How Waco Is Being Used To Decimate The 1st Amendment

 How Waco Is Being Used To Decimate The 1st Amendment

Law enforcement policies driven by a generalized presupposition about hundreds of thousands of motorcycle club members based on the actions of a few is both intellectually bankrupt and blatantly unconstitutional. Unfortunately, many media outlets and some law enforcement are using the tragedy in Waco to condemn an entire class of people (motorcyclists and motorcycle club members)  based on appearance, not conduct.  Over-generalized policies based on the idea that Waco proves club members are violent is an attack on the 1st Amendment and a threat to everyone’s freedom.

 Law Enforcement Is Using Waco To Justify Overly-Broad Discrimination And Profiling

There have been widespread reports that law enforcement in Texas, particularly the Waco area, are embracing policies towards motorcyclists which are based on appearance as opposed to conduct. Appearance does not establish reasonable suspicion or probable cause.  These policies are not particularized to any specific group or individuals based on conduct they are responsible for. Rather, law enforcement is using the Waco incident to justify discrimination against all motorcycle club members and even all motorcyclists.

Indeed, immediately following the incident at Twin peaks Waco law enforcement issued a statement warning “bikers to stay off the streets because it was difficult to distinguish between law-abiding riders and those bent on criminality.” [1]  These warnings resulted in a chilling effect on freely expressing motorcycling or motorcycle club affiliations. “Officers patrolling the city have noticed a substantial decline in the number of motorcycles on the roads, police spokesperson Sgt. Patrick Swanton said, after authorities warned bikers…. to stay off the road. Even the local Harley-Davidson store was closed indefinitely at the request of authorities.”[2]

Law enforcement almost immediately began justifying this draconian approach the night of the shooting by reporting that there were “credible” intelligence reports that Bandido and Cossack leaders issued a “green light” (orders to kill) any uniformed law enforcement officers in retaliation for the loss of their brothers at Twin Peaks.[3]  The Federal Board of Prisons, the Texas Border Intelligence Agency, and the Texas Department of Public Safety all issued bulletins based on these reports about retaliation.[4] Of course, law enforcement acknowledges, but fails to emphasis, that these reports are based on completely unsubstantiated information provided by an unnamed informant.[5]  Additionally, the alleged informant loses all credibility and believability by naming a non-existent club called the “Black Widows” as the source of the information. “The Black Widows Motorcycle Club, while it might carry a looming scary name, is actually the fictitious group from a Clint Eastwood movie Every Which Way But Loose.  There is no actual Bike Gang called The Black Widows anywhere in the South or Southwest.”[6]

To assert that motorcycle clubs would issue an order of this type or magnitude is patently absurd. Bandido National Ambassador and Spokesperson Jimmy Graves unequivocally  disputes these claims and correctly points out that if there were any credibility to these reports there would be swift and immediate action.[7] Even former Bandidos that are not in good standing describe the notion that the club would issue orders to kill law enforcement officers as completely improbable and “absolutely ludicrous”.[8]

Furthermore, law enforcement incorrectly reported that the meeting at Twin Peaks was a gang meeting when in reality it was a publicized and regularly scheduled political gathering intended to discuss legislative matters. This mischaracterization was also used to describe and treat bikers showing up in Waco after the incident as a threat. The mainstream media embraced this description and helped spread these irresponsible assertions.[9]  The meeting was supposed to start at 1pm and the shooting incident was reported to have occurred at approximately 12:15. So there was a reason hundreds of motorcyclists were heading to Waco. Motorcyclists were on their way to Waco to attend a regional political gathering, not participate in a gang war.

These reports were followed up by sensationalized headlines related to a leaked military intelligence document from 2014 that hypothesized that motorcycle clubs like the Bandidos were recruiting military personnel in order to gain access to intelligence and weaponry. Although highly prejudicial and verging on propaganda, law enforcement and a complicit media used this unrelated report in an attempt to make claims that there was a threat of retaliation.  Again, former members and experts say these claims are highly questionable.[10]

Clearly there are huge problems with law enforcement’s threat narrative. But even if it were true, there are still no explanations for why a particularized threat would justify generalized discrimination against other motorcyclists, motorcycle clubs, or their members.

