What Really Happened in the Waco Motorcycle Gang Massacre?

Defendants and eyewitnesses complain of unjust mass arrests; lawyer tells Reason 'it was mainly the police shooting at sitting ducks'

One month ago yesterday, on the early afternoon of May 17, in and outside the Twin Peaks restaurant in Waco, Texas, a bevy of marauding motorcycle gangs who had gathered to create some sort of criminal trouble (the cops had already warned the restaurant to not let them meet there) began a wild melee of shooting at each other and at police. Nine people would eventually lose their lives, and 18 others were wounded.

Waco police (including a SWAT team) and officers from the state Department of Public Safety–who were all already on the scene, aware of the potential for trouble–swung into action, nipped the violent chaos in the bud, and put 177 violent criminals behind bars on charges of "engaging in organized criminal activity." Bail was uniformly, and understandably, set at $1 million.

So went the story as told at the time by the Waco police. But in the ensuing month the behavior of law enforcement that day has come increasingly into question.

First of all, the gathering was not just some premeditated bloody biker party with no legitimate intent. It was a meeting of a group called the Confederation of Clubs and Independents, a multi-biker-club confab dedicated to political chatter of interest to bikers. As Clay Conrad, a Houston lawyer whose firm is representing one arrested couple, William and Morgan English, pointed out in an interview, the gathering "was not a one-off, this was a frequent occurrence. These meetings would happen every couple of months [around Texas], and there has never been significant violence before. I believe at worse this would have been one murder if the police hadn't gone in and started shooting everyone in sight."

Conrad's spin is significantly different than that of the police. But it has been matched by numerous reports from other eyewitnesses, and people who have talked to eyewitnesses. The lawyer grants that the mayhem was launched by a conflict between members of the Cossacks and Bandidos biker gangs, in which one biker pulled a gun on another and started shooting. But that initial attack, Conrad insists, involved "no more than three rounds total of small arms fire, according to military vets on the scene who heard and knew how to recognize what guns sound like. All the rest of the fire came from police hardware. We believe that autopsies are going to show that at least six of the dead were shot by police, maybe all nine, and that the 18 wounded were shot by police."

William English, in an account circulated by his lawyer, said "I heard two pops that sounded like small caliber gunfire. Following that, I heard several bursts of assault weapon shots. I recognized the sound because I carried one of those weapons for six years as a Marine. That's all the gunfire I heard. Then the police started screaming 'Get down!'"

English told CNN that it was crazy to believe, as the police have claimed, that nearly everyone present was part of a criminal biker conspiracy preparing for violence. "Do you think I would want to take my wife to some place I know there was going to be shooting?" he asked. "Do you think I would want to be in a place where there was a shooting? I was in combat. I don't want to be shot at anymore."

English and his wife are members of a group called Distorted Motorcycle Club, and were there, he told local TV station KCEN, to participate in a "meeting of the Confederation of Clubs and Independents to talk about legislation for Motorcycle Awareness month." He noted in the interview that "part of your 300 weapons" that the police crowed about confiscating on the scene included his pocket knife. 

English isn't alone in his assessment of what went down that day. A former Marine, Michael Devoll, told the local news station WFAA that he was just pulling into the Twin Peaks lot in a truck when he heard "a few rounds of handgun fire and then, I would say, an overbearing suppressing fire of M-4 rounds." Devoll characterized the ensuing melee as being mostly defined by a "barrage" of police rifle fire. "It was the most unorganized, unprofessional thing I've ever been a part of," he said.

The Associated Press reported, in the pages of the New York Times, that "several witnesses — at least three of them veterans with weapons training — told The Associated Press that the sound of rapid-fire rifle shots dominated," and that "Six witnesses interviewed by the AP describe a melee that began with a few pistol shots but was dominated by what sounded like short bursts of automatic gunfire." A named Navy vet, Steve Cochran, told the A.P. that "I heard one pistol shot. All the rest of the shots I heard were assault rifles," including sound-suppressed but audible rounds. The A.P. reporters who viewed some restaurant surveillance video say they saw only one verifiable shot fired by a biker, though they could only see the restaurant and patio, not the parking lot.

Conrad's partner, Paul Looney, had a more nuanced view today based on what he's pieced together from his clients, other eyewitnesses, and other lawyers representing other people arrested at the scene. He's not sure that all the shooting but for the first two or three shots was from police, but says as for the bikers, "I think that when it's all said and done there are four people with criminal liability and one of those people is dead"—that is, that at least one of the bikers shooting was himself shot dead.

Looney scoffs at the cookie-cutter document the police produced for every single arrested person, none of which provided any specific evidence that the arresting officer had seen them do any specific criminal act, besides being on the scene when some person or persons started shooting, and the police swept in to do some more shooting.

Waco Police spokesman Patrick Swanton claims that more biker guns were fired than police guns. The Waco police's most recent summation of the incident, from Chief Brent Stroman last week, asserts that only three officers fired at all, discharging just 12 shots. Forty-four total shell casings were reportedly found on scene, and Stroman categorically denied that his men fired "indiscriminately into the crowd." His most recent weapons-on-the-scene count is 475, including 151 firearms. The police impounded 130 motorcycles and 91 other vehicles, and so far have returned 52 of the motorcycles and 47 of the other vehicles. The police claim they found weapons buried on the grounds, and that somehow even at this late date the number of weapons on scene might still go up.

