BY STEVEN LUBET, OPINION CONTRIBUTOR — 08/31/20
In his speech accepting the Republican nomination for president, President Trump praised the pioneers who “picked up their Bibles, packed up their belongings, climbed into covered wagons and set out West for the next adventure.” “Legends were born,” he said, naming “Wyatt Earp, Annie Oakley, Davey Crockett, and Buffalo Bill.” Perhaps it was only a coincidence that Trump identified four figures whose over-hyped reputations far exceed their actual accomplishments and are known today mostly from old movies and television shows. For Wyatt Earp, however, there is also a story of police brutality. Although seldom told for almost 140 years, it may still reveal a great deal about Trump’s choice of heroes.
On October 26, 1881, Wyatt and his brothers – Virgil and Morgan – along with Doc Holliday, confronted four petty criminals in the dusty streets of Tombstone, Arizona. Wyatt and Virgil had previously earned reputations as lawmen in Dodge City and other Kansas cowtowns, where their preferred methods involved using pistol butts to “buffalo” suspects into quick submission. They had employed that technique earlier in the day on two of the so-called “Cowboys,” then an insulting term for cattle rustlers, in an attempt to chase them from town.
The beatings had not worked. The four gang members – the McLaury and Clanton brothers, with whom the Earps had been engaged in an ongoing feud – defiantly remained in a vacant lot near the OK Corral. Two of them were carrying six-shooters in flagrant violation of Tombstone’s gun control ordinance.
Virgil Earp, Wyatt’s older brother and the town marshal, was actually in charge that day. Approaching within 10 feet of the Cowboys, he called out, “Boys, throw up your hands. I want your guns.” According to witnesses, the Cowboys began to comply. Tom McLaury opened his jacket and shouted “I ain’t got no arms.” Billy Clanton raised his hands and cried “Don’t shoot me. I don’t want to fight."
For a moment, everyone froze. Then Wyatt thought he saw a false move from one of the Cowboys. “You sons of bitches have been looking for a fight,” he yelled, thinking Frank McLaury had reached for his gun. Drawing his own pistol, Wyatt began firing, and then, in his words, “the fighting became general.” Two of the Cowboys returned fire, but only after they had both been hit.
Thirty shots were fired in 30 seconds. Three of the Cowboys lay dead or dying (the fourth had run away). Virgil and Morgan were both wounded and Doc Holliday had been grazed. Only Wyatt remained standing on the fighting ground.
The residents of Tombstone were deeply divided in the aftermath of the gunfight. Some saw the Earps and Holliday as heroic lawmen, defending their town from disorder. Others saw them as badge-wearing bullies who had gunned down innocent men frantically trying to surrender. The funeral cortege for the slain Cowboys featured a banner reading “Murdered in the Streets of Tombstone.”
Had Frank McLaury reached for his gun or merely flinched? The answer, such as it was, would be determined by a court. Based on testimony at a coroner’s inquest, the Earps and Holliday were arrested and charged with murder. The first step in the proceedings would be a preliminary hearing to determine whether there was sufficient evidence to bind them over for trial.
The hearing before Justice of the Peace Wells Spicer was treated as a virtual trial by both sides, with numerous witnesses called over nearly a month. The prosecution witnesses, including the county sheriff and the surviving Cowboy, painted a fearsome picture of the defendants. They described the Earps’ long-standing vendetta against the Cowboys, including the reckless deputization of Doc Holliday, a reputed killer whose menacing presence may have provoked Frank McLaury’s fatal gesture.
The defendants were fortunate to have retained attorney Thomas Fitch, a nationally prominent trial lawyer who happened to be living temporarily in Tombstone at the time. Guided by expert counsel, Wyatt testified that he had seen a Cowboy pull his pistol, then “I knew it was a fight for life, and I drew in defense of my own life and the lives of my brothers and Doc Holliday.”
Spicer’s ruling chastised the Earps for overly aggressive police work, calling it “injudicious and censurable.” In killing the Cowboys, the defendants had acted “incautiously and without due circumspection,” which was the definition of manslaughter under Arizona Territory law.
The charge was not manslaughter, however, but murder. Calling the victims “bad, desperate, and reckless men,” the court accepted the defendants’ claim that they “honestly believed” their lives were in danger. Spicer therefore decided there was insufficient evidence of murder and dismissed the case.
It proved impossible, as it would repeatedly over the decades, to convict police officers who were nominally acting in the line of duty.
It is likewise impossible, 140 years later, to assess Wyatt’s culpability for the deaths of the Cowboys, who may or may not have intended harm to the lawmen. Spicer noted that although the truth “will probably never be known,” tough law enforcement was demanded under the “conditions [in] a frontier country.”
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Whatever rationale there may have been for brutality on the frontier, that era is long past. There is no justification today for the Earps’ style of law enforcement, pistol whipping suspects and shooting at the first whiff of trouble. Trump seems to think otherwise, having once told assembled police officers not to be “too nice” to arrestees, and instead to bang their heads against the door frame in “the back of a paddy wagon.”
Wyatt Earp is indeed legendary, but he is a terrible model for modern police. Perhaps that explains why Donald Trump admires him.
Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and author of “Murder in Tombstone: The Forgotten Trial of Wyatt Earp.”