Law enforcement is extending the policy of fear driven discrimination in the arena of public accommodations. There are clear indications that law enforcement in Texas have approached private owners of public establishments and asked them to adopt “no motorcycle club colors” policies based on an isolated incident. The strategy is to get establishments to collude and all agree to adopt “no colors” policies so bikers have no options for motorcycle club members to express their associations in public establishments. This is a government actor coercing owners to implement discriminatory policies.[11]

Disturbingly, there have been reports that this trend is happening in places outside of Texas as well. Law enforcement in other states are coercing public establishments, completely unrelated to motorcycle clubs in Texas, based solely on general stereotyping driven by fear.  Appearance, as opposed to conduct, is being used as the standard to establish suspicion for law enforcement action.

In California, the VFW was approached by law enforcement asking that they cancel reservations for a COC event taking place three days after Waco. The VFW righteously rebuked the warnings and responded with the fact that COC meetings had been occurring for years at the VFW without incident. Law enforcement threatened to increase presence.  Consistent with history, the meeting was a peaceful political gathering.[12]

The incident in Waco is also being used by law enforcement in other states to promote fear of motorcycle clubs among the general public. Citizens are being warned not to approach any motorcycle club members because they are likely armed and dangerous.[13] In order to avoid another Waco, citizens are being asked to call and report sightings of motorcycle clubs to the police.[14]  Law enforcement is clearly endorsing a general fear of those expressing protected associations pumped up by completely unrelated recent events occurring thousands of miles away.

The policy implications of the generalized fear driven narrative following Waco are alarming. These developments represent blatant infringements on the core principles of the 1st Amendment.  This is not just a biker issue. This is an issue of freedom of expression and association in a free society.

Post-Waco Discrimination And Profiling Is Unconstitutional And Unjustified.

Despite law enforcement attempts to justify discrimination and profiling, it is indisputable that “wearing colors symbolizing membership in an organization is protected under the First Amendment.”[15]  State government actors such as law enforcement are constitutionally restrained from infringing on 1st Amendment expression or association. The Incorporation Doctrine of the 14th Amendment extends the bill of rights and its obligations to the states.[16]

Particularly concerning is that much of the post-Waco discrimination is being targeted at COC meetings based on false assertions and inaccurate information. “The gathering of criminal bikers story was even used to justify the $1 million bail that the 170 arrested bikers were each handed.”[17]  Confederation of Clubs meetings are political in nature and it is particularly important to protect speech critical of government. The right to dissident speech, specifically including speech questioning law enforcement practices, is clearly established.[18]

In fact, protecting speech is the key to a free society and democratic government.[19] Justice Black famously wrote in (1957):

“Doubtlessly, dictators have to stamp out causes and beliefs which they deem subversive to their evil regimes. But governmental suppression of causes and beliefs seems to me to be the very antithesis of what our Constitution stands for. The choice expressed in the First Amendment in favor of free expression was made against a turbulent background by men such as Jefferson, Madison, and Mason men who believed that loyalty to the provisions of this Amendment was the best way to assure a long life for this new nation and its Government…. The First Amendment provides the only kind of security system that can preserve a free government one that leaves the way wide open for people to favor, discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such views may be to the rest of us.”

It’s important to understand that the freedoms of expression and association are not absolute and can be constitutionally restricted if the action passes strict judicial scrutiny. An action or policy is considered constitutional if there is a compelling state interest and it is narrowly tailored, meaning the least restrictive means of protecting the identified state interest.[20] This is the way the judicial system balances the competing interests between the rights of society, in this case to be safe from violence stemming from a particularized event, and the civil liberties of the individual.

