This combination of booking photos provided by the McLennan County Sheriff's office shows Dalton Davis, left, Noble Mallard, center, and Boyce Rockett. The three were arrested during a motorcycle gang related shooting at the Twin Peaks restaurant in Waco, Texas on Sunday, May 17, 2015. (McLennan County Sheriff's Office via AP) (The Associated Press)
DALLAS – In the hours after a deadly shootout involving two motorcycle gangs, about 170 people were arrested at a Texas restaurant. Depending on who is asked, the suspects are gang members or innocents who merely belong to motorcycle clubs or both.
But surveillance video viewed by The Associated Press shows dozens of bikers at the Twin Peaks restaurant who were not involved in the altercation that led to Sunday's shooting in Waco. The video calls into question why so many were arrested and then jailed on unusually high bail.
Here's an explanation of the charges, bail and other factors at play in the case:
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WHY ARE SO MANY CHARGED WITH ENGAGING IN ORGANIZED CRIMINAL ACTIVITY?
Texas law says a person participates in organized crime when that person commits any number of offenses as a member of a "criminal street gang."
David LaBahn, president and CEO of the Association of Prosecuting Attorneys in Washington, D.C., said Texas is one of a handful of states with this charge on its books. The charge is meant to disrupt gang activity and is often applied when multiple crimes occur simultaneously.
Suspects don't necessarily have to commit a criminal act to be charged with engaging in organized crime. They can be culpable if they essentially allowed the crime to happen, LaBahn said.
He also said arresting 170 people is not unusual. As a prosecutor in California, he saw protests at abortion clinics where large numbers of demonstrators were arrested for failing to disperse.
Many of those jailed in Texas will probably see their charges reduced, if not dismissed, as prosecutors sort out which bikers participated in the violence, which were bystanders and which cooperated with authorities, LaBahn said.
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IS THE BAIL REASONABLE?
McLennan County Justice of the Peace W.H. Peterson told the Temple Daily Telegram that he wanted to send a message when he imposed the $1 million bail for each person arrested Sunday.
"The atrocity of the incident, the impact on the community and a bunch of other things figured in, but the main thing was the high death count," Peterson said. "Nine people were killed. It was all brought on by a brawl."
Concern that more violence could follow if the bikers were able to leave jail quickly was probably another reason for the high bail, according to Amanda Peters, an associate professor at South Texas College of Law who previously worked as a prosecutor in Harris County.
Bail is not meant "to be a tool of oppression of the government," she said. Instead it's intended to ensure that a defendant returns to court.
"I have seen bail amounts set this high in high-profile cases," Peters said. "And it's usually set this high to allow authorities to determine what's going on."
But other considerations in establishing bail are a person's criminal background and likelihood of fleeing. She said bail will probably drop significantly as defense attorneys challenge the amount.
Judges have guidelines that are used to determine bail, Peters and others say, but they can also use their personal discretion.
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HOW MUCH MONEY DO THE BIKERS HAVE TO POST TO BE RELEASED?
Unless a judge reduces their $1 million bail, the bikers will have to post at least 10 percent of that amount, or $100,000, to be freed. They will have to work with a bondsman who will put up the other 90 percent. A bondsman will often require collateral, such as a car or a home, before accepting a client, Peters said.
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COULD POLICE HAVE INTERVENED EARLIER TO PREVENT THE GATHERING AND SHOOTOUT?
Earlier this week, Waco police said that prior to the shootout, authorities received intelligence that the motorcycle gangs would be gathering at Twin Peaks for a meeting.
But, said Police Sgt. W. Patrick Swanton, police could not have prevented the gathering, or the subsequent violence because the meeting occurred at a private business.
The Constitution guarantees the right to assemble peacefully.
"We really don't want police to go in anytime we don't like a gathering of people," said Cynthia Alkon, an associate professor of criminal law and dispute resolution at Texas A&M University.
Police have to know of a crime or conspiracy that's being planned or expected to occur before they can disrupt an event, she said.
"Folks simply gathering who are not a liked group of people doesn't rise to the level of a criminal conspiracy," Alkon said.
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