In his speech accepting the Republican nomination for president, President Trump praised the pioneers who “picked up their Bibles, packed up their belongings, climbed into covered wagons and set out West for the next adventure.” “Legends were born,” he said, naming “Wyatt Earp, Annie Oakley, Davey Crockett, and Buffalo Bill.” Perhaps it was only a coincidence that Trump identified four figures whose over-hyped reputations far exceed their actual accomplishments and are known today mostly from old movies and television shows. For Wyatt Earp, however, there is also a story of police brutality. Although seldom told for almost 140 years, it may still reveal a great deal about Trump’s choice of heroes.
On October 26, 1881, Wyatt and his brothers – Virgil and Morgan – along with Doc Holliday, confronted four petty criminals in the dusty streets of Tombstone, Arizona. Wyatt and Virgil had previously earned reputations as lawmen in Dodge City and other Kansas cowtowns, where their preferred methods involved using pistol butts to “buffalo” suspects into quick submission. They had employed that technique earlier in the day on two of the so-called “Cowboys,” then an insulting term for cattle rustlers, in an attempt to chase them from town.
The beatings had not worked. The four gang members – the McLaury and Clanton brothers, with whom the Earps had been engaged in an ongoing feud – defiantly remained in a vacant lot near the OK Corral. Two of them were carrying six-shooters in flagrant violation of Tombstone’s gun control ordinance.
Virgil Earp, Wyatt’s older brother and the town marshal, was actually in charge that day. Approaching within 10 feet of the Cowboys, he called out, “Boys, throw up your hands. I want your guns.” According to witnesses, the Cowboys began to comply. Tom McLaury opened his jacket and shouted “I ain’t got no arms.” Billy Clanton raised his hands and cried “Don’t shoot me. I don’t want to fight."
For a moment, everyone froze. Then Wyatt thought he saw a false move from one of the Cowboys. “You sons of bitches have been looking for a fight,” he yelled, thinking Frank McLaury had reached for his gun. Drawing his own pistol, Wyatt began firing, and then, in his words, “the fighting became general.” Two of the Cowboys returned fire, but only after they had both been hit.
Thirty shots were fired in 30 seconds. Three of the Cowboys lay dead or dying (the fourth had run away). Virgil and Morgan were both wounded and Doc Holliday had been grazed. Only Wyatt remained standing on the fighting ground.
The residents of Tombstone were deeply divided in the aftermath of the gunfight. Some saw the Earps and Holliday as heroic lawmen, defending their town from disorder. Others saw them as badge-wearing bullies who had gunned down innocent men frantically trying to surrender. The funeral cortege for the slain Cowboys featured a banner reading “Murdered in the Streets of Tombstone.”
Had Frank McLaury reached for his gun or merely flinched? The answer, such as it was, would be determined by a court. Based on testimony at a coroner’s inquest, the Earps and Holliday were arrested and charged with murder. The first step in the proceedings would be a preliminary hearing to determine whether there was sufficient evidence to bind them over for trial.
The hearing before Justice of the Peace Wells Spicer was treated as a virtual trial by both sides, with numerous witnesses called over nearly a month. The prosecution witnesses, including the county sheriff and the surviving Cowboy, painted a fearsome picture of the defendants. They described the Earps’ long-standing vendetta against the Cowboys, including the reckless deputization of Doc Holliday, a reputed killer whose menacing presence may have provoked Frank McLaury’s fatal gesture.
The defendants were fortunate to have retained attorney Thomas Fitch, a nationally prominent trial lawyer who happened to be living temporarily in Tombstone at the time. Guided by expert counsel, Wyatt testified that he had seen a Cowboy pull his pistol, then “I knew it was a fight for life, and I drew in defense of my own life and the lives of my brothers and Doc Holliday.”
Spicer’s ruling chastised the Earps for overly aggressive police work, calling it “injudicious and censurable.” In killing the Cowboys, the defendants had acted “incautiously and without due circumspection,” which was the definition of manslaughter under Arizona Territory law.
The charge was not manslaughter, however, but murder. Calling the victims “bad, desperate, and reckless men,” the court accepted the defendants’ claim that they “honestly believed” their lives were in danger. Spicer therefore decided there was insufficient evidence of murder and dismissed the case.
It proved impossible, as it would repeatedly over the decades, to convict police officers who were nominally acting in the line of duty.
It is likewise impossible, 140 years later, to assess Wyatt’s culpability for the deaths of the Cowboys, who may or may not have intended harm to the lawmen. Spicer noted that although the truth “will probably never be known,” tough law enforcement was demanded under the “conditions [in] a frontier country.”
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Whatever rationale there may have been for brutality on the frontier, that era is long past. There is no justification today for the Earps’ style of law enforcement, pistol whipping suspects and shooting at the first whiff of trouble. Trump seems to think otherwise, having once told assembled police officers not to be “too nice” to arrestees, and instead to bang their heads against the door frame in “the back of a paddy wagon.”
Wyatt Earp is indeed legendary, but he is a terrible model for modern police. Perhaps that explains why Donald Trump admires him.
Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and author of “Murder in Tombstone: The Forgotten Trial of Wyatt Earp.”
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