There is certainly a compelling state interest to stop violent incidents among groups allegedly involved in the Waco incident.  However, policies or law enforcement actions restricting all motorcycle clubs or motorcyclists from freely associating and expressing associations by riding motorcycles and wearing club insignia is not narrowly tailored and is not the least restrictive means of preventing violence among specific groups allegedly involved in the Twin Peaks incident. Simply put, the actions and policies being promoted by law enforcement after Waco fail the strict scrutiny test applied to government infringements on constitutionally protected expression and association.

Although tragic, the event in Waco is in no way applicable to the motorcycle club community generally. Indeed, it is even a fallacy to suggest that the actions of the few are applicable to every member of a single club, particularly a club with hundreds or even thousands of people.

Consider an analogy. Sure, making the Catholic Church illegal and restricting all public access to members of the church would solve the issue of pedophile priests, but that would be an unjust deprivation of everyone’s rights to punish the few that may be guilty. This is true even on the scale of a single church with only hundreds of members. In a totalitarian dictatorship this policy perspective is fine. But in a democratic system sacrificing the rights of an entire class of innocent people based on the fear generated by the actions of the few is considered unconstitutional and antithetical to the doctrine of freedom.

The vast majority of motorcycle club members across the board (including those in 1% clubs) are not criminals any more than most police officers are criminals. Even though it’s a fact that many officers across the country have been convicted of crimes including extortion, drug trafficking, murder, and even RICO,[21]  it would be absurd to say that most or all officers are criminals or even that the departments indicted officers come from are corrupt or criminal organizations.

The decades long history of peaceful motorcycle club events and gatherings proves that the criminal stereotype being driven by fear is unfounded. For example, over a hundred COC meetings happen nationwide and without incident every few months. Literally thousands of peaceful meetings have taken place with no violence of any kind. Legal council is present at every single meeting and the focus is solely on political, legal, and legislative issues that impact the motorcycle community.[22] In fact, there have been dozens of peaceful COC meetings in the weeks since the Waco incident.[23]

It’s an unfortunate fact of life that criminal behavior exists in most communities to some degree.  It is also an unfortunate fact that most people define entire classes of people by the actions of the few, particularly when the media is so sensationalized.

Using a tragedy to justify discrimination of this magnitude by targeting an entire class of people based on the idea that their expression and association makes them more likely to be criminals is Constitutionally disgusting. Asking citizens to report club member sightings to police is asking them to participate in unwarranted surveillance by charting the movements of individuals exercising their freedom of association. The government encouraging citizens to spy on other citizens is a tactic used by totalitarian police states and is not to be tolerated by the American system of justice.

Promoting discrimination based on fear is also socially irresponsible and threatens the safety of motorcyclists based on appearance. A general fear of motorcycle clubs creates a false social divide isolating and marginalizing motorcyclists from the rest of “mainstream” America. Fear makes discrimination easier and the use of excessive force more likely.  It is also logical that socially isolated groups are less likely to receive legislative, legal, or political relief when Constitutional infringements do occur.

In the face of sensationalized fear, the general public tends to forget that history and empirical data prove that most motorcycle club members and motorcycle club gatherings are peaceful and law abiding.  But that is why we are fortunate to have the US Constitution and Bill of Rights. The freedoms of expression and association are embodied in the 1st Amendment to remind us not to allow our fears to overwhelm our thirst for liberty and to always resist policies that are more consistent with totalitarian dictatorships than democratic societies.


[1] See “Waco Biker Shooting Giving Bars Pause About Letting Gangs In”, By Howard Koplowitz,, May 21, 2015 10:53 AM EDT; see Police want bikers off streets after deadly Texas shooting, BY LISA MARIA GARZA, Reuters US , Tue May 19, 2015 11:25am EDT;

The local Harley Davidson dealership was closed, motorcycle riders were asked to stay off the roads and police snipers took to rooftops to watch Waco streets after a deadly gangland shooting caused many to cast a colder eye on bikers. Police did not say how long the request would last.  Waco Police….asked bikers to stay off the streets because it was difficult to distinguish between law-abiding riders and those bent on criminality.Members and supporters of the riding community took to social media in defense of motorcycle clubs, mentioning charity work by organizations such as Bikers Against Child Abuse (B.A.C.A), which attend court appearances in support of child abuse victims. Harley Davidson-Waco, located about half a mile from the crime scene, was closed indefinitely at the request of police, according to its Facebook page. “We will be working closely with Waco PD to determine when it is safe to reopen. They have also requested that you avoid riding in the area if you have another form of transportation,” the shop posted.”

