This Case Demonstrates How Old White Men Judges Continue To Use Qualified Immunity To Protect Murderous Cops

The fed­er­al law­suit over the con­tro­ver­sial 2019 police killing of Danquirs Franklin out­side a Burger King in west Charlotte may be heard by a jury after all. In a pow­er­ful and unan­i­mous rever­sal Tuesday, three judges from the U.S. Fourth Circuit Court of Appeals over­turned a low­er court deci­sion in Charlotte last year that grant­ed immu­ni­ty to Wende Kerl, the Charlotte-Mecklenburg offi­cer who fatal­ly shot Franklin. In his November 2022 deci­sion to dis­miss the com­plaint filed by Franklin’s moth­er, Deborah, Senior U.S. District Judge Graham Mullen said Kerl like­ly made a mis­take when she fatal­ly shot Franklin on March 25, 2019. “But because a court must not judge (police actions) with the ‘20÷20 vision of hind­sight,’ the ques­tion is whether Officer Kerl’s mis­take in shoot­ing Franklin was rea­son­able. The answer is yes,” Mullen wrote.

Likewise, the appeals court cit­ed Kerl for errors in how she and a fel­low offi­cer respond­ed to the call at the Burger King four years ago. Unlike Mullen, how­ev­er, the three judges from the country’s sec­ond-high­est court said those errors were so seri­ous that they dis­qual­i­fied Kerl from receiv­ing the qual­i­fied immu­ni­ty that Mullen had grant­ed.“It is not lost on us that we issue this deci­sion from the calm of a cour­t­house,” Chief Judge Roger Gregory wrote. “In mak­ing our deci­sion, we have had the oppor­tu­ni­ty to replay the unfor­tu­nate events of that March 2019 morn­ing. Unlike us, Officer Kerl could not press pause or rewind before deter­min­ing whether Franklin posed an immi­nent threat. “Still, we remain res­olute that qual­i­fied immu­ni­ty is not appro­pri­ate for the dis­po­si­tion of this case. The offi­cers rushed head­long onto a scene that had sub­sided, estab­lished no dia­logue, and shout­ed at Franklin loud­ly enough that they did not hear him try to com­mu­ni­cate back.

“In their zeal to dis­arm Franklin, it hard­ly occurred to the offi­cers that their com­mands defied real­i­ty. As a result, Franklin faced a catch-22: obey and risk death or dis­obey and risk death. “These facts enti­tle a jury of com­mu­ni­ty mem­bers to decide whether Officer Kerl shot Franklin unlaw­ful­ly.” Deborah Franklin’s attor­ney, Luke Largess of Charlotte, wel­comed the rul­ing. “We are very grate­ful for the deci­sion and hope we can get the mat­ter resolved or have a tri­al if we can­not,” he said in an email to The Charlotte Observer. Lori Keeton, who rep­re­sents Kerl, did not imme­di­ate­ly respond Tuesday to an email seek­ing com­ment. While the opin­ion upheld Mullen’s deci­sion to throw out one of Deborah Franklin’s claims against the City of Charlotte, it restored the claims against the city for neg­li­gence and wrong­ful death. Lawrence Coley, a spokesman for the City of Charlotte, told the Observer in an email that the city does not pub­licly com­ment on pend­ing legal mat­ters. More sig­nif­i­cant­ly, the appel­late pan­el found that “a rea­son­able jury could con­clude that Franklin did not pose an immi­nent threat to the offi­cers or any­one else. “Under those cir­cum­stances, we con­clude that Officer Kerl vio­lat­ed the Fourth Amendment.”

Qualified immunity

The appeals court deci­sion reopens one of Charlotte’s most con­tro­ver­sial police shoot­ings. It also returns the city to a nation­wide debate over the broad court pro­tec­tions afford­ed police use of dead­ly force. By law — and based large­ly on a Supreme Court rul­ing in a Charlotte case — police can use their firearms when they face a “rea­son­able” threat of death or seri­ous injury, a high­ly sub­jec­tive stan­dard at times. In August, for one exam­ple, the Cabarrus County District Attorney’s Office declined to pros­e­cute a for­mer Concord police offi­cer, find­ing that Timothy Larson act­ed rea­son­ably and with­in the law when he shot an unarmed man behind the wheel of Larson’s patrol vehi­cle four times in February 2022. Larson called his depart­ment to report the inci­dent, then opened fire again. Nonetheless, the appeals court’s deci­sion Tuesday placed lim­its on the use of “qual­i­fied immu­ni­ty,” a legal prin­ci­ple that grants police and oth­er gov­ern­ment offi­cials immu­ni­ty from civ­il suits unless the com­plaints can show that the offi­cials vio­lat­ed “clear­ly estab­lished statu­to­ry or con­sti­tu­tion­al rights of which a rea­son­able per­son would have known.”

Supporters say the prin­ci­ple rec­og­nizes the volatile, life-or-death nature of police work. Critics con­tend that some courts have used qual­i­fied immu­ni­ty as an over­ly broad shield against police law­suits. While he joined the deci­sion to revive the Franklin law­suit, Fourth Circuit Judge Harvey Wilkinson, a con­ser­v­a­tive legal icon, also vouched for qual­i­fied immu­ni­ty, describ­ing it as a “ten­able com­pro­mise” between the “reac­tive” dynam­ics of police work vs. the delib­er­a­tions of the courts. “The chance to delib­er­ate, though essen­tial, brings with it the temp­ta­tion to sec­ond-guess,” Wilkinson wrote in his con­cur­ring opin­ion. “Qualified Immunity places a brake upon the judg­ment that days and hours may impose upon min­utes and sec­onds, thus assur­ing that the dif­fer­ent rhythms of the cham­bers and the street may be fruit­ful­ly rec­on­ciled.” The Franklin case was one of three law­suits aris­ing from con­tro­ver­sial police shoot­ings that were dis­missed by Charlotte fed­er­al judges in the past year before they could be heard by a jury. In the oth­er two law­suits, the judges ruled that police offi­cers act­ed rea­son­ably in fatal­ly shoot­ing Ruben Galindo of Charlotte and wound­ing Timothy Caraway of Pineville. Both cas­es have been appealed to the Fourth Circuit in Richmond, Va.

‘In a blink’

The Franklin shoot­ing divid­ed the city. District Attorney Spencer Merriweather declined to pros­e­cute Kerl, say­ing in August 2019 that 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. 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. 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 gen­er­al man­ag­er, who was sit­ting in his car as Franklin squat­ted near­by. 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, which was not exposed at the time. Kerl’s body cam­era video showed Franklin slow­ly pulling the gun from his jack­et, point­ing the bar­rel 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. In its rul­ing, the appel­late judges ruled that Kerl and Deal reignit­ed what had been a de-esca­lat­ing inci­dent. “Watching the events unfold, one can­not help notic­ing that the inten­si­ty of the sit­u­a­tion emanat­ed not from Franklin, but from the vol­ume and vig­or of the officer’s com­mands,” Gregory wrote. “Officer Kerl expect­ed to con­front a gun-wield­ing man threat­en­ing the pub­lic. Instead, she encoun­tered Danquirs Franklin, crouch­ing qui­et­ly and dis­turb­ing no one … Even so, for forty-three sec­onds the offi­cers shout­ed unremit­tent com­mands to drop a weapon no one could see. “As Franklin retrieved a firearm from inside his jack­et and it fell to the ground, Officer Kerl shot Franklin twice. “In a blink, Franklin was dead.”(from yahoo)