Judge throws out lawsuit against Charlotte, officer in 2019 Danquirs Franklin shooting
A federal judge on Friday threw out the lawsuit filed by the family of Danquirs Franklin, who Charlotte-Mecklenburg police Officer Wende Kerl fatally shot outside a Burger King in 2019.
Franklin’s mother, Deborah Franklin, filed suit against Kerl and the City of Charlotte in 2020, claiming excessive force and constitutional violations. The complaint singled out Kerl, accusing the veteran patrol officer of panicking, unnecessarily escalating the confrontation, then shooting Franklin twice as he appeared on police video to be complying with police orders to put his gun on the ground.
In Senior U.S. District Judge Graham Mullen’s ruling, he said Kerl probably made errors on the day of the shooting. But under the law, he said, they were reasonable ones, making her immune to the claims in the lawsuit.
“Given the gift of hindsight, it seems likely that Officer Kerl made a mistake in shooting Danquirs Franklin,” Mullen wrote.
“Franklin appeared to be complying with the CMPD officers’ orders to ‘drop the gun’ when he took the pistol out of his jacket pocket. Video shows that he was holding the slide of the pistol, not the grip. And Franklin’s incredulous last words — ‘You told me to’— seem to confirm his intentions nearly beyond doubt.
“But because a court must not judge with the ‘20/20 vision of hindsight,’ the question is whether Officer Kerl’s mistake in shooting Franklin was reasonable. The answer is yes.”
The family’s attorney, Luke Largess, said he will file an appeal.
Charlotte attorney Lori Keeton, who represented Kerl, said Mullen’s decision adds further credence to the fact that Kerl’s use of force was justified.
“Any loss of life is tragic,” Keeton said in an email to The Observer. “However, we are gratified that the Court, the District Attorney’s Office and CMPD Internal Affairs all found Officer Kerl’s response on March 25, 2019, to be appropriate.”
Shooting ignites debate
Mullen’s decision marks the second time in less than a month that a civil complaint stemming from a high-profile police shooting in Charlotte was dismissed before being heard by a jury.
On Oct. 29, U.S. District Judge Bob Conrad dismissed a lawsuit against two CMPD officers who fatally shot Rueben Galindo in 2017. Galindo was killed with his hands raised in the air as he drunkenly tried to turn himself and an unloaded pistol into police custody. Conrad said the officers acted legally because Galindo posed a reasonable threat based on what police knew at the time.
Largess, who filed the complaint in behalf of Galindo’s longtime partner, has appealed.
The circumstances surrounding Franklin’s death set off an extended citywide debate over police emergency tactics and the use of force against Black people.
Likewise, Mullen’s ruling put new focus on the broad court protections of police, even when they make mistakes, and those mistakes have fatal consequences.
What happened in 2019
In the Franklin case, 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. Both worked at the restaurant on Beatties Ford Road.
At Burger King, 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 manager, who was sitting in his car as Franklin squatted nearby.
The girlfriend and another Burger King employee joined them. No one was feeling threatened, the lawsuit says.
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. Kerl’s video showed Franklin slowly pulling the gun from his clothing, pointing the barrel toward himself and 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.
‘Reasonable fear’
Deborah Franklin’s lawsuit was filed in the midst of protests in Charlotte and around the world surrounding the brutal police killing of George Floyd in Minneapolis.
Franklin’s death divided the city. District Attorney Spencer Merriweather declined to prosecute Kerl, saying 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.
Mullen’s ruling hinged in part on the Supreme Court’s decision in a long-ago Charlotte case that still largely sets the legal bar on police use of force. The Graham v. Connor decision allows officers to use deadly force if they have a reasonable fear of imminent danger to themselves or others.
Mullin also cited the increasingly controversial legal principle of “qualified immunity,” which shields police from civil liabilities for any violations — if the officers “reasonably” believed they were following clearly established law when the violations occurred.
“The upshot ... is that qualified immunity when police officers make reasonable mistakes in the conduct of their official duties,” Mullen wrote. “This is true even when police officers shoot and kill individual who retrospectively posed no threat to the officers of anyone else.”
Graham said the volatile situation outside the Burger King was predicated on Kerl’s split-second decision sizing up the threat Franklin posed to her, a fellow officer and the general public.
He said she was wrong but reasonable.
“After reasonably (but mistakenly) perceiving a deadly threat, Kerl fired two shots killing Franklin,” Mullen wrote. “Viewed in the light most favorable to Franklin’s mother, Kerl’s use of force did not amount to a constitutional violation.”
This story was originally published November 19, 2021 at 3:48 PM with the headline "Judge throws out lawsuit against Charlotte, officer in 2019 Danquirs Franklin shooting."
