Dallas Partners Prevail in Appeals Win Against Constitutional Claims From 2015 Restaurant Shootout

A Confrontation at a Restaurant Leads to Numerous Arrests

In May 2015, rival motorcycle gangs, the Bandidos and Cossacks, along with their affiliates, gathered by the hundreds at a Twin Peaks restaurant in Waco, Texas and engaged in a riot and shootout that was the largest battle of a larger war. At the end of the battle, nine (9) people were dead, and at least twenty were wounded.

Law enforcement personnel responded to the mayhem, arrested at least 177 individuals, and charged them with the offense of Engaging in Organized Criminal Activity (EIOCA). Tex. Penal Code § 71.02 Based on information provided by police officers, personnel from the McLennan County District Attorney’s Office supplied legal advice concerning the criteria which, if met, would establish probable cause to arrest individuals for EIOCA in connection with the riot at the restaurant.

The DA’s office supplied law enforcement with a form affidavit for arresting individuals for EIOCA. The form affidavit reflected the legal advice the DA’s office had given to law enforcement. Law enforcement officers could then adapt the form affidavit to the individuals they were investigating and use the form in deciding whether to arrest specific individuals.

District Court Finds in Favor of Defendants and Plaintiff's Appeal

Plaintiff Bryan Harper was arrested and indicted by a McLennan County Grand Jury for the offense of EIOCA. He alleged in his suit that there were several violations of his Fourth Amendment rights by, among others, McLennan County, Texas and the former District Attorney of McLennan County, Abel Reyna. Plaintiff claimed that the District Attorney devised a mass-arrest scheme to send a message to the community and Plaintiff alleged that the District Attorney misled the grand jury and tainted its proceedings.

Plaintiff first alleged that the fill-in-the-name affidavit violated Malley v. Briggs, 475 U.S. 335 (1986) because it allegedly failed to state facts sufficient to establish particularized probable cause for a violation of EIOCA.

Second, he alleged that Defendants violated Franks v. Delaware, 438 U.S. 154 (1978), because portions of the affidavit were allegedly false as applied to him. He finally contended that because Judge Peterson allegedly participated in the investigation, there was no neutral and detached magistrate, in violation of Coolidge v. New Hampshire, 403 U.S. 443 (1971). He further brought conspiracy and bystander liability claims against all Defendants, supervisory liability claims against Defendants Stroman and Lanning, and municipal liability claims against the City of Waco and McLennan County.

Plaintiff admitted, in his First Amended Complaint that: (1) he was present at the Twin Peaks Restaurant in Waco, Texas before, during, and after the gunfight; (2) that “He was wearing a leather vest that displayed his membership in … the McLennan County chapter of the Cossacks Motorcycle Club (MC);” and (3) that he was arrested and charged with the offense of EIOCA.

The court found in favor of McLennan County, Texas and Abelino “Abel” Reyna in May 2020. Plaintiff filed an appeal, which was consolidated with 19 other similar appeals involving bikers who had been indicted. The 20 appeals, all of which involved indicted bikers were consolidated under the lead case of Wilson v. Stroman.

Previous Fifth Circuit Rulings

In July 2021 in Terwilliger v. Reyna, the Fifth Circuit published its opinion in a consolidated appeal which pertained to bikers who were arrested but were not indicted and ruled that the form affidavit “sufficiently alleged probable cause to arrest those to whom its facts applied.”

In April 2022 in Wilson v. Stroman, the Fifth Circuit published its opinion in a consolidated appeal which pertained to bikers who were both arrested and indicted and held that the District Court erred in his application of the independent intermediary doctrine. The Fifth Circuit reversed and remanded, instructing the district court to reconsider the case.

In August 2024 after reviewing the Magistrate Judge’s Report and Recommendation, the District Court ordered that plaintiff’s claims against Reyna and McLennan County be dismissed. In September 2024, the surviving spouse of the recently deceased Plaintiff filed a notice of appeal.

EIOCA Includes Nonviolent or Noncriminal Acts

In August 2025, the Fifth Circuit issued an unpublished opinion which affirmed the District Court’s final judgment in favor of McLennan County, Texas and Abel Reyna.

In Barnhart, the Fifth Circuit rejected Plaintiff’s Fourth Amendment false arrest claim, brought pursuant to Franks v. Delaware, because Plaintiff was present at the scene before and during the deadly shootout, he was a member of the Cossacks, and he was wearing “cuts” that identified him as a member of the Cossacks. Importantly, the decision paves the way for even more defense victories in the many remaining biker cases by rejecting Plaintiff’s argument that probable cause to arrest for the offense of Engaging in Organized Criminal Activity (“EIOCA) cannot exist without evidence that an individual actively participated in the violence. The Fifth Circuit stated in Barnhart:

“Barnhart contends the affidavit is misleading as to Harper because it ‘omitted the fact that Harper, in particular, did not brandish any weapon during the incident’ and ‘hurriedly crawled into the restaurant immediately after the fight started. But those omissions would not undermine probable cause that Harper was engaged in EIOCA. Under Texas law, the overt-act element of EIOCA is met by nonviolent or noncriminal acts, including acts that encourage, solicit, direct, aid, or attempt to aid the commission of the underlying offense. So even if Defendants omitted those facts, the affidavit remained accurate as applied to Harper. And those facts are sufficient for probable cause that Harper engaged in the unlawful conduct generally described in the affidavit. Therefore, Barnhart fails to plausibly allege a Franks violation.

The overt-act element of EIOCA is met by nonviolent or noncriminal acts, including acts that encourage, solicit, direct, aid, or attempt to aid the commission of the underlying offense. Plaintiff failed to allege a Franks claim even though he alleged that he did not brandish a weapon during the incident, that he was “ducking for cover” once the fight broke out and that those two alleged facts were omitted from the probable cause affidavit which was used to support the arrest warrant. Plaintiff’s presence at the scene and his connection with the Cossacks was sufficient to establish probable cause to arrest him for EIOCA. Dismissal of Plaintiff’s Franks claim was appropriate.

The Fifth Circuit affirmed the district court ruling and because there was no constitutional violation, all remaining claims were dismissed.