[2] See “After Waco Shoot-Out, The Battle Over “Bikers’ Rights” Hits A Speed Bum”, David Mack, BuzzFeed News, May. 19, 2015.

[3] See “Bikers put out ‘green light’ against officers following Waco shooting”, Dane Schiller, Houston Chronicle, May 18, 2015.

“As police rounded up the bikers and night soon fell, intelligence reports indicated that more bikers were on the way here and that officers had been “green lighted” – essentially a gang sanctioned call for killing – as retaliation.”

[4] See “Texas Officers Warned About Retaliation After Deadly Waco Biker Shootings”, CBS News DFW, May 18, 2015 6:06 PM,

“On Monday, officers across Texas and beyond have been warned of possible retaliation, with a series of bulletins that were sent to several law enforcement agencies.”

[5] See “Waco authorities investigate new threats from biker gangs”, Xinhua News, Houston, May 22, 2015.

U.S. authorities on Friday are investigating new threats from biker gangs involved in the deadly shootout that killed nine and injured 18 more in the Texas city of Waco, local media reported. The alleged new threats were disclosed in a security bulletin by the Texas Department of Public Safety Thursday. Gangs involved in the Waco shooting threatened to retaliate against Waco police officers and state troopers who exchanged fire with them in Sunday ‘s shooting, according to the bulletin. Among the threats are running over officers at traffic stops and the use of grenades and Molotov cocktails and firearms. The bulletin also warns of plots targeting high-ranking law enforcement officials and their families with car bombs. The bulletin includes some locations as possible targets: McLennan County Jail in Waco as well as sites in Austin, El Paso, Dallas, Corpus Christi and Houston.

The bulletin is based on unsubstantiated information from an informant who claimed to have obtained it from Bandidos and Black Widows motorcycle gang members, according to the Dallas Morning News. The credibility of the threats cannot be verified at the time, but Waco police said they had received threats from the gangs previously.

[6] See “A Narrative Of Convenient Paranoia – Waco Police Claim Threats From Non-Existent Motorcycle Gangs….”, The Conservative Treehouse, May 22, 2015.

[7] See “Bandidos leader says there is no order to kill police”, Brian Collister, KXAN News, May 18, 2015, 9:31 pm

But in his role as a National Officer of the Bandidos, Graves strongly denies claims by police that biker gangs involved have been ordered to “kill anyone in uniform.”

“How long do you think the Bandidos motorcycle organization would last if we went out shooting at cops?” he questioned. “President Obama himself would send out the Air Force, the Army, the Marine Corp and everybody and take us out. There’s no way. We respect the police for doing their job.”

[8] See “Police warning on biker retaliation questioned by former biker, experts”, Doug Stanglin and Rick Jervis, USA TODAY, May 22, 2015.

“Absolutely ludicrous,” said Edward Winterhalder, a former high-ranking Bandidos member who is still in contact with former and current members. “From a purely common sense and logical point of view, there’s no reason for them to do that.” Winterhalder was referring to a law enforcement bulletin, reported by CNN, that warned police across Texas that members of the Bandidos Outlaw Motorcycle Gang were planning to retaliate against law enforcement in response to Sunday’s shootout at a Waco restaurant, which left nine dead and 18 injured.


Despite the characterization by police that the afternoon gathering at a Twin Peaks restaurant in Waco, Texas that led to Sunday’s bloody shooting incident was a gathering of criminal biker gangs with violent intent, the meeting appears to have been a legitimate, organized gathering of motorcycle riders meeting to discuss political issues.

