why or when they were added.

An Army veteran boasting two Purple Hearts, a master’s degree and a history of service on several community organization boards, William Apodaca-Fisk said he first heard of TXGANG after several members of his local club discovered police considered them gang members. In 2019, he asked the Department of Public Safety, which maintains TXGANG, if he was in the database. That September, the answer came back: “yes.”

Apodaca-Fisk said he had no direct contact with police or criminal record. Even now, after suing, he said he remains on the list.

“At the end of day, you’re supposed to be able to face your accuser,” he said. “And there’s no ability to do that, or to fight for your name.”

A Twin Peaks effect?

Texas motorcyclists say interactions with police have become more fraught since 2015, when a meeting of some 200 bikers at the Twin Peaks restaurant in Waco devolved into a melee. Nine were killed and 18 wounded.

Police arrested or detained 177 people in connection with the fight. But the cases quickly fell apart. Prosecutors ultimately dropped all charges against the bikers.

According to the public safety department, TXGANG has grown 50 percent since the incident. Because the database also includes cartels and criminal street gangs, it is difficult to know how much can be attributed to new entries classified as motorcycle gang members.

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But club advocates said a Twin Peaks effect was noticeable. “The majority of people perceive Texas as ground zero for motorcycle profiling and discrimination,” said David Devereaux, a motorcycle rights activist from Washington state and founder of the “Motorcycle Profiling Project.”

When Terry Martin’s name showed up in TXGANG following a Lubbock County traffic stop, he was arrested for being a gang member in possession of a gun. Martin, who was at Twin Peaks during the shootout, was added to the list by Waco-area police, even though charges against him were dismissed, according to court documents.

Most large law enforcement agencies track known or suspected gang members. Texas counties with a population of 100,000 or more and cities with a population of at least 50,000 people are required to create their own regional gang lists. Houston police officials said the department’s database includes 19,414 entries associated with more than 400 identified gangs.

Local police feed the names into TXGANG. State law defines a gang as “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.” Police can add a person for committing a crime as part of a gang or if he admits in court to being a member.

Yet officers in the field also can make more subjective judgments. They can add new members who identify as gang members on the Internet, are tagged as gangsters by informants or who hang out in “a documented area of a criminal street gang.” The law permits police to add a person who displays “in more than an incidental manner, criminal street gang dress, hand signals, tattoos, or symbols,” as well.

After pulling over Medrano for an improper lane change in December 2015, a Bexar County sheriff’s deputy added him “because of a sticker” on his motorcycle, according to a 2019 lawsuit. Kristopher “Cody” King sued Austin police after officers threatened to jail him unless he lifted his shirt so they could photograph his tattoos. The case was settled in 2019 for an undisclosed sum.

Once a person is in TXGANG, the law makes it almost impossible for him to get off it, attorneys say. Accused gangsters may request a review — by the same agency that put them there. If that is upheld, they can appeal to a judge to consider their case.

Yet police don’t have to disclose to the person why he was added, making such challenges like shooting in the dark, say those who have attempted it. “There’s no real due process,” said Kevin Connolly, a Houston attorney and biker. “Once you’re in it, you’re in it.”

When Medrano asked DPS to remove him from TXGANG, the agency referred him to the Bexar County Sheriff’s Office, which bounced him back to DPS, according to court documents. Eventually, the county agency informed Medrano he had to wait five years, after which his name would be dropped if he committed no crimes.

‘Really bad consequences’

According to the DPS, Texas gangs are responsible for a disproportionate amount of violence and crime. Houston police say members commit a significant portion of the city’s homicides.

The state’s 2018 Gang Threat Assessment estimated 100,000 people were affiliated with gangs such as Tango Blast, MS-13, or the Texas Syndicate. It also identified outlaw motorcycle clubs, such as the Bandidos or the Cossacks. TXGANG lists more than 10,000 separate gangs.

Established in 1999, the database “is designed to provide timely sharing of criminal intelligence information among criminal justice personnel through rapid access and response to statewide gang-related queries,” said Lt. Craig Cummings, a DPS spokesman.

But critics say innocent club members are also being included on the list based only on tenuous associations, not their actions. And being labeled a gang member “can have really bad consequences,” said Chris Ward, legislative liaison for the Texas Council of Clubs and Independents, which advocates on behalf of 330,000 registered motorcyclists in Texas.

