Appeals court hears arguments in a pair of CMPD shootings that left two men dead
The fate of the lawsuits in two of Charlotte’s police shootings is in the hands of the second highest court in the country.
The U.S. Court of Appeals heard arguments in both cases Tuesday and Wednesday.
Two panels of three federal judges will determine whether the Charlotte-Mecklenburg Police officers were justified in shooting two armed men under the country’s qualified immunity doctrine. Qualified immunity protects police officers who use deadly force if they perceive a threat during their official duties.
In one of the shootings that occurred in 2019, police officers shot and killed Danquirs Franklin who had a gun inside of a car in the parking lot of a Burger King. Franklin appeared to be complying with the officers’ repeated shouted orders to drop his gun when they shot and killed him, The Charlotte Observer previously reported.
In the other case, police shot and killed Ruben Galindo, a mentally ill man, who called police to surrender a gun in 2017.
The Court of Appeals will determine whether 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 and Guerra killed Galindo before, the Observer previously reported.
Luke Largess, the Charlotte attorney who represented the victims’ families, argued that the two men did not pose enough of a threat to meet the objective reasonableness standard. He asked that the cases be sent to a jury to hear the families’ concerns.
Objective reasonableness allows police to use deadly force if they “reasonably” believe they or others face an imminent threat of death or serious injury.
Lori Keeton, Charlotte attorney for the city and both officers, argued that the lower courts were correct in their decisions. She argued that officers have to make split-second decisions in their jobs, and said both officers perceived deadly threats in areas where civilians could also have been injured.
It may be months before the appeals court rules on either case.
Here are some of the arguments from the two hearings.
The Danquirs Franklin case
In his last hours, Franklin had taken a gun into 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, the Observer had reported.
When police arrived Franklin had visibly calmed down and was crouched next to a car talking and praying with an employee of the Burger King.
Officers repeatedly told Franklin to drop his gun and he appeared to be complying when Kerl shot and killed him, according to body camera footage. Among the last words Franklin said to police: “You told me to…”
The Citizens Review Board, which was created to hear citizen complaints against police and to make policy recommendations, said police were not justified in shooting Franklin. This was the first time the CRB ruled against police and in favor of a citizen.
The city manager and police chief both overruled their board’s decision. Franklin’s mother, Deborah Franklin, sued the city and the suit was struck down by a lower court.
The three-judge panel that will determine what happens next is made up of Chief Judge Roger Gregory, Harvie Wilkinson, and Virginia Judge John Gibney.
On Tuesday, Largess argued that Franklin was complying with Kerl’s order when she shot him. She ordered him to put the gun down, and he was taking it out of his clothing to do so when he was shot.
Largess said if the case is put before a jury, they would be able to see the body camera footage, and the findings of the review board, and could determine that there was no immediate threat to Kerl.
He also argued that Kerl violated CMPD policy in her commands to Franklin, a fact he said was supported by CMPD’s decision to retrain her, and that this made the city liable for Franklin’s death.
Kerl seems to have violated city policy, one of the judges responded, because she told Franklin to drop his gun rather than to raise his hands. This requires him to reach inside his clothing for the gun. But, the judge said he is unsure how the city can be liable for this given that it disciplined Kerl, who was placed on desk duty and required to repeat some training.
Keeton, the city attorney, argued that the lower courts ruled properly in determining that Kerl acted reasonably because she perceived an “imminent threat of serious harm.”
“Did you look at the video?” One judge asked 17 seconds into her argument. “How can you make that conclusion?”
Keeton said Franklin pointed the gun at officers and was in a public place where others could be hurt. The judge said at the time of the shooting, Franklin was not pointing the weapon at Kerl.
The Ruben Galindo case
Before Galindo was shot, he frantically called 911 and said he wanted to surrender an unloaded gun. Galindo was a native Spanish speaker, drunk and appeared to be suffering from mental illness, the Observer previously reported
Galindo was told by dispatchers in Spanish to leave the gun inside of his house but did not. He exited, officers told him “manos,” which means hands in Spanish, and told him to “drop the gun” in English. Galindo raised his arms before eventually pulling out the gun, then officers shot him, the Observer previously reported.
The three judges on the panel for Galindo are Robert King, Julius Richardson and Senior Judge Barbara Keenan.
Largess argued that the officers involved in Galindos’ shooting should have waited for a Spanish speaking officer to assist them. And, he said the officer’s body camera footage shows Galindo’s hands were in the air when he was shot and holding the gun upside down.
Keeton argued that officers frequently have to make split-second decisions to protect the public. She said there were 200 to 400 other people at the apartment complex, and officers did what they thought was necessary at that moment.
She said that because of this, they should be protected through qualified immunity.
What comes next
The ruling of the appeals court will likely be the final decision in both Franklin and Galindo’s cases unless they are sent back to the trial court for additional proceedings by the panel of judges.
The losing party will also have the option to appeal the case to the U.S. Supreme Court. The Supreme Court would then decide whether it will hear the case.
