Monday, August 25, 2014


When I first started working with the Public Defender’s Office back in the early 70’s, I once heard an old-time sheriff lamenting that law enforcement had been ruined by that Miranda decision. I immediately thought “What a fossil!” It seems that our elders are forever lamenting how things were back in the day when they had to walk to school uphill barefooted in the snow. When I heard the sheriff's lament, I immediately made a vow that I would never act like him. I am afraid that I am about to break that vow, because I am going to talk about how things used to be. I will qualify my remarks (and try to avoid sounding like a fossil) by stating emphatically that the good old days weren’t all that good, and that law enforcement is light years ahead of what it was when I was a young whippersnapper. But I also think that looking to the past can help us learn lessons that are applicable to the present day.

Neil Kirkman, one of the first [if not the first] directors of the Florida Highway Patrol, is supposed to have had a hiring policy for troopers which required recruits to be over six feet tall and not encumbered by excess body fat. I don’t know if Kirkman truly had such a policy, but I do know that when I was a boy, FHP troopers were all tall and athletic. When I first started working as an assistant public defender, there was a trooper in our circuit who supposedly was ordered to lose weight or be fired. The trouble was, he wasn’t fat. He lifted weights, and he had massive muscles. He saved his job without having to lose weight by getting his doctor to write a letter to Tallahassee certifying that he was not fat, he was just extremely muscular.

It seems that back in the 50’s, 60’s, and early 70’s almost all law enforcement officers were big men who carried barbaric weapons such as nightsticks and slapjacks. Arrestees usually cooperated. Those who didn’t were subdued without being shot, Tasered, or peppersprayed. A big, muscular officer who is obviously armed with a non-lethal impact weapon commands compliance.

In the mid-70’s officers began to shrink as hiring practices were made less discriminatory.  I’m in favor of non-discrimination, but I think sometimes you can have too much of a good thing, as when you hire a 5’2” 120 pound applicant because you don’t want to discriminate. I never did a scientific study of police shootings during my career, but I recall a number which I felt could have been avoided if the officer involved had been a little larger and more muscular. I do vividly recall one shooting in which the officer, a small man, said he had no choice but to fire his weapon at his physically much larger assailant. I tended to agree that if he hadn’t fired, he would have gotten a severe beating at the least and may very well have suffered death or great bodily harm. I also thought that the situation might well have been avoided and the arrestee might still be alive if the officer had only been a bigger, more muscular man.

It is improper for arrestees to factor in the size and fitness of an officer when deciding whether to violently resist, but they do. I recall a rather small officer telling me about an arrest he made in a murder case. He said that the suspect’s brothers, all big men, became so belligerent that he feared they were going to attack him. Just in the nick of time, a huge officer (who coincidentally had a reputation for being able to handle himself in a scuffle) arrived on the scene. The brothers immediately lost all their fight when he got out of his patrol car and told them that they’d better settle down.

The pictures I have seen from Ferguson suggest that Michael Brown was huge (6’+, 250+ lbs.), while Darren Wilson was rather small. I haven’t seen any vital statistics on Wilson, but from the photos I estimate his size to be around 5’9”, 160 lbs. Let’s perform a thought experiment. What might have happened if Michael Brown had been confronted by an officer with the proportions of one of Neil Kirkman’s FHP troopers? What if the officer had been armed with a slapjack? Might Brown still be alive if he had confronted a more physically formidable officer?