CMPD shooting is legally justified, some experts say, but raises ‘serious questions’

It could be months before authorities determine whether to criminally charge officers involved in a deadly shooting at a west Charlotte restaurant. But professors who study use-of-force interviewed by the Observer on Monday said that the available facts suggest the shooting was legally justified.

Still, several of those interviewed raised questions about whether police officers could have taken steps to avert bloodshed on March 25, the day Officer Wende Kerl killed 27-year-old Danquirs Franklin in the parking lot of a west Charlotte Burger King. Franklin had a gun when he was shot, and CMPD released body-worn camera footage from that confrontation on Monday.

Kerl and another officer instructed Franklin to put the gun down more than 15 times in the roughly 40 seconds before the shooting. Then, Franklin reached his right hand toward a pocket and pulled out a gun by the barrel. He did not appear to be pointing the gun in the moment before he was shot; instead, he appeared to be lowering it toward the ground, the video showed.

Some community activists say they believe the evidence shows that, in the moment before he was shot, Franklin was trying to comply with the police command to drop his gun.

Seth Stoughton, a former police officer who is a professor at the University of South Carolina School of Law, said he believes the video “raises some serious questions about the officers’ tactics.”

Well-trained officers know they should use distance and cover to reduce the potential threat from armed suspects, Stoughton said.

“In this case, one of the officers was standing less than a car-length away from an armed subject with nothing but air between them for more than 30 seconds,” he wrote in an email to the Observer.

When officers are in safer positions, they have more time to assess situations and make decisions, Stoughton said.

“If, for example, the officers had taken positions of relative safety, they might have been more comfortable waiting to see if Mr. Franklin was going to put the gun on the ground the way that they had commanded him to, rather than shooting him at the moment they did,” Stoughton wrote.

Other experts weigh in

Eugene O’Donnell, a former police officer and current professor at the John Jay School of Criminal Justice in New York City, agreed that the officer who fired was in a “totally exposed” position. But, he said, the officers might not have felt they had the luxury of taking cover because they might have had reason to believe there was an imminent danger to others.

Police responded to the Burger King after two women separately called to say they saw an armed man there. One of them told a police dispatcher he was pointing his gun at employees.

By law, police officers can use deadly force if they have reason to believe that they or others face an imminent threat of death or serious bodily harm.

Emanuel Kapelsohn, a firearms and police use-of-force instructor from Pennsylvania, said that it’s usually impossible to tell whether a police shooting was justified simply by watching a few seconds of video. But based on the video and the facts so far, he said, “I think there’s a very strong likelihood that it was legally justified.”

Police knew the suspect had gone to a public place brandishing a gun, Kapelsohn said. And they knew he was not complying with their orders.

“The officers command him again and again and again to drop his gun,” he said.

But Franklin did not immediately drop the gun, the video showed.

“All you have to do is open your hand and let gravity take over,” Kapelsohn said. “That’s all you need to do to get a gun on the ground. Instead he holds the gun between him and the man in the car.”

If the suspect had shot the man in the car, he said, “all of us would be saying, ‘Why didn’t the officers save that man?’ ”

Kenneth Williams, a law professor at South Texas College of Law who has studied and written about police uses of force, agreed that the video and initial facts suggest that prosecutors would have difficulty proving that Kerl violated the law.

“Based on what I’ve seen, my opinion is that this was a justified shooting,” he said.

O’Donnell was more definite: “I don’t think there’s any doubt that (the shooting) is legally justified.”

Two others — Stoughton and William Terrill, a professor in the School of Criminology & Criminal Justice at Arizona State University — said they did not have enough information to assess whether the shooting was justified.

“Leaning on the justified side,” Terrill wrote in an email to the Observer. “There was a person in the passenger seat of car within deadly force range (few feet at most) and a suspect with an apparent firearm not responding to multiple police verbal commands.”

Stoughton said Kerl’s actions raised another question: Did the officer put others at risk by shooting toward the restaurant?

“The officers are aiming at Mr. Franklin, but there was the very real possibility that their bullets would have gone past (or through) him into the Burger King behind him,” he wrote.

CMPD expects to present its facts on the case to the Mecklenburg District Attorney’s office within two weeks. The district attorney’s office will then assess whether officers’ actions merit criminal charges. Kerl will remain on administrative assignment until that time.

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