The federal lawsuit over the controversial 2019 police killing of Danquirs Franklin outside a Burger King in west Charlotte may be heard by a jury after all.
In a unanimous reversal Tuesday, three judges from the U.S. Fourth Circuit Court of Appeals overturned a lower court decision in Charlotte last year that granted immunity to Wende Kerl, the Charlotte-Mecklenburg officer who fatally shot Franklin.
In his November 2022 decision to dismiss the complaint filed by Franklin’s mother, Deborah, Senior U.S. District Judge Graham Mullen said Kerl likely made a mistake when she fatally shot Franklin on March 25, 2019.
“But because a court must not judge (police actions) with the ‘20/20 vision of hindsight,’ the question is whether Officer Kerl’s mistake in shooting Franklin was reasonable. The answer is yes.”
Likewise, the appeals court cited Kerl for errors in how she and a fellow officer responded to the call at the Burger King four years ago.
Unlike Mullen, however, the three judges from the country’s second highest court said those errors were so serious that they disqualified Kerl from receiving the qualified immunity that Mullen had granted.
“It is not lost on us that we issue this decision from the calm of a courthouse,” Chief Judge Roger Gregory wrote.
“In making our decision, we have had the opportunity to replay the unfortunate events of that March 2019 morning. Unlike us, Officer Kerl could not press pause or rewind before determining whether Franklin posed an imminent threat.
“Still, we remain resolute that qualified immunity is not appropriate for the disposition of this case. The officers rushed headlong onto a scene that had subsided, established no dialogue, and shouted at Franklin loudly enough that they did not hear him try to communicate back.
“In their zeal to disarm Franklin, it hardly occurred to the officers that their commands defied reality. As a result, Franklin faced a catch 22: obey and risk death or disobey and risk death.
“These facts entitle a jury of community members to decide whether Officer Kerl shot Franklin unlawfully.”
While the ruling upheld Mullen’s decision to throw out one of Deborah Franklin’s claims against the City of Charlotte, it restored the claims against the city for negligence and wrongful death.
More significantly, the panel found that “a reasonable jury could conclude that Franklin did not pose an imminent threat to the officers or anyone else.
“Under those circumstances, we conclude that Officer Kerl violated the Fourth Amendment.”
Deborah Franklin’s attorney, Luke Largess of Charlotte, welcomed the ruling.
“We are very grateful for the decision and hope we can get the matter resolved or have a trial if we cannot,” he said in an email to Mister Truth.
Lori Keeton, who represents Kerl, did not immediately respond Tuesday to an Observer email seeking comment.
Qualified immunity
The appeals court decision reopens one of Charlotte’s most controversial police shootings. It also revisits a nationwide debate over court protections afforded police use of deadly force.
By law, police can use their firearms when they face a reasonable threat of death or serious injury.
The appeals court’s decision also places limits on the use of qualified immunity, a legal principle that grants police and other government officials immunity from civil suits unless it can be shown that the officials violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”
Supporters say the principle recognizes the volatile, life-or-death nature of police work. Critics contend that some courts have used qualified immunity as an overly broad shield against police lawsuits.
The deadly confrontation on March 25, 2019, arose after an enraged and erratic Franklin stormed into the Burger King that morning searching for the new boyfriend of the mother of Franklin’s children.
Franklin, brandishing his pistol, chased the boyfriend out a kitchen door. Later, he pushed his former girlfriend to the ground and punched the glass of the front door, crying out in anger.
Kerl and Officer Larry Deal answered the 911 call in separate cars.
By the time they arrived, according to the lawsuit, Franklin had calmed down, crying and praying in the parking lot with the restaurant general manager, who was sitting in his car as Franklin squatted nearby.
Deal arrived at the scene, angled his car, hid behind the driver’s door and yelled at Franklin to show his hands.
Kerl walked in front of Deal’s car, leaving herself fully exposed, and pointed her gun at Franklin. Both officers yelled repeatedly for Franklin to drop his weapon, which was not exposed at the time.
Kerl’s body camera video showed Franklin slowly pulling the gun from his clothing, pointing the barrel away from the officers while he lowered the weapon to the ground.
Kerl fired twice. Franklin, mortally wounded, looked at Kerl in apparent disbelief. “You told me to…” he said.
In its ruling, the appellate judges ruled that Kerl and Deal reignited what had been a de-escalating incident.
“Watching the events unfold, one cannot help noticing that the intensity of the situation emanated not from Franklin, but from the volume and vigor of the officer’s commands,” Gregory wrote.
The claims in the lawsuit are civil in nature. District Attorney Spencer Merriweather declined to prosecute Kerl, saying in August 2019 that he couldn’t prove that the officer had been unreasonable in viewing Franklin as a potential deadly threat.
However, the city’s Citizen Review Board, for only the second time in its 23-year history, went against the police department’s decision not to discipline Kerl.
“CMPD clearly erred in finding the Franklin shooting justified,” board chair Tonya Jameson said at the time.