Were cops ‘justified’ when they killed two Charlotte men? Federal appeals court to decide
Federal judges tossed lawsuits involving two of Charlotte’s most-debated police shootings of the past five years before they could be heard by juries.
Now, the deaths of Danquirs Franklin and Ruben Galindo at the hands of the Charlotte-Mecklenburg police will receive new airings by the U.S. Fourth Circuit Court of Appeals, the second highest court in the land.
At issue: Whether the lower court judges ruled correctly last year in finding that CMPD officers Wende Kerl and David Guerra were legally justified when Kerl fatally shot Franklin in 2019 and Guerra killed Galindo two years before.
Both sides also will argue whether previous Fourth Circuit rulings — including one in a North Carolina case — have narrowed the “objective reasonableness” standard, which allows police to use lethal force if they “reasonably” believe they or others face an imminent threat of death or serious injury.
Luke Largess, the Charlotte attorney who represents the dead men’s families, will argue that neither Franklin nor Galindo posed the level of threat necessary to justify the officers’ use of deadly force. Both men died, he says, while trying to surrender or comply with police orders.
“These deaths left both families grieving to this day,” Largess told The Charlotte Observer on Friday. “We believe Fourth Circuit precedent does not protect an officer who shoots a person for complying with the officer’s commands, or who shoots someone with both hands up in surrender. We hope the court will agree.”
Lori Keeton, the Charlotte attorney for the city along with Guerra and Kerl, argues in her court filings that U.S. District Judges Robert Conrad and Graham Mullen, both of Charlotte, correctly followed the law that rightfully gives police officers wide berth in making split-second, life-and-death decisions.
Keeton says Guerra and Kerl encountered dangerous and unpredictable circumstances involving armed men who were either drunk and delusional (Galindo) or emotionally volatile (Franklin).
During 911 calls the night of his death, the drunken Galindo referred to himself in Spanish as “the star god” and ignored at least six requests from dispatchers that he leave the gun he wanted to turn over to police inside his northeast Charlotte home.
In his last hours, Franklin had angrily stormed a Burger King restaurant in west Charlotte searching for a romantic rival. He later chased the rival out of the building with his gun drawn.
“It is our sincere hope that the Fourth Circuit will echo the sound reasoning of Judges Conrad and Mullen and uphold the dismissal of the civil lawsuits against officers Guerra and Kerl,” Keeton said in a statement to the Observer.
“These heroic officers were unfortunately placed in situations where they had to use deadly force to protect themselves, their fellow officers and the public.”
In both cases, the Mecklenburg County District Attorney’s Office declined to bring criminal charges against the officers.
Rulings from the Court of Appeals are likely to take months.
‘You told me to ...’
In the Franklin case, which will be heard Tuesday morning by a three-judge appellate panel, Largess will focus on the behavior of Kerl, who shot Franklin outside a Burger King on March 25, 2019. In his filings, Largess says the officer needlessly escalated tensions and shouted faulty commands before opening fire.
While angry and threatening earlier in the morning, Franklin appeared to have calmed down by the time Kerl and fellow Officer Larry Deal arrived. Franklin was crouched by a car in the Burger King parking lot, talking and praying with the restaurant’s assistant manager, Timothy Grier, Largess claims.
Franklin also appeared to be complying with the officers’ repeated shouted orders to drop his gun. He pulled the weapon from the pocket of his jacket with the barrel facing him, the handle toward Grier, and dropped it to the ground moments before Kerl fired two shots, Largess says in his brief.
“You told me to ...” the mortally wounded Franklin said after being struck.
In his Nov. 19, 2021 ruling, Mullen said Franklin did not need to die, but that Kerl could not be held legally accountable for his death.
“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.”
In his filings to the Fourth Circuit, Largess argues that Kerl’s behavior at the scene and afterward was anything but.
Kerl, he said, escalated tensions when they appeared to be calming down then justified her actions with a series of claims that were contradicted by police videos.