The group that met was the Texas Confederation of Clubs and Independents (CoC&I) and a look at that group’s website and history gives a very different impression of the group’s purpose and goals than what has been said repeatedly by Waco police Sgt. W. Patrick Swanton.

Swanton has been a central media figure, conducting several press conferences since shootings that left nine dead and dozens injured happened on Sunday. Swanton’s statements have been echoed by the media, creating an image of a get together of thugs converging on Twin Peaks in an event obviously fraught with danger that authorities tried desperately to stop until they were foiled by the uncooperative restaurant owner.

[10] See “Police warning on biker retaliation questioned by former biker, experts”, Doug Stanglin and Rick Jervis, USA TODAY, May 22, 2015.

The Texas Department of Public Safety bulletin, reportedly based on information from an informant, said members of the gang who are in the military will supply grenades and explosives, CNN reported.  The purported threats, such as running over officers at traffic stops and car bombs, targeted the McLennan County Jail in Waco as well as sites in Austin, El Paso, Dallas, Corpus Christi and Houston.  A DPS spokesman would not response to the bulletin.

Winterhalder said only one of the nine killed over the weekend had any affiliation with the Bandidos. The majority of those killed were from the rival Cossacks gang, he said. “There’s no reason for the Bandidos to be angry at law enforcement at all,” he said.

James Quinn, a University of North Texas professor who has studied outlaw motorcycle clubs says, “those tactics have been generally off-limits in the USA, where their use would bring down the weight of federal investigations and potentially dismantle the club.” “These bikers are smart guys and that would be a really stupid thing to do,” he said. “It would bring every law enforcement officer in the country focused on them.”

[11] See Biker Bars and Hangouts Banning Colors and Other Symbols, Olivia LaBorde, KCENTV.COM, May 21, 2015

Several well known biker bars and hangouts in the area are changing their dress code policies in reaction to Sunday’s shooting. Many are putting up signs banning bikers from wearing their colors, cuts or vests. Those are the symbols that distinguish one group from another.  The decision comes after owners….met with law enforcement agencies, who suggested the new policy.  Ricky Wilson, commander of American Legion Post 223 says….”They sat down and agreed, so that we can all be on the same sheet of music,” he says. “That way one can’t be like ‘Well they’re enforcing it so we’re not gonna go there we’re gonna go here’ “ Wilson explains.

[12] Law enforcement/VFW incident confirmed by Board Members And Legal Counsel Of the Southern California Confederation of Clubs. The meeting takes place at the Orange County VFW every other month, involves over 120 clubs, is attended by legal council, and solely focuses on legal and legislative issues impacting motorcyclists.

[13] See “Chattanooga at increased risk for motorcycle gang violence, federal agent says” by Shelly Bradbury, Times Free Press, May 29th, 2015.

Chattanooga is at an increased risk for motorcycle gang violence in the wake of the May 17 shootout between rival motorcycle gangs in Waco, Texas, which left nine dead, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives. “Whenever you have an incident like this, the support clubs will become more known,” he said. “They’re going to show force, they’re going to be out more, they’re going to show a presence. And that presence could be intimidating to the public, or it could be to intimidate other clubs.” Knight emphasized that citizens should not try to confront members of outlaw motorcycle gangs. “The public may see the bikers wear their colors, their patches, and if they’re concerned, they should notify law enforcement right away,” he said. “They should not, not take action into their own hands.”

[14] See “Do you Feel Safe With Motorcycle Gangs In Town?” Erin Lisch, News Reporter,  KVRR News, Fargo ND, May 28 2015.

Recent motorcycle gang activity has local law enforcement speaking up….To keep tragedies like [Waco] from happening, police say there are key factors to look for in your neighborhood.The number of bikes and any colors associated with them. There may also be what is called a crash truck that travels in front or behind that includes money, weapons and space for broken bikes. But officials say don’t take the situation into your own hands….”Let use come out and deal with it, Don’t take justice into your own hands,” said Gress.

