Why Waco Grand Jury Should Find Police Liable for Tragedy

As the Waco Grand Jury convenes today to begin considering indictments on the 177 arrested as a result of the tragedy at Twin Peaks it becomes apparent that the inquiries are focused in the wrong direction.  The Waco Grand Jury should be exploring law enforcement’s culpability in the May 17^th Shooting.

I find it interesting that some are holding the Twin Peaks in Waco responsible for negligence based on the argument that they ignored Waco PD warnings that the meeting to take place on May 17th was a threat to public safety. When asked why the event was not shut down, the Waco PD responded that it would have been unconstitutional for the police to shut down the event. Although it is generally true that the police cannot disturb or shut down political events in public accommodations, evidence of a legitimate threat to public safety is a narrow exception.  So the obvious question is, “Why is the Waco PD not negligent for failing to shut down the event when, based on their own claims, there was a legitimate evidence establishing a particularized threat to public safety?”

WACO PD CLAIMS THE MEETING PRESENTED A SPECIFIC THREAT TO PUBLIC SAFETY

In statements to the press, the Waco PD claim that they had “warned Twin Peaks management that hosting such an event as the Texas Confederation of Clubs and Independents, which was to take place at the restaurant on May 17, could result in undue safety and security concerns for both patrons and restaurant employees. Approximately 72 hours before the event, police contacted Twin Peaks national headquarters in Dallas (directly) with these concerns, but Twin Peaks failed to cancel the event.” (see KWXT, Waco: Slain Biker’s Family Files Lawsuit Against Twin Peaks By Paul J. Gately, July 8, 2015.)

Law enforcement’s belief that there was a specific and legitimate threat to public safety is demonstrated by the heavily armed police presence in the parking lot prior to whatever sparked the shooting incident. The police presence included SWAT officers armed with assault weapons.  This large show of force has led many sources to believe that police were tipped in advance that something was expected to go down that Sunday.

 The combination of a warning 72 hours before the shooting and the massive show of military style force appears to make it very difficult to deny that law enforcement believed that there was a specific threat of violence threatening public safety.

WACO PD LEGALLY COULD HAVE, AND SHOULD HAVE, SHUT THE MEETING DOWN

So why didn’t the Waco PD shut the event down if they knew there was a likelihood that violence would occur?  Waco Police Sgt. W. Patrick Swanton has said “Apparently the management wanted them here, and so we didn’t have any say on whether they could be here or not,” he added.

But is that correct?  Is law enforcement not permitted to shut down an event even if there is reasonable suspicion to believe that there is a legitimate and specific threat of violence impacting public safety?  The answer should be obvious to all.

Although it’s true that government agents are generally restrained from dictating whether an event occurs in a place of public accommodation, a legitimate threat to public safety is an exception to this general rule. In the case of Waco, the constitution would have permitted the Waco PD to shut the event down for a legitimate threat to public safety.  Sure. Twin Peaks could have tried to sue, but if there was a legitimate, articulable and particularized threat to public safety then law enforcement’s actions would have been deemed constitutional.

Considering the government’s actions towards the Waco Twin Peaks following the shooting, the ability for law enforcement to act when there is a threat to public safety seems irrefutable.  The Texas Alcoholic Beverage Commission shut down the Twin Peaks location, known for “bike nights” and its risque dress code for servers, for the next week. “It wasn’t a punitive measure, Swanton said; rather, it was closed because there’s “enough of a reason to believe that more violence would occur there, had they been allowed to remain open for the next seven-day period,” he said.

THE WACO PD FAILURE TO ACT BEFORE THE SHOOTING WAS NEGLIGENT

It seems rather absurd to hold the Twin Peaks more responsible for the tragedy than the Waco PD. The negligence suits against Twin Peaks are entirely based on law enforcement’s warning that there was a legitimate threat to public safety. But this seems to miss the truly important question. Why didn’t the Waco PD shut the meeting down, shut Twin Peaks down temporarily, in order to advert this particularized threat?

That’s exactly what they did following the shooting based on the belief that there was a threat of ongoing violence if Twin Peaks stayed open. And remember, the assertions of continued violence after the shooting were based on very thin intelligence and ridiculous claims of “green lighting” cops.

When the smoke clears and civil lawsuits are filed, the questions surrounding law enforcement’s failure to prevent the very threat to public safety that they claimed knowledge of a full 72 hours before the shooting will finally be answered. Unfortunately, the failure of law enforcement resulted in 9 dead, 18 injured, 177 highly questionable arrests, 177 cases of punitive $1 million bails, and millions in civil liability exposure that will ultimately be paid for through public tax dollars.

A proper Grand Jury inquiry should by all means include analysis of the role of law enforcement to intervene when there exists a credible threat to public safety.