The constant harping on weapons found on the scene is clearly part of a public relations campaign to make citizens think that any amount of police firepower on the crowd of bikers was justified. But even after taking into account that law enforcement is counting things like pocket knives and wallet chains as weapons, the police have done nothing so far to prove publicly that possessing even the more potent weapons was a crime, or that those arrested were seen brandishing or using them. This is Texas, and these are (largely) guys in motorcycle clubs. Possessing weapons is not evidence of a crime, or even criminal intent.

The original $1 million bond for all 177 arrested is nearly impossible for most people to meet, even with a bail bondsman taking only 10 percent. Even the presiding judge said out loud that the large bail was designed to "send a message." Fortunately, once lawyers got involved, some sanity was applied to the proceedings. As of today, 142 have gotten out on bonds ranging from $25 thousand to the original million they all faced. As Associated Press discovered, 115 of these people pinned as being part of organized criminal gangs had no criminal record at all.

Even if, as the lawyers I've spoken to predict, the vast majority of those arrested eventually end up released unindicted, without specific proof of their intent or participation in any crime at the scene, that doesn't make the police's actions harmless. Imagine how your work life, family life, and home life, would be affected by being suddenly without warning locked away for weeks. Jobs, custody, relationships can all be lost. You've been marked in a manner not easily washed away.

At least one of the arrested, Matthew Clendennen, is suing the police officers involved and the city of Waco and McClennan County, essentially for false imprisonment. Clendennen, in a phone interview, says he was so late to the event and things were so chaotic he can't personally speak authoritatively to the question of who was shooting and when or why. He says that though he "rides with the Scimitars" and was aware of the political meeting aspect, "my main purpose was to hang out with friends."

Clendennen is suing because he feels damaged by the police. "They drug my name through the mud from a professional standpoint. I was born and raised in Waco and owned and operate a business in Waco and my business is based off of my reputation, and the initial report…the mugshot, all that stuff drug my name through the mud," he said. Clendennen can't yet testify that it's lost him any of his landscaping business, but "we survive off of people Googling my name, and to see all those reports [about his arrest] online?"

More painfully for Clendennen, while in jail "my ex-wife served me with a petition" to restrict his custodial arrangement with his son to supervised visits, and filed a restraining order, leaving him, thanks to the arrest, "in the middle of a legal battle" and unable to be alone with his son or to discuss his civil or criminal cases with him.

Clinton Broden, Clendennen's lawyer, said this week that he's in communication with other lawyers involved, and as far as they know no grand jury has yet indicted any of those arrested that day. If arrested without indictment in Texas, Broden says, you are entitled to a probable-cause hearing known as an examining trial, and Clendennen won't be getting his until August 10.

"People who don't make bond," says Conrad, English's lawyer, will sit in jail until at least August. "That is obscene. It's destroying people's lives to make some political point about not wanting bike clubs in Waco." While none of Conrad's clients are yet suing the police, Conrad can imagine a class action suit eventually arising. Conrad predicts a slow trickle of "no true bill" decisions, and the releasing of prisoners, with police hoping the public eventually loses interest in the story.

The notion that the police might have been at least partially in the wrong in the shooting incident, and almost entirely in the wrong in arresting so many people, has spread throughout the Waco community, leading to a June 7 "Waco Freedom Ride" biker rally in defense of the arrested that drew around 500 people, though those out on bond were not permitted by the conditions of their release to take part.

"Everyone involved in this wants the other side of the story out there," Conrad says. "There has been a false narrative put out by police of this huge biker melee and it isn't reality. Someone pulled a gun on somebody else and fired two or three shots. There was not this army of people shooting at each other. That never happened. It was mainly the police shooting at sitting ducks, or running ducks."

Sgt. Patrick Swanton of the Waco police told CNN in early June  that "we won't respond to allegations made by people in jail for probable cause, and the justice system is working the way it should." At this point, any possibly incontrovertible truth is buried in a morass of "cop said/suspect said." Sgt. Swanton did not return a call for comment or clarification as of posting; if I hear from him later, will update.

But the Waco police and the county court system have it within their power to settle most lingering doubts about whether the police did the right thing that day in Waco, chiefly by making actual evidence-citing indictments, and by releasing objectively verifiable information (including any video, which Chief Stroman said on June 12 was sent to the FBI for analysis, though there may well be recordings on some of the many confiscated cell phones the government wants to search) about how the dead were killed and the wounded were wounded. Chief Stroman says that federal ATF is handling the ballistics investigation into exactly what sort of weapons were used. But in general, rather than being more open, Waco police are doing the opposite: When Yahoo! News made a Texas Public Record Act request about the incident, the organization was mostly stonewalled and given a haphazard collection of redacted documents. 

Clendennen's lawyer Broden maintains that "it doesn't seem normal at all" that the police have revealed no hard facts about the sources of the mayhem. "Obviously they have access to preliminary information about the type and caliber of bullets and weapons that killed and wounded those people. I don't know why they have not released it."