[15]  See Cohen v. California, 403 U.S. 15 (1971). Individuals have the 1st Amendment right to wear clothing which displays writing or designs. The United States Supreme Court has long recognized and protected the right of an individual to freedom of association. Thus, a person’s right to wear the clothing of his choice, as well as his right to belong to any club or organization of his choice is constitutionally protected.

The wearing of motorcycle club colors in a government building is protected speech under the First Amendment. See Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir.2002). Some of the individuals involved were 1%’ers or otherwise identified by law enforcement as gangs. This case importantly draws a clear distinction between the way law enforcement and the courts view club members.  Clearly the courts view motorcycle club colors as protected expression.

It is indisputable that “wearing colors symbolizing membership in an organization is protected under the First Amendment.” See Coles v. Carlini, Civil No. 10–6132 (JBS/AMD) March 29, 2012, applying “Tinker” to motorcycle club colors. In support, the court sites Tinker v. Des Moines Independent Community School District (1969). 393 U.S. 503, 505–06, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a precedent decision upholding the wearing of black armbands by public school students.  Dissident anti-establishment speech is specifically protected.

[16] See Gitlow v. New York, 268 U.S. 652 (1925) holding that the 14th Amendment incorporates the 1st Amendment creating obligations for the state as well as the federal government.


Despite the characterization by police that the afternoon gathering at a Twin Peaks restaurant in Waco, Texas that led to Sunday’s bloody shooting incident was a gathering of criminal biker gangs with violent intent, the meeting appears to have been a legitimate, organized gathering of motorcycle riders meeting to discuss political issues.

The group that met was the Texas Confederation of Clubs and Independents (CoC&I) and a look at that group’s website and history gives a very different impression of the group’s purpose and goals than what has been said repeatedly by Waco police Sgt. W. Patrick Swanton.

[18] The right to free speech, protected by the First Amendment, includes the right to question or challenge the police. see Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).  An individual’s right to criticize actions by government officials, including police officers, is central to the First Amendment. McCurdy v. Montgomery County, Ohio, 240 F.3d 512, 520 (6th Cir. *1031 2001).

[19] See Yates v. United States, 354 U.S. 298 (1957): holding advocacy and teaching of an abstract principle, even if such advocacy or teaching is engaged in with evil intent, is protected by the 1st Amendment. (overturned conviction of certain Communists, and noted that “[t]he distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court . . . .”).

Also See, e.g. , Kingsley Int’l Pictures Corp. v. Regents of the Univ. of the State of N.Y., 360 U.S. 684, 688–89 (1959) (noting that the First Amendment protects ideas that might be “contrary to the moral standards, the religious precepts, and the legal code of its citizenry” and that “in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing”)

[20] See, e.g. , Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (per curiam) (invalidating crime syndicalism conviction, and setting forth speech-protective test for incitement cases). Arguably, the Brandenburg test is even more stringent than other forms of strict scrutiny. See Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny , 144 U. PA. L. REV. 2417, 2445 (1996) (arguing that “[s]ubversive speech is protected regardless of whether the restriction is narrowly tailored to a compelling interest.”).

[21] A simple google search will confirm a century long history of law enforcement officers from coast-to-coast convicted of crimes including murder, drug trafficking, and RICO.

[22] See The National Coalition of Motorcyclists site describing the Confederation of Clubs (, national and regional conventions, a history of the COC, and other information solidifying the claim that COC’s have peacefully gathered for decades without incident.  COC’s are solely focused on the legal and legislative rights of motorcyclists.

[23] Two examples are the Southern California COC and the Washington State COC.  Both met for previously scheduled meetings 3 days following the tragedy in Waco and, consistent with decades of peaceful gatherings, there were no incidents. These claims have been confirmed by the Chairman of both respective COC’s.

Double D is the Spokesperson for the Washington State Council of Clubs, Founder of the Motorcycle Profiling Project, and works with motorcyclists at the national level.

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