Appeals court denies immunity to Charlotte police officer in Danquirs Franklin killing

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 powerful and 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,” Mullen wrote.

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.”

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 The Charlotte Observer.

Lori Keeton, who represents Kerl, did not immediately respond Tuesday to an Observer email seeking comment

While the opinion 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.

Lawrence Coley, a spokesman for the City of Charlotte, told the Observer in an email that the city does not publicly comment on pending legal matters.

More significantly, the appellate 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.”

Qualified immunity

The appeals court decision reopens one of Charlotte’s most controversial police shootings. It also returns the city to a nationwide debate over the broad court protections afforded police use of deadly force.

By law — and based largely on a Supreme Court ruling in a Charlotte case — police can use their firearms when they face a “reasonable” threat of death or serious injury, a highly subjective standard at times.

In August, for one example, the Cabarrus County District Attorney’s Office declined to prosecute a former Concord police officer, finding that Timothy Larson acted reasonably and within the law when he shot an unarmed man behind the wheel of Larson’s patrol vehicle four times in February 2022. Larson called his department to report the incident, then opened fire again.

Nonetheless, the appeals court’s decision Tuesday placed limits on the use of “qualified immunity,” a legal principle that grants police and other government officials immunity from civil suits unless the complaints can show 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.

While he joined the decision to revive the Franklin lawsuit, Fourth Circuit Judge Harvey Wilkinson, a conservative legal icon, also vouched for qualified immunity, describing it as a “tenable compromise” between the “reactive” dynamics of police work vs. the deliberations of the courts.

“The chance to deliberate, though essential, brings with it the temptation to second-guess,” Wilkinson wrote in his concurring opinion.

“Qualified Immunity places a brake upon the judgment that days and hours may impose upon minutes and seconds, thus assuring that the different rhythms of the chambers and the street may be fruitfully reconciled.”

The Franklin case was one of three lawsuits arising from controversial police shootings that were dismissed by Charlotte federal judges in the past year before they could be heard by a jury.

In the other two lawsuits, the judges ruled that police officers acted reasonably in fatally shooting Ruben Galindo of Charlotte and wounding Timothy Caraway of Pineville.

Both cases have been appealed to the Fourth Circuit in Richmond, Va.

‘In a blink’

The Franklin shooting divided the city.

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.

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 jacket, 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.

“Officer Kerl expected to confront a gun-wielding man threatening the public. Instead, she encountered Danquirs Franklin, crouching quietly and disturbing no one ... Even so, for forty-three seconds the officers shouted unremittent commands to drop a weapon no one could see.

“As Franklin retrieved a firearm from inside his jacket and it fell to the ground, Officer Kerl shot Franklin twice.

“In a blink, Franklin was dead.”