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For those with a criminal history, it can lead to probation revocation. Prosecutors can use it to seek harsher sentences. It can set police on edge during routine traffic stops and subject members to aggressive interrogations when they try to enter the country or military installations.

Civil liberties advocates in several states have raised concerns about the databases.

An audit of California’s list uncovered dozens of “gang members” less than a year old, names that should have been purged long ago and unsubstantiated entries. In response, the state created a formal process for people to contest their inclusion.

Similar problems led authorities in Portland, Ore., to shut down its gang database in 2017. Chicago followed suit in 2019.

When Houston officials in 2016 attempted to use so-called “gang injunctions” to prohibit listed gang members from frequenting certain high-crime South Houston neighborhoods, advocates complained the effort was discriminatory, unfairly targeting Black residents.

According to a 2017 presentation, 35 percent of Houston’s gang database members were Latino; 54 percent were Black. Similarly, more than 90 percent of TXGANG’s entries are Black or Latino, according to records attorneys received from the agency.

“For years, it’s invited racial profiling and trapped innocent people under government surveillance,” said Nicholas Hudson, policy and advocacy strategist for the ACLU of Texas. “It targets people based on the way they look and the people and places they visit.”

Gangster or Chamber of Commerce member?

Over the past year, Texas motorcyclists claiming unfair inclusion in TXGANG hampered their ability to get or keep jobs, travel freely or curtailed their First and Second amendment rights have chipped away at gang designations.

Martin appealed his Lubbock conviction for unlawfully carrying a weapon. Four months ago, the 7th Court of Appeals in Amarillo agreed prosecutors hadn’t proved he belonged in TXGANG.

“The sole piece of evidence indicating that appellant was ever involved in criminal activity was the evidence of his presence at the Twin Peaks shooting,” Justice Judy Parker wrote. “This single arrest, on charges which were later dismissed, does not establish that appellant continuously or regularly associated in the commission of criminal activities.”

The same court had dealt another blow to TXGANG a month earlier. After being pulled over in 2018 by a Lubbock County deputy for riding too slowly, Ashley Becker was charged with illegally possessing a weapon while being a member of a criminal gang.

Yet Becker’s background was clean enough that the Department of Public Safety had issued him a valid license to carry a gun. Last summer, the appeals court concluded that trumped any gang affiliation Becker may have.

The opinion only said having the permit could be used as a defense; police could still stop bikers and charge them with illegally carrying guns. But since the rulings, several charged with illegally carrying weapons because of their purported gang ties have dissolved. In December, El Paso prosecutors abruptly dismissed four such cases.

“How did the State of Texas establish he was in an ongoing criminal enterprise?” said Thomas Hughes of his client, Scott Stevens. “He’s not. He’s a member of the Chamber of Commerce.”

In Milam County, former U.S. Army infantry platoon sergeant Vaden — a self-identified Bandidos member — was returning from a biker’s funeral in Aransas Pass in November 2018 when a state trooper stopped him for speeding. The trooper arrested him after learning he was carrying a gun and found his name in TXGANG.

Vaden’s attorney, Kurt Glass, said Vaden had a valid carry permit and no criminal history. The case ended in a mistrial and has not yet been rescheduled.

“You can’t arrest someone just because a database says something,” Glass said. “What you wear isn’t the same as a criminal conviction.”

In his 2019 lawsuit, Apodaca-Fisk, a recipient of the Red Cross Regional Hero Award in 2016, noted that no one in his club had a criminal record. “And, yet” Apodaca-Fisk “is in the TXGANG database, labeled as a gang member.”

In a deposition, El Paso Police Chief Greg Allen acknowledged Apodaca-Fisk was added to TXGANG without any direct police contact, but based on colors he was seen wearing in online posts and “another source” identifying him as a gang member. After the lawsuit was filed, Allen said he reviewed Apodaca-Fisk’s case, but noted Texas law didn’t require him to let the biker defend himself, or even inform him of the review. The lawsuit is pending.

Ward said such legal battles are a luxury for most. Last week, Texas Council of Clubs and Independents said Mary Gonzalez (D-El Paso) had agreed to sponsor legislation to bring California-like reforms to Texas, such as requiring police to tell people when they are added to TXGANG and a more transparent process to challenge the listing.

“We’re not saying there’s no good reason for a gang database,” Ward said. But “We have a lot of people who wear a patch. Not all are gang members.”

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