She initially told CMPD investigators that she had shot Franklin when he pulled out his gun with a shooter’s grip, refused multiple orders to drop the weapon, then began to turn his body toward her. The video showed that was not accurate, Largess claims.
She also was asked by investigators if she considered that Franklin was only following her commands when he pulled out his gun.
“Incredibly, Kerl answered that Franklin should not have reached for the gun – should not have listened to her commands of the prior 30 seconds,” Largess said in his filing. “She then agreed that Franklin had never pointed the gun at her.”
In her written response, Keeton says the law remains on Kerl’s side, and that the threat Franklin posed to Kerl, another officer and patrons and staff of the restaurant was real.
According to Keeton, a later comment from the restaurant manager who had been talking and praying with Franklin — “I didn’t know if I was getting ready to get shot or whatever” — illustrates the unpredictability Kerl faced.
Keeton said in her filings that she is not aware of any case in the Fourth Circuit, involving anywhere near the volatility of events that confronted Kerl, in which an officer is “not allowed to defend herself, her fellow officers and others with deadly force.”
“Ruben, manos!”
In his Sept. 30 order dismissing the lawsuit from Galindo’s death, Judge Conrad, a former federal prosecutor, said the “horrendous set of facts” in the case justified the use of deadly force.
“Galindo’s series of poor decisions — drinking to excess while possessing and carrying a .380 semi-automatic handgun, executing a bad plan of surrender, and exhibiting a complete inability or unwillingness to heed safety suggestions or law enforcement commands — all combined to create ‘the tense, uncertain and rapidly evolving’ circumstances which required split second officer decision-making of a kind that case law ... instructs district courts not to second guess.”
The appeals court will review Conrad’s order on Wednesday morning.
Guerra shot Galindo on Sept. 6, 2017, during a six-second confrontation outside the apartment where Galindo and his family had been staying.
Galindo was drunk that night. During erratic 911 calls, he said he wanted to turn in a gun, which he said was unloaded, but ignored the dispatcher’s repeated requests that he leave the weapon inside.
The confrontation took place in a high crime area and on the grounds of an apartment complex of up to 400 residents, Keeton said in her court filing. There was only one way in to Galindo’s apartment, she says, raising the officers’ fears they could be walking into an ambush. They did not wait for a Spanish-speaking officer who had been called to the scene, fearing for the life of at least one other person inside the apartment, Keeton says.
Galindo appeared at the door when police called his name.
As Guerra shouted “manos” — which is Spanish for “hands” — Galindo raised his arms before eventually pulling out the gun, which was indeed unloaded. Seconds later, Guerra opened fire.
As with the Franklin case, Largess argues that Galindo’s behavior, though erratic, never presented an imminent threat to Guerra and the three other responding officers, and that he was killed after complying with the only command — Manos! — he understood.
Largess also argues that Conrad gave too little weight to statements from other officers at the scene that Galindo held his gun upside down and pinched between his fingers, not in a shooting position. (Guerra told police investigators that Galindo held the pistol as if he were preparing to shoot.)
Another officer standing near Guerra said he was surprised Guerra opened fire, according to Largess’ filing. At the time, Guerra and the other police had taken protected positions that minimized the level of danger, Largess argues.
In his ruling, Conrad said none of that mattered.
“A reasonable officer in Guerra’s position did not have to wait (until a gun was pointed at him); did not have to trust a man believed to be delusional, and possibly homicidal or suicidal; a man who had refused every law enforcement directive aimed at keeping him and others safe,” the judge wrote.
Keeton put it this way: “Even if Plaintiff convinces this Court that Officer Guerra was mistaken regarding Mr. Galindo’s intentions, Officer Guerra is still entitled to summary judgment because he acted as an objectively reasonable law enforcement officer would have under the circumstances.
“He does not have to be right — he just has to be reasonable.”
This story was originally published December 6, 2022 at 6:00 AM with the headline "Were cops ‘justified’ when they killed two Charlotte men? Federal appeals court to decide."
