Lawsuit filed in Danquirs Franklin police shooting. Will protests influence jurors?
Backlit by a worldwide outcry over police violence toward minorities, a new lawsuit accuses a Charlotte-Mecklenburg officer of needlessly escalating a 2019 standoff before she fatally shot Danquirs Franklin.
The federal complaint, filed Thursday by Deborah Franklin, the dead man’s mother, alleges that veteran Charlotte-Mecklenburg police Officer Wende Kerl panicked, violated her training and “shocked” the other officer on hand when she opened fire on Franklin outside a Burger King on Beatties Ford Road.
The filing follows two weeks of protests in Charlotte and around the world over the police killing of George Floyd. The N.C. native died May 25 after a Minneapolis police officer knelt on his neck for almost nine minutes. Floyd was black. The police officer, who was fired and charged with second-degree murder, is white.
Charlotte attorney Luke Largess, who is representing Franklin’s estate, said he filed the complaint after Charlotte City Manager Marcus Jones rejected the Citizen Review Board’s unanimous recommendation that the Franklin shooting was unjustified, a decision that preceded Floyd’s death.
But he acknowledged that the timing, while coincidental, is “powerful, too.”
“I think the public understanding of these cases is different now than it has been in a long time,” he said. “There’s been a dramatic shift since Michael Brown (a Ferguson, Mo., teenager shot and killed by a police officer in 2014) with the public recognizing a broader problem with these deaths.”
The Franklin case follows earlier civil complaints against CMPD officers and the city of Charlotte surrounding the controversial police killings of Keith Lamont Scott and Ruben Galindo. Franklin and Scott were black; Galindo, Latino.
All three were armed at the time of their deaths, police say. Franklin, according to video and the report by District Attorney Spencer Merriwether, appeared to be complying with police orders to lay down his weapon when Kerl shot him.
Kerl is white. Scott was shot by a black officer. Two white policemen shot and killed Galindo, who was carrying an empty gun with his arms raised at the time.
The Mecklenburg District Attorney Office declined to bring criminal charges against police in any of the cases, saying the shootings were justified under existing law.
But now all three incidents will have their day in court, and they will be analyzed by jurors against the backdrop of the Floyd protests, which have revealed widespread public support across the country for police reforms.
Almost 70 percent of Americans believe Floyd’s death indicates a systemic problem on how police treat minorities.
Four years ago in Charlotte, Scott’s killing set off days of emotional and sometimes violent protests. The trial of his family’s lawsuit against the city and police was scheduled to begin this month but has been delayed due to a statewide shutdown of the state courts over the COVID-19 pandemic.
Charles Monnett, the Scotts’ attorney, said he will push for the earliest trial date possible because he believes the outrage over Floyd’s death — as well as other officer behavior captured on video during protests in a variety of cities — has eroded police standing in court.
“Regardless of what the legal standards are, you are going to see jurors more willing to question the police officer’s version of events,” Monnett said.
“You know how it works in court: Police have one version of events, victims have another, police always win. In essence, police have managed to erode their credibility in court with a continuous series of incidents where the police say one thing and the video shows another.”
In a May 29 email to the attorneys representing the city and police in the Scott case, Monnett said the converging anger in Charlotte about the killings of both Scott and Floyd begs for the city to avoid a trial.
“I would think this would be an opportune time for the city to send a message to our African-American community that it takes its concerns seriously (with) the issue of police-community relations,” Monnett wrote.
Asked for a response, CMPD attorney Mark Newbold said Thursday, “I believe a jury should hear the case.”
As to whether the upcoming shooting lawsuit trials will be influenced by the Floyd movement, Newbold said, “I believe in the jury system. I cannot predict what a jury will do, but I have always respected a jury’s verdict.”
Charlotte City Attorney Patrick Baker did not respond to an Observer email Thursday seeking comment.
‘Where the facts and the law lead’
On-duty police in America fatally shoot about 1,000 people a year. Criminal prosecutions are rare, says Phil Stinson, a criminologist at the Bowling Green University, an a nationally recognized expert on police use of force.
Since 2005, 110 officers have been charged with murder or manslaughter; 45 have been convicted.
Part of that is the long-established deference by courts to the life-and-death aspects of a police officer’s job. Under the Supreme Court ruling, police can use deadly force when they have a “reasonable” fear of death or serious injury to themselves, their fellow officers or the public.
In civil cases, the courts must judge a police officer’s behavior on the basis of how another reasonable officer would react under the same circumstances.
The doctrine of “qualified immunity” further shields police and other government officials from liability for their official actions unless they violate “clearly established” federal law.
Due in part to legal precedents, Stinson says high-profile, police killings in Ferguson, Baltimore and New York have not led to a change in jury behavior. He said he expects Floyd’s death also to have limited impact.
District Attorney Spencer Merriweather, who ruled the Franklin shooting as legally justified, said the law “sets a high bar” in bringing charges against police officers.
In announcing his decision not to charge Kerl, Merriweather said his office could not prove in court that she and Burger King manager Terry Grier did not have a reasonable fear for their safety, given some of Franklin’s behavior and the fact that he was armed.
Merriweather, Mecklenburg County’s first African American district attorney, also said that Floyd’s death, which he described as “a murder,” won’t influence his decisions on future police shootings.
“People losing their lives is and will always be gut-wrenching,” he said. “But decisions must always go where the facts and the law lead.”
Meanwhile, protesters in a number of cities have called for an end to qualified immunity in police shootings.
This week, the 4th Circuit Court of Appeals threw out a lower court decision to grant qualified immunity to five police officers who shot Wayne Jones in 2013.
Jones, a homeless black man in Martinsburg, W.Va., who carried a knife in his sleeve, was stopped by police for not walking on the sidewalk. Over the next minutes, Jones was kicked, punched, placed in a choke hold, tased four times and eventually killed when five police officers fired 22 times, court documents say.
In his opinion, Chief Judge James Gregory of Richmond, a one-time law partner of former Attorney General Eric Holder, cited both Michael Brown and Floyd.
“Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives,” he wrote. “Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis.
”This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.”
At the Burger King
If Franklin’s case goes to trial, the verdict may swing on which depiction of Franklin the jury believes.
Both the lawsuit and Merriweather agree that on March 25, 2019, Franklin went to the Burger King armed, erratic and in a rage.
The lawsuit says Franklin, 27, was searching for the new boyfriend of the mother of his three children who worked alongside her at the restaurant. That morning, one of kids had told Franklin that the boyfriend had come to the Franklin home and had sex with Franklin’s former partner in Franklin’s bed, the lawsuit says.
At the 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 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 Grier, 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 angled his car, hid behind the driver’s door and yelled at Franklin to show his hands.
“Contrary to common sense and common training,” Kerl walked in front of Deal’s car and left herself fully exposed as she pointed her gun at Franklin, the lawsuit says.
Deal, who the lawsuit says was “shocked at Kerl’s actions and how they escalated the situation,” moved up to give her cover.
Both officers yelled repeatedly for Franklin to drop his weapon. Grier urged him not to something “stupid,” the lawsuit says.
Published reports say 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 disbelief, the lawsuit said. “You told me to,” he said.
This story was originally published June 12, 2020 at 10:51 AM.
